Acting within the framework of legally prescribed competencies[1] to monitor the implementation of the laws concerning the prohibition of discrimination and recommend measures for the achievement of equality to public authority bodies and other persons, the Commissioner for the Protection of Equality sends to the Ilija M. Kolarac Endowement (hereinafter: Kolarac Endowment)
RECOMMENDATION ON MEASURES FOR THE ACHIEVEMENT OF EQUALITY
The Commissioner for the Protection of Equality recommends to Kolarac Endowement:
– To take all necessary measures and activities to enable to the persons with disabilities using wheelchairs an unhindered access to the Kolarac Endowment building, as well as unhindered movement within this facility.
Kolarac Endowment will inform the Commissioner for the Protection of Equality of the planned measures in order to implement this recommendation, within 30 days from the date of receipt of the recommendation on the measures for the achievement of equality.
No appeal or any other legal remedy is allowed against this recommendation on measures for the achievement of equality in accordance with the law.
Statement of reasons
Seventh European Congress for People with Disabilities “Live in the Encounter” ceremonially opened in Kolarac Endowment on 31 May 2018 in the presence of a large number of guests from the country and abroad, including a large number of persons with disabilities. During preparations for the ceremonial opening of the Congress, representatives of the Commissioner for the Protection of Equality and representatives of the agency which was engaged in the preparation of this event immediately checked accessibility of Kolarac Endowment premises and found that there are two small ramps at the main and side entrance. Also, an electric battery stair climber was found in the facility, which was disassembled next to the stairs leading to the entry into the hall as, according to the information obtained from the employees in the Endowment, the battery is defective and it takes an hour to charge it and the electric stair climber, which moves very slowly, can only take one person with disability using a wheelchair. Therefore it is not used. The employees stated that persons with disabilities rarely come to this facility and that, if they come, the said obstacles are overcome in a way that the employees physically take persons with disabilities up the stairs. With direct inspection, representatives of the Commissioner concluded that, during their stay in this facility, people with disabilities are not in a position to use toilet because it is located in the basement and it is possible to reach it only by the stairs which connect the basement to the level where the hall is located. When asked by a representative of the agency involved in the preparation of this event how to ensure accessibility of the facility, the employees stated that they would provide everything that was needed for the facility to be permanently accessible. Just before the opening of the Congress, representatives of the Commissioner re-visited the Kolarac Endowment facility as representatives of the said agency submitted a notice that electric stair climbers were enabled which would ensure to persons with disabilities using wheelchairs unhindered movement throughout the facility. It was noticed that roll-a-ramp was not provided on the location in accordance with the previous agreement, that two more electric stair climbers were rented and that a battery was repaired on the electric stair climber that had already existed in the facility to ensure accessible entry into the hall, as well as the undisturbed use of the toilet. One smaller-size wheelchair was also provided for the transfer of persons with disabilities using larger wheelchairs since the rented stair climbers could not transfer larger-size wheelchairs.
On the day of the ceremonial opening of the Congress, people with disabilities, despite measures taken for the removal of architectural barriers, were unable to independently enter the hall where this event was held and use the toilets at this facility. Namely, the electric stair climber which connects entrance to the building with the floor on which the hall is located and with the floor on which the toilet is located, enabled independent movement only for persons with disabilities using smaller-size wheelchairs. Seeing the problem and trying to ensure participation of all the persons with disabilities in the opening of the Congress, the organisers carried over people with disabilities using larger-size wheelchairs, with their consent, from the entrance to the facility to the hall where the event was held.
The Commissioner for the Protection of Equality would first like to indicate that the Constitution of the Republic of Serbia[2] prescribes prohibition of discrimination, directly or indirectly, on any ground, in particular on the grounds of race, gender, nationality, social origin, birth, religion, political or other belief, property, culture, language, age and psychological or physical disability.
Also, the Republic of Serbia adopted the Law on Ratification of the Convention on the Rights of Persons with Disabilities[3], whose aim is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their innate dignity[4]. The Convention on the Rights of Persons with Disabilities implies any distinction, exclusion or restriction 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 field. The Convention also includes all forms of discrimination, including denial of reasonable accommodation, and States Parties undertake to prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on any ground. Article 9 of the Convention, inter alia, prescribes that to enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties indertake to take appropriate measures to ensure to persons with disabilities acess, on an equal basis with others, to the physical environment, transportation, information and communications, including information and communication technologies and systems, and to other facilities and services provided to the public. These measures, which include identification and elimination of barriers to accessibility, apply to, inter alia, buildings.
The constitutional prohibition of discrimination is more closely defined by the Law on the Prohibition of Discrimination, which in Article 4 stipulates that all persons are equal and enjoy an equal status and equal legal protection, regardless of personal characteristics and that everyone is obliged to respect the principle of equality or the prohibition of discrimination. Article 6 of the Law on the Prohibition of Discrimination prescribes that direct discrimination occurs if an individual or a group of persons, on the grounds of his/her or their personal characteristics, in the same or a similar situation, are placed or have been placed or might be placed in a less favourable position through any act, action or omission. In addition, Article 17(1) envisages that discrimination in the provision of public services is considered to occur if a legal or physical entity, within the framework of its/his/her activities or profession, refuses to provide a service on the grounds of a personal characteristic of an individual or a group of persons, or if the said entity, in order to provide the service in question, requires the fulfilment of some condition that is not required of other individuals or a group of persons, or if in the said entity unwarrantedly gives priority to another individual or a group of persons when it comes to providing a service. Paragraph 2 of the same Article stipulates, inter alia, that everyone has the right to equal access to the facilities in public use (facilities where the head offices of public administration bodies are located, facilities used in the field of education, health care, social welfare, culture, sports, tourism, facilities used for the purpose of environmental protection, protection against natural disasters, and the like), in accordance with the law. Article 26(1) of the Law on the Prohibition of Discrimination stipulates that discrimination is considered to occur in the case of conduct contrary to the principle of observing the equal rights and freedoms of persons with disabilities in political, economic, cultural and other aspects of public, professional, private and family life.
In addition to regulating the general regime for the prohibition of discrimination on the basis of disability, the Law on the Prevention of Discrimination against Persons with Disabilities[5] prescribes a special case of discrimination related to the provision of services and the use of facilities and areas. Article 13(1) expressly prohibits discrimination based on disability in terms of availability of services and access to facilities in public use and in public areas, whereas Article 13(2) prescribes that a service, in terms of this law, is any service which, with or without compensation, is provided by a legal or physical entity within the scope of its/his/her activity or permanent profession. For the purposes of this Law, facilities in public use are: facilities in the field of education, health care, social welfare, culture, sports, tourism or facilities used for the purpose of environmental protection, protection against natural disasters, and the like.[6] In addition, Article 16(1) of this Law stipulates that the owner of the facility in public use is obliged to provide access to the facility in public use to all persons with disabilities, regardless of the type and degree of their disability.
The Law on Planning and Construction[7] prescribes that public and commercial buildings, as well as other facilities for public use, must be designed, built and maintained so as to ensure that all users, and especially persons with disabilities, children and the elderly are provided with unhindered access, movement and stay, or use in accordance with relevant technical regulations whose integral parts are standards defining mandatory technical measures and terms of designing, planning and construction, which ensure unhindered movement and access of persons with disabilities, children and the elderly.
The Rulebook on technical standards for the planning, design and construction of facilities, which ensures unhindered movement and access for persons with disabilities, children and the elderly[8] more precisely determines technical standards of accessibility for the unhindered movement of persons with disabilities. Accessibility, in terms of this Rulebook, is the result of the application of technical standards in the planning, design, construction, reconstruction, upgrading and adaptation of facilities and public areas, by which all people, regardless of their physical, sensory and intellectual characteristics, or age, are provided with unhindered access, movement, use of services, stay and work in facilities. Article 2 of this Rulebook regulates which facilities may be considered to be facilities for public use, which are, inter alia, cultural facilities. Article 3(8) stipulates that an accessible facility, its part or equipment is the facility, part of the facility or equipment which ensures the fulfilment of mandatory accessibility elements prescribed by this Rulebook, whereas item 9 determines that the mandatory elements of accessibility are elements for design, construction, reconstruction, upgrading and adaptation which determine the size, properties, installations, devices and other equipment in public areas and facilities in order to ensure access, movement, stay and work for all potential users, in accordance with this Rulebook. Article 5 of this Rulebook, inter alia, envisages as mandatory accessibility elements the accessibility elements for overcoming height differences, which include ensuring accessibility of access to facilities, entry into the facility and the like, and elements of accessibility of movement and stay in premises i.e. residential or residential and office buildings and facilities for public use, which imply ensuring unhindered movement and stay in the premises, overcoming the difference in floors, ensuring accessibility of the toilet and the like.
The Decision on acquiring the status of a cultural institution of national importance[9] prescribes that Kolarac Endowment obtains the status of a cultural institution of national importance. The goals of Kolarac Endowment determined by its Statute are the cultivation, development and spreading of culture, science, education and art. In order to achieve its common goals, Kolarac Endowment organises cultural, scientific, educational, literary, artistic and other programs and events in the fields of science, culture, education and art.[10] The achievement of the general goal, in terms of the Law on Endowments and Foundations, are considered to be activities aimed at, inter alia, promotion and protection of human, civil and minority rights and improvement of the position of persons with disabilities.[11]
In terms of anti-discrimination regulations, the Commissioner for the Protection of Equality points out that ensuring accessibility of facilities and services is one of the basic prerequisites for the independent life of persons with disabilities since it enables their active participation in all areas of life on an equal footing. Since accessibility is the result of the application of technical standards which ensure to all people, regardless of their physical, sensory, intellectual characteristics, or age, unhindered access, movement, use of services, stay and work in the facilities, not ensuring only one of the prescribed mandatory accessibility elements may bring people with disabilities into the situation of the so-called “interrupted chain of movement” in which they are prevented from moving independently.
Pursuant to the above, Kolarac Endowment is a facility in public use and, in accordance with applicable regulations, is obliged to provide people with disabilities not only accessible entrance to the facility, but also unhindered access to all the premises in the facility in which it provides services, thus enabling them to attend and participate in cultural, scientific, educational, literary, artistic and other programs and events organised in the facility.
The Commissioner for the Protection of Equality reminds that with the adoption of the Law on Ratification of the Convention on the Rights of Persons with Disabilities, the Republic of Serbia, inter alia, committed to grant the right of persons with disabilities to participate equally with other persons in cultural life and, to that end, take all appropriate actions to ensure that persons with disabilities have access to the places where cultural services are provided. In this regard, the Commissioner for the Protection of Equality reminds that one of the basic preconditions for the social inclusion of persons with disabilities is the creation of an accessible environment in which all persons can operate independently and meet their needs.
Also, the concluding observations of the Committee on the Rights of Persons with Disabilities concerning the Initial Report on the Implementation of the Convention on the Rights of Persons with Disabilities[12] with recommendations for the protection and promotion of the position of persons with disabilities in the next reporting period (CRPD/C/SRB/CO/1), which the UN Committee on the Rights of Persons with Disabilities sent to the Republic of Serbia after the presentation of this report, also contain a recommendation concerning development of a comprehensive accessibility plan and encouragement in the application of the universal design in all areas, collection and processing of statistical data about persons with disabilities and services provided to them and other people.[13]
The Regular Annual Report of the Commissioner for the Protection of Equality for 2017[14] stipulates that out of the total number of complaints filed against discrimination on the basis of disability, the highest number of complaints were submitted due to discrimination in the provision of services or when using facilities and areas – (35.5%), which, due to the existence of physical barriers, persons with disabilities could not use or services could not be provided to them. By examining these and other relevant available data on the problems faced by persons with disabilities in achieving equality, one of the recommendations for combating discrimination and promoting equality given by the Commissioner in her report is precisely the intensification of work on improving architectural and information accessibility and application of the universal design in all areas with the aim of facilitating access of persons with disabilities to public facilities and areas, transport, information, communications and services.
The Commissioner notes that certain elements of accessibility of Kolarac Endowment for persons with disabilities using wheelchairs exist (for example, ramps at the entrances to the facility, an electric stair climber which is accessible only to wheelchairs of a certain size). However, since accessibility means that all persons with disabilities have access to unhindered movement, stay and work in facilities on an equal basis with other persons, accessibility standards have not been fully implemented in terms of adopted regulations.
Having in mind adopted regulations and evaluating established facts, the Commissioner for the Protection of Equality sends a recommendation to Kolarac Endowment, in accordance with Article 33(9) of the Law on the Prohibition of Discrimination, to take all necessary measures and activities to ensure to the persons with disabilities using wheelchairs an unhindered access to the Kolarac Endowment building, as well as unhindered movement within this facility, with an obligation to notify about undertaken measures within 30 days from the date of receipt of the recommendation on measures for the achievement of equality.
COMMISSIONER FOR THE PROTECTION
OF EQUALITY
Brankica Janković
[1] Law on the Prohibition of Discrimination (“Official Gazette of the RS“, No. 22/09), Article 33(9).
[2] “Official Gazette of the RS”, No. 98/06
[3] Law on Ratification of the Convention on the Rights of Persons with Disabilities (“Official Gazette of the RS – International Agreements”, No. 42/09)
[4] Article 1(1) of the Convention on the Rights of Persons with Disabilities
[5] “Official Gazette of the RS”, No. 33/06 and 13/16
[6] Law on the Prohibition of Discrimination of Persons with Disabilities (“Official Gazette of the RS ”, No. 33/06 and 13/16), Article 13(3).
[7] (“Official Gazette of the RS”,No.72/09, 81/09 – corr., 64/10 – decision of the CC, 24/11, 121/12, 42/13 – decision of the CC, 50/13 – decision of the CC, 98/13, – decision of the CC, 132/14 and /14), Article 5(1)
[8] “Official Gazette of the RS”, No. 22/15
[9] “Official Gazette of the RS”, No. 41/13
[10] Statute of Ilija M. Kolarac Endowment, Article 4(1)(2) (available on the website of the Agency for Business Registers)
[11] Law on Endowments and Foundations (“Official Gazette of the RS”, No. 88/10, 99/11 – state law and 44/18 – state law), Article 3(1)
[12] www.ljudskaprava.gov.rs
[13] Report of competent authorities of the Republic of Serbia on the application of recommendations No. 34 and No. 54 of the Committee for the Rights of Persons with Disabilities concerning the Initial Report of the Republic of Serbia on the application of the Convention on the Rights of Persons with Disabilities, concerning recommendation 54, Government of the Republic of Serbia, 8 May 2017, pp. 1 and 2 – available at http://www.ljudskaprava.gov.rs/sh/node/19868
[14] http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2018/03/RGI-2017_PZR_FINAL_14.3.2018-1.pdf
