Guberina and Gherghina: the two sides of the Court’s disability jurisprudence

This guest post was written by Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights, who acted as the applicants’ representative in both cases reviewed in this article.

The Court’s disability jurisprudence generally concerns the management of compulsion in institutional settings, including with respect to detention/institutionalisation, forced medical treatment or restraint or incapacitation. On the other hand, the gamut of issues facing people with disabilities living in the community is comparatively underrepresented. In that sense, several judgments delivered in 2016 (one of which – Çam v Turkey, has been recently reviewed on this blog) provide an interesting addition to the Court’s disability canon. This post reviews two of those judgments, with contrasting outcomes – Guberina v Croatia, concerning the discriminatory application of taxation rules to a disabled child and his family in Croatia, and Radi and Gherghina v. Romania, concerning the conditions of employment of personal assistants in Romania.

Guberina v Croatia

The applicant is a man who lived together with his family, including a severely disabled child, in a flat located on the third floor of an inaccessible building in Zagreb. As the disabled child found it increasingly difficult to leave the flat, his family decided to move to accessible accommodation. They requested an exemption from the obligation to pay tax on the purchase of a new property, available to buyers who moved in order to solve their “housing needs”, in the sense that they had not already owned a property with “basic infrastructure” and that “satisfied hygiene and technical requirements.” The applicant argued that since accessibility was a feature of “basic infrastructure” his old flat did not satisfy his family’s “housing needs.” The Croatian authorities decided that the applicant’s old flat possessed all basic infrastructure features and summarily dismissed his request, without taking into consideration his son’s particular circumstances.

In its judgment delivered on 22 March 2016, the Court reiterated that although a wide margin of appreciation usually applied in the area of taxation, any measures taken within that remit must be implemented in a non-discriminatory manner. Stricter scrutiny applied if the restriction concerned a particularly vulnerable group such as people with disabilities. At this juncture, the Court clarified, for the first time in its jurisprudence, that Article 14 covered discrimination by association, and that consequently the applicant could claim victim status based on the disability of his child, “with whom he had close personal links and for whom he provided care.”

The Court emphasized in no uncertain terms the key role that accessibility played in the applicant’s son’s life, by facilitating his personal development and enabling him to fully participate in the community and in educative, cultural and social activities. As the family’s first flat was inaccessible, it did not meet their “housing needs.” In that sense, the applicant and his family were in a similar position to any other people seeking accommodation of a basic standard, even though their specific needs in that respect were different. Nevertheless, by ignoring the particular needs of the applicant and of his family, the Croatian authorities interpreted the relevant legal provisions too restrictively.

The Croatian Government advanced two justifications for the differential treatment thus identified. First, the Government argued that the authorities lacked the discretion to interpret the relevant legislative provisions in a way that matched the applicant’s circumstances. The Court rejected this objection, noting that the impugned provisions were couched in rather general terms, referring to “basic infrastructure” and “hygiene and technical requirements,” susceptible to interpretation in conjunction with relevant national (legislation on accessibility of built infrastructure) and international standards. In this regard, the Court noted that the authorities had an obligation to take into account the relevant principles of the Convention on the Rights of Persons with Disabilities (CRPD), that Croatia is a party to, including reasonable accommodation, accessibility and non-discrimination. Second, the Government argued that since the applicant’s first flat was a property of substantial value, he was not eligible for the exemption, allegedly designed to benefit less well-off individuals. The Court dismissed this objection as inconsequential, seeing that the reason why the authorities rejected the applicant’s request pertained exclusively to an assessment of what “basic infrastructure” entailed in the given case.  Consequently, there was a violation of Article 1 of Protocol 1 in conjunction with Article 14 of the Convention.

Radi and Gherghina v Romania

The two applicants were Răzvan Gherghina, a disabled man, and Tania Radi, his aunt, who was also employed as his personal assistant by the local authority of the place where they lived. Radi, who had been a nurse, gave up her job to care for her nephew after he suffered the accident that left him disabled. In the application lodged with the Court, Radi complained under Articles 4 and 8 about the disadvantageous working conditions attached to her employment contract as a personal assistant. Namely, she referred to the salary of a personal assistant that was fixed at the level of the national minimum wage, which failed to reflect her particular qualifications (in addition to being a nurse she was qualified as a physiotherapist) and the nature of the work performed (which required being available around the clock, as well as performing heavy physical work in an environment that was highly inaccessible), and to being deprived of fundamental entitlements otherwise guaranteed to all employees under the Labour Code, including annual leave, weekly leave or pay for overtime work. Radi argued that, given the absence of practical state-sponsored community-based alternatives, the personal assistance scheme placed an unacceptable burden on families of persons with disabilities, condemning them to marginalisation and deprivation. Under Article 14, Radi argued that the scheme was discriminatory on the basis of her association with a person with disabilities and on the basis of gender, as most personal assistants in Romania were women. For his part, Gherghina complained that he had not been involved in the process of recruiting a personal assistant and that the scheme was not based on his actual needs and preferences. Furthermore, since the default position was to appoint a family member as personal assistant, the scheme increased his dependency on his family, reducing his chances to live independently.

The Court focused its analysis on Radi’s claims, dismissing Gherghina’s for failure to exhaust domestic remedies. The Court stated succinctly that Radi entered the employment contract willingly and that she could denounce it anytime, regardless of any misgivings she may have about the authorities’ ability to organise alternative care for her nephew. Furthermore, even if unsatisfactory, she did receive some remuneration, the level of which she could challenge in court. Accordingly, the Court dismissed Radi’s claims as manifestly ill founded.

Commentary

The Court’s Guberina finding that discrimination by association is prohibited under Article 14 may open the door to a more sympathetic understanding of the problems faced by parents/carers, who are frequently left to shoulder the burden of disability in a largely hostile environment. The emphasis on accessibility is extremely welcome too, coming after a long line of negative rulings rejecting the notion that States have to take into account disabled people’s needs in designing public infrastructure (see Zehnalová and Zehnal v. Czech Republic or Farcaș v. Romania). The Court’s willingness to apply stricter scrutiny in the area such as taxation, traditionally seen as coming within state remit, is praiseworthy. The Court does not clearly spell out if the violation is a result of indirect discrimination, failure to provide reasonable accommodation, or a failure to differentiate between differently situated individuals, although it does clarify that all these notions are part of the Article 14 infrastructure in relation to disability. Finally, the Court gives CRPD implementation at national level an all-important boost, by insisting that national authorities have to interpret generally applicable legislation in a disability-sensitive manner that takes into account the obligations stemming from the CRPD. This is important, as many states failed to effectively screen their legislation and practices for compliance with the CRPD upon ratification, with disability often remaining a discrete and isolated policy concern.

Unfortunately, in Radi and Ghergina the Court reverts to a dismissive and unsympathetic approach to people with disabilities. Notably, the Court decided the case very early in the proceedings, before communication, thus lacking the benefit of adversarial proceedings. In contrast to the ringing endorsement in Guberina, the Court ignored the applicant’s submission on discrimination by association. The Court’s conclusion under Article 4 is questionable – consent to grossly inferior working conditions is no more valid than consent to slavery or to forced labour would be. The alternative to employment as personal assistant would be the institutionalisation or virtual abandonment of the disabled person, which does not make for a valid choice. The manner in which the Court disposed of this case is all the more striking considering that the problems facing carers and domestic workers across Europe are well documented. For instance, the European Parliament has recently adopted a resolution on women domestic workers and carers, which highlights as systemic many of the issues identified in Radi and Gherghina (i.e. domestic and care work characterised by ad-hoc hours, exploitation, exclusion from national labour legislation, severely limited employment rights and social protection, lack of a safe and healthy work environment etc.).

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