ZEHNALOVÁ AND ZEHNAL v. THE CZECH REPUBLIC
Inadmissible
The applicants, Mrs Jitka Zehnalová and her husband, Mr Otto Zehnal, are Czech nationals who were born in 1962 and 1958 respectively and live in Přerov. They were represented before the Court by Mr P. Šturma, of the Prague Bar. At the hearing on 19 February 2002 the applicants’ representative was assisted by Mr J. Ondroušek and Ms A. Klírová, advisers. The respondent Government were represented by Mr A. Dvořák, the Czech Republic’s representative before the European Court of Human Rights, assisted by Ms E. Vachovcová, Ms E. Petrová, Ms K. Sirotková, Mr J. Just and Ms E. Hašková, advisers. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is physically disabled. A large number of public buildings and buildings open to the public in the applicants’ home town are not equipped with access facilities for people with disabilities (people with impaired mobility). On 7 December 1994 the first applicant applied to the Přerov Municipal Office (městský úřad) under Article 65 of the Code of Administrative Procedure, complaining that a number of public buildings and buildings open to the public in Přerov did not comply with the technical requirements laid down in Decree no. 53/1985 (amended by Decree no. 174/1994) and in the Building Act (Law no. 50/1976, amended by Law no. 43/1994). On the same day she sent a letter to the same effect to the Přerov District Office (okresní úřad). On 19 December 1994 the head of the District Office informed her in reply that 219 certificates of approval issued in respect of the buildings concerned would be reviewed. On 29 December 1994 the Mayor of Přerov informed her that the Town Council had instructed a committee to contact disabled people’s organisations in order to take the necessary measures to improve the situation regarding disabled access. Following delays by the District Office in initiating the review procedure provided for in Article 49 § 2 of the Code of Administrative Procedure, the first applicant asked the Ministry of Economic Affairs (ministerstvo hospodářství) to conduct a review of its own motion. On 5 June 1995 she was informed that her case would be “dealt with by the District Office in accordance with the law”. Nevertheless, the Ministry did not set any deadline and the District Office dismissed or took no action on most of the complaints. Although some of the obstacles complained of have since been removed, the applicants maintain that that has not been the result of pressure from the authorities. The Government contend that the District Office, which had ordered an inspection, was gradually examining the 219 cases before it and that the Ministry had examined a large number of the first applicant’s suggestions. In their submission, the situation could not be remedied immediately, regard being had to the technical features of the existing buildings and the considerable cost of renovations. However, the Government point out that some improvements have been made where possible, for example as a result of negotiations with the owners of the buildings. On 21 November 1995 the applicants applied to the Ostrava Regional Court (krajský soud) under Article 138 of the Code of Civil Procedure for exemption from the payment of court fees. They also asked to have a lawyer assigned pursuant to Article 30 of the Code in order to prepare their applications for the review of the certificates of approval for 174 buildings, which they had learned had been issued by the Přerov Municipal Office’s Building Department (odbor výstavby městského úřadu) before 7 December 1994. According to the Government, the complaints the applicants were intending to lodge concerned general matters of public interest and were accordingly not admissible in the administrative courts. The applicants dispute that assertion, maintaining that their complaints related solely to obstacles in their home town with which they were confronted on a daily basis. On 7 February 1996 the Regional Court refused the applicants’ application on the ground that it had no prospect of success within the meaning of Article 138 of the Code of Civil Procedure as it did not satisfy the requirements laid down in Article 249 of the Code and the applicants had not been parties to the proceedings before the administrative authorities which had resulted in the issuing of the certificates of approval. On 19 February 1996 the applicants appealed to the High Court (Vrchní soud). They again asked to be exempted from the court fees and to have a lawyer assigned, relying, in particular, on Article 36 of the Charter of Fundamental Rights and Freedoms (Listina základnich práv a svobod) and on Article 13 of the European Convention on Human Rights. They also called on the High Court to stop discrimination against people with disabilities. In a decision of 29 April 1996 the High Court declined jurisdiction on the ground that, pursuant to Article 250j § 4 of the Code of Civil Procedure, no appeal lay against the Regional Court’s decision. On 23 July 1996 the applicants appealed to the Constitutional Court. They complained, in particular, that although Decree no. 53/1985 laid down the general technical specifications for public buildings or buildings open to the public with a view to ensuring that people with impaired mobility could have access to and make use of them, many buildings in Přerov did not comply with those requirements and were therefore not accessible to people with disabilities. They mentioned, in particular, the post office, the police stations, the customs office, the District Office, the district social-security office, cinemas, the District Court, various lawyers’ offices, most specialist doctors’ surgeries and the town swimming pool. They also submitted that their applications for a review of the certificates of approval had not been dealt with in a competent or satisfactory manner by the administrative authorities. They asked the court to review the constitutionality of section 59(1) of the Building Act, by which they were prevented from taking part in proceedings before the administrative authorities at the construction stage, and also to review the decisions by which the Regional Court and the High Court had refused to exempt them from the court fees and to assign a lawyer to present their case – decisions which, in their submission, amounted to a violation of Article 6 of the Convention. According to the Government, the purpose of their appeal was simply to ascertain whether the High Court’s decision against them had precluded the possibility of judicial review of their case. On 7 January 1997 the applicants applied for legal aid and asked to have a lawyer assigned to represent them in the Constitutional Court. On 31 January 1997 the Constitutional Court informed them that they satisfied the requirements for obtaining legal aid but would receive it only if their constitutional appeal was not dismissed on procedural grounds or as being unfounded, as provided in section 43 of the Constitutional Court Act. In a decision of 10 March 1997 the Constitutional Court dismissed the applicants’ appeal. It noted, firstly, that they were not entitled to challenge the constitutionality of section 59 of the Building Act since that provision had not been applied by the High Court, and, secondly, that the decisions complained of did not disclose any breach of constitutional law or of any other legal provisions or international treaties. By section 72, a constitutional appeal may be lodged by any natural or juristic person who claims that a final decision given in proceedings to which he or she was a party, or a measure or any other action taken by a public authority, has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law or an international treaty within the meaning of Article 10 of the Constitution. The appeal must be lodged within sixty days of the date on which the final decision was served in respect of the final remedy provided for by law or, if no such remedy exists, of the date of the event forming the subject matter of the constitutional appeal. By section 59(1) of the Building Act (Law no. 50/1976), the parties to proceedings relating to building work are the builder and the natural and juristic persons with a right of property or other rights over the land or any adjacent buildings which might be affected by the issuing of a building permit. Section 78(1) provides that the parties to proceedings relating to the issuing of a certificate of approval are the builder and the user of the building, if his or her identity is already known. Section 82(3) provides that the building authority should not issue a certificate of approval in respect of a public building if people with disabilities have no access to the areas open to the public and are therefore unable to use them. Decree no. 53/1985 on the general technical specifications for the use of buildings by people with impaired mobility, subsequently replaced by Decree no. 174/1994 of the Ministry of Economic Affairs, which came into force on 1 October 1994, contains provisions designed to ensure proper disabled access to public buildings and buildings open to the public (such as: offices used for administrative or management purposes or for the provision of services; shops; catering facilities; sports facilities; cultural, health and welfare institutions; public communications facilities; and hotels and motels) and the elimination of all architectural barriers. By Article 30 § 1, a party to proceedings who satisfies the requirements for exemption from court fees may have a lawyer assigned where this is necessary for the protection of his or her rights. By Article 138 § 1, the presiding judge may fully or partly exempt a party to the proceedings from the payment of court fees where this is justified by the party’s circumstances, provided that the action brought is not arbitrary or manifestly devoid of any prospect of success. Article 250b § 1 provides that an administrative appeal (správní žaloba) against a decision by an administrative authority must be lodged within two months of the decision in issue, except where the law provides otherwise. By Article 250 § 2, an administrative appeal may be lodged by a natural or juristic person who, as a party to proceedings before an administrative authority, claims to have been adversely affected by a decision taken by that authority. An appeal may also be lodged by a natural or juristic person who was not treated as a party to the proceedings before the administrative authority but should have been. Article 65 §§ 1 and 2 of the Code of Administrative Procedure provides that a final decision by an administrative authority may be reviewed by a higher administrative authority acting of its own motion or otherwise. The administrative decision in issue must be quashed or varied where it is found to have breached the law. Article 13 guarantees the right to social and medical assistance. It provides that, with a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties are to undertake to: (1) ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social-security scheme, is granted adequate assistance, and, in case of sickness, the care necessitated by his condition; (2) ensure that persons receiving such assistance do not, for that reason, suffer from a diminution of their political or social rights; and (3) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want. Recommendation No. R (92) 6 of the Committee of Ministers on a coherent policy for people with disabilities, adopted on 9 April 1992, defines a handicap as “... a disadvantage, for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”. The Recommendation urges member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”. As regards leisure time and cultural activities in particular, the Recommendation states: “All leisure, cultural and holiday activities should be made accessible to people with disabilities. ... Structural, technical, physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed. In particular, access to cinemas, theatres, museums, art galleries, tourist venues and holiday centres should be improved... Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities.” The Recommendation also states: “The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination.” In addition, Recommendation 1185 (1992) on rehabilitation policies for the disabled, adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, emphasises: “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.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people ... in the community and society” and, to that end, to guarantee, amongst other things, “ease of access to buildings”. The revised European Social Charter, adopted by the Committee of Ministers on 1-4 April 1996 and opened for signature on 3 May 1996, provides in Article 15, entitled “The right of persons with disabilities to independence, social integration and participation in the life of the community”: “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: ... 3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”