Farcas v Romania
Forum: European Court of Human Rights
INTERIGHTS' role: Representative
Keywords: Disability, postive obligations
In September 2010, the European Court of Human Rights dismissed as inadmissible a case brought by a man with disabilities who complained about the lack of access to essential public amenities, including court buildings and lawyers’ offices, in his Romanian hometown of Piatra Neamt. The applicant, Mr Alois Farcas, assisted by INTERIGHTS, had explained how lack of physical access infringed on his ability to independently access justice and contributed to his marginalisation from society more broadly. He alleged violations of Articles 6 (fair trial), 8 (personal autonomy) and 14 (discrimination on grounds of disability) of the European Convention on Human Rights (ECHR). The Court found the case inadmissible on the grounds that there were other feasible steps that the applicant could have taken to access courts indirectly - through other people or by post – and that there was an insufficient link between the alleged access issues and his private life. While the decision was based on its appreciation of the particular facts of the case before it, the Court has missed an important opportunity to consider the ways in which lack of access impacts upon and amounts to a violation of a range of rights for people with disabilities. INTERIGHTS became involved in the case as it provided an opportunity for the Court to establish the extent of positive duties incumbent on states to facilitate the full participation of persons with disabilities in society, including improving the physical accessibility of public buildings and other infrastructure.
The case of Farcas v Romania sought to reverse previous jurisprudence under the ECHR in which the Court rejected claims from disabled applicants concerning their inability to make use of public infrastructure not made accessible for people with physical disabilities.
In the present case the applicant has suffered from muscular dystrophy since childhood, which severely impaired his independent mobility. When he was constructively dismissed from his job after 20 years’ employment, on the basis that he could not access the new premises at which he was expected to work, he sought to challenge his dismissal in court for his employers’ failure to provide reasonable accommodation. However, the buildings housing local courts as well as local law offices were not accessible for people with disabilities. In addition to complaining about lack of access to justice, the applicant also claimed that he lacked access to a number of other public buildings, such as governmental agencies allocating benefits and other measures of support to people with disabilities, and infrastructure, such as the public transport in his town, which was and still is completely inaccessible.
Summary of Decision
The panel of seven judges ruled that the applicant’s access to justice (under Article 6 of the ECHR – right to a fair trial) was not compromised since alternatives were available in the form of filing complaints through a proxy or with the help of his relatives, or of initiating complaints by post. The Court reasoned that the type of proceedings which the applicant wanted to initiate did not require legal assistance, and, in any case, domestic courts could have appointed an ex officio lawyer if the applicant requested one.
The Court also ruled that there was an insufficient link between the private life of the applicant and the measures he sought from the State (under Article 8 of the ECHR – right to respect for private life). However the Court did not explain what may constitute a sufficient link between a victim’s private life and the measures which an individual can expect from the State. This is particularly problematic as the applicant presented the Court with extensive evidence to demonstrate that he suffered from significant detriment as a result of lack of access, in terms of increased isolation and social exclusion, enforced dependency and increased health risks. As it did not find that any issues arose under Articles 6 or 8, in accordance with the Convention system it could not address the discrimination issue under the prohibition of discrimination (under Article 14 of the ECHR).
Significance of the Decision
This case concerned the rights of people with disabilities to live as equal citizens in society, and in particular their right to independently access justice and participate in court proceedings on an equal footing with non-disabled members of society. Regrettably, the Court’s decision may suggest that making court buildings accessible is optional and falls within the discretion afforded to States under the Convention, as long as alternatives exist for initiating and participating in court proceedings, such as through next of kin or correspondence.
This decision is out of step with more encouraging developments across Europe and other parts of the world, in particular the recently adopted UN Convention for the Rights of People with Disabilities which specifically calls on state parties ‘to identify and eliminate obstacles and barriers to accessibility’.
INTERIGHTS will continue to work to promote and protect the rights of people with disabilities, including ensuring their effective access to amenities and facilities on an equal basis to non-disabled members of society.
On 27 April 2010, INTERIGHTS represented the applicant at a hearing before the Court. The hearing can be watched online here.
Click here to read the Court’s statement of facts (in French).
Click here to read the judgment (in French).
Contact: Constantin Cojocariu, Europe Lawyer, at firstname.lastname@example.org.