2024. 021-01-1035/2024-02 date: 17 June 2024.

Dear Mr. Anđelković,

A complaint was submitted to the Commissioner for the Protection of Equality, in which concern was expressed about the announcement by the PE Post of Serbia that it will introduce a new mobile application through which all communication with service users will be carried out in the future. In the complaint, it was stated that the introduction of the application, if it were the only means of communication with citizens, would lead to discrimination of persons with disabilities, specifically to discrimination of blind and partially sighted persons.

The Commissioner for the Protection of Equality is an independent state body established by the Law on Prohibition of Discrimination^[1]. The provisions of Article 33 of the Law on Prohibition of Discrimination prescribe the competences of this body. One of the basic competences of the Commissioner is to receive and consider complaints due to discrimination, give opinions and recommendations in specific cases of discrimination, and impose measures established by law. The Commissioner is also authorized to send recommendations of measures to public authorities and other persons for the realization of equality and protection against discrimination.

Bearing in mind the allegations from the complaint, the Commissioner suspended the procedure on the complaint because, according to media reports, the creation of the application was ongoing, and it was not entirely clear what the character of that application would be, that is, who will be able to use it and whether it will really be the only means of communication with users. Also, people with disabilities, specifically blind and partially sighted people, can use smartphones with the help of assistive technologies such as a screen reader or similar. However, the use of certain applications may require their adaptation to support the needs of blind and partially sighted people, such as speech output or audio feedback.

Although the complaint procedure has been suspended, we use the opportunity to point out the importance of accessibility and enabling people with disabilities to participate equally with others in all areas of social life. The practice of the Commissioner for the Protection of Equality, unfortunately, shows that, despite certain developments, it is still evident that out of the total number of complaints filed due to discrimination based on disability, the largest number of complaints are filed due to discrimination during the provision of services or during the use of facilities and areas.

In addition to the Commissioner’s practice, research and reports also indicate that additional resources and potentials need to be directed towards solving the problem of inaccessibility of both facilities and information and communication, services, and products.

The Law on Prohibition of Discrimination stipulates that an act of discrimination^[2] means any unjustified discrimination or unequal treatment, that is, omission (exclusion, restriction or priority), in relation to persons or groups as well as members of their families, or persons close to them, in an overt or covert manner, based on race, skin color, ancestry, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, sex, gender, gender identity, sexual orientation, sexual characteristics, income level, property status, birth, genetic characteristics, health status, disability, marital and family status, convictions, age, appearance, membership in political, trade union and other organizations and other real or assumed personal characteristics^[3].

In accordance with the provisions of Article 26, paragraph 1 of the Law on Prohibition of Discrimination, a violation of the rights from this law will always exist if the principle of respecting the equal rights and freedoms of persons with disabilities is acted against in the political, economic, cultural and other aspects of public, professional, private and family life.

By provision of Article 13 of the Law on Prevention of Discrimination of Persons with Disabilities^[4], discrimination based on disability in the field of service provision is prohibited. Service, in the sense of this law, is considered any service that, with or without compensation, a legal or natural person provides within the framework of their activity, that is, permanent occupation.

By ratifying the Convention on the Rights of Persons with Disabilities, the Republic of Serbia undertook, among other things, to recognize the right of persons with disabilities to participate equally with others in all aspects of social life. The provision of Article 9 of the Law on the Ratification of the Convention on the Rights of Persons with Disabilities stipulates that the contracting states shall take appropriate measures to provide persons with disabilities access, on an equal basis with others, to the physical environment, transportation, information and communications, including information and communication technologies and systems, as well as other conveniences and services that are open or available to the public, both in urban and rural areas, in order to enable independent living and full participation in all social spheres. General Comment no. 2, which refers to Article 9 of the Convention on the Rights of Persons with Disabilities, states that accessibility is a prerequisite for independent living and full and equal participation of persons with disabilities in society. Without access to the physical environment, transportation, information, and communications, including information and communication technologies and systems, and other services and amenities open to or intended for the public, persons with disabilities would not have equal opportunities to participate in the society in which they live.

The general information and communication community has recognized accessibility since the first phase of the World Summit on the Information Society in 2003. This concept, introduced and promoted by the movement of persons with disabilities, is included in the Declaration of Principles of the Summit in paragraph 25, which reads: The distribution and strengthening of global knowledge for development can be improved by removing barriers to equal access to information for economic, social, political, health, cultural, educational and scientific activities and by facilitating access to information in the public domain, including by applying universal design and assistive technologies.^[5] The Committee for the Rights of Persons with Disabilities dealt with the issue of accessibility in its jurisprudence on individual petitions. In the case of Szilvia Nyusti, Péter Takács and Tamás Fazekas v. Hungary (application no. 1/2010, the Committee’s position on the application adopted on 16 April 2013), the Committee took the position that all services intended for the public or open to the public must be accessible in accordance with the provisions of Article 9 of the Convention. The contracting party was asked to provide access to ATMs for blind people. Among other things, the Committee recommended that the contracting party should establish “minimum standards of accessibility of banking services provided by private financial institutions for people with visual impairments and other types of impairments”, “create a legal framework with concrete, enforceable and time-bound parameters for supervision and assessing the gradual adaptation of previously inaccessible banking services of private financial institutions in order to make those services accessible” and to “ensure that all new ATMs put into operation and other new banking services are fully accessible to persons with disabilities” (paragraph 10.2 a).^[6]

Communicating with citizens only through the application can indirectly put members of other vulnerable groups who are otherwise at greater risk of discrimination and poverty in an unjustified disadvantageous position, that is, it can exclude citizens who, for various reasons, lack technical capabilities and digital skills.

In the Special Report of the Commissioner on Discrimination of Senior Citizens^[7], it was indicated that people older than 65 years of age fall into one of the categories at the highest risk of digital exclusion. Although this age group has shown great interest in learning to use information and communication technologies, their digital skills are minimal.^[8] As a significant fact, it was stated that 43% of respondents do not use the Internet, while out of 57% of those who used it, more than 90% did not use e-services. In the report Fundamental Rights of Older Persons: Ensuring Access to Public Services in Digital Societies ^[9] it is indicated that two major transformations are shaping the future of Europe: demographic aging and the digital transformation of everyday life, including the digitization of public and private services. By 2050, 30% of the EU population will be aged 65 and over. This demographic change affects all aspects of life and has important economic and social implications. Data shows that only 1 in 4 people in the EU aged 65 to 74 have at least basic digital skills, which means that they might be deprived of basic rights, access to healthcare, or pensions. The report states that for these reasons, it is necessary for all countries to consider digitization from a fundamental rights perspective and ensure equal access to digital information and services for all older persons.

Bearing in mind that accessibility is an essential prerequisite for the full and equal participation of persons with disabilities, as well as other citizens in society, and given that the application should not and must not be the only means of communication with users of services, which we believe is not the intention of PE Post of Serbia, in accordance with the provisions of Article 33, Item 9 of the Law on Prohibition of Discrimination, the Commissioner makes a recommendation that this public enterprise make communication with citizens on any platform accessible for people with sensory or other disabilities, as well as for all those citizens who, for various reasons, are not able to use internet applications. In this regard, the Commissioner points out the importance of retaining the traditional/direct ways of clients’ addressing (coming to the post office, sending by regular mail, phone, SMS, etc.) for citizens who, due to their financial situation, certain health condition, disability, absence of the necessary devices, IT skills and/or other reasons, which can be numerous, will not be able to use the application.

^[1] Law on Prohibition of Discrimination, No. 22/09 and 52/21

^[2] The Law on Prohibition of Discrimination (“Official Gazette of RS2, No. 22/09 and 51/21)

^[3] Law on Prohibition of Discrimination (“Official Gazette of RS” Nos. 22/2009 and 52/2021), Article 2, paragraph 1, item 1

^[4] “Official Gazette of RS”, Nos. 33/06 and 13/16

^[5] Alliance for Accessibility of Serbia, available at:  https://saps.rs/lat/o-nama

^[6] Alliance for Accessibility of Serbia, available at:  https://saps.rs/lat/propisi

^[7] https://ravnopravnost.gov.rs/wp-content/uploads/2021/09/poseban-izvestaj-o-diskriminaciji-starijih.pdf

^[8] https://www.redcross.org.rs/media/6183/starenje-i-digitalna-ukljucenost-web.pdf

^[9] Fundamental rights of older persons: ensuring access to public services in digital societies, EU Agency for Fundamental Rights (FRA), 2023, available at: https://fra.europa.eu/en/publication/2023/older-people-digital-rights

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković