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.