25.92Guberina v Croatia Application no 23682/13, [2016] ECHR 287
Article 14 ECHR applies where a person is treated differently because of the status of another person and the UN Convention on the Rights of Persons with Disabilities was relevant to the proper construction of the scope of Article 14 ECHR
Facts: The father purchased a new dwelling on account of his disabled child, in that the previous dwelling was a flat in a block without a life, whereas the child needed a lift. The father claimed, but was refused, tax relief payable when a new dwelling was purchased because the old dwelling lacked certain basic infrastructure requirements.
Judgment: the European Court of Human Rights held that the father was entitled to complain about discriminatory treatment on the ground of his child’s disability because Article 14 covers situations where an individual is treated less favourably because of another’s status and that there had been a breach of Article 1 of the 1st Protocol and Article 14 because of the authorities’ failure to take positive steps to include amongst the reasons for the grant of tax relief on the purchase of dwellings where the previous dwelling failed to meet basic infrastructure requirements, the reason that the previous dwelling failed to meet the infrastructure requirements of a disabled occupier. The court paid particular regard to the UNCRPD:
88. In justifying the decisions of the domestic authorities, the Government advanced two arguments. First, the Government argued that the relevant domestic law provided for objective criteria for establishing the existence of basic infrastructure requirements of adequate housing, which left no discretion for an interpretation to the administrative tax authorities in a particular case; and secondly, that the applicant had not met the financial requirements for a tax exemption given his financial situation.
89. With regard to the first argument the court cannot fail to observe that it is almost tantamount to the Government’s concession that the relevant domestic authorities were not empowered to seek a reasonable relationship of proportionality between the means employed and the aim sought to be realised in the applicant’s particular case. Hence, contrary to the requirements of Article 14 of the Convention, they were unable to provide objective and reasonable justification for their failure to correct the factual inequality pertinent to the applicant’s case (see paragraph 60 above).
90. The court nevertheless notes, being well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (see Glor, cited above, § 91), that the relevant provision of the Real Property Transfer Act is couched in rather general terms referring merely to the ‘basic infrastructure’ and ‘hygiene and technical requirements’ (see paragraph 24 above, section 11(9.5) of the Real Property Transfer Act).
91. The court further observes that other relevant provisions of the domestic law provide some guidance with regard to the question of basic requirements of accessibility for persons with disabilities. Thus, for instance, the By-law on the accessibility of buildings to persons with disabilities and reduced mobility envisages the existence of a lift as one of the basic elements of accessibility for persons with disabilities (see paragraph 25 above). However, there is nothing to suggest that any of the competent domestic authorities in the case at hand gave any consideration to such enactments in the relevant domestic law capable of complementing the meaning of terms under the Real Property Transfer Act.
92. Moreover, the court notes that by adhering to the requirements set out in the CRPD the respondent State undertook an obligation to take into consideration its relevant principles, such as reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in all aspects of social life (see paragraph 34-37 above), and in this sphere the domestic authorities have, as asserted by the Government, undertook certain relevant measures (see paragraph 62 above). In the case in question, however, the relevant domestic authorities gave no consideration to these international obligations which the State undertook to respect.
93. It accordingly follows, contrary to what the Government asserted, that the issue in the case at hand is not the one in which the relevant domestic legislation left no room for an individual evaluation of the tax exemption requests of persons in the applicant’s situation. The issue in the instant case is rather that the manner in which the legislation was applied in practice failed to sufficiently accommodate the requirements of the specific aspects of the applicant’s case related to the disability of his child and, in particular, to the interpretation of the term ‘basic infrastructure requirements’ for the housing of a disabled person (compare Topˇci´c-Rosenberg, cited above, §§ 40–49).