Information Note on the Court’s case-law 188

August-September 2015

Gherghina v. Romania (dec.) [GC] - 42219/07

Decision 9.7.2015 [GC]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure of a disabled student complaining about inaccessibility of university and court buildings to exhaust domestic remedies: inadmissible

Facts – The applicant, who suffered from severe locomotor impairment of the lower l imbs, claimed that it was impossible for him to pursue a higher-education degree because the university buildings were not equipped to accommodate him. He did not apply to the appropriate courts to remedy the situation, arguing that there was a dearth of c ase-law relating to accessibility, that the law did not lay down any deadlines for completing accessibility improvements in public buildings, and lastly, that the buildings housing the courts in question were themselves inaccessible.

Law – Article 35 § 1: For the domestic remedies referred to in the present case to be deemed effective, the applicant needed to have access to remedies capable of leading to the swift adoption of decisions requiring the universities concerned to install suitable facilities for people with disabilities, or to make reasonable accommodation to enable him to continue his studies. Recourse to the appropriate courts also had to secure the applicant a reasonable prospect of obtaining redress for any non-pecuniary or pecuniary damage he might have sustained through being unable to pursue his university studies under the same conditions as other students.

In the present case the applicant could either have applied to the civil courts for an order requiring the universities concerned to in stall an access ramp and other facilities accommodating his needs, or brought an action in tort with a view to obtaining, where appropriate, a court order for the universities concerned to make good any damage he had sustained, or lodged administrative app eals against the decisions to exclude him from the various universities concerned.

The scarcity of examples of court orders in this field and the absence of a well-established body of domestic case-law predating the application in the present case could b e explained by the fact that the protection of the rights of disabled people was a relatively recent branch of domestic law that had emerged alongside international law and practice regarding disability rights. By applying to the relevant court, the applic ant would have created an opportunity for the development of domestic case-law on this subject, which would potentially have been beneficial to anyone else in a similar or comparable situation.

The inaccessibility of the buildings housing the courts in que stion could not have prevented the applicant from making applications in writing or through a representative, as indeed he had done on other occasions. The applicant had not advanced any argument to justify his failure to take similar action in relation to the complaints forming the subject of the present application.

Lastly, as regards the applicant’s contention that it would be unreasonable to require individuals to bring proceedings against the many public service providers concerned in order to ensure that public buildings were made accessible, the national authorit ies were in the best position to decide on matters of economic and social policy entailing public expenditure.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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