Three disability ‘firsts’ in a European Court of Human Rights case

2 June 2009. In the recent case of Glor v. Switzerland, the European Court of Human Rights has for the first time (1) found a violation of the right to non-discrimination on the basis of the applicant’s disability, (2) referred to the United Nations Convention on the Rights of Persons with Disabilities, and (3) used the human rights concept of “reasonable accommodation”.

In its judgment, the Court held that the Swiss government had violated Mr Glor’s rights under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life) of the European Convention on Human Rights by levying a tax for exemption from military service to a person with disabilities who, because of his disabilities, could not carry out compulsory military service. The applicant, Swiss national Sven Glor, was deemed medically unfit to perform military service due to his diabetes. His condition, according to the Swiss authorities, posed a problem on account of the particular restrictions related to military service including limited access to medical care and medication, the significant physical efforts required and psychological pressure exerted. However, the authorities decided that Mr Glor’s diabetes was not severe enough to relieve him from paying a non-negligible military service exemption tax on his annual earnings for several years to come.

Mr Glor, however, actually wanted to carry out his military service, but was prohibited from doing so. He was not permitted to carry out alternative civil service, this being available only to conscientious objectors. Invoking Article 14 together with Article 8 of the European Convention on Human Rights, Mr Glor argued that he had been subjected to discrimination on the basis of his disability because he had been prohibited from carrying out his military service, and was obliged to pay the exemption tax as his disability was judged not to be severe enough for him to forgo the tax.

This is the first ever ruling by the European Court of Human Rights in which the Court has found a violation of Article 14 on the grounds of disability. Article 14 provides:

Article 14. Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

In its judgment, the Court reiterated that Article 14 contains a non-exhaustive list of prohibited grounds, which also encompasses discrimination based on disability.  Referring to its previous jurisprudence, the Court noted that an individual’s physical integrity relates to the exercise of a person’s right to private and family life as set out in Article 8. In the present case, a tax levied by the State which finds its origin in a person’s inability to serve in the army due to disability - a state of affairs which is beyond the applicant’s control - falls squarely within the reach of Article 8 of the European Convention even if the consequences of the measures are primarily monetary.

In examining the arguments of the parties, the European Court of Human Rights found that the Swiss authorities did not fairly weigh up the interests of society and Mr Glor’s human rights. In particular, the Court concluded that no objective justification existed in a democratic society to distinguish between persons with disabilities who are exempted from the tax and persons with disabilities who are obliged to pay the tax.

In a second ‘first’, this judgment condemns the Swiss authorities for failing to provide reasonable accommodation to Mr Glor in finding a solution which responds to his individual circumstances. Echoing Article 2 of the UN Convention on the Rights of Persons with Disabilities which defines reasonable accommodation as the “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”, the Court calls for the implementation of reasonable accommodation by, for example, filling posts in the armed forces which require less physical effort by persons with disabilities. In highlighting the failure of the Swiss authorities, the Court points to legislation in other countries which ensure the recruitment of persons with disabilities to posts which are adapted to both the person’s (dis)ability and to the person’s set of professional skills.

In a third ‘first’, the Court makes explicit reference to the UN Convention on the Rights of Persons with Disabilities as the basis for the existence of a European and universal consensus on the need to protect persons with disabilities from discriminatory treatment. It does so despite the fact that Switzerland has not yet signed the disability-specific Convention, indicating that the Court values the Convention as the most up-to-date expression of equality globally.

Commenting on the case, MDAC Executive Director Oliver Lewis said, “MDAC commends the European Court’s attempt to limit State discretion to establish different legal frameworks for persons with disabilities where this does not promote their full inclusion. The Glor judgment has paved the way for litigation which encourages a synthesis of European human rights jurisprudence with the principles and provisions of the UN Convention on the Rights of Persons with Disabilities, an invitation which MDAC will take up with vigour.”

For further information, the judgment in the case of Glor v. Switzerland case (Application No. 13444/04, judgment 30 April 2009) is available here. For more on the UN Convention on the Rights of Persons with Disabilities, click here.

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