The case of Simon Bacher v. Austria. Views of the Committee on the Rights of Persons with Disabilities dated February 16, 2018. Communication No. 26/2014.
In 2014, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Austria.
The author of the message was born with Down syndrome. He suffered from an autism spectrum disorder, and therefore he periodically needed a wheelchair. To walk along the path, which remained the only way to approach the house, the applicant's parents built wooden steps and covered them with gravel. During rain, snowfall or hail, the approach became particularly dangerous for the author and for the persons assisting him. When he grew up, it became difficult for his parents to carry him in their arms, and they decided to erect a canopy over the path to protect him from the weather. Mr. R. He filed a lawsuit against the author's parents in the district court, stating: because of the canopy, the width of the path and the approach became limited in height, which violated his right of passage. On July 17, 2002, the court ruled in favor of Mr. R. and ordered the canopy to be demolished. The Committee on the Rights of Persons with Disabilities noted that the dismantling of the canopy over the path leading to the B. family home not only restricted the applicant's access to his home, but also limited his access to social activities and public services that he needs in his daily life, in particular, educational and medical services and public services in general. The courts of the State party to the Convention on the Rights of Persons with Disabilities have not conducted a thorough analysis of the author's special needs, despite the fact that they were clearly indicated by his parents. In the Committee's view, the applicant's family was entrusted with the task of finding ways to ensure his access to his home and to external public services, which he needed in his daily life. The Committee considered that the decisions of the courts of the State party to the Convention on the Rights of Persons with Disabilities constituted a denial of justice for the applicant in violation of article 9, considered separately and in conjunction with article 3 of the Convention.
The Committee's assessment of the factual circumstances of the case: according to the State party: (a) the easement referred to in the present case constituted an "absolute" right imposing obligations on the author's father; (b) in this regard, the State party did not have a general positive obligation to protect specific groups of persons in key areas of civil rights and obligations; c) restrictions could be imposed only in cases where they are provided for by law, are necessary based on legitimate public interests, and are not excessive; (d) The obligations arising from article 9, paragraph 1, of the Convention do not give rise to the obligation to ensure that the interests of a disabled person in themselves justify infringement of property rights; and (e) the interests of the parties could be reconciled by choosing a different canopy design. In this regard, the Committee noted that the removal of the canopy over the path leading to the B. family home not only restricts Mr. B.'s access. access to his home, but also restricts his access to social activities and public services that he needs in his daily life, in particular, educational and medical services and public services in general. He also took into account the author's argument that Mr. R. He did not agree with any of the proposed alternative options for a canopy over the path and that in assessing the situation, the courts did not consider it necessary to take into account the situation of Mr. B. in this regard (paragraph 9.8 of the Considerations).
"Mr. Bacher was born with Down syndrome. He suffers from an autism spectrum disorder, which is why he periodically needs a wheelchair. In addition, he suffers from chronic lung disease and immunodeficiency, which is why he needs regular medical care, which is provided to him at the University Hospital in Innsbruck.
Simon B. lives in the city of V., in a house bought by his family in 1983. The approach to this house and two neighboring houses is possible only by a path. When Mr. B.'s parents bought this house, Mayor V. informed them that by law he was obliged to provide emergency services access to their house and two neighboring houses in case of, for example, a fire. However, after the mayor left office, nothing was done regarding the provision of new access opportunities. To walk along the path with a slope of 18 degrees, 35 meters long and 1.2 to 1.5 meters wide, which remains the only way to approach the house, Mr. B.'s parents built wooden steps and covered them with gravel. During rain, snowfall, or hail, the approach became especially dangerous for Mr. B. and for the people helping him. When he grew up, it became difficult for his parents to carry him in their arms, they decided to build a canopy over the path to protect him from the weather. The local authorities have issued a permit for the construction of a canopy in consultation with the nearest neighbors. However, the residents of one of the neighboring houses (Mr. R. and his uncle) were not invited to the meeting to coordinate the issuance of a permit, since by law the consent of only those neighbors who live within a radius of 15 meters from the construction site is required. In accordance with a permit issued by the Municipality of V., and with financial support from the local government of Tyrol, the canopy was built between November and December 2001.
Mr. R. filed a lawsuit against the author's parents in the district court, stating that because of the canopy, the width of the path was reduced from 1.5 to 1.25 meters and the approach became limited in height, which violated his right of passage. On July 17, 2002, the court ruled in favor of Mr. R. and decided to demolish the canopy" (paragraphs 2.1 - 2.3 of the Considerations).
In its decision of 9 February 2012, the District Court took the same position as reflected in previous decisions of the State party's courts in considering this case: it did not conduct a thorough analysis of Mr. B.'s special needs, despite the fact that they were clearly indicated by his parents - as in all previous judicial proceedings meetings, as well as in notices of claim. The authorities of the State party, on the contrary, expressed the view that the subject of the trial "has nothing to do with the rights of persons with disabilities" and concerned the settlement of property rights affected in the case. The multidimensional consequences of the decisions taken by the authorities of the State party on Mr. B.'s access rights were thus ignored, as a result of which his family was entrusted with the task of finding ways to ensure his access to his home and to external public services, which he needed in his daily life. In this regard, the Committee considered that the court's decision of 9 February 2012, considered in the context of previous judicial decisions taken by the State party's courts in this case, constituted a denial of justice for Mr. B. in violation of article 9, considered separately and in conjunction with article 3 of the Convention (paragraph 9.9 of the Views).
The Committee's conclusion: the State party has failed to comply with its obligations under article 9, considered separately and in conjunction with article 3 of the Convention (paragraph 10 of the Views).