Available but Inaccessible: Where the Generic Property Right Meets Special Needs

Kati Vainionpää (EVICT student researcher)

Housing rights play a fundamental role in society by ensuring people have access to shelter and electricity, for example. It also encompasses a social aspect by allowing people to participate in their community. While strict standards have been set to determine the minimum requirements of adequacy, the most vulnerable groups are often left outside the scope of protection.

While strict standards have been set to determine the minimum requirements of adequacy, the most vulnerable groups are often left outside the scope of protection.

Persons with disabilities are one of these groups, as sometimes laws are not enough to ensure inclusiveness. This problem is often rooted in a lack of assessment of each individual situation, leading authorities to disregard special infrastructural requirements for ensuring accessibility. This blog post examines the results and significance of the case of Guberina v Croatia (application no. 23682/13), where the applicant contested discriminatory practices of national authorities in the European Court of Human Rights (“the Court”).

Events that lead to the landmark judgment

The case concerned a family of five seeking a tax exemption in order to access housing appropriate for their youngest child. In 2008, the child was diagnosed with multiple physical and mental disabilities. The apartment building where the family was residing at that point in time had no elevator, meaning that the child was limited in his ability to leave the apartment, particularly as he grew older. The father of the family, “the applicant”, sought a tax exemption from the Croatian authorities, relying on domestic tax law which aimed to help people in buying a flat or house in order to meet their housing needs, provided they did not already have another flat or housing. In this case the applicant argued that he should be eligible for this exemption as his flat did not meet his family’s housing need.

The applicant argued that he should be eligible for this exemption as his flat did not meet his family’s housing need.

The new home would accommodate the needs of his son and family, despite being slightly more expensive. The domestic courts denied his tax exemption request, asserting that all basic requirements were met in the family’s previous flat. Domestic law was applied in a strict manner, and the Croatian authorities said is the flat had sufficient space for five residents and completely disregarded other relevant facilities.

Before the European court of Human Rights “the Court”, the applicant relied on Article 1 of Protocol No.1 (protection of property) in conjunction with Article 14 of the European Convention on Human Rights (ECHR), which prohibits discrimination on any ground such as sex, race, colour, language, religion and political or other opinion among other things. He claimed that his family’s situation placed them in a disadvantaged position compared to others; thus, he should be eligible for the tax exemption.

Significant characterisation of disability

Under Article 34 of the ECHR, the Court may hear applications from any person claiming to that a contracting party of the ECHR violated their human rights. However, in this case, the applicant was bringing this application on behalf of his son. The Court made a noteworthy comment in relation to the applicant’s right to take this legal action. It concluded that although he was not himself affected by the limitations of the first flat, he was the principal caretaker and therefore had a direct connection to his son. They acknowledged the fact that disability affects not just the person with a disability but their entire family or whoever predominantly carries such responsibilities.

The Court acknowledged the fact that disability affects not just the person with a disability but their entire family or whoever predominantly carries such responsibilities.

When assessing if the applicant’s Article 14 rights had been infringed, the Court stated that the Croatian authorities had applied their property legislation in an overly restrictive way and failed to take into account the accessibility of the housing for persons with disabilities. The restrictiveness was exaggerated as it failed to take specific factors, like the child’s limited mobility, into account. Despite Croatia having ratified many international and European legal instruments, which protect the rights of people with disabilities, such as the UN Convention on the Rights of Persons with Disabilities and the EU Charter of Fundamental Rights, the domestic authorities, have not considered these obligations.

It was noted that differential treatment is sometimes required to meet the needs of vulnerable groups so that they get as close as possible to practicing their rights as other groups.

Differential treatment is sometimes required to meet the needs of vulnerable groups so that they get as close as possible to practicing their rights as other groups.

The Court noted that discrimination can be both direct, meaning it’s clearly readable from the letter of law, and indirect, where the law is applies in the same way to everyone but leaves opportunities for discriminatory practices. Meaning that a measure can be discriminatory even where it is not directly aimed at the particular group who suffer the discriminatory effect of the measure. This is important for the purposes of expanding the scope of protection in case of de facto discrimination, which can be harder to detect, such as in the Guberina case. In this case, it was not the letter of law, but rather the restrictive practices and lack of appropriate exceptions around it that led to unequal outcomes.

It was not the letter of law, but rather the restrictive practices and lack of appropriate exceptions around it that led to unequal outcomes.

By imposing same tax exemption conditions for all applicants, Croatian legislation discriminated against persons with disabilities by leaving them in a comparably more disadvantaged position.

In the end, the Court had to determine whether the housing conditions were considered “adequate” for the family in question. Even though the applicant and his family were subjected to the same rules as other Croatians, their needs required domestic authorities to apply differential treatment to secure their right to be equal members of society. Emphasis was put on accessibility and that, in some cases, the standard requirements for adequate housing are not enough in cases concerning people with a disability. In this case, an elevator was considered a required facility needed to protect the right to accessible housing for a person in a wheelchair. As this special requirement was ignored, the Court found an interference with Article 1 of Protocol 1 in conjunction with Article 14 of the Convention.

The case that changed the concept of discrimination

The Court noted that accessibility could look different depending on the needs of individual persons. The right to housing must give equality of opportunity for all citizens regardless of their health, age, gender, race, or other such characteristics. The judgment of Guberina v Croatia guaranteed that other laws, such as the Croatian property legislation in question, must be interpreted in conjunction with disability rights. Before this decision, disability rights had been considered a separate branch of law, and the links between discrimination in housing had not been clearly established. In order to equally protect the housing rights of all persons, different legal rules must work together and have the ability to be stretched to allow all people to participate in their community. This is a fundamental right, and there are no justifications for limiting it – not even when national laws contradict international standards.

The prohibition of discrimination connects to other human rights and can only be accepted where there is a clear justification. Although somebody may be advantaged in one way, it does not reduce the disadvantage brought by some other factor. This is why the financial situation of the applicant was not relevant to the Court. On top of the fact that the government did not use it as a justification to deny the original tax exemption request, the nature of the prohibition of discrimination for which the wealth status cannot compensate for played a part. The right against discrimination, in this case, aimed to protect and equalise the position of a disabled person and his caretakers. Disabilities are not dependent on the wealth of the persons concerned, and the experienced disadvantages should be compensated by some support that puts disabled people on the same line with their peers.

Impact of the case

Guberina v Croatia is an important case in recognising the importance of tailored treatment. It is an important reminder that equality does not mean placing everyone under the same circumstances, but rather acknowledging the differences in individual needs. The Court clearly demonstrated that disabilities impact the entire support network of the person with a disability rather than just the person directly concerned. By including accessibility as a criterion to adequate housing this case emphasised the importance of participation in society and how living conditions can have a significant effect on the ability to do so.

By including accessibility as a criterion to adequate housing this case emphasised the importance of participation in society and how living conditions can have a significant effect on the ability to do so.

This sets a standard for EU member states to interpret their laws in a way that allows for exceptions when their citizen is in an unfavourable position.