ECHR Decree of 30 January 2018 in the case of Enver Sahin v. Turkey (application No. 23065/12).
In 2012, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, the applicant's complaint on the failure to carry out a specific individual assessment of his needs as a disabled student regarding access to the premises of the school was successfully considered. There has been a violation of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
During the study with the applicant, an accident occurred, as a result of which his legs paralyzed. In 2007, he formally applied to the university with the request to carry out the necessary alterations and work to make the teaching facilities available to him. The university administration responded that it did not have enough funds to carry out works in the short term, and suggested that the applicant, as a support, allocate a personal assistant. In 2010, the Administrative Court dismissed the applicant's complaint, citing, among other things, the fact that the university building had been built before the entry into force of the technical guidelines for assisting persons with disabilities, as well as the fact that measures relating to architecture would be implemented, "as soon as the means permit" (although no specific plans have been developed so far).
ISSUES OF LAW
Despite the discretion of the authorities, the Court could not agree that the issue of access to the university buildings could remain unresolved until the full amount necessary to complete all major works for the conversion of premises required by law. In cases where the fulfillment of obligations under the Convention requires the adoption of positive measures by the authorities of the respondent State, the latter can not simply remain passive.
Article 14 of the Convention should be considered in the light of the United Nations Convention on the Rights of Persons with Disabilities, according to which discrimination on the basis of disability includes all forms of discrimination, including "denial of reasonable accommodation". "Reasonable accommodation" means the introduction, when necessary in a particular case, of "necessary and appropriate modifications and adjustments that do not become a disproportionate or unjustified burden, in order to ensure the realization or exercise of persons with disabilities on an equal basis with others of all human rights and fundamental freedoms."
Despite the fact that the task of the European Court is not to define such a "reasonable accommodation" that could take various forms, both physical and non-physical, nevertheless, domestic authorities should be particularly careful in choosing what they are doing in this sphere, taking into account the particular vulnerability of the affected persons.
Indeed, the university did not reject the applicant's request directly, but offered him support with the provision of a personal assistant. However, although the international legal instruments mention, among other measures, the assistance of a third person, the proposal made by the university is not relevant to this category, since nothing in the case proves that this was preceded by an assessment of the real needs of the applicant and an honest assessment of the possible consequences for his security, dignity and independence. Even though the applicant was not seriously injured in this case, the authorities did not take into account the paramount importance of granting persons with disabilities the opportunity to lead an independent way of life and comprehensively develop self-esteem and improve their self-esteem. These concepts underlie the recommendations of the United Nations Convention on the Rights of Persons with Disabilities and the Council of Europe, and dignity and personal independence are important in the Court's case-law, in particular with regard to Article 8 of the Convention, which has some similarity with Article 2 of Protocol No. 1 to the Convention.
Ignoring these issues, the Administrative Court did not carefully consider the issue of a fair balance between the interests of the applicant and any competing interests.
In the case there was a violation of the requirements of Article 14 of the Convention (adopted by six votes "for" at one - "against").
In application of Article 41 of the Convention, the Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.