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Guberina v Croatia

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Last updated 21st July 2022.

The Strasbourg court held that the failure to grant the applicant a tax exemption was disability discrimination contrary to Article 14 European Convention of Human Rights. Tax authorities had failed to take account of the specific needs of the applicant’s profoundly disabled child when they refused to grant an exemption. The court said that very weighty reasons were needed to justify a State restricting someone’s fundamental rights on grounds of disability.

2016, European Court of Human Rights (ECtHR), Strasbourg. Full decision www.bailii.org/eu/cases/ECHR/2016/287.html


The applicant was the parent of a son with multiple and profound disabilities. The family lived in a flat with no lift, so it was very difficult to take the son out of the flat. The family therefore bought a new house. After doing so the applicant applied for an exemption from property transfer tax. This exemption was for a buyer who previously did not have a flat or house which met their housing needs. The authorities refused the exemption, saying the previous flat did meet their needs.

Held by ECtHR: The refusal of the exemption was discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR).

ECtHR decision

Weighty reasons for disability discrimination

As regards whether discrimination is justified the court said that disabled people are one of the vulnerable groups where the State has less discretion to restrict their fundamental rights, and should have very weighty reasons for doing so. The court does also say that the State’s discretion (the “margin of appreciation”) will vary depending on the circumstances and tax is normally one of the areas where the State would normally have a wide discretion. In more detail:

72.  The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. The same is true with regard to the necessity to treat groups differently in order to correct “factual inequalities between them” … .

73.  On the one hand, wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example … . This also includes measures in the area of taxation. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality … . On the other hand, if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. The Court has already identified a number of such vulnerable groups that suffered different treatment on account of their characteristic or status, including disability (see Glor … § 84; Alajos Kiss v. Hungary … § 42 …; and Kiyutin v. Russia … § 63 …). … In any case, however, irrespective of the scope of the State’s margin of appreciation the final decision as to the observance of the Convention’s requirements rests with the Court … . [Emphasis by me]

Within ambit of the Convention

To come within Article 14, the case must fall within the scope of another Convention right. The parties here did not dispute that as a taxation case it fell within the scope of Article 1 of Protocol 1 (A1P1) on possession of property [75].

Associative discrimiation

Disability was clearly an “other status” within Article 14 [76]. 

Here the applicant’s child rather than the applicant himself had the disability. However the words “other status” had generally been given a wide meaning in the court’s case law, and their interpretation had not been limited to characteristics which are personal in the sense that they are innate or inherent. Article 14 of the Convention also covered instances where an individual is treated less favourably on the basis of another person’s status or protected characteristics. Therefore 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, was a form of disability-based discrimination covered by Article 14 of the Convention. [77-79]

[See Disability under Article 14 European Convention>‘Discrimination by association’ – if someone else has the disability.]

Difference in treatment

The court also held there was a difference of treatment between persons in relevantly similar positions, or a failure to treat differently persons in relevantly different situations. By seeking to replace the flat with a house adapted to the needs of his family, the applicant was in a comparable position to any other person who was replacing a flat or a house by buying another real property equipped with, in the words of the relevant domestic tax legislation, basic infrastructure and technical accommodation requirements. The domestic authorities failed to recognise the factual specificity of the applicant’s situation with regard to these. [80-87]

Justification in this case

The court held the discrimination was not justified. It was not a case where the domestic legislation left no room for an individual evaluation of his tax exemption request – the issue was that the manner in which the legislation was applied in practice failed to sufficiently accommodate the requirements of the specific aspects of his case. The court also rejected an argument that the exemption was refused because of his financial situation. [88-100]


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