Views of the Committee on the Rights of Persons with Disabilities dated February 16, 2018 in the case of Simon Bacher v. Austria (communication No. 26/2014).
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Austria.
Subject matter: The obligation of the authorities of the State party to ensure accessibility for persons with disabilities in the context of private disputes between neighbors.
Substantive issues: accessibility; reasonable accommodation; general obligations of States parties under the Convention.
Legal positions of the Committee: this type of dispute [right of way and passage (easement)] is regulated in the legal system of the State party, which in any case has the ultimate responsibility to ensure that the rights provided for in the Convention are respected, including the right of a person with disabilities to access their home, as well as access to public life and public services, including education and health. Thus, despite the fact that disputes over the construction of a canopy over the path arose between two individuals, the State party is obliged, in particular, to ensure that decisions taken by its authorities do not infringe on the rights enshrined in the Convention (paragraph 9.2 of the Views).
States parties are obliged not only to respect the rights enshrined in the Convention and, accordingly, to refrain from violating them, but also to protect these rights by taking measures to prevent direct or indirect interference by individuals in their exercise. Thus, although the Convention mainly establishes rights and obligations in the framework of relations between a State party and individuals, the provisions of the Convention are also applicable to relations between individuals. In this regard, the Committee... Recalls that, in accordance with article 4, paragraph 1, of the Convention, States parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms by all persons with disabilities without discrimination on the basis of disability. To this end, States Parties undertake to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise. In this regard, the issue of property law relating to the implementation of a contract between individuals and the conflict associated with it should be interpreted within the framework of the Convention. Thus, in the process of settlement by the courts of the State party of the conflict between the parties, they were bound by the provisions of the Convention. In this regard, the State party's argument that the communication concerns a conflict between individuals and is therefore not relevant to the Convention seems unfounded (paragraph 9.3 of the Views) (See para. Committee on Economic, Social and Cultural Rights, Mohamed ben Jazia and Nahuel Bellili v. Spain (E/C.12/61/D/5/2015), para. 14.2.).
The Committee recalls that "accessibility is a prerequisite for ensuring that persons with disabilities can lead an independent lifestyle and participate fully in society on an equal basis with others." In accordance with article 9 of the Convention, States parties shall take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others, to the physical environment, to transport, as well as to other facilities and services open or provided to the public in both urban and rural areas. These measures should include the identification and removal of obstacles and barriers to accessibility (paragraph 9.4 of the Considerations).
The Committee... Recalls that, in accordance with article 2 of the Convention, necessary and appropriate modifications and adjustments may be made, when necessary in a particular case, without becoming a disproportionate or unjustified burden, in order to ensure the realization or exercise by persons with disabilities on an equal basis with others of all human rights and fundamental freedoms, including the right to accessibility (paragraph 9.5 of the Considerations).
In this context, attention is no longer focused on the legal personality and public or private nature of the owners of buildings, transport infrastructure, vehicles, information and communications and services. Persons with disabilities should have equal access to all goods, products and services open or provided to the public in such a way as to ensure their effective and equal access and respect for their human dignity (paragraph 9.6 of the Considerations).
The Committee recalls that, in assessing the reasonableness and proportionality of measures to ensure adaptation, States parties enjoy a certain freedom of interpretation... Notes that, as a rule, it is the courts of the States parties to the Convention that are competent to assess the facts and evidence relevant to a particular case, except in cases where it can be established that the assessment was manifestly arbitrary or constituted a denial of justice (See Jungelin v. Sweden, paragraph 10.5.). In this case, the Committee's role is to determine whether the decisions taken by the courts of the State party have allowed Mr. Baher's rights to be respected in accordance with article 9, considered separately and in conjunction with article 3 of the Convention (paragraph 9.7 of the Views).
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 constitutes an "absolute" right imposing obligations on the author's father; (b) in this regard, the State party does not have a general positive obligation to protect specific groups of persons in key areas of civil rights and obligations; c) restrictions may 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 notes that the removal of the canopy over the path leading to the Baher family home not only restricts Mr. Baher's access to his home, but also restricts his access to social activities and public services that he needs in his daily life, in particular education and medical services and public services in general. He also notes the author's argument that Mr. R. 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 Mr. Bacher's situation 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 Bacher lives in the city of Womp, 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. Baher's parents bought the house, the Mayor of Womp informed them that he was legally 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. Bacher's parents built wooden steps and covered them with gravel. During rain, snowfall or hail, the approach became particularly dangerous for Mr. Baher and those 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. 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 Womp 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 Schwaz District Court, stating that due to 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 Schwaz District Court took the same position as in previous decisions of the State party's courts in considering this case: it did not conduct a thorough analysis of Mr. Baher'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 concerns 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. Baher'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 considers that the decision of the Schwatz Court of 9 February 2012, considered in the context of previous judicial decisions taken by the State party's courts in this case, constitutes a denial of justice for Mr. Baher 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 not fulfilled its obligations under article 9, considered separately and in conjunction with article 3 of the Convention (paragraph 10 of the Views).