No. 021-01-00655/2019-02 Date: 20 November 2019
Acting under her statutory mandate[1] to oversee the implementation of anti-discrimination laws and recommend measures aimed at ensuring equality to public authorities and other entities, the Commissioner for the Protection of Equality hereby issues to the Republic Electoral Commission the following
RECOMMENDATION OF MEASURES AIMED AT ENSURING EQUALITY
The Commissioner for the Protection of Equality recommends that the Republic Electoral Commission should:
– Undertake all necessary measures and activities within its purview to ensure accessible polling stations and provide for communication and provision of information, so that all persons with disabilities, as well as other persons with reduced mobility or impaired hearing or vision can participate in elections unassisted and on an equal basis.
The Republic Electoral Commission is to notify the Commissioner for the Protection of Equality on the measures planned to implement this Recommendation within 30 days of receipt of the Recommendation of Measures aimed at ensuring Equality.
No appeal or any other remedy is allowed against this Recommendation, as it does not rule on the rights and responsibilities of legal entities.
Statement of Reasons
Based on complaints received from citizens, it has been observed that, in the election procedures carried out to date, certain polling stations were not accessible on the election day to persons with disabilities and other persons with reduced mobility. Namely, some of the buildings were elections were held were not accessible on the election day to persons with disabilities who use wheelchairs or voters reduced mobility, i.e. polling stations were situated in buildings with physical barriers (on an upper floor without a lift, with heavy entrance doors, stairwells etc.), as well as in buildings with difficult access (e.g. a very steep incline at the entrance, high doorsteps, narrow passageways, no reserved parking for persons with disabilities etc.). Furthermore, certain polling stations were not adapted to persons with sensory disabilities, in the sense that there was no communication with and information for voters with sensory disabilities. In addition, election materials, specifically ballots, were not made accessible to blind and partially sighted persons in the elections held to date.
The Constitution of the Republic of Serbia[2] prohibits all direct or indirect discrimination based on any grounds, particularly on race, sex, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability.[3] According to Article 23, human dignity is inviolable and everyone is obliged to respect and protect it, while Article 52 of the Serbian Constitution stipulates that suffrage is universal and equal for all and that voting is carried out by secret ballot in person.
The Republic of Serbia has ratified the UN Convention on the Rights of Persons with Disabilities[4], which aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity[5]. By ratifying this Convention, Serbia committed itself to taking appropriate measures to enable persons with disabilities to live independently and participate fully in all aspects of life. These measures are inter alia taken to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas[6]. Article 29 of the Convention regulates the issue of participation of persons with disabilities in political and public life. Namely, state parties guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and undertake to ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use.
The Recommendation of the Committee of Ministers Rec (2006)5 on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society identifies a set of objectives members states should implement in this field. The Recommendation states that participation of all citizens in political and public life is essential for the development of democratic societies. Society needs to reflect the diversity of its citizens and benefit from their varied experience and knowledge. It is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities. Specific actions which should be undertaken by member states to achieve the objectives inter alia include ensuring that voting procedures and facilities are appropriate and accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting; protecting the right of people with disabilities to vote by secret ballot and, where necessary, upon their request, allow assistance in voting by a person of their choice, as well as ensuring that no person with disability is excluded from the right to vote or to stand for election on the basis of her/his disability.
The constitutional prohibition of discrimination is elaborated further in the Law on the Prohibition of Discrimination[7], which defines discrimination as any unwarranted discrimination or unequal treatment, or omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, whether overt or covert, on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, property status, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics. Under Article 17 paragraph 2 of the Law on the Prohibition of Discrimination, everyone has the right to equal access to buildings in public use (buildings where the head offices of public administration authorities are located, education, health care, social welfare, culture, sports and tourism buildings, buildings used for the purpose of environmental protection, protection against natural disasters etc.), as well as public spaces (parks, squares, streets, pedestrian crossings and other public transport routes etc.), in accordance with the law. This right corresponds to the duty of competent public authorities to undertake measures to eliminate barriers which obstruct or make difficult access to buildings in public use for persons with disabilities, which is only one of the elements of the wider right to access, which implies that persons with disabilities have equal possibilities to enjoy human rights and freedoms as all other persons. Under Article 26 paragraph 1, discrimination is considered to occur in case of conduct contrary to the principle of observing equal rights and freedoms of persons with disabilities in political, economic, cultural and other aspects of public, professional, private and family life.
The Law on the Prevention of Discrimination of Persons with Disabilities[8], apart from setting forth the overall arrangements for the prohibition of discrimination on the grounds of disability, also provides for the special case of discrimination in proceedings before public authorities. Under Article 11, public authorities are prohibited from discriminating, through action or failure to act, against persons with disabilities; furthermore, public authorities are prohibited from discriminating against persons with disabilities by conducting proceedings for the exercise of rights of persons with disabilities in a way that effectively prevents or significantly hampers the exercise of such rights. Furthermore, Article 16 paragraph 1 of the same Law sets forth that the owner of a publicly used building shall ensure access to that publicly used building to all persons with disabilities, regardless of the type and degree of their disability, while paragraph 2 of the same Article imposes the same obligation on any other persons or entities to whom the right of use has been assigned, unless agreed otherwise with the owner or the competent public authority. The Law further imposes, in Article 34 paragraph 1, an obligation on public authorities to undertake measures to ensure equality of persons with disabilities in proceedings before those public authorities, while Article 38 provides that all state administration, territorial autonomy and local self-government bodies are to undertaker activities aimed at creating equal opportunities for persons with disabilities and are to ensure the involvement of persons with disabilities and their associations in those activities.
The Law on Planning and Construction[9] provides that buildings of public and commercial use must be designed, constructed and maintained so that all users, particularly persons with disabilities, children and the elderly, are provided with unhindered access, movement and stay, i.e. use in accordance with relevant technical regulations which include ad their integral part standards defining the mandatory technical measures and conditions of design, planning and construction which ensure unhindered movement and access for persons with disabilities, children and the elderly.
According to Article 3 paragraph 1 item 7 of the Bylaw on Technical Standards for Planning, Design and Construction of Buildings which Ensure Unhindered Movement and Access to Persons with Disabilities, Children and the Elderly[10], accessibility is a result of application of technical standards in planning, design, construction, reconstruction, annexation and adaptation of buildings and public areas to enable unhindered access, movement, use of services, stay or work for all persons, regardless of their physical, sensory and intellectual characteristics or age.
Article 34 of the Law on Election of Members of the Parliament[11] sets forth the competencies of the Republic Electoral Commission. The Republic Electoral Commission, inter alia, oversees the legality of the elections, organises technical preparation for the elections, defines uniform standards for election materials, defines forms and regulations for carrying out election procedures pursuant to this law and establishes the polling committees and appoint the presidents and members of the polling committees. Furthermore, Article 37 of this Law provides that the polling committee carries out voting directly at the polling station, ensures the regularity and secrecy of the voting process, determines the outcome of the voting at the polling station and carries out other duties set by this law. The polling committee is responsible for maintaining order at the polling station during voting, while detailed rules of procedure of the polling committee is defined by the Republic Electoral Commission.
Articles 52 to 87 of the Law on Election of Members of the Parliament regulate conducting of the elections. Under Article 52, detailed regulations regarding polling stations are set by the Republic Electoral Commission, while Article 55 paragraph 1 sets out that every voter must vote in person and paragraph 7 of this Article sets out that detailed instructions on measures to ensure secrecy of voting are set by the Republic Electoral Commission.
The Republic Electoral Commission regulates in detail the form and the layout of ballots, the manner and control of their printing and delivery and handling of ballots (Article 60 paragraph 7) and determines the content and layout of electoral materials necessary for conducting the elections within 15 days of the date of its appointment (Article 66). Articles 72 and 72а set out voting procedures for voters who are not able to vote personally and who are not able to vote at the polling station. The voter who is not able to vote personally at the polling station (blind, illiterate or disabled person) has the right to bring a person who will fill the ballot, i.e. vote, in the manner determined by him/her. The voter who is unable to vote at the polling station (a person unable or prevented from coming to the polling station) can inform the poling committee whether he/she would like to vote, not later than 11AM on the day of the voting.
The overall conclusion of the Analysis of Accessibility of Polling Stations in Belgrade, Kragujevac and Sombor, which was conducted by the Association “Centre for Unassisted Living of Persons with Disabilities Belgrade”, is that the polling station accessibility analysis revealed that certain buildings designated as polling stations were inaccessible primarily to wheelchair users and persons with reduced mobility. The most common obstacles include entrances to buildings that are not bridged by a ramp or a platform lift, high doorsteps and doorways that are too narrow, with heavy opening mechanisms. According to the analysis, the situation is the worst with regard to communication and information accessibility for the blind, the partially sighted, the deaf and hard-of-hearing persons, as most of the polls in the surveyed cities were inaccessible on average, with only few of them employing a signage system for spatial orientation or an inductive loop. Furthermore, the analysis also stated that parking spaces reserved for persons with disabilities were either not marked at all or were marked incorrectly[12].
Based on the abovementioned analysis and the practice of the Commissioner for the Protection of Equality, a certain number of publicly used buildings unfortunately remain inaccessible to persons with disabilities. Under the law, the Republic Electoral Commission designates polling stations on proposal from local self-government units and is in charge of setting out detailed rules governing the operations of polling committees, as well as detailed rules pertaining to polling stations. Since the Republic Electoral Commission has no way of ascertaining the actual condition of the buildings nominated to serve as polling stations, and the buildings nominated to serve as polling stations are usually publicly used buildings which should presumably be accessible to persons with disabilities in accordance with the applicable regulations, there is a risk that a polling station could be designated in a publicly used building which is not accessible to persons with disabilities.
For this reason, the Commissioner for the Protection of Equality recommends that the Republic Electoral Commission, when issuing instructions regarding the conduct of elections, highlight the need to nominate potential polling stations that are accessible to persons with disabilities. it would be expedient if such instructions could emphasise the statutory obligation to make polling stations accessible to persons with disabilities and the fact that local self-government units in particular are responsible for nominating buildings that meet the accessibility standards. Local self-government units should be advised to ensure that the buildings they nominate to serve as polling stations have an accessible entrance and doors that are wide enough for wheelchair access, with clearly marked parking spaces reserved for persons with disabilities and with accessible access paths, and if a building has an accessible ground floor, voting should be held in those parts of the building. Furthermore, polling committees should also be specifically advised that communication and information obstacles must be removed from polling stations and encouraged to cooperate with local associations of persons with disabilities in finding ways to eliminate obstacles at polling stations.
Although the Law on Election of Members of the Parliament, as the umbrella law governing this area with certain provisions that are applicable to the procedure and conduct of elections at all levels of government, provides for the possibility of a field visit by a committee if a person is unable to physically come to the polling station due to infirmity or incapacity, the Commissioner for the Protection of Equality underscores that persons with disabilities are not infirm and are capable of using public areas and buildings in person and unassisted, provided that the statutory requirement to make such buildings and areas accessible is complied with. Moreover, the fact that alternative voting arrangements are provided for persons with disabilities and all persons who are unable to vote does not exonerate those responsible from the obligation to make a polling station accessible, especially as the fact that such an alternative arrangement is provided for does not promote the autonomy of persons with disabilities and their inclusion in all aspects of life.[13] Furthermore, the Commissioner also notes that the Committee on the Rights of Persons with Disabilities recommended inter alia in its Concluding Observations on the report of Serbia that the state should ensure that upcoming elections are inclusive of and accessible to all persons with disabilities, including voting facilities and campaign materials.[14]
In addition, ballots have not been printed in Braille so far in the Republic of Serbia and blind and partially sighted persons have not been able to vote using tactile ballot paper templates with cut-outs in places that correspond to the ordinal numbers before the names of candidates written on ballots. Blind and partially sighted persons have been able to vote with an assistant.
Following a comparative analysis of practices in neighbouring and European countries[15] on accessibility of voting to blind and partially sighted persons, the conclusion is that only a few European countries grant blind and partially sighted persons the full right to vote independently and in secret by printing ballots in Braille and/or by creating tactile ballot paper templates with cut-outs in places that correspond to the ordinal numbers before the names of candidates written on ballots.
The Commissioner notes that both systems are recognised in legal practice as arrangements for voting by blind and partially sighted persons, in some cases cumulatively and in others alternatively, because there are blind and partially sighted persons who do not know Braille. Certainly, notwithstanding these arrangements for the exercise of rights, every blind voter should additionally also have the right, if he/she so wishes and demands, to come to a polling station accompanied by a person who will vote in his/her stead according to his/her instructions.
In view of the foregoing, the Commissioner is of the opinion that examples of good practice from countries that have made ballots accessible to the blind and the partially sighted should be examined in the coming months and years, to enable all citizens to cast their vote in person in elections.
Finally, the Commissioner notes that accessibility is a fundamental prerequisite for equal participation of persons with disabilities in all spheres of social life. It is the key precondition for full inclusion of all persons with disabilities in all social spheres and, rather than being an individual matter and issue dealt with by persons with disabilities, it should be a goal for the society as a whole, with the aim of achieving common interests and prosperity.
Upon consulting the official website of the Republic Electoral Commission[16], the Commissioner learned that members of the Republic Electoral Commission have discussed possibilities for improving accessibility of the election process for persons with disabilities with representatives of the Centre for Independent Living of PWDs Serbia. The Commissioner welcomes the steps taken to establish cooperation with this civil society organisation and notes it is a good way forward in addressing the existing challenges in promoting the exercise of rights of persons with disabilities.
In view of the foregoing, this Recommendation of Measures aimed at ensuring Equality is issued in accordance with Article 33 item 9 of the Law on the Prohibition of Discrimination.
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
[1] Article 33 paragraph 1 items 7 and 9 of the Law on the Prohibition of Discrimination (Official Gazette of the Republic of Serbia No. 22/09)
[2] Official Gazette of the Republic of Serbia No. 98/06
[3] Constitution of the Republic of Serbia, Article 21.
[4] Law on Ratification of Convention on the Rights of Persons with Disabilities (Official Gazette of the Republic of Serbia – International Treaties No. 42/09)
[5] Convention on the Rights of Persons with Disabilities, Article 1 paragraph 1.
[6] Convention on the Rights of Persons with Disabilities, Article 9 paragraphs 1 and 2.
[7] Law on the Prohibition of Discrimination, Article 2.
[8] Official Gazette of the Republic of Serbia No. 33/06
[9] Official Gazette of the Republic of Serbia, Nos.72/09, 81/09,64/10, 24/11,121/12,42/13, 50/13, 98/13,132/14 and 145/14
[10] Official Gazette of the Republic of Serbia No. 22/15
[11] Official Gazette of the Republic of Serbia Nos. 35/00, 57/03 – Decision of the Constitutional Court of the Republic of Serbia, 72/03 – new Law, 75/03 – corrigendum of the new Law, 18/04, 101/05 – new Law, 85/05 – new Law, 28/11 – Decision of the Constitutional Court, 36/11 and 104/09 – new Law
[12] http://www.cilsrbija.org/ebib/201807241412210.analiza_pristupacnosti_birackih_mesta_beograd_kragujevac_sombor%20.pdf
[13] Semikhvostov v.Russia, petition No. 2689/12, judgment of 6 February 2014.
[14] Content available at: http://www.ljudskaprava.gov.rs/sites/default/files/dokument_file/zakljucna_zapazanja_komiteta_za_prava_osoba_sa_invaliditetom_srb.pdf
[15] http://www.euroblind.org/newsletter/2018/november/en/ava-accessible-voting-awareness-raising-report-accessibility-elections
[16] http://www.rik.parlament.gov.rs/aktivnosti-saopstenja.php#a12
