The ECtHR confirmed that Article 14 of the European Convention on Human Rights should be read in the light of the obligation to make reasonable accommodation. Also a specialist music college offering higher education fell within Article 14. A blind applicant had been rejected by the college with no attempt to consider reasonable adjustments, so there was a breach of Article 14.
European Court of Human Rights (ECtHR), 2016. Full judgment https://hudoc.echr.coe.int/eng?i=001-161149
Facts
A blind applicant for a music school passed the entrance exam but was rejected because of her blindness.
Held: her claim for discrimination under the European Convention of Human Rights succeeded.
ECtHR judgment
There was a breach of Article 14 of the European Convention on Human Rights.
The school was for specially gifted students, but the claimant had shown she was by passing the entrance examination.
The school had made no attempt to consider reasonable adjustments (below).
Applicability of Article 2 of Protocol 1 (A2P1): right to education
To be discrimination under Article 14 the case has to fall within the scope of another Convention right. At para 42-43 of its judgment the ECtHR held this case fell within the scope of A2P1 on education.
The ECtHR said the college held the status of an institution of higher education attached to the National Music Academy. A2P1 did not require States to set up or subsidise special education establishments, but “any State which does have such establishments has an obligation to provide effective access to them. In other words, access to educational institutions which exist at a given time is an integral part of the right set out in the first sentence of Article 2 of Protocol No. 1 … Moreover, that provision also applies to the primary, secondary and higher levels of education (see Leyla Şahin v. Turkey [HUDOC] ….”.
Article 14 includes reasonable accommodation
The ECtHR held that Article 14 of the European Convention on Human Rights should be read in the light of the obligation to make reasonable accommodation, or ‘reasonable adjustments’ as it is generally called in the UK. In more detail:
The ECtHR said that the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education are enshrined in many international texts. The international instruments also recognised inclusive education as the most appropriate means of guaranteeing those fundamental principles (para 64 of its judgment). Article 14 of the Convention “must be read in the light of the requirements of those texts regarding reasonable accommodation – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which persons with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the Convention on the Rights of Persons with Disabilities …). Such reasonable accommodation helps to correct factual inequalities which are unjustified and therefore amount to discrimination…” (para 65).
It was not the task of the ECtHR to define the resources to be implemented to meet the educational needs of children with disabilities (para 66). However “it is important for the States to be particularly careful in making their choices in this sphere, having regard to the impact of the latter on children with disabilities, whose particular vulnerability cannot be overlooked. It consequently considers that discrimination on grounds of disability also covers refusal to make reasonable accommodation” (para 67).
How this applied to the present case
In the present case the authorities at no stage attempted to identify the claimant’s needs or to explain how her blindness could have impeded her access to a musical education. Nor did they ever consider physical adaptations in order to meet any special educational needs arising from her blindness. Since 1976 the Music Academy had made no attempt to adapt its teaching methods to make them accessible to blind children.
The refusal to enrol the claimant was based solely on the fact that she was blind, and the authorities at no stage considered the possibility that reasonable accommodation might have enabled her to be educated in the Academy. Therefore there was unlawful discrimination contrary to Article 14 taken with A2P1.
