Reference No. 07-00-061/2018-02

Date: 22 May 2018

OPINION

This Opinion was issued in a procedure following two complaints of discrimination on the grounds of disability as a personal characteristic, one filed by J.Č. against the Basic Court in Sombor and one by the Centre for Independent Living of Persons with Disabilities – Sombor branch against the High Court in Sombor. The complaints stated that the building of the Basic Court in Sombor was not accessible to persons with disabilities owing to the existing architectural obstacles.

In response to the complaint, the Basic Court in Sombor stated, inter alia, that the said building had no wheelchair ramp or a lift and that the High Court in Sombor, being the highest court in rank, was [responsible for] facilities management. The High Court in Sombor explained in its response, inter alia, that there was one step at the very entrance to the building leading to the entrance doors with further six steps of the stairs, inclined at a total of 45-degree angle, until the entryway to the ground floor, i.e. the hall of the building. It was also stated that in previous years (2013, 2014 and 2015), the High Court in Sombor had raised the issue of wheelchair access to the building with the Ministry of Justice, but that it had not received any capital improvement funds for the installation of a wheelchair ramp and equipment for easy access for persons in wheelchairs. Upon receiving a letter from the Commissioner for the Protection of Equality, the President of the High Court in Sombor adopted a decision on the acquisition of an aluminium telescopic ramp for persons in wheelchairs which was to be installed in the entrance to the Court building. It was noted in the decision rationale and the response of the High Court in Sombor that procuring and installing the ramp were the only temporary solution to ensuring easy access to the building for persons with disabilities available at that moment.

In the course of the complaints procedure, it was established that the building entrance was inaccessible to persons with disabilities. It was further established that accessibility to the building, as [required for] a public-use building, had not yet been facilitated.

[In light of the fact that] the Law on the Prohibition of Discrimination and the Law on the Prevention of Discrimination against Persons with Disabilities had entered into force in 2009 and given the rule on shifting the burden of proof referred to in Article 45 of the Law on the Prohibition of Discrimination, the Commissioner found that the High Court in Sombor had not provided evidence showing that it had requested funds for the accessibility of the building prior to 2013, i.e. that it had not taken all measures for making the building accessible. In fact, the High Court in Sombor Work Report 2010-2013, reference number SU III-19/2013-13 dated 27 February 2013, confirmed that a series of adaptation works performed on the Court building had not involved making the building accessible.

Furthermore, Article 16 of the Law on the Prevention of Discrimination against Persons with Disabilities stipulates that an owner of a building in public use is obliged to provide access to such building to all persons with disabilities irrespective of the nature or the degree of their disabilities. Article 16(2) prescribes the same obligation on any other party with a transferred right to use the relevant property, unless differently agreed with the property owner, i.e. the competent authority. Article 84(5) of the Court Rulebook stipulates that in case of shared tenancy, the management of the relevant court building shall be the responsibility of the highest-ranking court.

Therefore, the Commissioner for the Protection of Equality found that the entrance to the public-use building presently occupied by the Basic and the High Court in Sombor was not accessible to persons with disabilities, which constituted a violation of Articles 6, 17 and 26 of the Law on the Prohibition of Discrimination in connection with Articles 13 and 16 of the Law on the Prevention of Discrimination against Persons with Disabilities, and recommended to the High Court in Sombor to proceed with its efforts to install the aluminium telescopic ramp and ensure accessibility of the building it occupied with the Basic Court in Sombor in order to allow equal access for persons with disabilities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković