no. 021-01-449/2023-02 date: 3/3/2023.

MINISTRY OF CONSTRUCTION, TRANSPORT AND INFRASTRUCTURE

Minister Goran Vesić

11000 BELGRADE

Nemanjina 22-26

Subject: Initiative to amend the Draft Law on Amendments to the Law on Planning and Construction

Dear Mr. Vesić,

The representatives of the National Organization of Persons with Disabilities of Serbia addressed the Commissioner for the Protection of Equality in a letter with a proposal to amend the Draft Law on Amendments to the Law on Planning and Construction, on which, in the period from January 30 to February 20, 2023, a public debate was held. In the letter, among other things, it was indicated that the previous practice in the construction field showed that many buildings were built without respecting accessibility standards, even though the amendments to the Law on Planning and Construction from 2006 stipulated the obligation to respect these standards. Following the above, it was proposed that, bearing in mind that the main project is being prepared for constructing a building and obtaining a building permit, the Draft Law explicitly stipulates the obligation that this document for high-rise public and business buildings, residential and residential-business buildings with ten or more apartments, contains also evidence of compliance with accessibility standards prescribed by Article 5 of the current Law. In this way, the Elaboration on compliance with accessibility standards would become an integral part of the main project, ensuring the effective implementation of Article 5 of the current Law in practice.

The practice of the Commissioner shows that discrimination based on disability is still very present in our society and that people with disabilities, as well as civil society organizations, in their complaints, often point to accessibility problems, and inaccessible facilities still represent one of the main obstacles to full inclusion of persons with disabilities into society.

The Commissioner first points out that Article 21 of the Constitution of the Republic of Serbia^[1] 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.

Article 9. of the Law on Ratification of the Convention on the Rights of Persons with Disabilities^[2] prescribes 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 other benefits and services that are open or available to the public, both in urban and rural areas. Paragraph 1 of this article stipulates that these measures, which include the identification and removal of obstacles and barriers to access, will apply, among other things, to buildings, roads, means of transport, and other facilities in closed and open spaces, including schools, residential buildings, health facilities, and workplaces.

Furthermore, the constitutional prohibition of discrimination is elaborated in more detail in the Law on Prohibition of Discrimination^[3], where discrimination is defined as any unjustified distinction or unequal treatment, i.e. omission (excluding, limiting, or prioritizing), in relation to persons or groups as well as members of their families, or persons close to them, in an open or covert manner, based on race, color, ancestry, citizenship, national or ethnic origin, language, religious or political beliefs, sex, gender identity, sexual orientation, property status, birth, genetic characteristics, health status, disability, marital or family status, convictions, age, appearance and membership in political, trade union and other organizations, and other real or assumed personal characteristics. Also, Article 17, paragraph 2 of this law, as a special case of discrimination, prescribes that everyone has the right to equal access to facilities in public use (facilities where the headquarters of public authorities are located, facilities in the field of education, health, social protection, culture, sports, tourism, facilities used for environmental protection, protection from natural disasters, etc.), as well as public areas (parks, squares, streets, pedestrian crossings, and other public roads, etc.), in accordance with the law.

The Law on Prevention of Discrimination of Persons with Disabilities^[4], in Article 13 prescribes, as a special form of discrimination, discrimination related to the provision of services and the use of facilities and areas. Among other things, it was established that discrimination on the basis of disability with regard to the availability of services and access to facilities in public use and public areas is prohibited, where facilities in public use, in the sense of this law, are considered to be facilities in the field of education, health, social protection, culture, sports, tourism or facilities which are used for environmental protection, protection from natural disasters and the like, while under public areas, parks, green areas, squares, streets, pedestrian crossings, and other public roads and the like are considered.

The Commissioner for the Protection of Equality first of all points out that in order to improve the implementation of the provision prescribed by Article 5 of the current Law on Planning and Construction and to ensure the full implementation of this provision in practice, on January 6, 2023, the Initiative to amend Article 135, paragraph 8 of the Law on Planning and Construction no. 011-00-1/2023-02 was submitted to the Ministry of Construction, Transport, and Infrastructure, which the Ministry has not fully implemented in the Draft Law on Amendments to the Law on Planning and Construction.

Namely, in the provisions of Article 42 of the Draft Law on Amendments and Supplements to the Law on Planning and Construction, among other things, it is proposed that after the current paragraph 8, which becomes paragraph 9, a new paragraph 10 is added, which reads: “In the case of carrying out works on the removal of obstacles for persons with disabilities, children and the elderly, the certified consent of the co-owners, i.e. the owners of special parts of the building, is not submitted as evidence, but rather a decision of the housing association in accordance with the regulation governing housing and building maintenance.” We point out that thee proposed solution would not achieve the desired goal of ensuring the realization of the right to accessibility for persons with difficulty moving because the provisions of the Law on Housing and Building Maintenance^[5], to which the Draft Law refers, prescribe that in the case of the use of common parts of the building for the purposes of surmounting, consent in the sense of the law governing the construction of the building is the consent of the assembly of the housing community, which is passed by a majority of 2/3 of the total number of votes.

Given the above, we repeat the need for amending Article 135, paragraph 8 of the Law on Planning and Construction, so that this law prescribes as an exception that for the performance of works on construction land or a building owned by more than one person, the certified consent of those persons will not be required if the works relate to the realization of unhindered movement and access to persons with disabilities, children and the elderly, without reference to the provisions of another law which also provides for the consent of other owners.

Further, analyzing the text of the Draft Law on Amendments to the Law on Planning and Construction, which is available on the official website of the Ministry, we determined that the current Law on Planning and Construction, in Article 5, prescribes that buildings for public and business use, as well as other objects for public use (streets, squares, parks, etc.), must be designed, built and maintained in such a way that all users, especially persons with disabilities, children and the elderly, are provided unhindered access, movement and stay, i.e. use in accordance with the appropriate technical regulations, the integral part of which are standards that define mandatory technical measures and conditions of design, planning, and construction, which ensure unhindered movement and access for persons with disabilities, children and the elderly. Also, paragraph 2 of this article establishes that residential and residential-business buildings with ten or more apartments must be designed and built in such a way that all users, especially people with disabilities, children, and the elderly, are provided with unimpeded access, movement, stay and work.

In order to ensure the construction of buildings with full respect for accessibility standards, the Commissioner proposes to amend Article 1 of the Draft Law on Amendments to the Law on Planning and Construction and add a new item that reads: “The Elaboration on compliance with accessibility standards is an integral part of the main project, a proof of compliance with accessibility standards in order to enable people with disabilities, children and the elderly to have unhindered access, movement, stay and work in high-rise buildings for public and business use and residential and residential-business buildings with 10 or more apartments.”

Given the above, it is also necessary to amend the corresponding provisions of the Law on Planning and Construction that refer to the content and mandatory elements of the main project, i.e. the project for a building permit and/or the project for execution, and foresee the obligation in accordance with which these projects, i.e. the corresponding project, will contain evidence on compliance with accessibility standards by means of an Elaboration on compliance with accessibility standards as a mandatory integral part of the project.

The Commissioner points out that only in this way can effective implementation of the provisions prescribed in Article 5 of the current Law be ensured in practice. By adopting this proposal, the Republic of Serbia will fully ensure the implementation of the provisions prescribed in Article 9 of the Convention on the Rights of Persons with Disabilities, which Serbia was among the first to ratify in May 2009. We also note that the United Nations Committee on the Rights of Persons with Disabilities, at its 15th session (April 5 and 6, 2016, in Geneva), considered the Initial Report on the Implementation of the Convention on the Rights of Persons with Disabilities in the Republic of Serbia and adopted Concluding Observations with recommendations for protection and improving the position of persons with disabilities (CRPD/C/SRB/CO/1). Regarding the level of implementation of Article 9 of the Convention, the Committee expressed concern, among other things, about the lack of a national strategy for ensuring accessibility and legal regulations that would contain effective sanctions for non-compliance with regulations, as well as about the low level of access to public facilities, institutions, and services, including electronic media services in the member state. In this regard, the Committee recommended to the Republic of Serbia to develop a comprehensive plan for ensuring accessibility with effective monitoring and a road map that will set the starting points for removing existing barriers, and to promote universal design for all buildings, public services and public transport, as well as accessibility of information and media, especially electronic media, all this in accordance with General Recommendation No. 2 of the Committee for the Rights of Persons with Disabilities.

Bearing in mind the above, and in order to improve the equality of persons with disabilities, we suggest that within the process of amending the Law on Planning and Construction, which is in progress, this initiative and the proposals of the Commissioner are taken into account and included in the text.

^[1] Constitution of the Republic of Serbia (“Official Gazette of the RS”, number 98/06)

^[2] “Official Gazette of the RS” – International Agreements, no. 42/09

^[3] “Official Gazette of the RS”, number 22/09 and 52/21

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

^[5] “Official Gazette of the RS”, number 104/2016 and 9/2020 – Dr. Law, Article 44.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković