SECOND SECTION

CASE OF ENVER ÅžAHIN v. TURKEY

( Application no. 23065/12 )

JUDGMENT

STRASBOURG

30 January 2018

FINAL

02/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Enver Åžahin v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Robert Spano, President, Julia Laffranque, Işıl Karakaş, Nebojša Vučinić, Paul Lemmens, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı , Section Deputy Registrar ,

Having deliberated in private on 19 December ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 23065/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Enver Şahin (“the applicant”), on 14 March 2012.

2. The applicant was represented by Mr S. Elban, Mr H.K. Elban and Mr F. Erbek , lawyers practising in Antalya. The Turkish Government (“the Government”) were represented by their Agent .

3. The applicant alleged that he had been the victim of discriminatory interference with his right to respect of private life (Article 8 of the Convention read in conjunction with Article 14), and complained of a discriminatory infringement of his right to education (Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention) .

4. On 5 March 2014 notice of the application was given to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1988 and lives in Diyarbakır.

6. In 2005, while he was a first-year mechanics student in the technical faculty of F ı rat University ( “ the faculty” ), t he applic ant was seriously injured in an accident which left his lower limbs paralysed . He had to suspend his studies until he had recovered sufficiently to return to university .

1 . On 17 March 2007 the applic ant requested the faculty to adapt the universit y premis es in order to enable him to resume his studies for the 2007 ‑ 2008 academic year .

2 . The faculty replied to that request by letter of 25 May 2007. It pointed out that the faculty building had been designed and built with several floor s in order to acc ommodate 3, 000 students and that its architecture could not be adapted . It stated that the administration had been asked for leave to conduct redevelopment work on the doors to the building, but that that work could not be carried out in the sho rt term . It added that the mechanics course required the applic ant to participate in practical workshop s, considering that as things stood such participation would cause problems . The faculty conclu ded that if the applicant wished to continue his studies it would help hi m as far as possible .

3 . On 16 August 2007 the applic ant sent , through a notary , formal notice to the administration of Fırat University and the faculty dean inviting them to carry out the redevelopment work requested. Relying on A rticle 42 of the Constitution, section 15 of Law n o. 5378 on persons with disabilities and A rticle 2 of Protocol No. 1 to the Convention, he affirmed that it was the State ’ s duty to guarantee the citizens ’ righ t to educa tion, in line with the principle of equal opportunities . He further alleged that the faculty ’ s reply to his request ( see paragraph 8 above ) had been intended solely to induce him to abandon his studies .

4 . The administration replied to that formal notice by letter of 10 September 2007. The latter stated that the redevelopment works mentioned should be considered in the light of compliance with the regulations on public property, which could take some time . Furthermore, any problems encountered by the applicant in attending the theoretical classes administered in a three-storey building could be resolved with the help of a companion .

The Administration pointed out that the practical workshop s were held on the ground floor of the building and posed no problems with regard to access , and that the applicant would consequently have no difficulty in attending the cours es administered in the framework of those workshops . I t explained that the only reason why the applicant ’ s participation in the practical workshop s had previously been described as problematic ( see paragraph 8 above ) was that such workshops necessitated a considerable physical effort and that his particular situation required some thought regarding the type of assistance with which he could be provided. Furthermore, all the parties involved were anxious to help students in difficulty , and there was no question of deterring the applic ant from continuing his studies . F in ally , t he Administration pointed out that since, in its view , the budget allocated by the S tate was limited , the redevelopment work necessitated by the applicant ’ s situation was subject to unavoidable budgetary and time constraints .

5 . On 15 November 2007 the applicant filed with the Elazığ Administrative Court an action for annulment of the universit y ’ s replies of 25 May and 10 September 2007 and to provide compensation for the pecuniary and non-pecuniary damage which he claimed he ha d sustained . He complained that the authorities had not removed the physical obstacles preventing him from exercising his right to educa tion. He claimed 25, 000 Turkish liras (TRY) in respect of non- pecuniary damage and TRY 30 , 000 in respect of pecuniary damage.

6 . Th e Administration of Fırat University replied in a defence memorial of 24 March 2008. That document stated that the university had not been responsible for the applicant ’ s accident. I t criti cised the applicant for having opted for judicial channels , and alleged that he was acting in bad faith , adding , in that connection, that he had been informed that he would be provided with su pport should he decide to return to university . Furthermore, the relevant agencies had been contacted with a view to redeveloping the faculty building and a propos al had been made to include the works in an investment programme complying with the relevant regulations governing public property . The Administration further argued that it had offered the applic ant the services of an assistant, but that he had not submitted any request for such help . The office added that access to the workshops posed no problems f or person s with disabilities, but that the cours es administered at the workshops demanded a physical effort from participants. Lastly, i t pointed out that the applic ant had never been barred from any course.

7 . Th e applic ant replied, refuting the arguments put forward by the Administration . He submitted that his right to education was guaranteed by domestic law and by Article 2 of Protocol No. 1 to the Convention, and that it was incumbent on the domestic authorities to take steps to enable him to exercise that right, with respect for the principle of equal opportunities. Moreover , he argued that the redevelopment work requested was such as should already have been conducted in any case, in line with the requirements of section 1 b i s of Law n o. 3194 on urban planning ( see paragraph 23 above ). Furthermore, he considered that the authorities ’ offer of an assistan t illustrated their ignorance of his personal situation and the implications of that situation . He added that it would be degrading for him to be placed in a situation of dependence on a third person because of his disability , citing the example of how the constant presence and assistance of a third person would invade his privacy. He also pointed out that the fact of being carried upstairs by another individual comprised a definite risk of his falling .

8 . On 13 October 2008 the faculty terminated its contracts with a number of students , including the applic ant, on the grounds that they had not re-registered at the start of two successive academic year s.

9 . 2 November 2009 saw the enactment of Legislative Decree n o. 2009/15546, published in the Official Gazette ( “the OG ” ) on 13 November 2009, closing down certain categories of institution s of higher education, including technical faculties , one of which was the technical faculty of F ı rat University , which was replaced by a new faculty of technology . Under the legislative decree students who were already registered could continue their studies in the new faculties .

10 . On 9 April 2010 the Elaz ığ Administrative Court dismissed the applic ant ’ s appeal . In the reasoning of its judgment it stated , in particular, that the buildings in question had been erected in accordance with the regulations in force in 1988. The court took the view that although it was incumbent on the authorities to apply the technical guidelines set out in the legislation subsequently enacted for person s with disabilities, it could not be contended that the respondent authority had not followed those guidelines during the construction of a building erected in 1988, before the guidelines had come into force. Lastly, the judgment mention ed that the authorities had informed the complainant that architectural measures would be adopted , depending on the available budget , and that a person would be appointed to assist him in attending the cours es .

11 . Th e applic ant lodged an appeal on points of law with the Supreme Administrative Court against that judgment .

12 . On 18 January 2011 the Supreme Administrative Court delivered a judgment dismissing that appeal on points of law and upholding the first- instance judgment as being in conformity with the procedure and laws .

13 . Th e applic ant lodged an application for rectification of that judgment with the Supreme Administrative Court , complaining of an infringement of his right to educa tion and the equality principle .

14 . On 28 September 2011 the Supreme Administrative Court dismissed the applicant ’ s application, holding that there were no grounds for rectification.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

A. Relevant d omestic law

15 . The domestic law relevant to the present case was part ly described in the judgment Çam v. Turkey (n o. 51500/08 , §§ 34-36, 23 February 2016).

16 . Furthermore , section 3 ( f) of Law n o. 5378 on person s with disabiliti es of 1 July 2005 ( “ L a w n o. 5378 ” ), publi shed in the O G on 7 July 2005, defines accessibility as follows :

“( f) Accessibility : secure and independent access to and use of buildings, outside areas , transport and information services and information and communication technologies . ” [1]

A rticle 2 ( provis ional) of that Law as in force at the material time read as follows :

“Existing official building s belonging to public bodies and institutions , all [ existing ] roads and highways , pavements , pedestrian crossings, open spaces and parks, sport s areas and other similar social and cultural infrastructures , a s well as all constructions b uilt by natural or legal person s providing public services s hall be made compatible with the accessibility of ‘ invalids ’ [2] ‘ within seven years ’ [3] of the entr y into force of [ the present ] law”

17 . On 30 May 1997 an additional section was added to Law n o. 3194 on Urban Planning of 3 May 1985, publi shed in the O G on 9 May 1985. That section provides for an obligation to comply with the standards of the Turkish Standards Institute in urban planning projects , in urban and social construction areas and in technical infrastructures in order to ensure that the physical environment is accessible and adapted to person s with disabiliti es.

18 . La w n o. 6111 of 13 February 2011, publi shed in the O G on 25 February 2011, a dded section 58 ( provisional ) to Law n o. 2547 on Higher Education of 4 November 1981 ( the so-called “ student amnesty law ” ), publi shed in the O G on 6 November 1981. That section provides , in particular, that certain students who, before the entr y into force of the section, had terminated their relations with their institution s of higher education can :

– re sume their studies during the 2011 ‑ 2012 academic year , s ubject to applying to do so within five months of the entr y into force of the said section ;

– begin attending courses at the spring term of the 2010 ‑ 2011 academic year , s ubject to applying to do so within ten days of the entr y into force of that section and provided that that application is accepted by the institution in question .

Section 11 of Law n o. 6353 of 4 July 2012, publi shed in the O G on 12 July 2012, a dded section 63 ( provisional ) to Law n o. 2547, providing as follows :

“ Anyone who is ineligible under section 58 ( provisional ) [ of Law n o. 2547] because he or she has failed to lodge an application within the prescribed time-limit ... may , as from the entr y into force of that section, begin [ a course of study ] during the subsequent [ academic ] year pursuant to the principles set out in section 58 ( provisional ) , by applying to the institution of higher education with which they have broken off relations. ”

B. International law

19 . The texts of international law relevant to the instant case are described in the Çam judgment (cited above , §§ 37-38 – see, additionally, Zehnalová and Zehnal v. the Czech Republic (dec.), n o. 38621/97, E CH R 2002 ‑ V; Mółka v. Poland (d e c.), n o 56550/00, E C HR 2006-IV ; and FarcaÅŸ v . Romania (d e c.), n o. 2596/04, §§ §§ 68-70, 14 September 2010 ).

Regard should also be had to the following passages from the United Nations Convention on the Rights of People with Disabilities (“ CR P D ” ), adopted on 13 December 2006 by the United Nations General Assembl y and signed on 30 March 2007, and then ratified by Turkey on 28 September 2009.

Article 2

“ Definitions

For the purposes of the present Convention :

...

‘ Discrimination on the basis of disability ’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

‘ Reasonable accommodation ’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms

... ”

Article 3

“ General principles

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons;

...”

Article 9

“ Accessibility

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;

(b) Information, communications and other services, including electronic services and emergency services.

2. States Parties shall also take appropriate measures:

...

(e) To provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;

(f) To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information ;

... ”

Article 20

“Personal mobility

States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:

(a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;

(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;

(c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;

(d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities. ”

Article 24

“Education

1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:

(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;

...

5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities

... ”

20 . R eference should also be made to Article 13 of the I nternational Covenant on Economic , S ocia l and Cultural Rights , adopted by the United Nations on 19 December 1966 and ratified by Turkey on 23 September 2003 . That provision lays down that the S tat e s P arties must recognise the right of everyone to education and, with a view to achieving the full realisation of that right, that higher education must be made equally accessible to all, on the basis of capacity, by every appropriate means .

21 . Within the Council of Europe, Recommendation No. R (98) 3 on access to higher e ducation, adopted on 17 March 1998 by the Committee des Ministers , acknowledges that higher education has a key role to play in the promotion of human rights and fundamental freedoms .

Furthermore , in its Recommendation No. R (92) 6 of 9 April 1992 on a coherent policy f or person s with disabiliti es, the Committee of Ministers invite d member State s to “ guarantee the right of people with disabilities to an independent life and full integration into society ” and to “ recognise society ’ s duty to make this possible ” , in order to give person s with disabilities proper “ equal ity of opportunity ” with other s. Public authority action must be geared, inter alia, to give persons with disabilities “ as much mobility as possible, and access to buildings and means of transport ” , and to enable them to “ play a full role in society” and “take part in economic, social, leisure, recreational and cultural activities” .

For its part, the Parliamentary Assembly of the Council of Europe deal t with these matters in its Recommendation No. 1185 (1992) of 7 May 1992 on rehabilitation policies for the disabled . That text emphasised that “society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives ” . To that end, Governments and the competent authorities were called upon to “ strive for and encourage genuine active participation by disabled people in ... the community and society ” and accordingly , to guarantee “ease of access to buildings ” .

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION AND OF ARTICLE 14 OF THE CONVENTION

A. Subject matter of the dispute

22 . Th e applic ant complained of a discriminatory infringement of his right to educa tion. He submitted that in order to be able to continue his university studies at the faculty , redevelopment work had to be carried out in the faculty building . He alleged that the rejection of his request for works had forced him to abandon his studies . Thus he complained that the Stat e had failed to take the positive action which he claimed was incumbent on it and would have enabled him to continue his university course .

He relied on A rticle 2 of Protocol No. 1 to the Convention read alone or in conjunction with A rticle 14 of the Convention, which provide :

Article 2 of Protocol No. 1 to the Convention

“ N o person shall be denied the right to educa tion. ... ”

Article 14 of the Convention

“ The enjoyment of the rights and freedoms set for in [this] Convention shall be secured without discrimination on any ground such as sex , race, colour , language , religion, political or other opinions , national or social origin , association with a national minority , property, birth or other status .”

23 . Th e Government co ntested that argument.

24 . The Court observe s that the applicant ’ s allegation of discriminatory treatment on grounds of his locomotor disability is central to the complaint before it . In that connection it reiterates from the outset that A rticle 14 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( regarding the principles , see , fo r example , Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” ( merits ), 23 July 1968, § 9, Series A n o. 6 ; Stec and Others v . the Uni ted Kingdom (d e c.) [GC], n os. 65731/01 and 65900/01, §§ 39 et 40, E CH R 2005 ‑ X ; E.B. v . France [GC], n o. 43546/02, § 48, 22 January 2008 ; and Sejdić and Finci v. Bosnia - Herzegovina [GC], n os. 27996/06 and 34836/06, § 39, E CH R 2009).

In the present case , since the applic ant ’ s alleged inability to benefit from his right to universit y education concerned an existing faculty , which had become inaccessible to the applicant following an accident which had left him with a locomotor disability , it can only be concluded that the complaint in question falls within the ambit of A rticle 2 of Protocol No. 1 and that therefore A rticle 14 of the Convention is applicable .

B. Admissibility

1. The Government ’ s submissions

26 . Th e Government pointed out that Law n o. 5378 had imposed an eight-year time-limit ( see paragraph 22 above ) on rendering public building s, roads , pavements , pedestrian crossings, open spaces and parks, sports areas and other similar social and cultural infrastructures, as well as all buildings providing public services , accessible to persons with disabilities . They explained that during this procedure the authorities in charge of the university in question had stated that the applic ant could continue his studies . Ever since 2010 the buildings of the faculty of technology set up under Legislative Decree no. 2009/15546 of 2 November 2009 ( see paragraph 15 above ), in which the engineering classes were now being held, had been in conformity with the provisions on access for students with disabilities .

27 . Th e Government added that the applic ant had neither reregistered at the faculty nor had recourse to the Student Amnesty Law ( see paragraph 24 above ) in order to return to the university and resume his studies . They affirme d that he could have continued his studies if he had taken up the opportunities offered to reregister . The regulations set out in Law n o. 6353 (ibid . ) did not lay down any time-limit , and there was currently no obstacle to the resumption of his studies , provided that he submitted the relevant request . In that regard the Government submitted that the requisite redevelopment work had already been carried out in the new faculty buildings .

28 . Therefore, the Government took the view that , having regard to the redevelopment work carried out and the opportunities offer ed by the Student Amnesty Law , the applic ant had lost his victim status under A rticle 34 of the Convention and his application had to be rejected .

2. The applic ant ’ s submissions

29 . The applicant replied that the university authorities ’ dismissal of his request for measures geared to enabling him, as a person with a disability, to continue his studies had amounted to a violation of his right to education, as well as of his right to personal autonomy and self-fulfilment – which he described as aspects of his private life. He submitted that that violation had, furthermore, persisted until the authorities had taken the requisite action in the institution in question to remove the obstacles to his access to education, that is to say, as contended by the Government, until 2010-2011. Th e applic ant considered, in that connection , that from the 2007-2008 academic year until the 2010 ‑ 2011 academic year he had found it physically impossible to resume his studies because he had had no means of accessing the rooms in which the classes were being hel d.

3. The Court ’ s assessment

31 . In the instant case , the Court observe s that on 17 March 2007 the applic ant lodged with the relevant universit y authorities a request for redevelop ment work on their premises in order to ensure his access to them ( see paragraph 7 above ). When the authorities replied that such work could not be carried out in the sho rt term , the applic ant a pplied , in vain, to the administrative court s ( see paragraphs 11 to 20 above ).

I t transpires fr o m the case file and the Government ’ s observations ( see paragraphs 15 and 33 above ) that the faculty in which the applic ant had been registered had been closed and replaced by a faculty of technology , whose buildings are reportedly being tailored to the needs of person s with disabiliti es. Moreover , according to the Government , the applic ant is eligible for the provisions of the Student Amnesty Law enabling him to request reregistra tion at the universit y a t any tim e ( see paragraphs 34 and 35 above ), which is not disputed by the applicant ( see paragraph 37 above ).

Th e applic ant can therefore legitimately claim to be the victim of a discriminatory infringement of his right to educa tion during the period prior to the said work, as, in the circumstances of the present case, the subsequent setting up of a new faculty accessible to person s with disabiliti es cannot be interpreted as recognition of and redress for the alleged violation vis-à-vis the 2007-2008, 2008 ‑ 2009 and 2009-2010 academic years ( regarding the principles , see , for example , Eckle v . Germany , 15 July 1982, §§ 69 et s eq. , Series A n o. 51 ; Dalban v . Romania [GC], n o. 28114/95, § 44, E CH R 1999 ‑ VI ; and Gäfgen v . Germany [GC], n o. 22978/05, §§ 115 and 116, E CH R 2010 ) .

The same applies to the university registration facilities offer ed to the applic ant, inasmuch as the material conditions prevailing in the building in question remained the same throughout the period in question .

33 . The Government ’ s preliminary objection must therefore be rejected .

34 . Noting, moreover, that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.

C. Merits

1. The applicant ’ s submissions

35 . Re ferring to the case-law of the Court ( see Leyla Şahin , cited above , § 137), th e applicant submitted that the right to higher education fell within the scope of A rticle 2 of Protocol n o. 1 to the Convention.

36 . He exp lained that in the present case the impugned discrimination arose from the failure to take account of his physical disability vis-à-vis his access to education . He argue d that he had been treated in the same way as healthy students . He affirmed that under the Court ’ s relevant case-law discrimination could originate from a de facto situation ( see Zarb Adami v . Malta , n o. 17209/02, § 76, E CH R 2006 ‑ VIII).

37 . Citing A rticle 10 of the Constitution, he submitted that positive discrimination towards person s with disabiliti es was not contrary to the prohibition of discrimination. He added that under section 15 of Law n o. 5378 the right to education of person s with disabiliti es could not be impeded under any circumstances, and complained that the domestic authorities had not acted in conform ity with that provision .

38 . Moreover , the applic ant rejected the Government ’ s argument concerning the time required to carry out the redevelopment work in order to implement the relevant legislative provisions vis-à-vis the faculty buildings ( see paragraph 33 above ). He submitted that that argument could not be used to justify the attitude of which he claimed to have been the victim . He argued that in that context the legitimate aim pursued was disproportionate to the practical situation.

39 . As regards the time-limit for complying with the requirement to bring existing buildings into conformity , he pointed out that that limit had at first been seven years and then, in 2012, had been increased to eight years following a legislative amendment . Lastly , in 2014, following a further legislative amendment , an additional two-year period was granted for institutions which had not yet carried out the requis ite work . The applicant submitted that in view of the aforementioned change s, he had been unable to rely on the fact that the la w was final , especially as the public authoritie s showed insufficient awareness of the issues involved – as allegedly shown by the Prime Minister ’ s circulars .

40 . Th e applic ant added that the only valid argument which the Government could advance was the margin of appreciation available to S tat e s in enabling persons with disabiliti es to integrate into society , and that that meant adapt ing the physical environment within the limits of societal capacities . He submitted that the State ’ s margin of appreciation in the educational sphere could not be interpreted as broadly as the national authorities had done in the present case .

41 . Moreover , the applic ant maintained that the redevelopment work which he had requested did not fit into a category liable to place an excessive burden on the university ’ s budget : the work involved install ing an access ramp on the ground floor of the building , adopting administrative measures to ensure that his cours es could be administered on the ground floor or, failing that , install ing a lift to the upper floors, and, lastly, install ing toilet s for persons with disabilities . Th e applic ant estimated the cost of that redevelopment work at some TRY 60,000 ( approximately 14, 620 euros (EUR)), which sum he considered eminently affordable for the authorities . He exp lained that the works would certainly be useful not only for himself but also for other persons with disabiliti es in the future . He held that the refus al to carry out the work had amounted to an unfair and disproportionate interference with his right to educa tion.

2. The Government ’ s submissions

42 . Referring to their previous submissions (see paragraph 33 above), the Government began by supplying factual information concerning the current situation of the buildings erected in 2009 for the new faculty of technology (see paragraph 15 above). They pointed out that following alterations to the ground floors of the buildings , new classrooms and laboratories had been constructed and new departments organised to enable students with disabilities to attend the courses. In that way any disabled student who was registered for a given course could now attend classes on the ground floor and, where necessary, in the classrooms of the different departments, which were readily accessible to persons with disabilities. Moreover , most of the workshops and laboratories were on the ground floor . Th e Government enclosed with its observations a CD containing photographs and video recordings of ground-floor classrooms and toilet s for persons with disabiliti es, in order to show that the premises in question were easily accessible to students with disabilities .

43 . Furthermore , the Government denied any infringement of the applic ant ’ s right to education, reiterating that that it was the applicant who had failed to re-register at the universit y ( see paragraph 34 above ). They reiterated the facilities provided by law in that connection ( see paragraph 24 above ), and emphasised once again that the applic ant could have continued his studies , and in fact still could continue them, provided that he applied to do so, which the applicant had so far failed to do .

44 . Th e Government acknowledged that the ability of persons with disabiliti es to benefit from the services of public institutions and bodie s on an equal footing with other persons was a fundamental human right and that disabled persons should have guaranteed access to public places so that they could live their day-to-day lives without the help of third persons . They submitted that Turkey had many laws and statutory texts , including the Constitution, guaranteeing f u ll and effective participation in society for persons with disabilities , on a non-discriminatory basis .

45 . The Government further stated that accessibility was one of the principles underpinning the United Nations Convention on the Rights of Persons with Disabilities , as ratified by the Turkish Grand National Assembl y on 3 December 2008, of which they quoted A rticle 9 § 1 ( see paragraph 25 above ). By the same token , re ferring to the provisions of Law n o. 3194 on U rban Planning ( see paragraph 23 above ), they affirme d that the institutions and authorities, which had a duty and responsibility vis-à-vis the built environment , complied with the accessibility requirement . Therefore, according to the Government , all institutions and authorities were required to carry out the necessary redevelopment work, in line with the relevant standards of the Turkish Standards Institute , in order to render buildings, open spaces ( roads , car park s , pedestrian areas, parks and pavements ), transport and communication s accessible .

46 . Th e Government further cite d the provisions of Law n o. 5378 ( see paragraph 22 above ) concerning the accessibility of public buildings and spaces for persons with disabiliti es. They explained that the redevelopment work required for such accessibility had to be ordered within eight years of the entr y into force of the Law, with the possibility of an additional maximum period of two years . They added that the Law laid down an administrative fine for failure to carry out the requisite redevelopment work within the legal time-limits .

47 . Th e Government also pointed out that regulations on the supervision and inspection of accessibility had come into force . In that context , inspections had been carried out and administrative fine s imposed on persons and entities having failed in their obligations.

48 . Moreover , the Government submitted that Turkey had been endeavouring, and was continuing to endeavour, to take the requisite action to implement Law n o. 5378 in order effective ly to ensure the rights of persons with disabiliti es. They argue d that the action to be taken within the time-limits laid down in the Law and the supervision of that action took time and entailed significant expenditure .

49 . Furthermore, in the present case the redevelopment work needed on the buildings likely to be used by the applic ant in continuing his studies had been carried out pursuant to domestic law . The Government were convinced that thanks to the physical alterations made by the authorities and the opportunities provided under the Student Amnesty Law there was no longer any obstacle to the applic ant ’ s continuation of his studies .

50 . Finally , the Government p ointed out that there was no specific legislation on accessibility to university premises for persons with disabilities. Nor were there any provisions specific to F ı rat University , because since its premises had the status of public buildings they were governed by Law n o. 5378.

51 . Relying on the legislative provisions relati ng to persons with disabiliti es and the redevelopment work which the authorities had performed , the Government invite d the Court to find that there had been no violation of A rticle 14 of the Convention read in co njunction with A rticle 2 of Protocol No. 1 to the Convention.

3. The Court ’ s assessment

( a) General principles

52 . The Court r eiterates that in interpreting and applying A rticle 2 of Protocol No. 1 it must bear in mind that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions ( see Stec and Others , decision cited above , § 42, and Austin and Others v. the Uni ted Kingdom [GC], n os. 39692/09 and 2 others , § 54, E CH R 2012 ). Article 2 of Protocol No. 1 must therefore be read in the light of Article 8 of the Convention, which safeguards the right of everyone to respect for private and family life, inter alia ( see Catan and Others v . the Republic of Moldova and Russia [GC], n os. 43370/04 and 2 others , §§ 136 and 143, E CH R 2012 ( extracts ) ).

53 . In the same context, account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, and therefore the prov isions on the right to education set out in such instruments as the European Social Charter and the United Nations Convention on the Rights of Persons with Disabilities should be taken into consideration (see Timishev v. Russia , nos. 55762/00 and 55974/00, § 64, ECHR 2005 ‑ XII; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 136, ECHR 2012; and Çam , cited above, § 53 ).

54 . As regards A rticle 14 of the Convention, the Court r eiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations , and that a differen ce of treatment is devoid of any “ objective and reasonable justification ” where it does not pursue a “legitimate aim” or there is no “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” ( see Stec and Others , decision cited above , § 51 ; Zarb Adami , cited above , § 72 ; Sejdić and Finci , cited above , § 42 ; and Çam , cited above , § 54 ). However , A rticle 14 of the Convention does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article ( see , inter alia , D.H. and Others v . the Czech Republic [GC], n o. 57325/00, § 175, E CH R 2007 ‑ IV). S tat e s enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Vallianatos and Others v . Greece [GC], n os. 29381/09 and 32684/09, § 76, E CH R 2013), and a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy ( see Stec and Others v. the Uni ted Kingdom [GC], n os. 65731/01 and 65900/01, § 52, E CH R 2006 ‑ VI).

55 . Also under A rticle 14 of the Convention , the Court must have regard to the changing conditions of international and European law and respond, for example, to any emerging consensus as to the standards to be achieved. I n that connection, t he Court notes the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, which are enshrined in many international texts. It further emphasises that those international instruments have recognised inclusive education as the most appropriate means of guaranteeing the aforementioned fundamental principles , as such education is geared to promoting equal opportunities for all, including persons with disabilities ( see Ç am , cited above , § 64, and the references therein ). Inclusive education indubitably forms part of the States ’ international responsibility in this sphere.

b) Application of those principles to the present case

I . Establishing the framework of the assessment

56 . The Court note s from the outset the Government ’ s emphasis on the redevelopment work completed in 2010 ( see paragraphs 49, 53 and 54 to 58 above ) , as well as on the appropriateness of the domestic legislation which stat es access to public place s by persons with disabiliti es to be a fundamental right ( see paragraph 51 above ).

In the present case, however , there is no need to assess the current situation in Turkey as regards the accessibility of educational premises for persons with disabilities , since the Court has already conclu ded ( see paragraph 39 above ) that such developments, however positive , a re not such as to re dress the violations which had allegedly occurred prior to 2010 ( see , mutatis mutandis , Christian Democratic People ’ s Party v . Moldova , n o. 28793/02, § 78, E CH R 2006 ‑ II ; Norbert Sikorski v. Poland , n o. 17599/05 , § 157, 2 2 October 2009 ; and V.C. v. Slovakia , n o. 18968/07, § 153, E CH R 2011). Nor is the existence of legislation which is, a priori , conducive to protecting the rights of persons with disabilities of any relevance, because the important question in this case is whether Turkey effectively honoured its obligations under Article 14 Convention read in conjunction with Article 2 of Protocol No. 1 to the Convention with respect to the applicant.

Accordingly , the Court ’ s task is to assess the diligence of the university authorities, and later of the courts ’ , reaction to the situation brought to their attention.

ii. The stance taken by the university authorities

57 . In the instant case, in explaining to Mr Şahin that the adjustments he sought (see paragraph 48 above) could not be carried out in the short term, the university authorities – like the Government (see paragraphs 53 and 58 above) – had cited first and foremost a lack of financial resources t o be made available at short notice for that purpose ( see paragraphs 8 and 10 above ).

The Court a ccepts that , as regards the matter of providing persons with disabiliti es with adequate access to educational institutions, the national authorities have a margin of appreciation and are best placed to assess that margin depending on the funds available ( see , mutatis mutandis , O ’ Reilly and Others v . Ireland (d e c.), n o. 54 725/00, 28 February 2002 ; Sentges v . the Netherlands (d e c.), n o. 27677/02, 8 July 2003 ; Mółka , d e cision cited above; and Ponomaryoponovi , cited above , § 56).

What is at stake here is the principle that where the execution of a commit ment made under the Convention calls for positive measures from the S tat e , the latter must not merely remain passive ( see Marckx v . Belgium , 13 June 1979, § 31, Series A n o. 31).

60 . The Court therefore a grees with the Government ( see paragraph 52 above ) that A rticle 14 of the Convention must ind eed be read in the light of the requirements of the aforementioned texts , particularly the CRP D , with respect to the “re asonable accommodation – necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case ” – which persons with disabilities are entitled to expect in order to secure their “ enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms ” ( A rticle 2 CRPD – see paragraph 25 above ). Such accommodation is geared to correcting factual inequalities ( see paragraph 61 above ) , and discrimination on grounds of disability “ includes all forms of discrimination, including denial of reasonable accommodation ” ( see paragraph 25 above; and see , mutatis mutandis , Çam , cited above , §§ 65 and 67, and Şanlısoy v. Turkey (d e c.), n o. 77023/12, § 60, 8 November 2016) .

61 . Clearly, it is not the Court ’ s task to define the “ reasonable accommodation ” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities; the national authorities are much better placed than it to do so ( see , for example , Çam , cited above , § 66).

I t is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored .

There thus remains the offer of support for the applicant (see paragraph 10 above). Although the Government did not provide details on the exact purpos e and nature of the support to be provide d , it seems obvious that it could only refer to helping the applic ant, a paraplegic , to move around the three-storey faculty building.

63 . In that regard , the Court r eiterates that the ability of persons with disabilities to live autonomously with a fully-developed sense of dignity and self-respect is of cardinal importance and is central to the CR P D ( A rticles 3 ( a), 9 § 1, 20 in limine and 24 § 1 ( a) – paragraph 25 above ) , and is also one of the considerations highlighted in the recommendations adopted by the Council of Europe. Similarly, the Court itself has ruled that t he very essence of the Convention is respect for human dignity and human freedom, which necessarily includes a person ’ s freedom to make his or her own choices ( see Pretty , cited above , §§ 61 and 65 ; Mółka , decision cited above; and McDonald , cited above , § 47).

64 . I t is true that the instruments of international law recognise the provision of forms of human aid as one measure to en sure the personal mobility of persons with disabiliti es a nd to facilitate access to buildings ( A rticles 9 § 2 ( e) and 20 ( b) CR P D – see paragraph 25 above ). However , the solution offer ed by the administration does not fit into this framework because there is nothing in the case-file to convince the Court that the support in question was offered after a genuine assessment of the applic ant ’ s needs and sincere consideration of its potential effects on his security , dignity and autonomy .

65 . Although t he applic ant has not in fact suffered any such effects , none theless , given that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of A rticle 8 of the Convention ( see Pretty , cited above; Mółka, decision cited above; and McDonald , cited above , ibid . ) – which is akin to A rticle 2 of Protocol No. 1 ( see paragraph 59 above ) – the Court observe s that such a measure , that is to say the offer of assistance to be provided by a support person, which was proposed by the faculty without any individualised assessment of the applicant ’ s actual situation co uld not have been deemed reasonable under A rticle 8 because it disregarded the applicant ’ s need to live as independently and autonomously as possible.

iii. The judicial response in the present case

66 . It was precisely the combination of all these aspects which the applic ant had prayed in aid, while also relying on A rticle 2 of Protocol No. 1 ( see paragraph 13 above ), before the Elazığ Administrative Court , which had thus had to adjudicate substantially the same complaints as those brought before the Court . Pursuant to the principle of subsidiarity , it had been primarily incumbent on that court to enforce the rights in issue , verifying , in particular, whether the applic ant ’ s educational needs and the authorities ’ limited capacity for meeting th em had been weighed against each other, that is to say whether a fair balance had been struck between the competing interests of the individual and of the community as a whole ( see , among many other aut ho r iti es, mutatis mutandis , Hatton and Others v . the Uni ted Kingdom [GC], n o. 36022/97, § 98, E CH R 2003-VIII : Vučković and Others v . Serbia ( preliminary objection ) [GC], n os. 17153/11 and 29 others , §§ 70-72, 25 March 2014 ; and Pentikäinen v . Finland [GC], n o. 11882/10, § 114, E CH R 2015).

For the remainder, relying on the assumption that “ architectural measures would be adopted depending on the available budget ” – even though there had been no concrete proposal to that effect (see paragraphs 8 and 69 above) – the court considered it sufficient to point out that a person would be appointed to assist the applicant, without explaining how such a solution would prove adequate. In so doing the court also refrained ( see paragraph 71 in fine above ) from seeking to identify the applic ant ’ s real needs and the ways and means of meeting them, with a view to enabling M r Enver Şahin to re sume his studies under conditions as similar as possible to those provided for able-bodied students, without imposing a disproportionate or undue burden on the authorities .

The Court takes the view that that response lacked any consideration of the fair balance to be struck between the applic ant ’ s interest in exercising his rights secured under A rticle 14 of the Convention read in co njunction with A rticle 2 of Protocol No. 1 to the Convention and any other competing interests to which the Elazığ Administrative Court might have been giving precedence .

iv. Conclusions of the Court

68 . Having regard to all the foregoing considerations, the Court concludes that in the present case the Government have failed to demonstrate that the national authorities , including, in particular, the academic and judicial authorities , reacted with the requisite diligence to ensure that the applicant could continue to exercise his right to education on an equal footing with other students and, consequently , to strike a fair balance between the competing interests at stake.

Accordingly , there has been a violation of A rticle 14 of the Convention read in co njunction with A rticle 2 of Protocol No. 1 to the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION READ IN CO NJUNCTION WITH ARTICLE 14

70 . The applic ant also complained o f a discriminatory interference with his right to respect for his privat e life on the grounds that the po tential assist anc e by a third person would have had the effect of making him dependent on that person and depriving him of his privacy, in breach of A rticle 8 of the Convention read in co njunction with A rticle 14.

71 . Th e Government submitted that there was no need to examine that complaint separately .

72 . The Court considers that the complaint is closely linked to that examined previously and that it should therefore also be declared admissi ble.

However , having regard to the observations set out in paragraphs 69 to 72 and the finding made by the Court in paragraph 74 above, it agrees with the Government that no separate assessment is required of those matters .

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

74 . The applicant claimed 32,000 euros (EUR) in respect of the non-pecuniary damage which he alleged he had sustained owing to the circumstances , which in his view had amounted to a violation of his rights to education and to respect for his privat e life .

75 . Th e Government submitted that there was no causal link between the violation found and the damage alleged , and argue d that the applic ant had been unable to demonstrate that he had really suffered under the aforementioned circumstances .

76 . The Court considers that the applic ant su stained, owing to the violation as found , non-pecuniary damage which cannot be redressed by the mere finding of a violation. However, it considers the amount claimed excessive (c f. Çam , cited above , § 74). Making its assessment on an equitable basis , as required by A rticle 41 of the Convention, the Court awards the applic ant the sum of EUR 10 , 000 under this head .

B. Costs and expenses

77 . The applicant claimed 13,475 Turkish lir as (TRY) in respect of legal fees . He presented an hourly breakdown showing forty-four hours of work performed in representing him in the present case, as well as a legal fees agreement signed on 31 January 2012.

78 . The Government did not contest that claim.

79 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers the amount claimed, approximately equivalent to EUR 2,952, reasonable and awards it to the applicant.

C. Default interest

80 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares , unanimously, the application admissible as regards the complaint under Article 2 of Protocol No. 1 to the Convention, both alone and in conjunction with Article 14 of the Convention ;

2. Declares , by a majority, the application admissible as regards the complaint under Article 8 of the Convention, both alone and in conjunction with Article 14 of the Convention;

3. Holds , by six votes to one, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 to the Convention ;

4. Holds , by six votes to one , that there is no need to examine separately the merits of the complaints under Article 2 of Protocol No. 1 to the Convention and under Article 8 of the Convention taken in conjunction with Article 14 of the Convention;

5 . Holds , by six votes to one ,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 10,000 ( ten thousand euros) , plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 2,952 ( two thousand nine hundred and fifty-two euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses , unanimously, the remainder of the applicant ’ s claim for just satisfaction.

Done in Frenc h, and notified in writing on 30 January 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

R.S. H.B.

DISSENTING OPINION OF JUDGE LEMMENS

1. I regret that I cannot agree with my colleagues ’ conclusions.

In short , I consider that the present case does not primarily concern reasonable accommodation . I t follows that the applic ant ’ s main complaint should have been assessed primarily under A rticle 2 of Protocol No. 1 rather than under A rticle 14 of the Convention. Furthermore , in assessing the merits of the complaint, the majority would not appear to pay sufficient attention to certain facts in the case file, which lead me to a different conclusion on the merits .

Finally , as regards the complaint under A rticle 8 of the Convention, in my view it should be declared inadmissible .

Reasonable accommodation or accessibility ? A rticle 14 of the Convention or A rticle 2 of Protocol No. 1 to the Convention ?

2. Before the Court , the applicant complained of a discriminatory interference w i th his right to educa tion. He alleged that the national authorities had failed to take action – consisting in redeveloping t he building where he was to attend cours es – such as to enable him to continue his studies a fter an accident which had left his lower limbs paralysed ( see paragraph 28 of the judgment ). According to the majority , “ the applicant ’ s allegation of discriminatory treatment on grounds of his locomotor disability is central to the complaint before it [ the Court ] ” ( see paragraph 30 of the judgment ). That is the reason why the majority held that the case should be considered primarily under A rticle 14 of the Convention ( see paragraph 32 of the judgment ). Later on, having regard to its conclusion on that provision , it considered it unnecessary to examine separately the complaint under A rticle 2 of Protocol No. 1 taken alone ( see paragraph 75 of the judgment ).

I take the view that the issue raised by the complaint is not (only) one of discrimination: it affects the very right to education, and in particular the right of access to education. What is central to the complaint, as the majority put it , is the applic ant ’ s inability to gain access to the education offered , be cause of an alleged failure to adopt measures to enable him to attend lectures and partial workshops . I therefore consider that the complaint should be assessed primarily under A rticle 2 of Protocol No. 1.

3. The majority ’ s approach has consequences in terms of the reasoning to be followed . Assessment under A rticle 14 of the Convention leads the majority to consid er the question of the State ’ s positive obligations vis-à-vis the reasonable accommodation to be made, particularly in the educational sphere ( see paragraph 67 of the judgment ). Reasoning based on Article 2 of Protocol No. 1 would shift the emphasis on to the accessibility of education.

4. Although they are linked, the concepts of reasonable accommodation and accessibility cover two different realties .

The majority rightly attach special importance to the United Nations Convention on the Righ ts of Persons with Disabiliti es ( the “ Disability Convention ” ). The European Convention on Human Righ ts should, as far as possible, be interpreted in the light of the provisions of the Disability Convention , which reflects an international consensus on the rights of persons with disabiliti es.

In the latter convention, reasonable accommodation and accessibility are governed by different provisions . Reasonable accommodation is defined as “ necessary and appropriate modification and adjustments ... where needed in a particular case ” , and a refus al to make reasonable accommodation amounts to discrimination on grounds of disability ( A rticle 2 of the Disability Convention). Accessibility , particularly in terms of access to the physical environment , is a broader concept . It must be guaranteed in order to “ enable persons with disabilities to live independently and participate fully in all aspects of life ” ( A rticle 9 § 1 of the same convention). As regards education , and in particular higher education, the S tat e s P arties must “ ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others; “[t]o this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities” ( A rticle 24 § 5 of the same convention).

The difference between the two concepts is highlighted by the Committee on the Righ ts of Persons with Disabiliti es. That committee, in its General Comment n o. 2 (2014) on A rticle 9 of the Disability Convention ( accessibility ) adopted on 11 April 2014, analyses that matter at length, emphasising the various legal ramifications of the concepts :

“ 24. A clear distinction should be drawn between the obligation to ensure access to all newly designed, built or produced objects, infrastructure, goods, products and services and the obligation to remove barriers and ensure access to the existing physical environment and existing transportation, information and communication, and services open to the general public. Another of the States parties ’ general obligations is to ‘ undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines ’ (art. 4, para. 1 (f)). All new objects, infrastructure, facilities, goods, products and services have to be designed in a way that makes them fully accessible for persons with disabilities, in accordance with the principles of universal design. States parties are obliged to ensure that persons with disabilities have access to the existing physical environment, transportation, information and communication and services open to the general public. However, as this obligation is to be implemented gradually, States parties should establish definite time frames and allocate adequate resources for the removal of existing barriers. Furthermore, States parties should clearly prescribe the duties of the different authorities (including regional and local authorities) and entities (including private entities) that should be carried out in order to ensure accessibility. States parties should also prescribe effective monitoring mechanisms to ensure accessibility and monitor sanctions against anyone who fails to implement accessibility standards .

25. Accessibility is related to groups, whereas reasonable accommodation is related to individuals. This means that the duty to provide accessibility is an ex ante duty. States parties therefore have the duty to provide accessibility before receiving an individual request to enter or use a place or service. States parties need to set accessibility standards, which must be adopted in consultation with organizations of persons with disabilities, and they need to be specified for service-providers, builders and other relevant stakeholders. Accessibility standards must be broad and standardized. In the case of individuals who have rare impairments that were not taken into account when the accessibility standards were developed or who do not use the modes, methods or means offered to achieve accessibility (not reading Braille, for example), even the application of accessibility standards may not be sufficient to ensure them access. In such cases, reasonable accommodation may apply. In accordance with the Convention, States parties are not allowed to use austerity measures as an excuse to avoid ensuring gradual accessibility for persons with disabilities. The obligation to implement accessibility is unconditional , i.e. the entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing access for persons with disabilities. The duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity.

26. The duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation, for example, workplace or school, in order to enjoy her or his rights on an equal basis in a particular context. Here, accessibility standards can be an indicator, but may not be taken as prescriptive. Reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. Reasonable accommodation seeks to achieve individual justice in the sense that non-discrimination or equality is assured, taking the dignity, autonomy and choices of the individual into account. Thus, a person with a rare impairment might ask for accommodation that falls outside the scope of any accessibility standard” (CRPD/C/GC/2).

The Committee on the Rights of Persons with Disabilities reiterated this di stinction in its General Comment No. 4 (2016) on the right to inclusive education , adopted on 26 August 2016 :

“The Committee reiterates the distinction between the general accessibility duty and the obligation to provide reasonable accommodation. Accessibility benefits groups of the population and is based on a set of standards that are implemented gradually. Disproportionality or undue burden cannot be claimed to defend the failure to provide accessibility. Reasonable accommodation relates to an individual and is complementary to the accessibility duty. An individual can legitimately request reasonable accommodation measures even if the State party has fulfilled its accessibility duty” (CRPD/C/GC/4).

It is quite possible that not every position adopted by the Committee on the Righ ts of Persons with Disabilities concerning the Disability Convention appli es , as such , to the European Convention o n Human Rights . For instance, I do not think that our C onvention can be interpreted as imposing an “unconditional” obligation to en sure accessibility without considering the fair balance between individual right s and general interests characterising the whole C onvention. On that point, the Disability Convention expands the obligations which S tat e s accept on becoming P arties to the European Convention o n Human Righ ts.

5. However, the essential point is that accessibility benefits all persons with disabilities, whereas reasonable accommodation concern s a specific individu al in a specific situation. A S tat e must first of all honour its general obligation to en sure accessibility ; subsequently it may be required to make reasonable accommodation in individual cases .

In the instant case, however the applic ant complained of the absence of facilities liable to “ be useful not only for himself but also for other persons with disabilities in the future ” ( see paragraph 48 of the judgment ). What he claims to have requested is not ( reasonable ) accommodation in view of his specific situation , but , more generally , (architectura l ) adaptation which would render the building in question accessible to all students with locomotor disabilities .

The majority make several refer ence s to the right of access to education and the accessibility of th e buildings in which education is provided . However, they broach the applic ant ’ s complaint from the angle of A rticle 14 of the Convention, and refer to the provisions of the Disability Convention laying down that denial of reasonable accommodation amounts to discrimination ( see paragraph 67 of the judgment ). In my view, by doing so the majority have reduced the scope of the applic ant ’ s complaint . At the same time, I feel that they have also misread the philosophy of the law concerning persons with disabiliti es.

As stated above, the complaint should first of all have been assessed under A rticle 2 of Protocol No. 1 ( accessibility ), and then, if necessary , under A rticle 14 of the Convention ( reasonable accommodation ).

Access to education ( A rticle 2 of Protocol No. 1 to the Convention)

6. A ccess to educational institutions existing a t any given time is an integral part of the right set forth in the first sentence of A rticle 2 of Protocol No. 1 ( see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 7-8, §§ 3-4, Series A no. 6 , and Catan and Others v . the Republic of Moldova and Russia [GC], n os. 43370/04 and 2 others , § 137, E CH R 2012). The right of access to education imp oses an obligation on S tat e s to ensure that the buildings in which classes are given are accessible to all , therefore including persons with disabilities .

This obligation has applied to Turkey since the entry into force of Protocol No. 1 in respect of that country, that is to say since 1954. Nonetheless , the Court does not have to consid er in abstracto whether Turkey is in compliance with the obligation. In the present case , the only question arising is whether Turkey fulfilled its obligation vis-à-vis the applic ant. Th e building in respect of which he submitted his request to the university authorities was built in 1988. The applic ant ’ s complaint therefore relat es to an existing building .

7. As stated by the Committee on the Rights of Persons with Disabiliti es, the obligation on S tat e s to guarantee access by persons with disabiliti es to the physical environment is, where existing buildings are concerned , an obligation which must be honoured gradually . In order to achieve the desired result , S tat e s must set precise deadlines and earmark adequate resources for the removal of existing obstacles ( General Comment No. 2 (2014), § 24, quoted in paragraph 4 above ).

Turkish law included provisions which , at the material time, laid down an obligation to bring existing official buildings into line with accessibility for persons with disabiliti es within seven years as of July 2005 ( see section 2 [provisional] of Law n o. 5378 of 1 July 2005 on persons with disabiliti es, quoted in paragraph 22 of the judgment ). That time-limit was subsequently extended by one year, and then by two years for those buildings which were not yet in conformity ( see foot note on page 3 of the judgment ). However, those developments lie outside the framework of the case before the Court .

8. Careful attention must be paid to the tenor of the applic ant ’ s request to the universit y authorities and their reactions .

On 17 March 2007 the applic ant a sked the faculty , appare ntly in fairly broad terms , to ensure that the universit y premises were adapted in such a way as to enable him to re sume his studies during the 2007 ‑ 2008 academic year ( see paragraph 7 of the judgment ; my italics ). He was therefore leaving the university authorities very little time, although they were still within the legal time-limits for carrying out the requisite work. In his reply of 16 August 2007 the applicant referred, in particular, to section 15 of Law no. 5378 on persons with disabilities (see paragraph 9 of the judgment), which laid down the general obligation of access to education for persons with disabilities (for the text of that section, see Çam v. Turkey , no. 51500/08, § 36, 23 February 2016).

In their replies of 25 May and 10 September 2007, the university authorities acknowledged that alterations were required to the buildings, but they also drew the applic ant ’ s attention to the fact that carrying out the adaptation work could take some time ( see paragraphs 8 and 10 of the judgment ).

Having been unable to access the building for the 2007-2008 academic year , the applic ant lodged with the administrative court an application for annulment and an action for damages . He complained that the authorities had not removed the physical obstacles which he submitted had impeded the exercise of his right to educa tion ( see paragraph 11 of the judgment ). In that connection , let me emphasise that that appeal still concerned the accessibility of the building during the 2007 ‑ 2008 academic year : the accessibility of the building du ring the ensuing academic years could not have been covered by the appeal, because it only concerned the university authorities ’ replies to the applic ant ’ s requests .

The administrative court dismissed the applic ant ’ s appeal by judgment of 9 April 2010. The court held that the university could not be reproached with failing to observe the technical guidelines on building accessibility, as they had been enacted after the construction of the building in issue. As regards the adaptation of that existing building , the court noted that the authorities had informed the applic ant that architectural measures would be adopted in accordance with the available budget ( see paragraph 16 of the judgment ). In short , the court held that in omitting to carry out the redevelopment work on the building in question before the beginning of the 2007-2008 academic year, the university had not failed to honour its obligations.

9. The majority consider that it has not been demonstrated that the domestic authorities , in particular the university and judicial authoriti es, reacted with the requis it e diligence ( see paragraph 74 of the judgment ).

I do not agree . We do not know what measures the applicant requested . It would appear that it was only before the Court that he provide d details of the kind of redevelopment work he considered necessary ( see paragraph 48 of the judgment ). On the other hand , the applic ant ’ s request to the university authorities was apparently couched in very broad terms , and was understood by the latter and the administrative court as necessitating redevelopment work on the doors to the building, as well as more extensive works inside the latter .

Can it be said that in failing to carry out the redevelopment work immediately , in particular by omitting immediately to secure the requisite funding, the competent authorities fail ed to honour their positive obligation under A rticle 2 of Protocol No. 1? I consider that we have in suffi cient information at our disposal to reach such a conclusion. The existence and scope of a positive obligation in a ny given situation depend on the requisite fair balance to be struck between the competing interests of the individual in question and of society as a whole ( see paragraph 72 of the judgment , which , strangely enough , mention s a principle which appli es in the context of A rticle 2 of Protocol No. 1, and not under A rticle 14 of the Convention). In the instant case , the competent authorities had undertaken to carry out the necessary work in accordance with the available budget , and the la w required them to do so within a very specific time-limit. That being the case, how can it be claimed that a few months after the applic ant ’ s request , those authorities were in a situation of flouting the latter ’ s righ ts?

10. The university authorities did not confine themselves to making commit ments f or the future . In order to enable the applic ant to continue his studies immediately , the faculty assured him that it would provide him with assistance as far as possible ( see paragraph 8 of the judgment ). The administration was more specific, proposing the help of a support person ( see paragraph 10 of the judgment ). The applicant did not react well to that proposal, and later explained that it pointed to a lack of understanding of his personal situation, that accepting it would have placed him in a situation of dependency on a third person, and that the implementation of such a proposal would have led to a risk of his falling in the staircases ( memorial in reply before the administrative court ; see paragraph 13 of the judgment ).

The proposal by the administration might indeed not have been very appropriate. However, was it its last offer ? The applicant could have had re-contacted that office to explain why the proposal did not suit him. There is nothing to suggest that the administration would not then have sought another immediate solution . However , the applic ant preferred to respond by bringing legal proceedings . It is therefore understandable that the defence pleadings submitted by the administration accused the applicant of acting in bad faith : at that time the administration still considered that the provision of a support person was an appropriate proposal ( see paragraph 12 of the judgment ). Th e fact that it was still of that opinion shows that the applic ant had not re- contact ed it to explain that its offer was not sufficient , or even that it was u nacceptable. Only in his memorial in reply did the applic ant state why he had not accepted the proposal ( see paragraph 13 of the judgment ).

11. The majority accuse the university and judicial authorities of having failed to identify the applic ant ’ s real needs and find solutions capable of meeting those needs ( see paragraphs 71 and 73 of the judgment ).

Having regard to the course of events a t the national level , I consider this criti cism unjustified . The contents of the case file would suggest to me that the university authorities were determined to enable the applicant to continue his studies, even though they saw no possibility of performing the requisite redevelopment work in the immediate future. The possibility of specific alterations for the applic ant ( “ reasonable accommodation ”, within the meaning of the Disability Convention) was there, but the applic ant seems to have presented the university authorities with a fait accompli by breaking off discussions with them and bringing legal proceedings . In my view, one of the reasons why there was no proper assessment of the applic ant ’ s needs and of the consequences of the proposed assistance by a “ support person ” ( see paragraph 71 of the judgment ) was the attitude adopted by the applic ant.

12. In conclusion, while it is regrettable that the applic ant was unable to continue his studies during the 2007-2008 academic year because of his lack of access to the cours es administered in the building at issue, I cannot conclude that the respondent S tat e failed to honour its obligations under A rticle 2 of Protocol No. 1.

Denial of reasonable accommodation ( A rticle 14 of the Convention)

13. Given that I find no violation of A rticle 2 of Protocol No. 1, I must further explain why I did not vote for a finding of a violation of A rticle 14 of the Convention read in co njunction with A rticle 2 of Protocol No. 1.

The question whether A rticle 14 was breached in the instant case means asking whether reasonable accommodation was denied , having regard to the specific situation of the applic ant.

F or the same reasons as I gave in my arguments under A rticle 2 of Protocol No. 1, and in particular for the reasons concerning the specific proposal made to the applic ant and his reaction to that proposal ( see paragraph 11 above ), I cannot find that there was a violation of A rticle 14 in the present case .

I should stress that if the applic ant had continued discussion s with the university authorities and if they had then shown little or no willingness to seek other solutions, the situation might have been very different . I cannot, however , speculate on that point.

Proposed assistance by a support person ( A rticle 8 of the Convention, read separately and in co njunction with A rticle 14)

14. The applic ant further complained of a discriminatory interference with his right to respect for his privat e life on the grounds that the possible assistance of a third person would have had the effect of rendering him depende nt on that person and of depriving him of his privacy ( see paragraph 76 of the judgment ).

The majority consider this complaint admissi ble, adding that it is unnecessary to examine it separately on the merits ( see paragraph 78 of the judgment ).

15. The subject matter of the complaint is a n offer which, moreover, was made in order to help the applic ant, which was never implemented and which was rejected by the applicant . I regret that I cannot agree with the majority ’ s decision to declare that complaint admissi ble. In my view an applicant who complains of a mere intention on the part of a public authority, which intention was not put into practice, cannot claim to be the victim of a violation of his rights within the meaning of A rticle 34 of the Convention.

That complaint ought therefore to have been declared incompatible ratione personae with the provisions of the Convention within the meaning of A rticle 35 § 3 ( a) thereof .

[1] . Apart from paragraph (f), all the provisions of this article were amended under Law no. 6518 of 6 February 2014.

[2] . Amended under section 1 (69) (n) of Law no. 6462 of 25 April 2013. The word “ invalids ” was replaced by the term “ persons with disabilities ” .

[3] . Amended under section 34 of Law no. 6353 of 4 July 2012, extending this period to eight years. In 2014 a maximum additional period of two years was granted.