A university in Turkey had not made adjustments to a building to make it accessible for a paraplegic student. The Human Rights court in Strasbourg held this was discrimination contrary to Article 14 of the European Convention of Human Rights. It said Article 14 includes an obligation to make reasonable adjustments (at least in education, but presumably more broadly). The offer of a personal assistant to help with mobility was not sufficient on the facts, given the importance of personal autonomy. There had been no individualised assessment of the claimant’s actual situation. The case is of interest both for the reasonable adjustment duty and on ‘personal autonomy’: below My comments.
European Court of Human Rights (ECtHR), 2018, Full judgment: http://hudoc.echr.coe.int/eng?i=001-180499
In 2005 a first-year mechanics student at the technical faculty of a university had an accident which left his lower limbs paralysed. He suspended his studies until he was recovered. He requested the faculty to adapt the university premises so he could resume his studies in the 2007-2008 academic year. The faculty said the work could not be carried out, at least in the short term.
The authorities offered him an assistant. However the claimant said this illustrated their ignorance of his personal situation and the implications of that situation. He said it would be degrading for him to be placed in a situation of dependence on a third person because of his disability, for example the constant presence and assistance of a third person would invade his privacy. Also being carried upstairs by another individual comprised a definite risk of his falling.
The situation improved in 2010 when the faculty was closed and replaced by a new faculty of technology in buildings which (reportedly) were disability-accessible. However the claimant argued there was unlawful discrimination claim contrary to Article 14 for the three academic years up to 2010.
Held by a majority of the ECtHR: there was unlawful discrimination in breach of Article 14 of the European Convention of Human Rights, read in conjunction with Article 2 of Protocol No. 1 (education).
Decision of ECtHR
The ECtHR said that in applying Article 2 of Protocol No. 1 (education), the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including UN Convention on the Rights of Persons with Disabilities (CRPD) (para 53 of the judgment).
The court summarised some of its previous judgments on the meaning of “discrimination under” Article 14 (para 54). Also, said the ECtHR, in applying Article 14 it must have regard to the changing conditions of international and European law and respond to any emerging consensus as to the standards to be achieved. The ECtHR noted the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, and emphasised that international instruments “have recognised inclusive education as the most appropriate means of guaranteeing [those] fundamental principles, as such education is geared to promoting equal opportunities for all, including persons with disabilities” (Çam v Turkey § 64), and the references therein). Inclusive education “indubitably forms part of the States’ international responsibility” (para 55).
The Turkish government had cited first and foremost lack of financial resources for the inability to make adjustments in the short term. The ECtHR said national authorities have a “margin of appreciation”, but the ECtHR could not accept the shelving of accessibility of the premises for the claimant pending the availability of all the funds required to complete all the major development work laid down in legislation (para 57-58).
The ECtHR said the Convention is intended to safeguard concrete and effective rights. Again the ECtHR must take account of developments in international and European law (para 59). It continued:
60. The Court therefore agrees with the Government… that Article 14 of the Convention must indeed be read in the light of the requirements of the aforementioned texts, particularly the CRPD, with respect to the “reasonable accommodation – 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 secure their “enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 CRPD…). Such accommodation is geared to correcting factual inequalities (…), and discrimination on grounds of disability “includes all forms of discrimination, including denial of reasonable accommodation” (…and see, mutatis mutandis, Çam…).
61. Clearly, it is not the Court’s task to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities; the national authorities are much better placed than it to do so (see, for example, Çam, cited above, § 66).
It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored.
Reasonable adjustments in this case: personal autonomy
The Turkish government had offered a support person to help the claimant move around the three-storey faculty building (para 62 and 65).
The ECtHR reiterated that “the ability of persons with disabilities to live autonomously with a fully-developed sense of dignity and self-respect is of cardinal importance and is central to the CRPD (Articles 3 (a), 9 § 1, 20 in limine and 24 § 1 (a) …), and is also one of the considerations highlighted in the recommendations adopted by the Council of Europe.” Similarly, the ECtHR had ruled that the very essence of the Convention is respect for human dignity and human freedom, which necessarily includes a person’s freedom to make his or her own choices (para 63).
International instruments did recognise the provision of forms of human aid as one measure to ensure personal mobility of disabled people. However, the solution offered by the administration in this case did not fit into this framework because there was nothing to convince the ECtHR that the support was offered after a genuine assessment of the claimant’s needs and sincere consideration of its potential effects on his security, dignity and autonomy (para 64).
Given that personal autonomy is an important principle underlying Article 8 of the Convention (private and family life), the offer of assistance to be provided by a support person, which was proposed by the faculty without any individualised assessment of the claimant’s actual situation could not have been deemed reasonable under Article 8 because it disregarded the claimant’s need to live as independently and autonomously as possible (para 65).
Approach of the Turkish court
The Administrative Court in Turkey should have considered the combination of all these aspects. It was “primarily incumbent on that court to enforce the rights in issue, verifying, in particular, whether the applicant’s educational needs and the authorities’ limited capacity for meeting them had been weighed against each other, that is to say whether a fair balance had been struck between the competing interests of the individual and of the community as a whole.”
However the Turkish court was silent on those aspects. The Administrative Court judges exempted the faculty from its duty to cater for the claimant on the sole ground that its building had been erected in 1988, before guidelines for disabled people had come into force. The Turkish court had pointed out that a person would be appointed to assist the claimant, but without explaining how such a solution would prove adequate. The court had not sought to identify the claimant’s real needs and the ways and means of meeting them, with a view to enabling him to resume his studies under conditions as similar as possible to those provided for other students, without imposing a disproportionate or undue burden on the authorities (para 67).
The Turkish court’s response lacked any consideration of the fair balance to be struck between the claimant’s interest in exercising his rights under Article 14 and any other competing interests to which the Administrative Court might have been giving precedence.
Therefore the Turkish government had failed to demonstrate that the national authorities, including in particular the academic authorities and the courts, reacted with the requisite diligence to ensure that the claimant could “continue to exercise his right to education on an equal footing with other students and, consequently, to strike a fair balance between the competing interests at stake.” Accordingly there was a violation of Article 14 read in conjunction with Article 2 of Protocol No. 1.
The ECtHR awarded EUR10,000 compensation for non-pecuniary damages under Article 41 (just satisfaction).
The ECtHR held there was a breach of Article 14 of the European Convention on Human rights. Discrimination is only unlawful under Article 14 if the situation is within the scope of another Convention right. Here it was within the scope of Article 2 of Protocol No. 1 (A2P1) which relates to education.
This case – along with Çam v Turkey – seems to confirm that discrimination under Article 14 includes an obligation to make reasonable adjustments, or “reasonable accommodation” as the ECtHR calls it. This is so at least in the field of education, to which both these cases relate. However the duty to make reasonable adjustments under Article 14 is likely to extend well beyond that. The ECtHR refers to the CRPD which includes denial of reasonable accommodation as a type of disability discrimination generally.
The ECtHR did make clear that it was not for the ECtHR to define the “reasonable accommodation” to be implemented – whereas under the Equality Act the UK courts will defence reasonable adjustments that should be made. However the domestic authorities should take “great care” with their choices.
Also the university should have made an “individualised assessment of the claimant’s actual situation”, including sincere consideration of the potential effects of the support on his security, dignity and autonomy. Similarly the Turkish court had not sought to identify the claimant’s real needs and ways to meet them, with a view to enabling him to resume his studies under conditions as similar as possible to those provided for other students, without imposing a disproportionate or undue burden on the authorities.
The importance of personal autonomy (above) was a major factor in the court deciding that a personal assistant was not an acceptable adjustment in this case – though it recognised that personal assistance may be a reasonable adjustment in appropriate cases.
This importance of personal autonomy may be helpful for stammering as for many other disabilities. It may not be reasonable to insist that a disabled person relies on someone else’s help to do something where a reasonable solution could enable them to do it independently. See eg Providing alternative ways to communicate>Do not say something can only be done by phone.
The ECtHR derived the importance of personal autonomy from both the CRPD and Article 8 of the Convention (private and family life).