Glaisen v. Switzerland : the Court still gives up on reasonable accommodation

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. Continue reading

Dupin v. France: the ECtHR going old school in its appraisal of inclusive education?

By Johan Lievens (VU Amsterdam) and Marie Spinoy (Leuven Centre for Public Law, KULeuven)

In Dupin v. France the European Court of Human Rights saw itself confronted with one of the key conflicts in education law: when parents and state officials disagree on which educational trajectory is best for a child with a disability, who gets the final say? This case concerned a mother fighting the decision of the French authorities to refuse her child, who has Autism Spectrum Disorder, access to a general school (through a form of inclusive education). Instead, the child was referred to an ‘Institut medico-éducatif’, an institution established to provide care and a specialized type of education to children with an intellectual impairment. Seemingly going back on its prior case law, the Court did not consider the right to education of the child to be violated. Continue reading

Loneliness that is good for you: the European Court addresses the right to marry of people with disabilities

By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights

On 25 October 2018, the European Court of Human Rights issued its first substantive ruling under Article 12 regarding people placed under guardianship.[i] Delecolle v. France involved an elderly man who was not allowed to marry a long-time friend under the pretext that he was not able to understand the financial implications of that decision. The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled. The Court has lately proven increasingly willing to consider the implications of the widely ratified Convention on Human Rights of Persons with Disabilities (CRPD) for its jurisprudence. Several judgments have broken new ground, such as Çam v. Turkey on inclusive education and Guberina v. Croatia on accessibility and reasonable accommodation. With the Delecolle judgment, the Court reverts to an uncertain trajectory in the area of disability, characterised by a palpable inability to develop, and apply consistently, a coherent set of principles on difficult subjects such as legal capacity, accessibility, independent living or detention. Continue reading

Disability and University (pragmatic) Activism: the pros and cons of Enver Şahin v Turkey

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. Continue reading

A.M.V. v. Finland: Independent Living, a Bridge Too Far for the European Court of Human Rights

By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights

The recently adopted judgment in the case A.-M.V. v. Finland on the right of an intellectually disabled man to decide where and with whom to live makes for a fascinating, although frustrating reading. This is a timely reminder of the considerable challenges remaining on the journey towards the goal of independent living, celebrated on the 5th of May across Europe. Continue reading

V.M. and others v. Belgium: The tragic story of yet another “disappeared case”

Guest post by Moritz Baumgärtel, lecturer and researcher at the Department of European and International Public Law at Tilburg University. Moritz recently defended his PhD at the Université libre de Bruxelles. His project was a part of the IAP research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective”.

On 17 November 2016, the Grand Chamber of the European Court of Human Rights decided to strike off its list of cases the application in V.M. and others v. Belgium. The case concerned the reception conditions and the exposure to a risk of inhumane and degrading treatment of a Roma family in the context of a “Dublin transfer” from Belgium to France. The matter was referred to the Grand Chamber following a judgment of the Second Section on 7 July 2015, which had found violations of articles 3 and 13 of the ECHR. In striking out the application because the lawyer failed to maintain contact with the clients, the Grand Chamber added yet another chapter to the already lengthy volume on “disappeared cases”. The Court’s decision raises serious questions regarding the effectiveness of its remedies and the problems it poses for strategically minded lawyers in the migration domain.

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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.

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