August 15, 2019
By Morgane Ventura – PhD researcher at the Geneva University (UNIGE)
On 18 July 2019, the European Court of Human Rights published its inadmissibility decision in the case of Glaisen v. Switzerland, regarding the access of a disabled person to a cinema. Glaisen complained that the cinema company denied him the access to watch a movie that was projected in this one and only cinema in Geneva. Relying on its former case law the Court considers that access to a cinema is not a right and should not be imposed on private parties if there is not any domestic law forcing them to. Moreover, the Court relies on the Swiss authorities’ argumentation according to which the facts do not disclose any discrimination. In my opinion, the Court missed an opportunity to recognize a structural discrimination and to consolidate its case law about substantive equality by granting the right to have a reasonable accommodation. I first examine the decision of the Court and then link it to the notion of structural discrimination. I conclude my assessment with the notion of reasonable accommodation and its promises for the European human rights’ protection system, even though the Court misses a lot of opportunities to concretise it.
Facts of the decision
Glaisen, applicant of the case, is a psychologist. He is paraplegic and uses a wheelchair. Being a great cinema enthusiast, Glaisen wanted to watch a movie that only one place was projecting in all Geneva. The latter was inaccessible to wheelchairs so disabled persons were not able to enter nor to leave the rooms without third parties helping them. The applicant was refused to be sold a ticket and thereby to enter the cinema even though he claimed that two people were sufficient to help him. Complaining to the company and then before the Swiss courts, Glaisen succeeded to prove during the first domestic proceeding that two people could have helped him by carrying him and the wheelchair to access the room. However, the Swiss courts considered the situation exceptional and too rare to affect his social life and his right to go to the cinema. The applicant then complained to the European Court under articles 8, 10 and 14.
The Court’s decision
Following the Government’s opinion, the Court judged that there has not been any breach of the applicant’s rights. According to the Court, the situation cannot be considered as discriminatory and the Convention does not protect the right to access a cinema. First, I examine the qualification of the situation and the non-recognition of discrimination in the present case. Then, I look at article 8 and access to a cinema.
Beginning with the qualification of the situation, Swiss law (LHand) protects the rights and equality of disabled persons in everyday situations. One of its purposes is to grant substantive equality and to ban discrimination. The latter term must be understood according to the LHand itself and must not be interpreted in accordance with constitutional nor conventional law (see the federal Court of Switzerland 4A_369/2012 of 10 October 2012 § 3.3). Indeed, the prohibition of discrimination under the LHand is a lex specialis regulating discrimination cases between private parties while the constitutional prohibition of discrimination only applies to the actions of the State. The LHand prohibition of discrimination (article 6) must rather be interpreted in the light of its Travaux préparatoires. Examining the latter shows that only serious segregationist behaviour tending to exclude disabled persons of normal social life can be interpreted as being discriminatory according to article 6 LHand. The Court validates such a restrictive interpretation as the Convention does not require an effect on private parties (§ 52 of the Court’s decision). Indeed the Convention is binding primarily the States and they are the relevant duty-holders. Convention obligations only bind a private actor if the State provides so under its domestic law (the situation hardly never occurs). The European Court allows a wide margin of appreciation when the States adopt domestic rules going beyond the Convention, such as law binding private parties. In such case, the Court sticks to the domestic interpretation even if the right is clearly similar to a conventional one and may be examined under the Convention. In Swiss law, LHand imposes an obligation on private actors to respect the prohibition of discrimination (art. 6 LHand), which is interpreted as it suits the Swiss authorities (so, restrictively) and not in accordance with the Convention. Considering that Glaisen does not suffer any discrimination in the present case because of the Swiss interpretation of the LHand (§ 53), the Court dismisses the article 14 complaint.
Then, under article 8, the Court admits, relying also on the Convention on the Rights of Persons with Disabilities (CRPD) that disabled people should be able to participate and to be fully integrated in society. Considering also that others cinemas are accessible to disabled persons and that only 10 to 12 % of the movies are projected in an inaccessible one, the applicant can still go to the cinema, socialize and achieve his personal development. Even if the Court recognized that the cinema was an important part of the private and social life of the applicant, it relied on its prior case law (Botta v. Italy) and refuses to apply article 8, as it considered that the personal life of the applicant was not breached seriously enough. The Botta case involved a disabled person on a holiday and staying in a resort that did not allow access to the sea to disabled persons. This was despite the fact that Italian domestic law obliged private parties such as the resort to provide access to the sea for everyone. This law however only applied to new concession contracts and therefore did not apply to the resort. The Court recognized the positive obligations under the Convention for the State to take measure to ensure the respect of private life (§ 33 of Botta) however considering that there was not a sufficiently direct link between access to the beach and the private life of the applicant. Considering that the State acted within its margin of appreciation when applying strictly the law, the Court dismissed the case.
In Glaisen, the Court renounces from interpreting the obligations under domestic law in the light of the obligations in the Convention. By leaving a wide margin of appreciation to the domestic authorities, the Court frustrates any further developments on substantive equality and access accommodations.
Beyond the decision – Structural discrimination
Structural discrimination is not yet fully recognised in the field of discrimination law. The notion is premised on the understanding that any social situation is biased towards the majority or the “ordinary” so that a person presenting a minority characteristic (race, colour, sex, religion, disabilities, …) is structurally disadvantaged because the social situation hasn’t been designed for her/him. For example, for a long time, elevators in a building have not been mandatory because able-bodied persons designed those buildings. Another example would be the social situation of accepting that Sundays are generally rest time rather than Saturdays, which disadvantages the religious minorities who consider the contrary. That kind of situation is concomitant to our actual society so well we do not even realize those inequalities. The term of structural discrimination permits to acknowledge these inequalities and its prohibition could help to create substantive equality. Reasonable accommodation presents a promising concept in this context.
The European Court of Human Rights has never recognized the concept of structural discrimination and hardly ever takes into account the social and historical constructions that may have led to a discriminatory situation. For instance the Court considered that a State enjoys a wide margin of appreciation when it comes to perpetuating or not traditions such as crucifix on the wall (Lautsi and others v. Italy, § 68 – 69) or banning headscarves in universities (Leyla Sahin v. Turkey, § 154). Both situations may be contradictory and may perpetuate some structural disadvantages of religious minorities in the concerned States but the margin of appreciation principle prevents the Court from examining (and a fortiori from recognizing) structural discrimination. In the Glaisen decision, the Court limits its power of review only to situations presenting an exceptional lack of access to public buildings, which impede personal development (§ 47). To me this renouncement to protect against any structural discrimination is not consistent with the general philosophy of the Court and its approach to vulnerability.
The vulnerability status the Court grants to some groups (most often Roma, travellers, disabled persons, elderly persons, prisoners and children) leads to a restricted margin of appreciation as far as the effective protection of those vulnerable minorities that deserve more attention is concerned. The Court also considers the margin of appreciation to be reduced when vulnerable groups have been the subject of stigmas and historical disadvantages (Alajos Kiss v. Hungary, § 42 and D.H. and others v. Czech Republic, § 182). Even if the Court does consider disabled persons to be vulnerable (see the factsheet of the Court on the subject), there is no mention of the notion in the Glaisen decision, nor in the Botta case. However, accessibility is one of the core rights of persons with disabilities and should be granted the most attention (see for example the General comment no. 2 of the CRPD Committee). In my view, the Court has not yet accorded accessibility the importance it should have.
Instead of looking at the structural disadvantage of the applicant of having to use a wheelchair, the Court examines whether the cinema is under a legal obligation to provide accessibility. As there is no such obligation under domestic law and as the situation does not threaten the mental integrity and personal development of the applicant, there has not been a breach of any obligation under the European Convention. In my opinion, this conclusion disregards the vulnerable status of disabled persons and the historical disadvantages they suffer. The margin of appreciation of the State should have been reduced and the Court should not have validated the restrictive interpretation of what is considered discrimination.
To be coherent and consistent in the protection it offers, the Court should adopt a uniform approach to historical and social disadvantages and should consider it as relevant in any case involving a minority group.
The obligation of reasonable accommodation is for the moment not recognised nor applied in the Strasbourg system as such. We find the only mention of this obligation in the Eweida and others v. the United Kingdom case, when the Court refers to the relevant comparative law (§ 48 – 49) without however referring to it any further in the case. Moreover, Eweida concerns a kind of religious accommodation for an employee and not a global and transversal obligation to accommodate minorities looking for substantive equality. That is why it appears to me that the Court does not recognize this obligation in its case law.
I define reasonable accommodation as an obligation to engage in dialogue between the person with a characteristic (the applicant) and the person who may improve the situation (the defender). They have to examine if they can figure out a solution to a structural disadvantage in the concrete situation of the applicant. In most cases the applicant is in a hierarchical situation with the defender (he is employee or student of the defender or he wants to benefit a service from the defender) and should so ask for an accommodation.
Reasonable accommodation is a well-known obligation in the United States and in Canada and starts to emerge in the European Union (see for instance the directive 2000/78/EC). The obligation to dialogue may lead to an obligation to accommodate the applicant if the compromise (future accommodation) is not beyond what is “reasonable”. The reasonableness must be examined in every case according to the concrete situation of the applicant and of the defender. Most often, the unreasonable character of the accommodation will reside in an excessive cost for the defender.
In case of disabled persons, accessibility must often be accommodated. To consider the reasonableness of the accommodation, courts rely on proportionality in order to find a balance between the applicant’s situation and the defender’s difficulties to provide the accommodation.
The decision of the Court in Glaisen v. Switzerland could have been the perfect opportunity to raise the obligation of accommodation into the European case law. Nothing permits to think that the applicant has been able to talk with the cinema chain to discuss the installation of a slope or any kind of help to access the cinema. Moreover, no solution for future similar situations seem to have been discussed. I recognize that the applicant complained about one movie at one time but we could imagine that some others wheelchair users may find themselves in the same situation and so would not be able to watch a movie.
By denying a right to access the cinema, the Court stops any reflexion about reasonable accommodation and its potential to reach substantive equality. I regret that the Court still stands by its former case law and does not elaborate on substantive equality nor structural disadvantages. I hope future cases will pave the way of a better recognition of substantive equality, especially regarding persons with disabilities and accessibility.
The importance of structural disadvantages in our society deserves attention. The recognition of that reality is the first step to accommodate them. Reasonable accommodation still represents an opportunity to equilibrate societal disadvantages and hopefully it will emerge in the case law of the European Court of Human Rights.
Thank you for this valuable insight! Just let me add that the Court has been willing, in fact, to read Article 14 ECHR in the light of the CCPR concept of reasonable accomodation in Çam v. Turkey , para. 65. This was confirmed in Enver Şahin v. Turkey , para. 60, and Sanlisoy v. Turkey , para. 60. It is a pity that the Third Section deciding in Glaisen did not even mention this earlier case-law of the Second Section.