CEDH · CASELAW;CLIN;ENG — 25 juin 2019

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Switzerland (dec.) - 40477/13 Decision 25.6.2019 [Section III] Article 8 Article 8-1 Respect for private life Lack of access to a private cinema for a disabled person wishing to see a film not being shown in cinemas with disabled access: Article 8 not applicable; inadmissible Facts – In October 2008 the applicant, a paraplegic, found himself unable to enter an “experimental art cinema” in order to watch a film which he wished to see and which was not being screened by any other cinema in his town. There was no wheelchair access to the cinema and the applicant was not allowed to be carried inside the building. The applicant considered that he had been discriminated against, and lodged actions for damages against the company running the cinema. However, all his actions were dismissed in 2011 and 2012. Law – Article 8: The 2006 UN Convention on the rights of persons with disabilities lays down the principle of “full and effective participation and integration in society” for persons with disabilities. However, the Court had previously ruled that Article   8 of the European Convention was only applicable in exceptional cases where the lack of access to public establishments open to the public prevented applicants from leading their lives in breach of their right to personal development, the right to establish and develop relationships with other human beings and the outside world. Article 8 did not imply a right of access to a specific cinema to see a specific film, provided that general access was guaranteed to other cinemas nearby. In fact, other cinemas run by the company in question were reportedly tailored to the applicant’s needs. The percentage of films exclusively shown in the cinema in question had totalled only some 10% to 12% in 2009 and 2010. It followed that the applicant had broad access to the cinemas in his region. In other words, the lack of access to the cinema in question in order to watch that particular film had not prevented the applicant from leading his life in such a way as to infringe his right to personal development, the right to form and maintain relationships with other human beings and the outside world. One of the aims of the relevant domestic legislation was to create conditions to facilitate disabled persons’ participation in community life, in particular by helping them to be autonomous in establishing social relations. On the other hand, the provision on individual benefits was limited in scope. The provision was geared to preventing serious segregationist attitudes that excluded persons with disabilities from certain activities for fear that their mere presence could disturb the usual customers’ equanimity or social habits. Discrimination consisted of any difference of treatment which was “particularly obvious, creating major inequality aimed at or resulting in the degradation or marginalisation of a person with a disability”. The Federal Court had provided sufficient reasons to explain why the applicant’s situation had not been serious enough to qualify as discrimination. Accordingly the Court saw no grounds for departing from the findings of the Swiss courts, particularly the Federal Court, whose concise judgment referred to the relevant case-law of the Court to find that the Convention did not require Switzerland to introduce the concept of discrimination requested by the applicant into its domestic legislation. It followed that the applicant could not rely on Article   8 of the Convention. As regards the applicability of Article   10 of the Convention, that provision was no broader in scope than Article   8 vis-à-vis the circumstances of the present case. Article   10, and more specifically the right to receive information, did not go so far as to guarantee the applicant’s access to a cinema screening a film which he was anxious to watch. Conclusion : inadmissible (incompatible ratione materiae ). (See also Botta v. Italy , 21439/93, 24   February 1998; Zehnalová and Zehnal v. the Czech Republic (dec.), 38621/97, 14   May 2002, Information Note   43; Mółka v. Poland (dec.), 56550/00, 11   April 2006, Information Note   86; Neagu v. Romania (dec.), 49651/16, 29   January 2019; and the Factsheet on Persons with disabilities and the European Convention on Human Rights )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes