5. Oct 2015, No 07-00-310/2015-02
PUBLIC COMMUNAL COMPANY “FUNERAL SERVICES”
- B, Director
Dear Mr. B,
The Commissioner for the Protection of Equality received a complaint stating that the security personnel did not allow the complainant, who is a disabled person, to enter the New Cemetery with his own car on the day after the All Souls’ Day on March 31, 2015, on the grounds that such a decision was adopted by the City Assembly. The complaint was filed against the Belgrade City Assembly and the City Administration for Funeral Services, but the analysis of the evidence submitted in response to the allegations from the complaint showed that the Decision on the prohibition of the entry of motor vehicles into a particular cemetery on the territory of the city of Belgrade no. 3-40 of December 17, 2008, was adopted by the Public Communal Company “Funeral Services” from Belgrade.
Allow me to point out that the Commissioner for the Protection of Equality is an autonomous and independent state authority with the power to act in all cases in which the principle of equality has been violated or when the general prohibition of discrimination has been violated. The competence of the Commissioner for the Protection of Equality has been broadly defined, in accordance with international standards, in order to enable them to effectively and efficiently fulfil their role. One of the Commissioner’s core competencies is to receive and consider complaints about discrimination, to give opinions and recommendations in specific cases of discrimination and to impose statutory measures. In addition, the Commissioner is authorized to propose a reconciliation procedure, as well as to initiate legal proceedings for the protection against discrimination, and file misdemeanor claims for acts of discrimination prescribed by antidiscrimination legislation. The Commissioner is also authorized to alert the public to the most common, typical and severe cases of discrimination and to recommend to public authorities measures to achieve equality.
In 2009, the Republic of Serbia ratified the UN Convention on the Rights of Persons with Disabilities, which aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms for all persons with disabilities and to promote respect for their innate dignity. Article 2 stipulates that discrimination based on disability is any unjustified making of a difference, exclusion or restriction on the basis of a disability, whose aim or consequence is the restriction or annulment of the recognition of the enjoyment or exercise of all human rights and fundamental freedoms in the fields of politics, economy, social, civil rights, or any other area. By ratifying this Convention, Serbia has committed itself to ensure and improve the full realization of all human rights and fundamental freedoms of persons with disabilities, and to take all appropriate measures, including legislation, in order to amend or abolish existing laws, regulations, customs and practices that represent discrimination against persons with disabilities.
The Constitution of the Republic of Serbia prohibits any discrimination, direct or indirect, on any grounds, and in particular based on race, gender, nationality, social origin, birth, religion, political or other belief, wealth, culture, language, age, psychological or physical disability. The constitutional prohibition of discrimination is elaborated in more detail by the Law on the Prohibition of Discrimination, where discrimination is defined as any unjustified making of a difference or unequal treatment, i.e. 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, based on race, color, ancestry, nationality or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, wealth, birth, genetic features, health status, disability, marital and family status, previous sentencing, age, appearance and membership in political, trade union and other organizations and other real or supposed personal qualities. The provision of Article 26 paragraph 1 stipulates that discrimination exists if an act is done contrary to the principle of respect of equal rights and freedoms of persons with disabilities in the political, economic, cultural and other aspects of public, professional, private and family life..
The way of realization and protection of the rights of persons with disabilities is regulated by the Law on Prevention of Discrimination against Persons with Disabilities, which is based on the principles of prohibition of discrimination of persons with disabilities, respect for human rights and dignity of persons with disabilities, inclusion of persons with disabilities in all spheres of social life on an equal basis, and inclusion of persons with disabilities in all processes in which their rights and obligations and equality of rights and obligations are decided.
The Decision on the prohibition of entry of motor vehicles into certain cemeteries in the territory of the city of Belgrade no. 3-40 of December 17, 2008, prohibits the entry of motor vehicles into cemeteries under the jurisdiction of PCC “Funeral Services” from Belgrade, except in specific cases. Entrance to the cemeteries with a motor vehicle is allowed for people with disabilities and old persons, at certain cemeteries, on certain days and hours. According to Article 5 of this decision, the prohibition of entry by motor vehicles is valid for all persons.
The analysis of this decision has shown that certain provisions are contrary to the Law on the Prohibition of Discrimination. According to the Decision on the prohibition of the entry of motor vehicles into individual cemeteries in the territory of the city of Belgrade no. 3-40 of December 17, 2008, it is prohibited to enter cemeteries with motor vehicles, except in the cases prescribed by the Decision. Among other things, entry into cemeteries by motor vehicles is allowed to “old and disabled persons” with a written permission of the PCC.
The Commissioner for the Protection of Equality would like first to point out that the text of the decision uses incorrect, outdated and discriminatory terminology. Terms such as “disabled”, “disabled persons” and other similar stigmatizing expressions need to be altered and aligned with generally accepted language and terminological standards in the field of human rights. In the concrete case, the legal term is “a person with disabilities”.
Furthermore, the provisions of Article 5 of this Decision prohibit all persons from entering the cemeteries with motor vehicles on national holidays, All Souls’ Day and the days following the All Souls’ Day. Although the very wording of this article indicates that the ban applies to every person, the Commissioner indicates that this provision places persons with disabilities, as well as other persons who move with difficulty, in an unequal position in relation to persons without disabilities. Persons with disabilities, as well as those who are moving with difficulty, have much more difficulty to reach the gravesites they want to visit. In addition, one should bear in mind the fact that the interest in visiting the graveyard is especially pronounced in the days of public holidays, the All Souls’ Day and the day after All Souls’ Day – which is precisely when according to the Decision the absolute ban is in force, and the crowd created on these occasions at the cemetery makes their movement even more difficult. Accordingly, the prohibition of the use of a personal car in such cases leads to unequal treatment of persons with disabilities, since the consequences of this prohibition disproportionately affect persons with disabilities.
After examining the notification on the website of the PCC “Funeral Services” of May 29th and October 9th, 2015, it was established that free transport to the largest city cemeteries – Lešće Orlovača and Nova Bežanija Cemetery was offered to the elderly and visitors who are moving with difficulty. The Commissioner for the Protection of Equality commends this decision of the PCC “Funeral Services” from Belgrade and believes that it indicates an understanding of the situation of persons with disabilities and other citizens who are moving with difficultly. However, the Commissioner for the Protection of Equality points out that it is necessary to provide access to cemeteries to all citizens, which means that it is necessary to provide flexibility in the implementation of the decision and allow persons with disabilities who, for any reason, cannot use the provided transport, to use their own vehicles. In addition, without going into the reasons why transport is provided only on certain cemeteries (Lešće, Orlovača and Nova Bežanija), the Commissioner for the Protection of Equality points out that it is necessary to provide transport and/or the possibility of using one’s own car for persons with disabilities and other persons moving with difficulty on all cemeteries.
Finally, the Commissioner for the Protection of Equality points to the provision of Article 6 of the Decision on the prohibition of entry of motor vehicles into certain cemeteries in the territory of the city of Belgrade no. 3-40 of December 17, 2008, which stipulates that persons with disabilities may obtain a special permit to enter the cemeteries in days off public holidays and All Souls’ Day, on the basis of written request and documentation confirming the disability. With the presentation of such a permit, persons with disabilities are allowed to enter certain cemeteries at a certain times in their own car. An analysis of this provision has shown that PCC “Funeral Services” from Belgrade issues special written permits pursuant to Article 40, paragraph 1, point 8 of the Decision on cemetery maintenance and burial, which gives the company, that is, entrepreneur, the freedom to choose in which cases a special permit for entry into the cemeteries by motor vehicles can be prescribed The Commissioner for the Protection of Equality commends the decision that special rules and a different regime for entry into the cemeteries by motor vehicles apply for persons with disabilities, that is, the existence of rules that will make it easier for people with disabilities to visit the cemeteries. However, the prescription of a special written permission to enter cemeteries issued by PCC “Funeral Services” from Belgrade on the basis of written request, and upon proving identity and delivery of medical documentation, is a measure that creates an additional effort for people with disabilities, as they must submit their medical documentation and prove that they are persons with disabilities. The Commissioner for the Protection of Equality believes that this procedure should be made easier for people with disabilities, in a way that is acceptable and convenient for people with disabilities and PCC “Funeral Services” from Belgrade.
Bearing all this in mind, the Commissioner for the Protection of Equality, using the authority referred to in Article 33, paragraph 1, point 9, of the Law on prohibition of discrimination, recommends to the PCC “Funeral Services” from Belgrade to:
– amend the outdated and discriminatory terminology in the Decision on the prohibition of entry of motor vehicles into certain cemeteries in the territory of the city of Belgrade no. 3-40 of December 17, 2008, that is, to align it with generally accepted language and terminological standards in the field of human rights;
– enable the transport and/or entry of motor vehicles to persons with disabilities and persons who are moving with difficulty to all cemeteries also on public holidays, All Souls’ Day and the day after All Souls’ Day;
– facilitate the procedure for issuing special permits for entry into the cemetery by a motor vehicle for persons with disabilities and persons who are moving with difficulty, in a way that is acceptable and suitable for persons with disabilities and PCC “Funeral Services” from Belgrade.
You need to inform the Commissioner for the Protection of Equality on the measures and activities that you have taken to implement this Recommendation within 30 days.
No appeal or any other legal remedy is allowed against this Recommendation on measures to achieve equality, since the Recommendation does not decide on the rights and obligations of legal entities.
COMMISSIONER FOR THE PROTECTION OF EQUALITY