No 021-01-8/2018-02 Date: 5 April 2018
Acting within the framework of their legally prescribed competence[1] to monitor the enforcement of laws regulating the prohibition of discrimination and recommend to public authorities and other persons measures for achievement of equality, the Commissioner for Protection of Equality addresses the following to the City of Kragujevac and the National Library “Vuk Karadžić” in Kragujevac:
RECOMMENDATION ON MEASURES FOR ACHIEVING EQUALITY
The Commissioner for Protection of Equality recommends the following to the City of Kragujevac and the National Library “Vuk Karadžić” in Kragujevac:
– to take appropriate measures within their competence with a view to removing obstacles to the functioning of the elevator in the building of the City House of Kragujevac, for the purpose of ensuring accessibility of the library and availability of its services to persons with disabilities and their equal involvement in the cultural life with the other citizens.
The City of Kragujevac and the National Library “Vuk Karadžić” in Kragujevac shall inform the Commissioner for Protection of Equality on measures undertaken with a view to implementing this recommendation, within 30 days from the date of receipt of the recommendation on measures for achieving equality.
No appeal or any other judicial remedy is admissible against this recommendation on measures for achieving equality.
Statement of the Reasons
During the complaint procedure, the Commissioner for Protection of Equality found out that the elevator in the building of the National Library “Vuk Karadžić”, which lends books to its members and organises activities, was unable to stop at the first floor, and as a result, library premises on the first floor were inaccessible to persons with disabilities.
For the purpose of collection of information necessary for conducting the procedure, the Commissioner for Protection of Equality addressed the National Library “Vuk Karadžić” in Kragujevac and, inter alia, requested to be informed if the building in which the National Library was located had an elevator accessible to persons with disabilities, and if so, if the elevator stopped at the first floor.
The letter by the National Library “Vuk Karadžić” in Kragujevac stated, inter alia, that the elevator in the building of the City House “has not, for a long time, been usable for stopping at the first floor and the Gallery due to technical problems”. It further stated that the library staff was meeting the needs of persons with disabilities and enabling them to borrow books they are interested in, or to read them with their assistance. It also further stated that the staff was “helping persons with disabilities who are interested in attending programmes held at the Gallery of the Library – by carrying their wheelchairs to the Gallery”. It emphasized that the library, with a view to making elevators functional, had contacted the enterprise which was engaged in the maintenance of the building, and that, after obtaining the specifications of the works, they would address a request to the City of Kragujevac to include the necessary means into their financial plan for 2018.
By inspecting the Decision on the Budget of the City of Kragujevac for 2018, [2] it was found that cultural institutions were indirect beneficiaries of budgetary means, and an inspection into the data from the real property cadastre found that the owner of the City House where the library was located was the City of Kragujevac, while the user of the City House was the National Library “Vuk Karadžić”.
Before starting to conduct an analysis, the Commissioner for Protection of Equality refers to key international and national acts relating to the provision of accessibility to people with disabilities. The Commissioner for Protection of Equality notes, first of all, that Serbia has ratified the UN Convention on the Rights of Persons with Disabilities[3], whose aim is to improve, protect and ensure full and equal enjoyment of all human rights and fundamental freedoms to all people with disabilities, and improve the level of respect for their innate dignity[4]. The Convention defines “discrimination on the basis of disability” as 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. It includes all forms of discrimination, including denial of reasonable accommodation. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. Article 9 of the Convention prescribes, inter alia, that, to enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia, to buildings.
The Constitution of the Republic of Serbia[5] prohibits any discrimination, indirect or direct, on any grounds, particularly on the grounds of race, sex, nationality, social origin, birth, religion, political or other belief, property, culture, language, age, psychological or physical disability.
The constitutional prohibition of discrimination is further elaborated in the Law on the Prohibition of Discrimination, which prescribes in Article 4 that everyone is equal and shall enjoy equal treatment and equal legal protection, regardless of personal characteristics, and that everyone was obliged to observe the principle of equality and non-discrimination. Article 6 of the Law on the Prohibition of Discrimination prescribes that direct discrimination occurs if a person or a group of persons, due to their personal characteristics, are or could be put in a less favourable position in an identical or similar situation, by an act, action or failure to act. In addition, Article 17(1) prescribes that discrimination in the provision of public services occurs if a legal or natural person, within their activity or profession, on the basis of a personal characteristic of a person or group of persons, refuses to provide a service, conditions the provision of service on a fulfilment of requirements which are not demanded of other persons or group of persons, or grants unwarranted priority in the provision of services to another person or group of persons, while paragraph 2 of the same Article prescribes that everyone has the right to equal access to buildings in public use in accordance with the law. Article 26, paragraph 1 of the Law on the Prohibition of Discrimination prescribes that discrimination occurs if there is conduct in violation of the principle of observance of equal rights and freedoms of people with disabilities in the political, economic, cultural or any other aspect of the public, professional, private or family life.
The Law on the Prevention of Discrimination against Persons with Disabilities[6], in addition to regulating the general regime of prohibition of discrimination on the basis of disability, also prescribes the special case of discrimination relating to the provision of services and use of buildings and spaces. Article 13, paragraph 1 explicitly prohibits discrimination on the basis of disability as regards the availability of services and access to buildings in public use and public spaces, while paragraph 2 of the same Law prescribes that service, within the meaning of this Law, means any service provided, with or without a compensation, by a legal or natural person within their activity or profession. In addition, Article 16(1) of this Law prescribes that the owner of a building in public use, is obliged to provide access to the building in public use to all persons with disabilities, regardless of the type and extent of their disability, while paragraph 2 prescribes that obligation also applies to another person to whom the right of use has been transferred, unless it has been otherwise contractually agreed with the owner or competent authority. Finally, Article 33 of this Law prescribes that local self-government units are obliged to undertake measures with a view to making the physical environment, public spaces and transport accessible to persons with disabilities.
Furthermore, Article 20 of the Law on Local Self-government[7] prescribes that the municipality shall found institutions and organisations in the field of elementary education, culture, primary health care, physical culture, sports, child protection and tourism, monitor and ensure their functioning. In addition, this Article prescribes that the municipality shall organise the performance of tasks relating to the protection of cultural goods of relevance to the municipality, encourage the development of cultural and artistic creation, provide funds for financing and co-financing of programmes and projects relating to culture which are of relevance to the municipality, and create conditions for the work of museums and libraries and other cultural institutions founded by the municipality. Article 24 of this Law prescribes that provisions referring to the municipality shall also apply to the City, unless otherwise prescribed by the Law.
Also, the Law on Planning and Construction[8] prescribes that buildings for public and commercial purposes, as well as other buildings in public use, must be designed, constructed and maintained in such a manner to provide to all users, in particular to persons with disabilities, unobstructed access, movement and stay or use in accordance with appropriate technical regulations, which include, as an integral part, standards defining mandatory technical measures and conditions for designing, planning and construction, ensuring unobstructed movement and access to persons with disabilities, children and the elderly. It shall be noted that the Rulebook on technical standards for planning, designing and construction of buildings, which ensures unobstructed movement and access to persons with disabilities, children and the elderly [9] further establishes technical standards of accessibility for unobstructed movement of persons with disabilities. Accessibility, within the meaning of this Rulebook, is a result of the application of technical solutions in designing and construction of buildings, which provide unobstructed access, movement, stay and work in these buildings to persons with disabilities, on an equal basis with others. Article 2 of this Rulebook prescribes which buildings may be considered buildings in public use, and inter alia prescribes that they include buildings relating to culture. Article 3 of this Rulebook defines that persons with reduced mobility are people with a physical or sensory disability, elderly people, pregnant women and/or other people whose ability of unobstructed movement is temporarily or permanently reduced due to barriers they encounter in their environment, and that a barrier is a physical, communication and/or orientation obstacle in the area which may obstruct and/or prevent the person’s unobstructed access, movement, stay, receipt of a service and/or work.
Finally, Article 16, paragraph 18 of the Statute of the City of Kragujevac[10] prescribes that the City shall organise the performance of tasks relating to the protection of cultural goods of relevance to the City, encourage the development of cultural and artistic creation, provide funds for financing and co-financing of programmes and projects relating to culture which are of relevance to the City, and create conditions for the work of museums and libraries and other cultural institutions founded by the City.
After an analysis of the established facts and relevant legislation, the Commissioner for Protection of Equality ascertains that the National Library “Vuk Karadžić” is a cultural institution founded by the local self-government unit, namely, by the City of Kragujevac. Further, it was established that the library, as an indirect beneficiary of budget funds[11], is obliged to prepare a proposal of a financial plan on the basis of guidelines relating to the budget of the local authorities, and that the City of Kragujevac is obliged to provide funds for financing and co-financing of programmes and projects relating to culture which are of relevance to the City, and to create conditions for the work of museums and libraries and other cultural institutions founded by the City.
In terms of non-discrimination provisions, the Commissioner for Protection of Equality notes that provision of accessibility of buildings and services is a precondition for independent life of persons with disabilities, as it enables their active involvement in all areas of life, on an equal basis. It should be noted that one of the main elements of accessibility is the accessibility of buildings and services. If just one of the segments of accessibility is not provided, a person with a disability will find themselves in a situation of so-called “broken chain of movement” – i.e. they will be helpless and unable to function independently. In view of the above, and in the light of the fact that the library is a building in public use whose services are used by citizens every day, the City of Kragujevac, as the founder of the cultural institution in question – the National Library “Vuk Karadžić”, and as the owner of the building where the library is located, and the National Library itself, as the user of the building and provider of services, are obliged to ensure adequate access to premises and services of the library to persons with disabilities. Otherwise, it will be difficult or impossible for people with disabilities to independently use the services of the library – borrow books and attend cultural activities, which other citizens may independently use without any obstacles.
In that regard, the Commissioner for Protection of Equality reminds that, by ratifying the Convention on the Rights of Persons with Disabilities, Serbia has, among other matters, undertaken the obligation to recognize the right of persons with disabilities to be involved in the cultural life, on an equal basis with others, and, for that purpose, to take all appropriate measures to ensure that persons with disabilities have access to places that provide cultural services, such as theatres, museums, cinemas, libraries. In order for the process of social inclusion of persons with disabilities to be successful, it is necessary to create an accessible environment where all persons may independently function and satisfy their needs. In that regard, the Commissioner for Protection of Equality reminds that, by ratifying the Convention on the Rights of Persons with Disabilities, Serbia has, among other matters, undertaken the obligation to recognize the right of persons with disabilities to be involved in the cultural life, on an equal basis with others, and, for that purpose, to take all appropriate measures to ensure that persons with disabilities have access to places that provide cultural services, such as theatres, museums, cinemas, libraries. In order for the process of social inclusion of persons with disabilities to be successful, it is necessary to create an accessible environment where all persons may independently function and satisfy their needs. The situation of persons with disabilities in Serbia in general and problems facing them have been considered by the UN Committee on the Rights of Persons with Disabilities, which, with a view to improving the situation and reaching a higher level of application of the UN Convention on the Rights of Persons with Disabilities, made appropriate recommendations. Main challenges, as recognized by the Committee, include: employment of persons with disabilities in general and specifically on the open labour market, with a reasonable adjustment of workplaces, prevention of multiple discrimination, especially that of women and girls with disabilities, de-institutionalization of children with disabilities, promotion of capacities of persons with disabilities, together with enabling of their independent decision-making, preparation of a comprehensive accessibility plan and encouragement of the application of universal design in all areas, collection and processing of statistical data on persons with disabilities and services provided to them, and other[12]
On the basis of data on the situation relating to the protection of equality, the Regular 2017 Annual Report of the Commissioner for the Protection of Equality[13] states that the highest number of complaints of discrimination on the basis of disability was with regard to discrimination in provision of services or on the occasion of using buildings and spaces – (35.5%), out of which the majority of complaints refer to the existence of physical barriers preventing persons with disabilities from using certain services or buildings on an equal basis, and that, for that reason, it is necessary to improve and ensure accessibility and application of universal design in all areas of life.
In view of all of the above and considering the prescribed facts and legal provisions, the Commissioner for Protection of Equality, in accordance with Article 33, point 9 of the Law on the Prohibition of Discrimination, addresses a recommendation to the City of Kragujevac and the National Library “Vuk Karadžić” in Kragujevac that they undertake appropriate measures within their competence with a view to eliminating obstacles to ensuring accessibility and availability of service of the library to persons with disabilities, with the obligation to report on the undertaken measures within 30 days from the date of the receipt of the recommendation of measures for achievement of equality.
[1] Law on the Prohibition of Discrimination (“Official Gazette of the RS”, no 22/09), Article 33, point 9
[2] ”Official Gazette of the City of Kragujevac”, no 34/2017
[3] Law on the Ratification of the Convention on the Rights of Persons with Disabilities (“Official Gazette of the RS – International Treaties”, no 42/09)
[4] Article 1, paragraph 1 of the Convention on the Rights of Persons with Disabilities
[5] ”Official Gazette of RS”, no 98/06
[6] ”Official Gazette of RS”, no 33/06 and 13/16
[7] ”Official Gazette of RS”, no 33/06 and 13/16
[8]“Official Gazette of the RS”, no 72/09, 81/09, 64/10, 24/11, 121/12, 42/13, 50/13, 98/13, 132/14 and 145/14
[9] ”Official Gazette of RS”, no 22/15
[10] ”Official Gazette of the City of Kragujevac”, no 25/15
[11] https://www.kragujevac.rs/userfiles/files/2018/Gra%C4%91anski%20bud%C5%BEet%202018.pdf
[12] Report to competent authorities of the Republic of Serbia relating to the application of the recommendations no 34 and 54 of the Committee on the Rights of Persons with Disabilities relating to the Initial Report of the Republic of Serbia on the application of the Convention on the Rights of Persons with Disabilities as regards recommendation 54, Government of Republic of Serbia, 8 May 2017, pp. 1 and 2 – available at the website: http://www.ljudskaprava.gov.rs/sh/node/19868
[13] http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2018/03/RGI-2017_PZR_FINAL_14.3.2018-1.pdf
COMMISSIONER FOR PROTECTION OF EQUALITY
Brankica Janković
