CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 mars 2016

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CROATIA   (Application no. 23682/13)               JUDGMENT     STRASBOURG   22 March 2016       FINAL   12/09/2016       This judgment is final.   In the case of Guberina v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President ,   Nebojša Vučinić,   Paul Lemmens,   Valeriu Griţco,   Ksenija Turković,   Jon Fridrik Kjølbro,   Georges Ravarani, judges , and Stanley Naismith, Section Registrar , Having deliberated in private on 23 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23682/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Joško Guberina (“the applicant”), on 28 March 2013. 2.     The applicant was represented by Ms V. Terhaj, a lawyer practising in Zagreb, assisted by Mr C. Cojocariu, a lawyer qualified in Romania and based in London. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant complained of the unfair application of domestic tax legislation and alleged discrimination in that respect, contrary to Article 8 of the Convention and Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14, and Article 1 of Protocol   No. 12. 4.     On 17 July 2013 notice of the complaints under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14, and under Article 1 of Protocol No. 12, was given to the Government. On 25 March 2014 the President of the Section to which the case was allocated decided, under Rule   54 § 2 (c) of the Rules of Court, to invite the parties to submit further observations in respect of the issues raised under Article 8 taken alone and in conjunction with Article 14. 5.     In addition, third-party comments were received jointly from the Croatian Union of Associations of Persons with Disabilities, the European Disability Forum and the International Disability Alliance (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1969 and lives in Samobor. A.     Background to the case 7.     The applicant owned a flat in Zagreb situated on the third floor of a residential building, where he lived with his wife and two children. 8.     In 2003, three years after he had bought the flat, the applicant’s wife gave birth to their third child. The child was born with multiple physical and mental disabilities. 9.     After the birth the child underwent a number of medical treatments and his condition was under the constant supervision of the competent social care services. In April 2008 an expert commission diagnosed him with incurable cerebral palsy, grave mental retardation and epilepsy. In September 2008 the social services declared the child 100% disabled. 10.     In the meantime, in September 2006, the applicant bought a house in Samobor, and in October 2008 he sold his flat. According to the applicant, the reason for buying the house was the fact that the building in which his flat was situated had no lift and for that reason did not meet the needs of his disabled child and his family. In particular, it was very difficult to take his son out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs. B.     Proceedings concerning the applicant’s request for tax exemption 11.     On 19 October 2006, after he had bought the house in Samobor, the applicant submitted a tax exemption request to the tax authorities. He relied on section 11(9) of the Real Property Transfer Tax Act, which provided for the possibility of tax exemption for a person who was buying a flat or a house in order to solve his or her housing needs, if he or she, or his or her family members, did not have another flat or house meeting their housing needs (see paragraph 24 below). In his request the applicant argued that the flat which he owned did not meet the housing needs of his family since it was very difficult, and in fact becoming impossible, to take his disabled child out of the flat from the third floor without a lift, given that he was in a wheelchair. The applicant therefore submitted that he had bought the house in order to cater for his son’s needs. 12.     On 6 May 2009 the Samobor Tax Office ( Ministarstvo Financija – Porezna uprava, Područni ured Zagreb, Ispostava Samobor ) dismissed the applicant’s request, giving the following reasons. “Section 11(9) of the Real Property Transfer Tax Act ... provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs, under conditions which must be cumulatively satisfied, including the requirement that the taxpayer in question, or his or her family members, do not have another flat or a house meeting their housing needs. During the proceedings it was established that the taxpayer Joško Guberina had owned a flat measuring 114.49   square metres, in Zagreb ..., which he had sold on 25 November 2008 ... Given that the surface of that real property, and in view of the number of the taxpayer’s immediate family members (five), satisfied the housing needs of the taxpayer and his immediate family, within the meaning of section 11(9.3) of the Real Property Transfer Tax Act, and given that it satisfied all housing needs in terms of hygiene and technical requirements as well as the basic infrastructure (electricity, water and [access to] other public utilities), under section 11(9.5) of the Real Property Transfer Tax Act, the taxpayer does not meet the cumulative conditions provided under section 11(9) of the Real Property Transfer Tax Act. It was therefore decided as noted in the operative part [of the decision].” 13.     The Samobor Tax Office ordered the applicant to pay 83,594.25   Croatian kunas (HRK) (approximately 11,250 euros (EUR)) in tax. 14.     The applicant appealed against the above decision to the Finance Ministry ( Ministarstvo Financija, Samostalna služba za drugostupanjski upravni postupak – “the Ministry”), and on 6 July 2009 the Ministry dismissed his appeal as ill-founded, endorsing the reasoning of the Samobor Tax Office. The relevant part of the decision reads as follows. “Section 11(9) of the Real Property Transfer Tax Act (Official Gazette, nos. 69/07-153/02) provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs. It further lays down conditions which the citizen must meet in order to demonstrate that he or she is buying his or her first real property in order to meet his or her housing needs. In this connection, one of the conditions laid down under subsection (9.5) is that the citizen and the members of his or her immediate family must not have another real property (flat or house) meeting their housing needs; and subsection (9.6) also provides that the citizen and the members of his or her immediate family must not own a flat, a holiday house, or property of a significant value (other property of a significant value can include a piece of land where construction is allowed) or a business premises where the citizen or his or her immediate family members do not exercise a registered [business] activity, whereby the value of the real property is similar to that of the real property (flat or house) which the citizen is purchasing. Given the rationale of the cited provisions and the facts of the case as established beyond doubt during the proceedings, [the Ministry] considers that the first-instance authority was justified in rejecting the appellant’s request for tax exemption ... The right to tax exemption exists if the citizen, or his or her immediate family members, at the time of purchase [of the real property], do not own, or did not own, another real property meeting their housing needs or a flat, a holiday house or other real property of a significant value. As this is not the situation in the present case, given that the appellant, at the time of purchase [of the house], owned a flat in Zagreb ... larger than the real property he was buying and in respect of which he sought tax exemption, it cannot be said that by buying the house the appellant was purchasing his first real property in order to meet his housing needs.” 15.     On 7 September 2009 the applicant lodged an administrative action with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), arguing that in their decisions the lower bodies had ignored his specific family situation and, in particular, his child’s disability and therefore the housing needs of his family. In the applicant’s view, it was necessary to recognise that in his particular case the availability of a lift in the building was an infrastructural requirement on the same level as access to water and electricity in general. He also emphasised that the house was the first real property in respect of which he had sought a real property transfer tax exemption. 16.     On 21 March 2012 the High Administrative Court dismissed the applicant’s administrative action as ill-founded, endorsing the reasoning of the lower administrative bodies. The relevant part of the judgment reads as follows. “Given that the surface area of the flat [which the applicant owned] satisfied the needs of five members of the plaintiff’s family (subsection (9.3)) and that the flat in issue was equipped with the basic infrastructure and hygiene and technical requirements, the defendant correctly concluded that the plaintiff, in the given case, did not meet the conditions for a tax exemption set out in section 11(9) of the Real Property Transfer Tax Act. The arguments regarding the administrative action are ineffective in changing the decision in this administrative matter, and therefore the court considers that the impugned decision did not breach the law to the plaintiff’s detriment.” 17.     On 25 May 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) relying on Article 14 of the Constitution, contending, inter alia , that, given the specific accommodation needs of his family due to his child’s disability, he had been discriminated against by unfair application of the relevant tax legislation. He argued, in particular, that the competent administrative authorities had failed to correct the factual inequality inherent in his particular situation with regard to the ordinary meaning of the term basic infrastructural requirements meeting the housing needs of his family. 18.     On 26 September 2012 the Constitutional Court, endorsing the reasoning of the lower bodies, dismissed the applicant’s constitutional complaint as ill-founded on the ground that there was no violation of his constitutional rights. In particular, having examined his complaints from the angle of the right to a fair trial, the Constitutional Court held that no issue arose with regard to the other complaints relied upon by the applicant. 19.     The decision of the Constitutional Court was served on the applicant’s representative on 11 October 2012. C.     Other relevant information 20.     The Government provided a report by the Ministry of Social Policy and Youth ( Ministarstvo socijalne politike i mladih ) of 6 November 2013, according to which the applicant’s child had been in receipt of monthly monetary allowances of HRK 1,000 (approximately EUR 130) in the period between 19 January 2006 and 10 September 2012, and allowances of HRK   625 (approximately EUR 80) from 11 September 2012 onwards. In addition, he had taken part in various therapeutic and social-assistance activities, and for the period between 29 June 2010 and 2 October 2011 the applicant’s wife had been granted special status related to her child’s disability and had received, inter alia , monthly payments of HRK 2,500 (approximately EUR 300). 21.     According to the applicant, the annual expenses relating to his son’s special needs amounted to some HRK 80,000 (approximately EUR 10,400). This included HRK 28,800 for physiotherapy, HRK 4,500 for speech therapy, HRK 900 for a child neurologist, HRK 7,200 for drugs, HRK   21,175 for a wheelchair (with additional State support of HRK 8,900); HRK 7,200 for swimming therapy; and HRK 9,150 for daily transport to the day-care centre for ten months. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     The Constitution 22.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows. Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 34 “The home is inviolable. ... ” Article 35 “Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.” Article 48 “The right of ownership shall be guaranteed. ...” 2.     Constitutional Court Act 23.     The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no.   49/2002) reads as follows. Section 62 “1.     Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter ‘a constitutional right’). 2.     If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used. ...” 3.     Real Property Transfer Tax Act 24.     The relevant provisions of the Real Property Transfer Tax Act ( Zakon o porezu na promet nekretnina , Official Gazette nos. 69/1997, 26/2000, 127/2000 and 153/2002) at the material time read as follows. Section 11 “The real property transfer tax shall not be paid by: ... (9)     a citizen who is buying his or her first real property (flat or house) in order to meet his or her housing needs provided that: ... (9.3)     the surface area of the real property, depending on the number of members of the citizen’s immediate family, does not surpass: ... –     for five persons, up to 100 square metres, ... (9.5)     the citizen, or members of his or her immediate family, do not have other real property (a flat or a house) which meets their housing needs. Such real property (a flat or a house) meeting housing needs includes any accommodation which has basic infrastructure and satisfies hygiene and technical requirements. ... (9.6)     the citizen and the members of his or her immediate family do not own a flat, a holiday house and other real property of a significant value. Another property of a significant value is a piece of land where construction is allowed and business premises where the citizen or his or her immediate family members do not perform a registered [business] activity, and the value of the real property is similar to the value of the real property (flat or house) which the citizen is buying. ... (15)     the citizens who have already used their right to a real property transfer tax exemption under subsections (9), (11) and (13) [of this section] do not have a right to another real property transfer tax exemption.” 4.     By-law on the accessibility of buildings for persons with disabilities and reduced mobility 25.     The relevant provisions of the by-law on the accessibility of buildings for persons with disabilities and reduced mobility ( Pravilnik o pristupačnosti građevina osobama s invaliditetom i smanjene pokretljivosti , Official Gazette nos. 151/2005 and 61/2007) provide the following. Section 1 “This by-law lays down the conditions for and the manner of securing unobstructed access, mobility, stay and work for persons with disabilities and reduced mobility (hereafter, ‘accessibility’) as well as [the manner of] improving the accessibility of buildings for ... residential ... purposes ...” Section 2 “The accessibility, improvement of accessibility and the [methods for] conforming to the accessibility of buildings referred to in section 1 of this by-law shall be secured by mandatory building design and construction of the buildings so as to secure the elements of accessibility and/or to conform to the conditions of use of [mobility] devices for persons with disabilities ... as laid down in this by-law.” III.     Basic elements of accessibility Section 7 “The basic elements of accessibility are: A.     the elements of accessibility for overcoming differences in height, ...” Section 9 “In order to overcome differences in height in the premises used by persons with reduced mobility, the following elements of accessibility can be used: ... a lift ...” Section 12 Lifts “A lift shall be used as an element of accessibility for overcoming height differences, and must be used for overcoming height differences of more than 120   centimetres inside or outside the building. ...” 5.     Prevention of Discrimination Act 26.     The relevant parts of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije , Official Gazette no. 85/2008) provide the following. Section 1 “(1)     This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation. (2)     Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives. ...” Section 8 “This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...” Section 16(1) “Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.” Section 17 “(1)     A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek: 1.     a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination); 2.     a ban on (the defendant’s) undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination); 3.     compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages); 4.     an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.” 27.     In 2009 the Croatian Government Office for Human Rights ( Ured za ljudska prava Vlade Republike Hrvatske ) published a “Manual on implementation of the Prevention of Discrimination Act” ( Vodič uz Zakon o suzbijanju diskriminacije – “the Manual”). The Manual explains, inter alia , that section 16 of the Prevention of Discrimination Act provides two alternative avenues which an individual can pursue. Accordingly, an individual may raise his or her complaint of discrimination in proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of the Act. 6.     Administrative Disputes Act 28.     The relevant provision of the Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette nos. 20/2010, 143/2012 and   152/2014) provides the following. Section 76 “(1)     Proceedings terminated by a judgment shall be reopened at the party’s request: 1.     if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court’s] judgment, ...” B.     Relevant practice 1.     Relevant practice concerning discrimination 29.     On 9 November 2010, in case no. U-III-1097/2009, the Constitutional Court declared a constitutional complaint of discrimination under a Parliamentary decision regarding the political affiliation of a deputy inadmissible for non-exhaustion of legal remedies. The Constitutional Court found that the appellant had failed to pursue both the relevant administrative remedies and the remedies provided under the Prevention of Discrimination Act. However, it declined to determine what the relationship between several possible avenues in a case concerning allegations of discrimination was, on the ground that it was primarily for the competent courts to determine that matter. 30.     In its decisions nos. U-III-815/2013 of 8 May 2014 concerning alleged discrimination in obtaining social benefit, and U-III-1680/2014 of 2   July 2014 concerning alleged discrimination in employment, the Constitutional Court confirmed its case-law as to the availability of remedies under the Prevention of Discrimination Act. 31.     The Government referred to the judgments of the Supreme Court, nos. Gž-41/11-2 of 28 February 2012, Gž-25/11-2 of 28 February 2012 and Gž-38/11-2 of 7 March 2012, which had accepted actions under the Prevention of Discrimination Act alleging discrimination on the ground of sexual orientation. 2. Relevant practice concerning the application of tax legislation 32.     The Government also cited case-law of the Administrative Court ( Upravni sud Republike Hrvatske ) and the High Administrative Court by which they dismissed actions challenging the refusal of a real property transfer tax exemption on the ground of the appellants’ failure to cumulatively meet the requirements under section 11(9.5) and (9.6) of the Real Property Transfer Tax Act (judgments in cases nos. Us-4028/2009-4 of 1 June 2011, Us-14106/2009-4 of 16 May 2012, and Us ‑ 3042/2011-4 of 19   September 2013; and a judgment of the High Administrative Court, no.   Usž-269/2012-4 of 23 January 2013, by which it upheld a decision on tax exemption under section 11(9.3), (9.5) and (9.6) of the Real Property Transfer Tax Act). 33.     In each of these cases the administrative authorities conducted a thorough assessment of the comparable values of properties when deciding whether the appellant had a real property of significant value within the meaning of section 11(9.6) of the Real Property Transfer Tax Act. III.     RELEVANT INTERNATIONAL MATERIAL A.     United Nations 1.     Convention on the Rights of Persons with Disabilities 34.     The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 24 January 2007, UN Doc. A/RES/61/106, ratified by Croatia on 15 August 2007, provide as follows: Article 2 Definitions “For the purposes of the present Convention: ... ‘Reasonable accommodation’ means 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; ...” Article 3 General principles “The principles of the present Convention shall be: ... (b)     Non-discrimination; ... (f)     Accessibility; ...” Article 4 General obligations “1.     States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a)     To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b)     To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c)     To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes: (d)     To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e)     To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; ... 2.     With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law. ...” Article 5 Equality and non-discrimination “1.     States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2.     States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3.     In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4.     Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” Article 7 Children with disabilities “1.     States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2.     In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. ...” Article 9 Accessibility “1.     To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a)     Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; (b)     Information, communications and other services, including electronic services and emergency services. ...” Article 19 Living independently and being included in the community “States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a)     Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b)     Persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; ...” Article 20 Personal mobility “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: (a)     Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; (b)     Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; ...” Article 28 Adequate standard of living and social protection “1.     States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. ...” 2.     Practice of the United Nations Committee on the Rights of Persons with Disabilities (“the CRPD Committee”) 35.     In its General Comment No. 2 (2014) on Article 9: Accessibility, 22   May 2014, UN Doc. CRPD/C/GC/2, the CRPD Committee noted the following. “1.     Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies. ... 29.     It is helpful to mainstream accessibility standards that prescribe various areas that have to be accessible, such as the physical environment in laws on construction and planning, transportation in laws on public aerial, railway, road and water transport, information and communication, and services open to the public. However, accessibility should be encompassed in general and specific laws on equal opportunities, equality and participation in the context of the prohibition of disability-based discrimination. Denial of access should be clearly defined as a prohibited act of discrimination. Persons with disabilities who have been denied access to the physical environment, transportation, information and communication, or services open to the public should have effective legal remedies at their disposal. When defining accessibility standards, States parties have to take into account the diversity of persons with disabilities and ensure that accessibility is provided to persons of any gender and of all ages and types of disability. Part of the task of encompassing the diversity of persons with disabilities in the provision of accessibility is recognizing that some persons with disabilities need human or animal assistance in order to enjoy full accessibility (such as personal assistance, sign language interpretation, tactile sign language interpretation or guide dogs). It must be stipulated, for example, that banning guide dogs from entering a particular building or open space would constitute a prohibited act of disability-based discrimination.” 3.     Practice of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) 36.     In its General Comment No. 5: Persons with Disabilities, 9   December 1994, UN Doc. E/1995/22 the CESCR noted the following. “ 3.     The obligation to eliminate discrimination on the grounds of disability 15.     Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ‘subtle’ forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ‘disability-based discrimination’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.” 37.     The CESCR reaffirmed its General Comment No. 5 in its General Comment No. 20: Non-discrimination in economic, social and cultural rights, 2 July 2009, UN Doc. E/C.12/GC/20, in the following terms. “ B.     Other status 27.     The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘other status’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. ... Disability 28.     In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ‘any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights’. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.” B.     Council of Europe 1.     Committee of Ministers Recommendation Rec(2006)5 38.     The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, of 5 April 2006, read as follows. “ 1.2.     Fundamental principles and strategic goals 1.2.1.     Fundamental principles Member states will continue to work within anti-discriminatory and human rights frameworks to enhance independence, freedom of choice and the quality of life of people with disabilities and to raise awareness of disability as a part of human diversity. Due account is taken of relevant existing European and international instruments, treaties and plans, particularly the developments in relation to the draft United Nations international convention on the rights of persons with disabilities. ... 1.3.     Key action lines ... People with disabilities should be able to live as independently as possible, including being able to choose where and how to live. Opportunities for independent living and social inclusion are first and foremost created by living in the community. Enhancing community living (No. 8) requires strategic policies which support the move from institutional care to community-based settings, ranging from independent living arrangements to sheltered, supportive living in small-scale settings. It also implies a co-ordinated approach in the provision of user-driven, community-based services and person-centred support structures. ... 2.7.     Fundamental principles The fundamental principles which govern this Action Plan are: –     non-discrimination; –     equality of opportunities; –     full participation in society of all persons with disabilities; ... 4.3.     People with disabilities in need of high level of support ... 4.4.     Children and young people with disabilities The needs of children with disabilities and their families must be carefully assessed by responsible authorities with a view to providing measures of support which enable children to grow up with their families, to be included in the community and local children’s life and activities. Children with disabilities need to receive education to enrich their lives and enable them to reach their maximum potential. Quality service provision and family support structures can ensure a rich and developing childhood and lay the foundation for a participative and independent adult life. It is important therefore that policy makers take into account the needs of children with disabilities and their families when designing disability policies and mainstream policies for children and families.” 2. Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society, reaffirmed by Parliamentary Assembly Recommendation 1854 (2009) of 26 January 2009 39.     The relevant parts of Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society read as follows. “8.     The Assembly considers that in order to enable the active participation of people with disabilities in society, it is imperative that the right to live in the community be upheld. It invites member states to: ... 8.2.     provide adequate and sustained assistance to families, above all through human and material (particularly financial) means, to enable them to support their disabled family member at home; ... 12.     The Assembly considers that the creation of a society for all implies equal access for all citizens to the environment in which they live. ...” C.     European Union 40.     The relevant provisions of the Charter of Fundamental Rights of the European Union (2000/C 364/01) read as follows. Article 21 Non-discrimination “1.     Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2.     Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.” Article 26 Integration of persons with disabilities “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” 41.     On 17 July 2008, in its judgment in S. Coleman v. Attridge Law and Steve Law (C-303/06, ECLI:EU:C:2008:415), the Grand Chamber of the European Court of Justice (ECJ) addressed the question whether Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, should be interpreted as prohibiting direct discrimination on grounds of disability only in respect of an employee who is himself disabled, or whether the principle of equal treatment and the prohibition of direct discrimination applied equally to an employee who is not himself disabled but who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child’s condition. In this connection, the ECJ concluded as follows. “56.     ... Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article   2(2)(a).” 42.     On 16 July 2015, in its judgment in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia (C‑83/14, ECLI:EU:C:2015:480), the Grand Chamber of the ECJ addressed the question of indirect discrimination on the grounds of ethnic origin relating to the interpretation of Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Charter of Fundamental Rights of the European Union, in particular whether the principle of equal treatment should benefit only persons who actually possess the racial or ethnic origin concerned or also persons who, although not being of the racial or ethnic origin in question, nevertheless suffer less favourable treatment on those grounds. The relevant part of the judgment reads as follows. “56.     ... the Court’s case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person[s] but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman, C‑303/06, EU:C:2008:415, paragraphs 38 and 50).” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 43.     The applicant complained of alleged discrimination occasioned by the unfair application of domestic tax legislation. He relied on Article 14 of the Convention and Article 1 of Protocol No. 1, which read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] 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.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A.     Admissibility 1.     The parties’ submissions 44.     The Government argued that the applicant had failed to raise his complaint of discrimination during the proceedings before the administrative authorities concerning the adoption of the decision on his request for tax exemption. In particular, he had not relied on the provisions of the Prevention of Discrimination Act in his appeal against the first-instance decision, nor had he raised the matter in