Information Note on the Court’s case-law 194

March 2016

Guberina v. Croatia - 23682/13

Judgment 22.3.2016 [Section II]

Article 14

Discrimination

Failure to take account of the needs of child with disabilities when determining applicant father’s eligibility for tax relief on the purchase of suitably adapted property: violation

Facts – The applicant lived with and provided care for his severely disab led child. In order to provide the child with better and more suitable accommodation, the applicant sold the family’s third-floor flat, which did not have a lift, and bought a house. He then sought tax relief on the purchase but his request was refused on the grounds that his previous flat had met the family’s needs.

In the Convention proceedings the applicant complained that the manner in which the tax legislation had been applied to his situation amounted to discrimination based on his child’s disability .

Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1

(a) Whether the term “other status” encompassed the disability of the applicant’s child – The applicant had complained of alleged discriminatory treatment relating to the disability of his child not his own disability. In the Court’s case-law the expression “other status” had been given a wide meaning and its interpretation was not limited to characteristics which were personal in the sense that they were innate or inheren t. Therefore, Article 14 also covered instances in which an individual was treated less favourably on the basis of another person’s status or protected characteristics, as in the applicant’s case.

(b) Failure to treat differently persons in relevantly dif ferent situations – There was no doubt that the applicant’s previous flat, situated on the third floor of a building without a lift, had severely impaired his son’s mobility and consequently threatened his personal development and ability to reach his maxi mum potential. By seeking to replace that flat with a house adapted to the family’s needs, the applicant was in a comparable position to any other person who was replacing a flat or a house by another property equipped with basic infrastructure and technic al accommodation requirements. His situation nevertheless differed with regard to the meaning of the term “basic infrastructure requirements” which, in view of his son’s disability and the relevant national and international standards, implied necessary ac cessibility facilities such as a lift. In excluding him from tax exemption, the tax authorities and the domestic courts had not given any consideration to the specific needs of the applicant’s family related to the child’s disability. They had thus failed to recognise the factual specificity of the applicant’s situation with regard to the question of the basic infrastructure and technical accommodation required to meet the family’s housing needs.

(c) Objective and reasonable justification – As to the Gover nment’s argument that the domestic law left no discretion for interpretation to the tax authorities, the Court noted that, while the relevant legislation was couched in rather general terms, other provisions of the domestic law provided some guidance with regard to the question of the basic requirements of accessibility for persons with disabilities. Moreover, by ratifying the UN Convention on the Rights of Persons with Disabilit ies the respondent State was under an obligation to take into consideration relevant principles, such as reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in a ll aspects of social life. However, the domestic authorities had disregarded those national and international obligations. Therefore, the manner in which the domestic legislation had been applied in practice had failed to sufficiently accommodate the requi rements of the specific aspects of the applicant’s case.

Further, although the protection of financially disadvantaged persons could in general be considered objective justification for alleged discriminatory treatment, this was not the reason given in the case of the applicant, who was in fact denied tax exempt ion because his previous flat was considered as meeting the basic infrastructure requirements for his family’s housing needs.

In view of the above, the respondent State had failed to provide objective and reasonable justification for their lack of consideration of the inequality pertinent to the applicant’s situation.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See Thlimmenos v. Greece [GC], 34369/97, 6 April 2000, Information Note 17 ; Efe v. Austria , 9134/06 , 8 January 2013; and the Factsheet on Persons with disabilities and the Convention )

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

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