no. 011-00-1/2023-02 date: January 6, 2023
MINISTRY OF CONSTRUCTION, TRANSPORT, AND INFRASTRUCTURE
Goran Vesić, Minister
11000 BELGRADE
Nemanjina 22-26
Subject: Initiative to amend Article 135, Paragraph 8 of the Law on Planning and Construction (“Official Gazette of the RS”, nos. 72/2009, 81/2009 – corrected, 64/2010 – decision of the CC, 24/2011, 121/2012, 42/2013 – CC decision, 50/2013 – CC decision, 98/2013 – CC decision, 132/2014, 145/2014, 83/2018, 31/2019, 37/2019 – other law, 9/2020 and 52/2021)
Dear Mr. Vesić,
The Law on Prohibition of Discrimination[1] stipulates that the Commissioner for the Protection of Equality monitors the implementation of laws and other regulations, initiates the adoption or amendment of regulations, and gives an opinion on the provisions of draft laws and other regulations with the aim of promoting equality and protection against discrimination.
In this regard, we point to the provision of Article 135, Paragraph 8 of the Law on Planning and Construction, which needs to be amended in order to promote equality and protection against discrimination of persons with disabilities.
Namely, the provisions of Article 135, paragraph 8 of the Law on Planning and Construction prescribe that for the construction or execution of works on construction land or a building owned by several persons, the certified consent of those persons shall be attached as proof of the corresponding right, and if superstructure construction works are being carried out, a contract concluded in accordance with a special law is also attached.
The Commissioner for Protection of Equality was addressed by citizens from Belgrade, Bor and Kragujevac who were faced with the problem that some apartment owners in the building where they live (a building with more than ten apartments) do not agree to build a ramp at the entrance to the building to overcome the architectural barrier due to which tenants who have difficulty moving cannot independently enter and exit the building in which they live. The Commissioner was approached by a woman from Belgrade who uses an aid for movement (a so-called walking aid) and whose neighbors, the tenants of the building where she lives, do not agree that a ramp is built at the entrance to the building. Also, in Bor, due to the opposition of the co-tenants, the construction inspection ordered the removal of the ramp, the construction of which was financed by the local administration, in order to enable the unhindered movement of a seven-year-old boy with cerebral palsy. A similar situation exists in Kragujevac, where a man who uses a wheelchair has difficulties moving because the neighbors (owners of apartments in the same building) oppose the construction of a ramp at the entrance to the building.
In view of the above, the Commissioner for the Protection of Equality analyzed the provision prescribed by Article 135, Paragraph 8 of the Law on Planning and Construction in relation to constitutional provisions, the anti-discrimination legal framework, and international standards, with the aim of enabling independent living and full participation of persons with disabilities in all spheres of life.
Article 21 of the Constitution of the Republic of Serbia[2] prescribes the prohibition of any discrimination, direct or indirect, on any basis, especially on the basis of race, gender, nationality, social origin, birth, religion, political or other belief, property status, culture, language, age and mental or physical disability.
The constitutional prohibition of discrimination is elaborated in more detail in the Law on Prohibition of Discrimination, which in the provisions of Article 2 prescribes that an act of discrimination means any unjustified distinction or unequal treatment, that is, omission (exclusion, restriction, or giving priority), in relation to persons or groups as well as members of their families, or persons close to them, in an open or covert manner, which is based, among other things, on disability and other real or assumed personal characteristics[3]. Article 26, paragraph 1 of this Law stipulates that discrimination exists if the principle of respect for equal rights and freedoms of persons with disabilities is acted against in political, economic, cultural, and other aspects of public, professional, private, and family life.
The Republic of Serbia adopted the Law on Confirmation of the Convention on the Rights of Persons with Disabilities[4], whose goal is to promote, protect and ensure the full and equal enjoyment of all human rights and basic freedoms for all persons with disabilities and promote respect for their inherent dignity[5]. The Convention under discrimination on the basis of disability means any difference, exclusion, or limitation on the basis of disability, which has the purpose or effect of impairing or nullifying the recognition, enjoyment, or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other area. The Convention covers all forms of discrimination, including the denial of reasonable accommodation, and the contracting states undertake to prohibit any discrimination based on disability and guarantee equal and effective legal protection to persons with disabilities against discrimination on any basis. Article 9 of the Convention stipulates, among other things, that in order to enable independent living and full participation of persons with disabilities in all spheres of life, the contracting states shall take appropriate measures to provide access to persons with disabilities on an equal basis with others, to the physical environment, transportation, information, and communications, including information and communication technologies and systems, as well as to other amenities and services available to the public. Measures that include the identification and removal of barriers to access refer, among other things, to buildings.
The Republic of Serbia has adopted the Strategy for the Improvement of the Position of Persons with Disabilities in the Republic of Serbia for the period from 2020 to 2024[6], in which it is indicated that accessibility is a prerequisite for independent living, full and equal participation of persons with disabilities in society and the unlimited exercise of all human rights and basic freedoms, equally with others and applies to persons with any type of disability. In the overview of the situation, the Strategy states that the housing of persons with disabilities represents a special problem and directly affects the isolation of persons with disabilities and the extent of their social inclusion. Adaptations of the places of residence of persons with disabilities have not been systematically resolved, which is why persons with disabilities are forced to secure financial resources for adaptations on their own and fulfill very complicated procedures for obtaining the necessary consent. The general goal of the Strategy is to equalize the opportunities of persons with disabilities to enjoy all civil, political, economic, social, and cultural rights with full respect for their dignity and individual autonomy, ensuring independence, freedom of choice, and full and effective participation in all areas of social life, including community life. In order to achieve the general goal of the Strategy, three specific goals are planned. The first specific goal: Increased social inclusion of persons with disabilities will be realized, among other things, through the consistent implementation of regulations, together with the strengthening of inspection supervision, and permanent training; by systematically including accessibility issues so that programs, plans, and projects have to be developed with a built-in accessibility component, in accordance with the principle of “Universal Design,” as well as by overcoming the obstacles faced by persons with disabilities in exercising their rights as individuals, consumers, participants in the cultural, economic, political, sports and other life.
The Commissioner specifically points out that the provisions of Article 5, paragraph 2 of the Law on Planning and Construction[7] prescribe that residential and residential-commercial buildings with ten or more apartments must be designed and built in such a way as to enable unhindered access, movement, residence, and work to all users, especially persons with disabilities, children, and the elderly. Furthermore, the Rulebook on technical standards for planning, designing, and building facilities that ensure unimpeded movement and access for persons with disabilities, children, and the elderly[8], in Article 3, paragraph 1, point 7, prescribes that accessibility is the result of the application of technical standards in planning, design, construction, reconstruction, extension and adaptation of buildings and public areas, by means of which all people, regardless of their physical, sensory and intellectual characteristics or age, are ensured unimpeded access, movement, use of services, stay or work.
From all of the above, it can be concluded that the positive regulations of the Republic of Serbia, including the Law on Planning and Construction, guarantee persons with disabilities the right to the accessibility of the physical environment on an equal basis with others. In practice, the realization of that right is impossible because some apartment owners in a building with more than ten apartments do not agree to carry out works on the common part of the building (entrance) that would make the building accessible for all persons.
The Commissioner for the Protection of Equality points out that accessibility is one of the basic prerequisites for the equal participation of persons with disabilities in all areas of social life. An accessible facility where a person with a disability lives is the first link of accessibility that allows a person with a disability full social inclusion and represents the most significant link in the chain of accessibility. The inaccessibility of the building where a person with a disability lives makes it difficult for a person with a disability to move freely and independently and exercise all guaranteed rights. A person with disabilities who has difficulty moving relies on the support of family members who are not always able to help them when entering and exiting the building, which is why many activities and community services are often denied to them. The lack of adequate access and entrance to the facility makes it impossible for people with disabilities to use other facilities and services and exercise the rights guaranteed to all citizens. Accessible transportation, an accessible workplace, health or educational institution, a sports facility, or some other public or private facilities are inaccessible to a person with a disability who cannot leave their apartment/building freely and independently.
The lack of consent of apartment owners in the sense of Article 135, paragraph 8 of the Law on Planning and Construction, prevents the owner of the apartment who requests adaptation of the building in terms of overcoming architectural barriers for the sake of unhindered movement, to obtain the necessary construction permits for the construction of ramps, installation of platforms, elevators or overcoming height differences in other ways, in accordance with the Rulebook on technical standards of planning, design, and construction of facilities that ensure unhindered movement and access for persons with disabilities, children and the elderly.
In view of all the above, it is necessary to amend Article 135, paragraph 8 of the Law on Planning and Construction so that an exception is prescribed for the execution of works on construction land or a building that is owned by more than one person, namely that the certified consent of those persons shall not be required in the case of works related to achieving unimpeded movement and access to people with disabilities, children, and the elderly.
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This amendment to the Law on Planning and Construction would represent the fulfillment of the state’s obligation in accordance with the recognized international treaties and regulations of the Republic of Serbia to enable persons with disabilities to use housing facilities without hindrance as a precondition for the exercise of other guaranteed rights. Also, the removal of physical barriers on residential buildings is beneficial for all residents of the buildings, namely, for all people who have difficulty moving, such as the elderly, but also for parents with small children, tenants who bring in and/or take out heavy and large loads from the building, etc., in accordance with the principle of universal design[9].
[1] “Official Gazette of the RS”, nos. 22/2009 and 52/2021, Article 33, paragraph 1, item 7.
[2] Constitution of the Republic of Serbia (“Official Gazette of the RS”, nos. 98/06 and 115/21)
[3] “Official Gazette of the RS”, nos. 22/09 and 52/21, Article 2, paragraph 1, item 1
[4] Law on Ratification of the Convention on the Rights of Persons with Disabilities (“Official Gazette of the RS – International Treaties”, no. 42/09)
[5] Article 1, paragraph 1 of the Convention on the Rights of Persons with Disabilities
[6] “Official Gazette of the RS”, no. 44/2020.
[7] “Official Gazette of the RS”, nos. 72/09, 81/09 – corrected, 64/10 – CC decision, 24/11, 121/12, 42/13 – CC decision, 50/13 – CC decision, 98/13 – CC decision, 132/14, 145/14, 83/18, 31/19 and 37/19 – other law
[8] “Official Gazette of the RS”, no. 22/15
[9] Convention on the Rights of Persons with Disabilities, Article 2, paragraph 5.
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
