The ECtHR in Strasbourg rejected a claim by a wheelchair user that failure to make two cultural buildings in his municipality accessible was a breach of Article 14 of the European Convention on Human Rights. The ECtHR said this was an exceptional case where his lack of access to public buildings affected his life sufficiently to fall within the ambit of Article 8 (private life). Therefore Article 14 did apply. However given the state’s wide “margin of appreciation”, ie discretion, and what it had done towards making public buildings accessible (it had prioritised educational and sports facilities), the court could not say that the state of Iceland had done too little to make public buildings accessible.
2022. European Court of Human Rights (ECtHR). Full decision https://hudoc.echr.coe.int/eng?i=001-217436
Facts
The claimant was a wheelchair user. He challenged the lack of wheelchair access in two buildings housing arts and cultural centres run by his municipality.
Held by majority of ECtHR: The Article 14 claim was within the ambit of Article 8. However there had not been a discriminatory failure to accommodate the accessibility needs of people with disabilities, including the applicant.
Within the ambit of Article 8
To fall within Article 14, the alleged discrimination must relate to a matter falling within the “ambit” of one of the substantive articles of the Convention [40].
Did this case fall within the ambit of Article 8 (private and family life)? The ECtHR held yes it did. In the context of accessibility, the court had held “that Article 8 of the Convention comes into play only in exceptional cases, where the applicant’s lack of access to public buildings and buildings open to the public affects his or her life in such a way as to interfere with his or her right to personal development and right to establish and develop relationships with other human beings and the outside world…”. [42]
However the court distinguished other cases where it had held that lack of wheelchair access did not fall within the ambit of private life:
- The buildings here were owned and/or operated by and located in the claimant’s own municipality (whereas in Botta the claimant had sought access to a private beach where he was on holiday, distant from where he normally lived).
- The claimant had identified a small, clearly defined number of buildings where access was lacking and explained how the lack of access to each of those buildings has affected his life (whereas in Zehnalová and Zehna the claimant had sought access to 174 buildings and had not demonstrated a special link with her private life).
- Unlike Glaisen (below), the present case did not concern merely one of several similar, privately run cultural venues. [43-44]
One of the two buildings was the municipality’s “main arts and cultural centre”. It was not evident the claimant could access similar cultural and social events and services at other venues in his municipality, and he said the lack of access had hindered his participation in a substantial part of the cultural activities offered by his community. The other building was primarily aimed at children and teenagers, but was rented out for activities. The claimant said the lack of access had hindered him from attending birthday parties and other social events with his children. [44-45]
In the circumstances of this case, the court was satisfied that the matter at issue was liable to affect the claimant’s right to personal development and right to establish and develop relationships with other human beings and the outside world. Therefore it fell within the ambit of “private life” under Article, so Article 14 applied. [46]
…but no breach of duty to make reasonable accommodation
The ECtHR reiterated that in previous disability cases it had found that Article 14 must be read in the light of the requirements of the CRPD regarding “reasonable accommodation”, understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” (eg Çam, § 65, and Toplak and Mrak, § 114). The ECtHR added that “these considerations apply equally to the participation of people with disabilities in social and cultural life. It notes, in this regard, that Article 30 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to take part on an equal basis with others in cultural life…”. [59]
The ECtHR said the test to be applied in the present case was limited to examining whether the state made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, like the claimant, which, at the same time, did not impose “a disproportionate or undue burden” on the state. [60]
As to the scope of the state’s margin of appreciation, the ECtHR said that in the context of Article 8 a wide margin of appreciation should usually be afforded to the state as regards accessibility of public buildings, like in the field of economic or social strategy, but the court must respond, for example, to any emerging consensus as to the standards to be achieved. [58]
Taking account of the nature and limited scope of the court’s assessment, and the state’s wide margin of appreciation, the court was not convinced that the lack of access to the buildings amounted to a discriminatory failure by the state to take sufficient measures. Considerable efforts seemed to have been made in the municipality to improve accessibility of public buildings and buildings with public functions. The municipality had prioritised accessibility of educational and sports facilities, which was neither an arbitrary nor unreasonable strategy of prioritisation. Although not decisive for the assessment of this case, further accessibility improvements which had been made since demonstrated a general commitment to work towards the gradual realisation of universal access in line with international materials. The court thus accepted that in the circumstances of this case, imposing on the state a requirement under the Convention to put in place further measures would amount to imposing a “disproportionate or undue burden”. [63]
Accordingly the majority of judges decided there was no violation of Article 14 read in conjunction with Article 8 of the Convention. [64-65]
Dissenting judgment
One judge however considered that the state had not taken sufficient measures, so that there was a breach of Article 14.
For example one of the buildings was “extensively renovated” between 2006 and 2014, and no explanation was provided as to why disability access was not improved then. Furthermore, several years had passed since the claimant brought civil proceedings in 2015 challenging the lack of wheelchair access. Although the municipality gave priority to educational and sports facilities, there would have been enough time also to improve access to the public buildings housing arts and cultural centres. These could be described as similarly important; in Glaisen (below) the ECtHR did not rule out the possibility that the importance for the claimant (also a wheelchair user) of going to the cinema was not merely seeing a film he could instead have watched at home, but also involved exchanges with other people.
My comments
Comments: How far are social/cultural activities covered by Article 14?
This case and Glaisen below seem to indicate that the ECtHR takes quite a restrictive approach on how far general social and cultural activities are within the ambit of Article 8 of the European Convention on Human Rights, and so covered by the anti-discrimination provisions in Article 14.
Whilst this was a case on accessibility of buildings, it is possible the same approach would be applied to accessibility of social/cultural services in other ways, such as whether a person who stammers can get through on the telephone or contact them in some other way. (Education for example is different, see below).
Comments: State’s discretion as to what steps should be taken
Also, even though the present case was within the ambit of Article 8, the ECtHR held that given the state’s wide “margin of appreciation” – broadly the state’s discretion as to how it should allocate its limited resources – the court could not say that the state of Iceland had done too little to make public buildings accessible. However the dissenting judgment perhaps indicates that this case was not far from the borderline as to whether the state had done enough, and each case will depend on its facts.
Comments: Contrasting case on education
It is much clearer that education falls within the ambit of a Convention right: Scope of European Convention rights>Education: Article 2 of Protocol 1 (‘A2P1’).
In Enver Şahin v Turkey a university was held to be in breach of Article 14 because it had failed to take steps to enable a paraplegic student to access a building. It can be seen how the ECtHR in that case was unimpressed with the level of commitment of the university and domestic court in assessing what could be done to enable the claimant to access education.
Comments: Glaisen v Switzerland
This Icelandic case contrasts with Glaisen v Switzerland, 2019 where the ECtHR held that wheelchair access to a specific cinema was not within the ambit of Article 8 (private life), so Article 14 did not apply: Inability of wheelchair user to access specific cinema in Geneva did not breach Convention protection of private life (echrcaselaw.com), Official summary in English (pdf, echr.coe.int), Full judgment in French (echr.coe.int).
