European Court delivers landmark judgment in disability discrimination case

On 22 March 2016, the European Court of Human Rights delivered a significant judgment in the case Guberina v. Croatia, concerning the discriminatory application of legal provisions in the area of taxation. The applicant in the case was the father of a severely disabled child, who used to live on the third floor of an apartment building that was inaccessible, due to lacking an elevator. Considering how difficult access to the building was, the applicant and his family sold the flat and bought a house that was fully accessible. 

The applicant requested to be exempted from paying the tax normally applicable to the purchase of a new property. He relied on a legal provision in Croatian law that granted such exemptions to those who bought a new property in order to solve their “housing needs”, in the sense that they did not already own a property with “basic infrastructure” and that “satisfied hygiene and technical requirements.” The applicant argued that since his old flat was inaccessible, it did not satisfy his family’s “housing needs” and that accessibility was a feature of “basic infrastructure.” However, national authorities and courts decided that the old flat possessed all basic infrastructure features and summarily dismissed the applicant’s request, without considering his son’s particular circumstances.

To start with, the European Court of Human Rights addressed the question of whether the applicant could claim discrimination based on his son’s disability. The Court clarified, for the first time in its jurisprudence, that “the alleged discriminatory treatment of the applicant on account of the disability of his child, with whom he has close personal links and for whom he provides care, is a form of disability based discrimination covered by Article 14 of the Convention.”

The Court agreed with the applicant in that accessibility was an element of basic infrastructure. In doing so, it highlighted the importance of accessibility to people with disabilities as a key to unlocking access to other fundamental rights:

“[lack of accessibility] severely impaired [the applicant’s] son’s mobility and consequently threatened his personal development and the ability to reach his maximum potential, making it extremely difficult for him to fully participate in the community and children’s educative, cultural and social activities. The absence of a lift must have impeded the quality of living of the applicant’s family and in particular his son to a similar extent that an able-bodied person would experience by, for example, having a flat on the third floor of a residential building without appropriate access to it or by having an impaired access to the relevant public utilities.”

The Court held that the authorities interpreted the meaning of “basic infrastructure" too restrictively, failing to take into account the specific needs of the applicant and his family. This was all the more so as Croatia was a party to the Convention on the Rights of Persons with Disabilities (CRPD), and therefore Croatian authorities were under an obligation to take into consideration its principles, including “reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in all aspects of social life.” The Court concluded that there was a breach of Article 14 of the European Convention (prohibition of discrimination) together with Article 1 of its Protocol 1 (right to property).

The Court’s robust approach in Guberina is remarkable, considering its generally conservative position in relation to disability, as well as the fact that housing and taxation are generally seen as areas of privileged State competence. This is the first case in which the Court has affirmed the importance of accessibility in the lives of persons with disabilities, leading to a finding of a breach of the Convention. This is also one of the very few judgments containing a fully-fledged argumentation under Art. 14 of the Convention prohibiting discrimination, introducing concepts such as ‘discrimination by association’ and ‘indirect discrimination’ for the first time in a disability context.  Finally, the Court’s willingness to rely on the CRPD in order to interpret the States’ obligations under the European Convention is noteworthy. The message that this case sends is that state institutions should actively consider the implications of seemingly neutral legal provisions on the lives of people with disabilities and make the necessary changes accordingly, in order to ensure their social inclusion and avoid discrimination.

The judgment is available at this link.

Vesna Terhaj, a Croatian lawyer, and Constantin Cojocariu, a London-based Romanian lawyer, represented the applicant in his case before the Strasbourg court.