There are several million of disabled persons in Poland. Immovable properties must be adapted to their needs to the extent prescribed by law, but there are also a number of optional solutions that investors may incorporate into their projects. Such solutions become meaningful in the context of the recent judgment of the European Court of Human Rights relating to a disabled student who sued Turkey.
Establishment of appropriate infrastructure for the needs of the disabled, of whom there are several million in Poland, is an important task faced by designers of different types of buildings and public places. According to the applicable provisions of the construction law, a construction work and the related equipment should be designed and erected so that disabled persons – and especially wheelchair users – can enjoy public utility buildings and multi-family housing. However, after the decision of the European Court of Human Rights of 30 January this year in the case Enver Şahin versus Turkey, the standard of protection of disabled persons’ rights has significantly risen, which poses a challenge not only for new building investments.
The case of Enver Şahin v. Turkey
A Turkish national, Enver Şahin, as a first-year student of mechanics at one of Turkish universities, suffered an accident as a result of which his entire right arm was paralysed. Unfortunately, in the building of his university, there were no facilities for the disabled, which is why Şahin could not resume his academic studies before regaining full mobility. In 2007, he requested the rector of his university to adapt the building to the needs of the disabled, however, his request was refused. The university authorities replied that, on financial grounds, they were unable to create appropriate infrastructure. Instead, they proposed to provide the student with an assistant during the classes. Şahin did not accept this proposal, claiming that permanent presence of a third person would violate his privacy. In the proceedings before the European Court of Human Rights, the applicant contended that, by failing to adapt the building to the needs of the disabled, the university authorities violated the prohibition of discrimination set out in Art. 14 of the European Convention on the Protection of Human Rights and Fundamental Freedoms and the right to education set out in Art. 2 of Protocol No. 1 to the Convention.
Adaptation of a building for the disabled and discrimination
When examining the application, the Court held that as far as disabled persons are concerned, it is fundamental to ensure to them a possibility to live an independent, autonomous life permitting their development, formation of self-esteem, dignity and personal freedom. The Court concluded that, by proposing to provide the applicant with an assistant, the rector did not take into consideration the applicant’s needs and individual situation as well as the impact of permanent presence of a third party on the student’s freedom and dignity. In consequence, the ECtHR ruled that such assistance – as insufficient to ensure independence and autonomy – would be in violation of the right to respect for private and family life.
Enver Şahin, before submitting the application to the Court, tried to enforce his rights in Turkey by appealing against the rector’s decision to a competent administrative court. However, the administrative court dismissed the complaint, arguing that the university building was erected at a time when Turkish law did not know the obligation to adapt public utility buildings to the needs of the disabled. The Court found that argument illegitimate. While analysing the findings of the national court, the Court ruled that the latter failed to consider the applicant’s interest – the quickest possible resumption of study in the conditions permitting to enjoy maximum autonomy, on equal terms with other students. In addition, the Court censured the national court for its failure to analyse the conflicting interests in the case and possibilities of their reconciliation.
The discussed judgment is particularly relevant to many aspects of the practice of application of construction law provisions on the necessity to ensure facilities to the disabled. In the first place, the Court held that creation of architectural conditions which are analogous for persons with and without disabilities constitutes a fundamental duty of national authorities. It does not matter when and on what terms the relevant construction law provisions were enacted in the national legislation. Even if they do not apply to buildings erected before the date of their entry into force, the national authorities are not exempt from the above obligation. The judgment of the Court approaches the problems of adaptation of buildings to the needs of the disabled from the perspective of human rights, which, by definition, are “prior” to national legislation. In other words, it is irrelevant what construction requirements were laid down by a particular legislator – disabled persons in the public space simply need to be guaranteed the opportunity to function under conditions comparable to those relating to persons without disabilities. It should be emphasized that in the discussed case the applicant was affected “only” by impaired mobility of one hand. Ensuring the level of protection put in place by the ECtHR to persons with more severe disabilities would definitely pose a bigger challenge.
In practice, this ruling may trigger the need to adjust many buildings, not only those that so far had no facilities for the disabled. The relevant benchmark is not the problem of compliance of the adopted architectural solutions with the provisions of the construction law but the possibility to guarantee autonomy in a building to disabled persons, which allows them to function freely. From this perspective, even the latest constructions may violate the standards set by the European Court of Human Rights.