Disability discrimination because of denial of “reasonable accommodations”: a very positive connection between the ECHR and the UNCRPD in Çam v. Turkey

This guest post was written by Joseph Damamme, PhD student at the Centre of European Law of the Université libre de Bruxelles (Belgium) and member of the Equality Law Clinic.

The Strasbourg Court recently delivered a significant judgment on the inclusion of students with disabilities in the field of (non-compulsory) education. Çam v. Turkey (ruling only in French for the time being) concerns a person who was refused enrolment at the Music Academy because of her blindness.

In this judgment, the ECtHR examines the issue of discrimination (art. 14 ECHR) under several dimensions. Indeed, in addition to the prohibition of discrimination, attention is focused on the importance of positive steps to ensure that students with disabilities are provided education on a non-discriminatory basis. In this vein, the ECtHR states that the denial of reasonable accommodations is a form of discrimination under article 14 ECHR. As far as we can ascertain, this is a statement that had never been expressed so clearly by the Strasbourg Court.


The applicant, Ms Çam, is blind. She wished to follow courses at the Turkish Music Academy, attached to the University of Istanbul. Prior to any enrolment request to the Academy, all candidates have to pass a selection test (assessing music skills) and provide for a medical report attesting their “physical capacity”. Ms Çam successfully passed the selection test playing the bağlama (a Turkish lute). Subsequently, a medical committee from a hospital drew up a report concluding that she could attend music lessons in the sections of the Academy where “eyesight was not required” (§11). Upon receipt of this report, the direction of the Music Academy asked the chief doctor of the hospital to draw up a new one, taking into account that none of the Academy’s sections “could be considered as not requiring vision” (§14). On an unspecified date, the Academy rejected Ms Çam’s request for enrolment.

On behalf of Ms Çam, her parents launched several proceedings (for the full detail on the procedure, see the judgment, §§ 16-32). In particular, they sought the setting aside of the decision of refusal for enrolment. This request was dismissed by administrative courts, including the Council of State. During the proceeding, the hospital drew up a new medical report concluding that Ms Çam was not able to be provided education, thereby changing the former certificate that attested that she was.

Before the Strasbourg Court, Ms Çam alleges that Turkey violated article 14 ECHR, in conjunction with article 2 of Protocol n°1 of the ECHR (right to education). The last provision is found applicable in the present case. Shortly on this, it seems to us that the Court applies this provision for the first time in a case dealing with education of an artistic discipline. Concerning article 14, the applicant alleges that the refusal of enrolment constituted discrimination because of her blindness. This is the first point we will focus on, although briefly. Then, the case is explored under a positive dimension (meaning State’s positive duties) of what may be called the principle of non-discrimination.

Difference treatment because of blindness and unchallenged requirement of physical capacity

The ECtHR considers the case under the traditional sense of discrimination: whether there has been a difference in treatment between persons in analogous situations without objective and reasonable justification.

The Court first states that requiring a medical report of physical capacity has particular effects on persons like the applicant, due to the particular way in which the Academy interpreted this requirement with respect to blindness (§59). Second, the Court notes that the applicant’s blindness was the sole reason for refusing her enrolment. To support this finding, it refers to a letter of the direction of the Academy to the hospital (see §§ 29 and 60). Third, the Court adds that in any case, Ms Çam would have been unable to comply with the requirement of “physical capacity”. In this regard, it stresses that this assessment was left to the discretion of the Academy that easily obtained the revision by the hospital of the medical report. Fourth, the justification for the rules on enrolment is dismissed. Indeed, while the defendant State alleges that these rules purport to select only those students having “some skills”, the Strasbourg Court observes that Ms Çam precisely demonstrated that she fulfilled this condition, having passed the selection exam.

Although these findings are positive, some questions remain. We may wonder whether the proof of “physical capacity” is still relevant anyway for the purpose of attending music classes. We should recall that, as noted by the Court, the requirement of a proof of physical capacity has particular effects on students with disabilities. Regrettably, the finding of an impairment that indeed leads to some incapacity (to see, in the case of blindness) is often paired with incapacity to perform a specific activity. With respect to playing a music instrument, Ms Çam is one example among many that lack of eyesight may not amount to incapacity. If the candidate has demonstrated sufficient “academic capacity”, why does he/she need to provide for a medical proof of physical capacity?

The Strasbourg Court does not go that far noting that there was a difference in treatment based on blindness – and therefore disability – and the circumstance that the applicant had the skills required. Therefore, the defendant State could not justify the regulation on enrolment in the present case. In our opinion, these findings were sufficient to conclude that there was a violation of the legal provisions at stake. Yet the ECtHR goes beyond the traditional “prohibition” of discrimination and examines the case under another dimension.

Beyond the mere “prohibition” of discrimination: denial of reasonable accommodation as a form of discrimination

Taking into account that the defendant State argued that the Music Academy had no adapted facility to welcome students with disabilities (§63), the ECtHR examines the case under a “positive” dimension of the principle of non-discrimination. The key finding here is that discrimination based on disability extends to denial of reasonable accommodations (§67). To our knowledge, this is the very first time that the Court has made this statement so clearly.[1] “Reasonable accommodation” is a legal concept that seeks to overcome a mismatch between a particular person’s characteristic (in our case blindness) and this person’s environment so as to enable him/her to perform an activity.

The Strasbourg Court makes this concept part of article 14 ECHR. It does so stressing that this provision should be read in light of international texts. Noting first that the European Social Charter and the UN Convention on Rights of Persons with Disabilities (CRPD) highlight the importance of inclusive education, it then takes over the definition of “reasonable accommodation” enshrined in the CRPD (art. 2), that is to say: “(the) necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. An integrated view of human rights is at work.[2]  Indeed, the ECtHR is building a bridge between the ECHR and the CRPD, an instrument adopted by another organisation than the Council of Europe. In addition, we must note that, at the time Ms Çam was refused enrolment at the Academy (2004), the CRPD had not even been adopted by the United Nations.[3]

The Court anchors reasonable accommodation in its jurisprudence stating that, in some circumstances, a difference in treatment is required by article 14 ECHR in order to correct a de facto inequality (§§ 54 and 65). As such, this dimension of non-discrimination is not new in the ECtHR’s jurisprudence. In this regard, the Court quotes the Grand Chamber judgment of D.H. v. the Czech Republic, a case dealing with the necessity to make a difference in treatment to ensure equal opportunities for access to schools for Roma children, otherwise typically placed in schools for children with mental disabilities. Çam v. Turkey, although based on this dimension, is extending it to situations where inequality is encountered by one individual and not by a group of individuals.

The judgment may also be linked with Thlimmenos v. Greece, where the ECtHR ruled that in some circumstances, an exception to a norm is necessary to comply with article 14 ECHR.[4] Here again, Çam v. Turkey is of added value thanks to the clear reference to “reasonable accommodation”, as enshrined in the CRPD. Indeed, in the context of disability, the concept often goes beyond the mere exception to a legal rule and requires the adjustment of a given environment (being it normative, physical, organisational…) to the specific needs of a person arising from his/her characteristic (e.g. blindness). The Strasbourg Court is particularly aware of this. This clearly appears from its application of the concept in the present case. In this regard, it mentions several shortcomings by domestic authorities: failure to seek to identify the particular needs of the applicant, to make clear to which extent her blindness impaired her access to a musical education and to consider accommodations to tailor the specific educational needs arising from Ms Çam’s blindness (§ 68).

We note that the applicant had not even claimed that she had been denied a reasonable accommodation.[5] This makes us think, along with the examples given by the Court showing absence of proactivity by the Music Academy, that discrimination based on disability may extend also to lack (and not only denial in the strict sense) of reasonable accommodation. Furthermore, it also seems that the burden of proving that the duty of reasonable accommodation was met – i.e. being at least considered – lies in the defendant State before the ECtHR.

Additionally, even if the ECtHR puts a strong focus on the situation of Ms Çam – in line with the rationale of the concept of “reasonable accommodation” – it also locates the case in a broader context. Indeed, it observes that, since 1976, the Music Academy had made no attempt to adjust its teaching in order to be accessible to non-sighted students.

To conclude, Çam v. Turkey marks a very positive step in the ECtHR jurisprudence, integrating the concept of “reasonable accommodation”, as enshrined in the CRPD. This enhances the realisation of inclusive education for students with disabilities. On a prospective note, we want to stress that a further step would be to recognise that States Parties have to provide for accessible education environments on an anticipatory basis. In this vein, the CRPD would be again useful. As made clear by the CRPD monitoring body (the CRPD Committee), the duty to provide accessibility (enshrined in art. 9 CRPD) is an ex ante duty, irrespective of any request.[6] In this regard, the Grand Chamber judgment of Gherghina v. Romania (2015) was a missed opportunity. This further step would be especially helpful for persons facing physical inaccessibility, where reasonable accommodation may not always prove to be an efficient tool, as it is subject to the “undue” or “disproportionate” defence.[7]

[1] But, see McIntyre v United Kingdom, application n° 29046/95, decision on admissibility, 21 October 1998. In this case, the former European Commission of Human Rights found inadmissible a claim in a case dealing with the refusal by a school to install a lift in view of other steps taken to accommodate a pupil’s physical disability, such as moving her class’s fixed classroom to the ground floor. This decision is quoted in Çam v. Turkey, see §68.

[2] This phenomenon of “human rights integration” is extensively explored by the research network The Global Challenge of Human Rights Integration: Towards a Users’ Perspective.”

[3] The final version of the CRPD was adopted after negotiation in 2006 and open for signature in 2007. Turkey signed the Convention on 30 March 2007 and ratified it on 28 September 2009, that is to say, after that the national remedies were exhausted in the case of Ms Çam.

[4] In this case, not applying a rule prohibiting the appointment as a chartered accountant on the basis of a previous criminal conviction in the case of a Jehovah’s Witness found guilty for not doing the compulsory military service on grounds of his beliefs. For an author suggesting that the logic of reasonable accommodation was applied in this case, see O. de Schutter, “Reasonable Accommodations and Positive Obligations in the European Convention on Human Rights”, in A. Lawson and C. Gooding (ed.), Disability Rights in Europe: Disability Rights in Europe: From Theory to Practice.

[5]  At least, we see absolutely no reference to it in the section of the judgment devoted to her argumentation.

[6] See CRPD Committee, General Comment n° 2 – Article 9: Accessibility, 11 April 2014, §25.

[7] On the contrary to the obligation to implement accessibility, which is unconditional in this respect, see ibidem. Its concrete implementation is however progressive in kind, in contrast with the concept of reasonable accommodation.

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