August 30, 2022
On 31 May 2022, the European Court of Human Rights (ECtHR) published its ruling in Arnar Helgi Lárusson v. Iceland. The applicant is a wheelchair user who brought a complaint at the domestic and European levels regarding the lack of accessibility of buildings that housed arts and cultural centres run by the municipality where he lived. The ECtHR ruled that there was no violation of Article 8 of the European Convention on Human Rights (ECHR), concerning the right to respect for private and family life, and that no discrimination had arisen under Article 14 ECHR. The ruling is noteworthy, in the first instance, on account of the distinctions drawn by the ECtHR between the present case and its previous jurisprudence concerning the scope of the right to private life in situations of inaccessibility. More importantly, the judgment is striking due to the Court’s failure to disentangle the relevant international norms of accessibility, reasonable accommodation and non-discrimination, as well as its application of the ‘disproportionate burden’ test. In both regards, the judgment constitutes yet another missed opportunity to etch out lines of convergence between the interpretation of the ECHR and the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
In 2015, the applicant brought civil proceedings, in conjunction with an association of people with spinal injuries, challenging the lack of wheelchair access in two specific buildings managed by the applicant’s municipality. The buildings dated between 1877 and 1970. Notably, one of the buildings had been extensively renovated between 2006 and 2014.
According to the applicant’s domestic submission, the buildings were not in compliance with the applicable building regulations, and this hindered the enjoyment of his, and other wheelchair users’, private life on an equal basis with others (§ 9). The applicant claimed that this was in violation of the Icelandic Constitution, the ECHR and the CRPD, which Iceland ratified in 2016 (§ 9). In addition, the plaintiffs sought a declaratory judgment requiring the defendants – the municipality and a company that owned one of the buildings– to improve accessibility in a range of ways (§§ 5-7).
The Reykjanes District Court delivered a judgment in favour of the defendants on 24 November 2016, ruling that while there were certainly improvements needed in terms of ensuring access to the buildings in question, there was no violation of the applicable building regulations, since both buildings had been constructed prior to those regulations having come into force. In addition, the District Court maintained that the separation of powers hindered interference with the relevant authorities’ margin of appreciation regarding the priority to be accorded to projects (§ 11).
On 25 October 2018, the Supreme Court upheld the District Court’s ruling, noting that the municipality had complied with its legal obligation to draft a strategy for improving access to public buildings and public service institutions in accordance with the applicable domestic legislation, which took into account CRPD obligations. Furthermore, the Supreme Court noted that the strategy had been put into action by the municipality, which had taken ‘steps’ to improve access to certain buildings (§ 14). Like the District Court, the Supreme Court relied on the separation of powers, asserting that municipalities had a wide margin of appreciation regarding how to allocate resources in improving access to buildings (§ 15).
Having exhausted all domestic remedies, the applicant brought his case before the Strasbourg Judges, claiming a violation of Article 14 in conjunction with Article 8 ECHR.
Before the ECtHR, the applicant argued that the lack of access to the buildings in question had severely hindered his enjoyment of community cultural activities on an equal basis with others, and had furthermore hindered him from attending social events with his children (§ 48).
The ECtHR unanimously declared the applicant’s complaint admissible, despite the Government’s submission that the applicant had insufficiently raised his rights under the ECHR at the national level, having relied instead on the CRPD (§ 33). The Strasbourg Court found that the applicant had referred explicitly to the ECHR in his written submissions to the District Court, which were cited in his submissions to the Supreme Court (§ 36).
Concerning the substantive claims, the ECtHR reiterated that the scope of its assessment was limited to whether the respondent State (and, by implication, the municipality) had complied with its positive obligations under the ECHR by taking sufficient measures to correct the factual inequalities impacting the applicant’s equal enjoyment of his private life (§ 64). In that regard, the ECtHR accorded the State a wide margin of appreciation, highlighting that such a margin is granted to Contracting States when general measures of economic or social strategy are at issue. Following this logic, the Strasbourg Court asserted that claims regarding a lack of access to public buildings merit a similarly wide margin (§58). Notwithstanding its reference to the ‘emerging consensus as to the standards to be achieved’ and its citation of its previous jurisprudence invoking the CRPD ((§ 58 of the judgment, citing Enver Şahin v. Turkey, § 55, and Glor v. Switzerland, §75), the majority of the Strasbourg Judges came to the conclusion that ‘considerable measures’ had been taken to ‘assess and address accessibility needs’ in local public buildings within the confines of the available budget (§ 64). Furthermore, the ECtHR implied that it was acceptable for the municipality to prioritise the accessibility of educational and sports facilities over cultural activities (§ 63). In this light, the Court concluded that the applicant had not been discriminated against in the enjoyment of his private life.
The judgment of the ECtHR is both noteworthy and deficient in several respects. What is more, akin to the song lyrics by Steppenwolf, there are ‘circles of confusion everywhere you turn’ in the judgment.
This commentary first discusses the clarification by the ECtHR of the scope of the right to private life, before examining the blurred application of international standards by the Court, leading to a lack of convergence with the CRPD.
Notably, the ECtHR clarified the scope of application of Article 8 ECHR in Arnar Helgi Lárusson v. Iceland by distinguishing the facts of that case from those in its earlier jurisprudence, in which it had ruled that the lack of wheelchair access at issue did not fall within the ambit of Article 8 ECHR (§§ 43-44).
In the first instance, the Strasbourg Court distinguished the applicant’s situation from that in Botta v. Italy (Botta v. Italy, Reports of Judgments and Decisions 1998‑I). In that regard, it noted that the accessibility issue concerned buildings owned and/or operated by and located in the applicant’s own municipality, whereas in Botta the matter related to a private beach in a distant municipality, and thus concerned ‘interpersonal relations’ of such a ‘broad and indeterminate scope that there could be no conceivable direct link’ between the measures requested of the State and the applicant’s private life (§ 43). Furthermore, the ECtHR distinguished its ruling from that in Zehnalová and Zehnal v. the Czech Republic). Distinct from Zehnalová – where the applicant claimed a lack of access to a large number of buildings and failed to give precise details of the obstacles engendered by that lack of access – the applicant in the present case identified a ‘small, clearly defined number of buildings’ to which access was lacking and explained how this had affected his life (§§ 43-44). Moreover, unlike the situation in Glaisen v. Switzerland,where other venues were accessible to the applicant in that case, the Strasbourg Court noted that the present case did not concern ‘merely one of several similar, privately run’ venues; rather, similar cultural and social events and services could not be accessed in the applicant’s municipality (see §§ 43-44 of the judgment and blog post).
In deliberating on the scope of application of Article 8 ECHR, the Strasbourg Court endorsed the view of the Committee on the Rights of Persons with Disabilities (CRPD Committee) in its General Comment No. 2, namely that accessibility is ‘a precondition’ for persons with disabilities to participate fully and equally in society (§ 26 and § 46). In light of the fact that the matter at issue was liable to affect the applicant’s right to personal development, and to establish and develop relationships with other human beings and with the outside world, his claim was deemed to fall within the ambit of private life under Article 8 ECHR.
This is significant, since – even though accessibility issues under Article 8 ECHR have been analysed comprehensively in the past – the present judgment presents one of the few instances in which the ECtHR considers that inaccessibility can, in certain circumstances, give rise to the unequal enjoyment of ECHR rights. Notwithstanding this, the Strasbourg Court’s analysis demonstrates a narrow understanding of accessibility obligations falling within the scope of fulfilment of Article 8 ECHR. It appears from the comparisons made by the ECtHR with its own previous jurisprudence that it is only willing to engage with accessibility issues in the realm of private life in situations where there is absolute inaccessibility of buildings, primarily public ones, that are specifically identified, and which offer distinct and important services in the locality. This is out of line with the CRPD, which requires the progressive realisation of accessibility of all buildings. The ECtHR’s stance also contradicts the views of the CRPD Committee that the Court purported to rely on. According to the Committee, ‘accessibility should be addressed in all its complexity, encompassing the physical environment, transportation, information and communication, and services […] As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise’ (§ 26 of the judgment, citing § 13 of General Comment No. 2).
Most notably, the Strasbourg Court conflated key international disability standards. Specifically, it missed the opportunity to carve a clear-cut line of distinction between the CRPD’s reasonable accommodation and accessibility obligations. This is not the first time that the ECtHR has missed such an opportunity (see Judge Lemmens’ dissenting opinion in Enver Şahin v. Turkey, and the blog post on that case).
The duty of reasonable accommodation under Article 5 CRPD is an individualised, reactive and immediate obligation that arises upon a specific request from an individual with a disability. A failure to provide a reasonable accommodation automatically violates the principle of non-discrimination, unless it imposes a disproportionate or undue burden on the duty bearer. In contrast, the accessibility obligation in Article 9 CRPD is group-based, anticipatory and gradually realisable. According to the CRPD Committee, the accessibility duty is not subject to the limitation clause of ‘disproportionate or undue burden’; rather it is unconditional (§ 25 of General Comment No. 2).
From the outset of its judgment, the ECtHR identified that the relevant issue revolved around a widespread lack of access (inaccessibility) for the plaintiff and other individuals with disabilities to the relevant facilities, as opposed to a denial of access or a specific request on behalf of the plaintiff for an individualised accommodation. The present case clearly concerns more generalised accessibility measures, since the measures requested of the municipality related to several ways in which the buildings could be made generally accessible in compliance with the domestic building regulations governing accessibility (§§ 6-10). Despite acknowledging that the accessibility of the buildings was insufficient not only for the applicant but for all persons with disabilities, the Court outlined the individualised test of reasonable accommodation drawn from Article 2 CRPD. The ECtHR then purported to apply this test to assess whether the State had made ‘necessary and appropriate modifications and adjustments’ to accommodate the applicant as an individual. In ruling that the imposition on the State of a requirement to put in place further measures would have amounted to a ‘disproportionate or undue burden’ on it as duty bearer, the Court did not actually apply the test of reasonable accommodation and its limitation clause to the applicant’s individualised situation. Instead, it applied the disproportionate burden limitation in assessing the overall situation of inaccessibility for persons with disabilities. Confusingly, it drew, in that regard, on its own prior jurisprudence related to reasonable accommodation (§ 59 of the judgment, citing Çam v. Turkey, § 65, and Toplak and Mrak v. Slovenia, § 114).
In his dissenting opinion, Judge Zünd similarly failed to disentangle the obligations of reasonable accommodation, non-discrimination and accessibility. This is in spite of his favourable finding towards the plaintiff that the State had not taken sufficient measures to remedy the structural causes of inequality preventing the applicant from exercising his right to private life (§ 8 of the dissenting opinion). In arriving at his finding, Judge Zünd reasoned that the State’s positive obligation to reasonably accommodate the applicant had not been satisfied, on account of the fact that the Government did not indicate whether and in what time frame the necessary improvements could be achieved. Thus, despite purporting to apply the test for reasonable accommodation, the dissenting Justice adjudged the domestic authorities’ actions in terms of a progressively realisable duty to ensure accessibility rather than an immediately realisable obligation to provide reasonable accommodation (§§ 3-6 of the dissenting opinion).
As a result of the blurring of international standards in the case, the ECtHR missed yet another opportunity for convergence with the CRPD. Moreover, the application of the wrong legal test resulted in the superficial, and arguably erroneous, assessment of the applicant’s rights under the ECHR.
The Strasbourg Court did endeavour to engage with the CRPD in Arnar Helgi Lárusson v. Iceland, unlike in some of its previous disability jurisprudence (see, among others, Kargakis v. Greece, and the blog post on that case). The ECtHR cited the accessibility provision in Article 9 CRPD, the right to participate in cultural life in Article 30 CRPD and the definition of reasonable accommodation in Article 2 CRPD, although surprisingly not the reasonable accommodation duty in Article 5 CRPD. The Strasbourg Court also drew on the CRPD Committee’s General Comment No. 6 on equality and its General Comment No. 2 on accessibility. Despite relying on the CRPD and on the CRPD Committee’s interpretive guidance, the ECtHR’s failure to unravel the relevant CRPD obligations resulted in it missing an opportunity to ensure convergence with the CRPD. This contributed to the Strasbourg Court’s surface-level assessment of the measures adopted by the State.
First, there was a lack of comprehensive analysis of the progressive realisation of the accessibility of the buildings in question. The Court came to its conclusion, without meaningful analysis, that ‘considerable efforts’ had been made to improve the accessibility of public buildings and buildings with public functions in the municipality following a parliamentary resolution in 2011, and that the further accessibility improvements which had since been made demonstrated a ‘general commitment’ to working towards the gradual realisation of universal access (§ 63). Nonetheless, as pointed out in the dissenting judgment, there were ‘good reasons’ to assume that the respondent State did not actually take adequate measures to remedy the situation of inaccessibility, since one of the buildings had been ‘extensively renovated’ between 2006 and 2014 (§ 8 of the dissenting opinion, referring to § 6 of the judgment), and no explanation had been provided as to why access for persons with disabilities was not improved during the renovations (§ 8 of the dissenting opinion). In fact, the ECtHR acknowledged that it was evident from the domestic court-appointed assessor’s report that accessibility had not been ensured to the standard required by the building regulations at the time of the domestic proceedings, which began in 2016 (§ 30). Yet, the buildings had been renovated directly before the proceedings began. Had the Strasbourg Court drawn carefully on the interpretive guidance provided in General Comment No. 2, it would have noted that where a service or facility open to the public was established after relevant accessibility standards were introduced, then the anticipatory duty of accessibility applies and this should be considered as a prohibited act of disability-based discrimination (§ 31 of General Comment No. 2).
Second, the ECtHR justified the lack of progress on accessibility with reference to the municipality’s prioritisation strategy. In that connection, it underlined that the prioritisation of accessibility in educational and sports facilities was ‘neither an arbitrary nor unreasonable strategy of prioritisation’ (§ 63). However, the ECtHR’s distinction between different types of (public) buildings and areas of life does, in itself, seem arbitrary given that such a distinction is not made in the CRPD. Indeed, in his dissenting opinion, Judge Zünd described arts and cultural facilities as ‘similarly important’ to educational and sport facilities (§ 8 of the dissenting opinion).
As made clear by the Strasbourg Court on several occasions, Article 8 ECHR comes into play only in exceptional cases, where the applicant’s lack of access to public buildings and buildings open to the public affects their life in such a way as to interfere with their right to personal development, and right to establish and develop relationships with other human beings and the outside world (see, among others, Zehnalová and Zehnal v. the Czech Republic). Such a situation was evident in the present case. Nonetheless, the Strasbourg Court failed to connect the general lack of access to the buildings in question to a violation of accessibility obligations falling within the scope of fulfilment of Article 8 ECHR.
Not only did the majority Justices fall short in their concrete assessment of the merits of the case, but most notably they muddied the waters when it came to the relevant international norms on which they relied. As a result, the ECtHR failed to square the ‘circles of confusion’ that exist between the interlinked reasonable accommodation and accessibility duties. This contributes to the perpetuation of the exclusion of the applicant and numerous other individuals with disabilities from community life.