March 09, 2018
By Joseph Damamme, PhD candidate at the Centre of European Law of the Université libre de Bruxelles, member of the Equality Law Clinic & Advisor to Counsel (Constantin Cojocariu) in the case of Gherghina v Romania.
Economic and time constraints are often used as a justification for refusing or delaying necessary changes to the environment that would allow persons with disabilities to be more included in society. A balancing exercise between these constraints and the rights of these individuals was the subject of the ECtHR Chamber judgment Enver Şahin v Turkey (only available in French for now). Therein, the Court clarified somehow the content and contours of the State’s (and the University’s) responsibility, when faced with accessibility requests by their students with disabilities. The positive outcome of the Court’s ruling contrasts with some missed opportunities and unanswered questions that are addressed by Judge Lemmens in his valuable dissenting opinion.
Material and Procedural Facts (at the domestic level)
In 2005, while Mr Şahin was a first-year Mechanics student in a “Technical Faculty”, he had an accident that left him paraplegic. He suspended his studies for recovery purposes. In March 2007, he contacted the Faculty to request architectural adjustments to the building where classes were held, so that he could resume his studies for the upcoming academic year (starting 6 months later). In May 2007, the Faculty replied that the permit for the necessary adjustments had been requested to the Rector of the University but could not be obtained in the short-term (§8). In August 2007, the applicant renewed his request, this time through a formal notice sent by way of a notary to the Dean’s Faculty and the University’s Rector (§9). In September 2007, the Rector replied that the request could not be met in the short-term because of time and budgetary constraints but offered to appoint an accompanying person. As the courses were given in a 3-storey building,accompanying would have meant carrying . This would, in the Rector’s opinion, allow Mr Şahin to attend the classes (§10). In November 2007, the applicant lodged an action for annulment before the Administrative Tribunal against the decisions of the University authorities for not having levied the physical barriers, a refusal he considered at odds with his right to education (§11). In his opinion, the offer of a personal assistant to access classrooms was degrading (§13). On 9 April 2010, the tribunal dismissed Mr Şahin’s claim. The judgment underlined the attitude of the University, which informed the applicant that adjustments would be made subject to budgetary constraints and offered to appoint a personal assistant (§ 16). The Council of State confirmed the tribunal’s ruling (§§ 17-20). Importantly, an Act of 2005 had set a deadline (2012 subsequently postponed to 2013) for several categories of buildings (notably University ones) to be made accessible (§ 22 and note 3).
The ECtHR’s judgment: use of the UNCRPD duty reasonable accommodation
The Strasbourg Court found that the University’s and the judicial “reaction” to Mr Şahin’s situation had violated article 2 Protocol 1 (right to education) read in conjunction with article 14 (prohibition of discrimination) ECHR. In this vein, it read article 14 ECHR in light of the Convention on the Rights of Persons with Disabilities of the United Nations (“UNCRPD”), which provides for the duty of “reasonable accommodation”. “Reasonable accommodation” is defined in this Convention (art. 2), as 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”
This duty intends to overcome factual inequalities arising from a mismatch between a person’s characteristic (here paraplegia) and his/her environment to allow him/her to perform an activity (here attending classes). It is not an absolute duty. Indeed, it is subject to the limitation of “disproportionate” or “undue” burden, requiring a concrete balancing exercise between the rights-holder’s needs (and rights) and the duty-bearer (inter alia) economic constraints. In this regard, the Strasbourg Court drew a line between acceptable and unacceptable forms of personal assistance. The Court admits that personal assistance must, in some situations, be provided by States parties according to the UNCRPD (as set out in art. 9, §2 (e) and 20 (b)). This holds true, notably, to ensure that persons with disabilities have access to buildings. However, the ECtHR highlighted that there was no evidence that the personal assistance was offered after a careful consideration of Mr Şahin’s needs and the potential effects of the assistance on his safety, dignity and autonomy (§ 71). Considering then the domestic Court’s assessment of the situation, the ECtHR identified three shortcomings: (i) leniently relying on the University’s promise that architectural adjustments would be made, (ii) failure to identify Mr Şahin’s needs and (iii) failure to look for solutions allowing for conditions as equivalent as possible to his peers’, without giving rise to a “disproportionate” or “undue” burden (§ 74). In light of the University’s reaction to Mr Şahin’s situation and the lack of proper redress by the domestic court, the Strasbourg Court finds a violation of the above-mentioned ECHR provisions.
The UNCRPD played a decisive role in the Court’s reasoning. Enver Şahin v Turkey consolidates its solution of Çam v. Turkey, already reviewed in this blog, whereby the ECtHR had interpreted article 14 ECHR as encompassing the duty of reasonable accommodation found in the “external reference” of the UNCPRD. In contrast with Çam v. Turkey, where no accommodation had been proposed to a blind student (possibly because there was no need to), Enver Şahin v Turkey is a move towards the assessment of the suitability of solutions proposed to students with disabilities to provide them access to classrooms in light of the principles of autonomy and safety. In the circumstances of the case, the personal assistance was not a suitable solution. It would have meant carrying the student in the 3-storey building, what is objectively risky. It is also degrading when one puts the offer of a carrier in contrast with the applicant’s situation. He could move independently provided that the environment would be accessible. The Court’s scrutiny of the validity of the litigious offer is useful. Indeed, alternatives to equal access to premises often prove unsatisfactorily creative in terms of access to education – in its numerous components, including course materials and physical environment. It holds true for distance learning (as was proposed by the University in the ECtHR case of Gherghina v Romania) or, as in the present case, personal assistance where this means a personal carrier. Surprisingly, the accommodation of a class transfer – from inaccessible Faculty premises to accessible ones (if needed of another Faculty of the same University) – does not appear to have been discussed. Regardless of the (un-)suitability of these propositions, the duty of reasonable accommodation may not be the most appropriate one when it comes to regularly observed situations such as Mr Şahin’s.
Beyond reasonable accommodation: the duty of “accessibility”
ECtHR’s missed opportunity (seized by Judge Lemmens) to clarify the differences between the duty of accommodation and of accessibility
In his dissenting opinion, Judge Lemmens comes to a different conclusion than the Court’s majority as he considers that there was no violation of the ECHR. He also disagrees on the choice of the relevant provision for the purpose of this case analysis. In his opinion, article 2 Protocol 1 (right to education) should have been the focus of the analysis – rather than this provision read together with article 14 ECHR. The reason advanced by the judge is the following: the case deals with a matter of access rather than of accommodation. This distinction echoes one found in the UNCRPD (upon which the judge relies) between two different, although related, duties of the State: the one of “reasonable accommodation” (art. 5 UNCRPD) and the one to take measures to ensure access to persons with disabilities (“the duty of accessibility”, art. 9 UNCRPD).
These duties differ with respect to their respective rationale and implications. With respect to their rationale, the duty of accessibility benefits groups of persons with disabilities while the one of “reasonable accommodation” has an individual dimension. This difference is based on the fundamental observation that, even if “disability” captures an array of heterogeneous needs, some of them repeatedly arise and therefore deserve a collective (rather than an individual) answer. This rationale explains why the duties differ in their legal implications, as the monitoring Committee of the UNCRPD set out in its general comment n°2 on article 9 UNCRPD.
Two of the implications exposed by this Committee are reiterated by Judge Lemmens. First, the duty of accommodation is applicable on a reactive basis, that it to say once the request is formulated. In contrast, the duty of accessibility applies on an anticipative basis (§ 4 of Lemmens’ opinion quoting the general comment) – meaning without the need for an individual request. Here, the Judge perfectly captures the distinction derived from the UNCRPD to the benefit of rights efficiency. The method of the State’s (and Universities’) anticipative activism appears better than individual requests (and judicial suits) that often prove unsatisfactory. Indeed, because of numerous critical aspects (such as expense, time and technical complexities), the process of accessibility requires to be handled by way of a well-tailored methodology and implementation.
Second, accommodation is immediately applicable while accessibility is gradual in kind. Importantly, the judge follows the UN Committee’s views that the anticipative duty of accessibility applies to existing buildings, meaning those erected before the accessibility regulations became binding (§7 of his opinion). On the last implication of the distinction, Judge Lemmens does not subscribe to the UN Committee’s view that the duty of accessibility is unconditional for the purpose of State’s responsibility before the ECHR. Accessibility, according to the judge, is subject to the balancing exercise between “individual rights and general interests”, that is at the core of the ECHR system. On this latter point, the Judge’s stance could be qualified as “pragmatic”. The idea that accessibility is anticipative rather than reactive and thus potentially applicable to the entire environment of the University is ground-breaking (because of the already-mentioned critical aspects of accessibility). As a consequence, compromise would need to be found in situations where full accessibility would be disproportionate, not only because it is complex but also way too costly. In such situation, the duty of accommodation would be valuable as a relay. The following table sums up the last developments.
|Reasonable accommodation||Individual-based (case-by-case basis)||Reactive (ex nunc)||Immediate||“Undue” or “Disproportionate” Burden|
|Accessibility||Group-based (wheelchair users, blind persons…)||Anticipative (ex ante)||Gradual||No limitation: Unconditional duty (UN Committee)
Subject to balancing process (Lemmens)
University’s responsibility in this enriched mosaic of duties
The enrichment of the arsenal of the State’s duties vis-à-vis persons with disabilities paves the way for another analysis by the dissenting judge. The majority’s opinion that the University’s authorities had not reacted with due diligence to the applicants request is questioned by the dissent (§ 9 of the opinion). Judge Lemmens underlined that, when Mr Şahin’s made his request, the University was obliged to make the necessary adjustments subject to budgetary constraints within a time-frame that had not expired yet (originally 7, later 8 years pursuant to the Act of 2005). Under these circumstances, no breach of article 2 Protocol 1 could be found, according to the judge, on the grounds that the authorities had failed to make the adjustments within 6 months. On the concrete offer of the University (personal assistance), the judge concedes that it was ill inspired (§ 10 of his opinion). However, he underlines that the applicant’s reaction to this offer was unhelpful in solving the difficulties. Had the applicant explained before going to Court why the offer was problematic, the University would have been able to propose another solution (§ 10 of the opinion). Instead, the applicant made the University aware of the drawbacks of personal assistance when the disagreement had already turned into a litigation. Therefore, the judge considers that the applicant is (partially) responsible for the improper identification of his needs and of the effects of the offer, on which the Court’s majority relied to find the ECHR violation (§ 11 of his opinion).
We subscribe to the judge’s stance that the State could not be found responsible because one of its Universities failed to make the architectural modifications requested by the applicant. After all, in line with the gradual nature of the duty of accessibility, the University had a specific time-frame to do so that had not expired yet when the request was made. In this context, the 6 month-deadline left by the Mr Şahin could have been considered too short to meet the request. Judicial review would to be marginal in this case although it could be useful to assess to what extent Universities are progressing towards accessibility in cases where progress is inexistent.
We however respectfully disagree with Judge Lemmens on the responsibility for the failure to solve the problem. He suggests that the University’s offer was an excusable mistake that could have been subsequently corrected, with the assistance of Mr Şahin’s explanations. However, the University’s offer of a personal carrier negates the very purpose of a substantial section of rights of persons with disabilities, which require autonomy rather than assistance. Historical exclusion and common sense are sufficient foundations to expect from Universities that they exclude carriers as part of the ‘accommodation repertoire’ when it comes to situations like the one of Mr Şahin where assistance is at odds with feasible autonomy. The dialogue was in our view initially frustrated by the University that should have proposed a more acceptable solution such as class transfer, an accommodation that it has not proven to have considered. Not only valid, this accommodation appeared feasible when one thinks of the time-frame initially available (6 months before that Mr Şahin would resume his studies). Moreover, the applicant had not immediately rushed to the courts, as it first formally notified his disagreement to the offer by way of notary before that another refusal lead him to go to court. That said, different perspectives may exist on this case, depending on one’s perspectives on the responsibilities of Universities and individuals with disabilities in solving the difficulties of inaccessible environments.
More fundamentally, the case shows the relevance of inclusion-based policies at University level. This would encompass awareness-raising among University staff on acceptable accommodation, while the University institution progresses towards accessibility. To this end, effective communication between key components of the University network, notably the different faculties whose buildings may differ in terms of accessibility, is of paramount importance. Lastly, the existence of specific independent bodies, within this network, designated and empowered to deal with disability-related requests and to solve disputes, would be valuable. This could be considered to be part of the procedural component of State’s responsibility for equal access to right to education. Solving problems at the level of the University itself, when fairly done, is definitely better than adversarial legalism.
 For a comprehensive analysis of the use of external references by the ECtHR, D. Staes, “When the European Court of Human Rights refers to External Instruments. Mapping and Justifications”, PhD dissertation defended at Université St Louis Bruxelles on 26 June 2017. For a specific analysis focused on this use of external references by the ECtHR concerning the rights of persons with disabilities, see D. Staes and J. Damamme, “External referencing by the ECtHR and human rights integration: (Missed) opportunities for rights of persons with disabilities”, in Human Rights Tectonics. Global Perspectives on Integration and Fragmentationto be published by Intersentia in 2018.
 To quote the famous expression of Robert A. Kagan in his book, Adversarial Legalism, The American Way of Law, 2003, Harvard University Press, 352 p. (where he explained that, in the USA, the common method of dispute resolution is based on legal threats and lawsuits).