No. 07-00-250/2019-02 date:

OPINION

The opinion was issued in the procedure regarding the complaint that AA, in her own name and with the consent of her parents, BB and VV, filed against the members of the management of the Assembly of the housing community GG, (hereinafter: the Housing community) DD, ĐĐ and ŽŽ, due to discrimination based on disability. In the complaint, the applicant stated, inter alia, that she had bought an apartment in EE Street, in order to live with her parents, who were old and less mobile, and in which she would practice her profession – practice of law. Further, she explained that her father, BB, who is a wheelchair-bound person, had difficulty accessing the building and was denied access to the apartment at that address due to certain barriers, and that for the issuance of “appropriate” permits to perform and legalize work on removing obstacles for persons with disabilities, a decision of the Assembly of the housing community is needed, which in this particular case cannot be “obtained” due to “obvious obstruction and negative campaign of its management”. Namely, the complaint clarifies that the management of the Assembly of the housing community “for a prolonged period of time” prevented the complainant’s family from obtaining the necessary consents, by “obstructing” the session of the tenants’ assembly at which the issue would be decided, and refusing to put the solving of the problem of accessibility on the agenda, and that, out of the “numerous” works performed on the yard side of the building, they reported to the construction inspection “only those works” related to the removal of the barriers and enabling BB to access the building and apartment. It was also pointed out that the members of the GG tenants’ assembly were “pressured” to withdraw previously issued consents, and that by preventing the decision of the Housing community, the complainant’s family members were prevented from moving into the apartment in EE. The statement of the Housing community noted, inter alia, that immediately after the purchase of the apartment in question, the complainant began to “change the appearance of the building, which is under protection” without the approval of the competent authority. It is further stated that these “illegal works” were reported by the Housing community to the construction inspection, which suspended them after a field inspection, and that from that moment disagreements with the lawyer AA began, “who included her parents in the whole story without any basis”, considering that they “already have their residence and a suitable apartment at II”. The statement pointed out that the issue of the ramp was not put on the agenda “because it was started and initiated earlier without anyone’s proposal”, and that in March 2019 they addressed the Public enterprise City Housing to install the ramp “because it is socially necessary and preferable.” Also, the Housing community denied the allegations that the complainant was suggested to move into the apartment without her family “because the Housing community is not interested in who will live in the apartment in question, but that all household members, if they live at the specified address, should be registered, and that only AA is registered at that address.” During the proceedings, and in order to properly and completely determine the facts, the Commissioner addressed the Institute for the Protection of Cultural Monuments of the City of JJ (hereinafter: the Institute), which confirmed that the building in EE Street enjoys prior protection and that no request was submitted to them, as the competent authority, for the adaptation of the facility in terms of ensuring accessibility for persons with disabilities, nor was a consent given to the project documentation for the intervention in question. Also, it was clarified that, for any intervention on the building under the jurisdiction of the protection service, it is necessary for the owner or user of the building to contact the Institute for the Protection of Cultural Monuments of JJ, as the competent protection institution, with the proposed conceptual design and “other necessary documents”, which include a decision/consent of the housing community for interventions on common parts of the building. Also, it was determined that the Housing community reported the works undertaken by the complainant in order to ensure the accessibility of the apartment to the construction inspection, after she submitted a request for convening a session of the tenants’ assembly on this issue on December 2, 2018. Furthermore, the Commissioner notes that witness KK and witness LL confirmed that the complainant had “repeatedly” submitted requests to the management of the Housing community, in which she insisted on scheduling a session of the tenants’ assembly to obtain consent to make the apartment accessible to her father, who is a wheelchair user, as well as that the management of the Housing community refused to attend the session scheduled for July 2, 2019 with the established agenda “issuance of consent for removal of obstacles for disabled people for access to apartment No. 1, entrance No. 1”. Taking into consideration all of the above, and having in mind the rule from Article 45 of the Law on Prohibition of Discrimination, according to which the burden of proof is on the person against whom the complaint was filed, the Commissioner determined that the Housing community did not provide evidence that a session of the Housing community was held with the purpose of issuing consent to the complainant for construction works on adaptation and adjustment of apartment No. 1, entrance No. 1, for the needs of BB, who moves with the help of a wheelchair, and on the basis of which the complainant would be able to apply to the Institute for the Protection of Cultural Monuments of the city of JJ, as the competent authority. Furthermore, when deciding in this case, the Commissioner also had in mind the manner in which the management of the Housing community acted towards the complainant, i.e. towards her requests for convening a tenants’ assembly in order to obtain the necessary consent. In this regard, the Commissioner notes that the evidence provided shows that the complainant was suggested to go from “door to door” and to “explain to all tenants what her problem was”, that she was “forbidden” to address the management of the Housing Community on the above issue “until she settles her obligations to them for the previous month”, as well as that on the occasion of the same request she sent on May 26, 2019, in which she proposed making a decision on marking a parking space for people with disabilities and providing wheelchair access to the entrance of the building, the Housing community informed the complainant that the session had been convened to “solve the problem of cats on the roof and in the yard, and that what she was talking about was not the subject of discussion.” In addition to the above, the Commissioner also had in mind that the applicant stated in the complaint that she had been asked to submit proof of her father’s disability, as well as proof of ownership of the apartment. Taking into account all of the above, and bearing in mind that, in addition to housing, the space in question is intended for the complainant’s profession, i.e. the provision of legal services, the Commissioner is of the opinion that by not holding a session to give consent to works on apartment No. 1 in EE Street, on the basis of which, in addition to other necessary documentation, the complainant would be able to submit a request to the competent authority for adaptation of the building in terms of ensuring accessibility for persons with disabilities, members of the management of the Housing community GG violated the provisions of Articles 6 and 26 of the Law on Prohibition of Discrimination, and that by the manner in which they acted in accordance with the complainant’s requests for obtaining the necessary consent for the performance of works that would provide BB with accessible entrance to the apartment, they have acted hostilely, humiliatingly and insultingly, both towards the complainant, on the basis of her father’s personal characteristics, and towards a group of individuals, that is, persons with disabilities to which BB belongs to, thus violating the provisions of Article 12 of the Law on Prohibition of Discrimination. Therefore, the management of the Housing community of GG was recommended to schedule a session of the Assembly of the Housing community of GG, immediately after the abolition of the measure prohibiting gatherings prescribed by the Government of the Republic of Serbia, with the following agenda: acquiring consent for works in apartment No. 1, entrance No. 1, as well as to adopt a decision on the said issue in accordance with the provisions of the Law on Housing and Building Maintenance; to send a written apology to the family of the complainant for discriminatory treatment and to inform all members of the Assembly of the Housing community of GG about the opinion of the Commissioner, as well as not to violate anti-discrimination regulations in the future, within the scope of their activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković