No 07-00-00218/2018-02  Date: 19/12/2018

OPINION

This Opinion was adopted in the proceedings concerning a complaint by the Center for Independent Living of PwDs (CIL) against the Urban Municipality of New Belgrade (UMNB), the City Electoral Commission (CEC), and institutions and establishments whose buildings had been designated as polling stations at the elections for members of the Assembly of the City of Belgrade, held on 4 March 2018. The complaints stated, inter alia, that the complainant, within the framework of the project “Equality: PwD in political life” (“Ravnopravno: OSI u političkom životu”), had inspected the accessibility of polling stations to persons with disabilities in certain municipalities of the City of Belgrade, including UMNB, due to the fact that certain polling stations were inaccessible to persons with disabilities. In this regard, 41 complaints have been submitted to the Commissioner. Having regard to the same legal basis and findings of fact, the proceedings have been joined. The complaints state that, in comparison with other observed municipalities, New Belgrade has done a little more for the purpose of achieving minimum standards o accessibility, specifically by placing wheelchair ramps over the staircases, and that its inaccessible buildings require less intervention as regards their adaptation, while the lowest level of communication and information accessibility is provided for blind and visually impaired persons, deaf and hearing impaired persons. As the complaints have been also filed against institutions and establishments whose buildings were designated as polling stations, submitted statements mostly cite that such buildings functioned as polling stations in those specific cases, but did not have any role in the implementation of the electoral process. In the course of the proceedings, the Commissioner took into account the subject o complaints concerning the accessibility of proposed or designated polling stations to persons with disabilities, and found that the institutions and establishments whose buildings had been designated as polling stations, did not violate the Law on the Prohibition of Discrimination, as they were not responsible for proposing or designating places which would serve a polling stations in the electoral process. Having regard to the above, the Commissioner has suspended the proceedings against the institutions and establishments whose buildings were designated as polling stations, in compliance with Article 36, paragraph 2 of the Law on the Prohibition of Discrimination. Nevertheless, as the buildings in question are in public use, the Commissioner for the Protection of Equality will undertake measures within the scope of her competence as prescribed in Article 33 of the Law on the Prohibition of Discrimination – namely, will address recommendations on measures for achieving equality to users or owners of such buildings in public use which do not meet the prescribed accessibility standards. Furthermore, in accordance with Article 38 of the Law on the Prohibition of Discrimination, the Commissioner has proposed the implementation of conciliation proceedings to the complainant, UMNB and CEC, deciding that the case is eligible for mediation and that an agreement could be achieved as regards all issues which are the subject of these proceedings. The complainant and CEC  have accepted the mediation proceedings, while UMNB has stated that it does not accept the mediation proceedings. In that regard, the Commissioner for the Protection of Equality has continued the complaint proceedings only against UMNB. In its statement, UMNB states that the majority of buildings where the polling stations were located were built at least 30 years ago, and that the Electoral Commission has adopted the Rules of Conduct for polling boards in elections for members of the Assembly of the City of Belgrade, and that Article 24 provides for a procedure for the conduct of a polling board in the case when a voter is unable to vote at the polling station (for health-related reasons, persons with disabilities, infirm elderly persons), and that “such voters” have been enabled to vote by having members of polling boards visit the voters in their homes. The statement emphasizes that CEC designated the polling station, while UMNB did not make any decisions in that matter. In the specific case, for the purposes of correctly resolving this legal matter, it is important to apply the rule on the distribution of burden of proof from Article 45, paragraph 2 of the Law on the Prohibition of Discrimination. Having regard to the rule on the distribution of burden of proof, and in view of the fact that the complainant has proven the act of discrimination probable, UMNB is to prove that its actions did not violate the principles of equal rights and obligations. In the course of the proceedings, it has been established that, in accordance with the electoral regulations, UMNB was obliged to propose accessible buildings to be designated as polling stations. The fact that an alternative method of voting was designated, i.e. that it was possible to vote outside of the polling stations, does not absolve the competent authorities from the obligation to take account of the accessibility of polling stations in the process of proposing and determining the polling stations. On the basis of allegations from the complaints, submitted evidence, and submitted statements by the institutions and establishments whose buildings were designated as polling stations, as well as a statement by the UMNB, the Commissioner for the Protection of Equality has adopted the following opinion:

1. In the proceedings concerning 18 complaints by CIL with regard to the proposed polling stations in the following buildings: OŠ “M. 2”, OŠ “K.M.”, MZ “I.”, OŠ “K. А. I”, MZ “U.”, MZ “B. b. i”, MZ “S.”, MZ “P.”, OŠ “D. L.”, OŠ “N.P.”, OŠ “L. К.”, DV “P.”, DV “S.”, Z. i., OŠ “B. R.”, D. g., OŠ “J. D.”, MZ “D. k.”,

– with regard to complaints stating that cited polling stations were not accessible to persons with sensory disabilities due to the failure to enable “special communication with and provide information to voters”, UMNB did not violate the Law on the Prohibition of Discrimination, as the above is not within the scope of its competence.

– with regard to complaints concerning the provision of parking facilities for persons with disabilities, as well as the fact that access to certain buildings where polling stations were located was on uneven and steep ground, UMNB did not violate the Law on the Prohibition of Discrimination, as the above is not within the scope of its competence.

2. In the proceedings concerning 22 complaints by the Center for Independent Living of PwDs, it was decided that, by failing to propose polling stations which would be physically accessible to persons with disabilities which would be located in the following buildings: OŠ “J. S.P.”,MZ “P. k.,” MZ “S. a.”, MZ “G.”, К. z. s. l. “M. S.” K.p., OŠ “V O. K.”, OŠ “B. P.”, OŠ “R. D.”, OŠ “D. R.”, OŠ “Đ. S.”, OŠ “20. o.”, U. “L.”, MZ “A.”, MZ “B. k.”, MZ “S. k.”, MZ “Dr. I. R.”, P. a., OŠ “R. M.”, O. u. c., OŠ “I. G.” and OŠ “M.R.”, UMNB had violated Art. 6 and 26 of the Law on the Prohibition of Discrimination, as well as Article 13 of the Law on Prevention of Discrimination against Persons with Disabilities, while the complaint procedure concerning the physical inaccessibility of the polling station in the building of DZ “N.B.”, found that the Law on the Prohibition of Discrimination had not been violated.

– with regard to complaints stating that cited polling stations were not accessible to persons with sensory disabilities due to the failure to enable “special communication with and provide information to voters”, UMNB did not violate the Law on the Prohibition of Discrimination, as the above is not within the scope of its competence;

– with regard to complaints concerning the provision of parking facilities for persons with disabilities, as well as the fact that access to certain buildings where polling stations were located was on uneven and steep ground, UMNB did not violate the Law on the Prohibition of Discrimination, as the above is not within the scope of its competence.

The Commissioner for the Protection of Equality has suggested to UMNB that, in future electoral processes, CEC should propose accessible buildings to be designated as polling stations, and organise a meeting with complainants for the purpose of learning about the problems and difficulties that persons with disabilities face in respect of the accessibility of polling stations.