Inability of wheelchair user to access specific cinema in Geneva did not breach Convention protection of private life

JUDGMENT

Glaisen v. Switzerland 18.07.2019 (no. 40477/13)

see here

SUMMARY 

Person with disabilities.  Right of access to the cinema. Inability of a paraplegic wheelchair user notto gain access to a cinema in Geneva. The Court held that Article 8 (right to respect for private and family life) could not be interpreted as requiring access to a particular cinema to watch a movie when access was possible in other cinemas. According to the ECtHR, the refusal to allow the applicant to enter the cinema to see a movie had not affected his life in such a way as to hinder his right to personal development or the creation and development of relationships with other people and the outside world.

The ECtHR declared the decision, by majority, unacceptable.

PROVISIONS

Article 8

Article 10

Article 14

PRINCIPAL FACTS 

The applicant, Marc Glaisen, is a Swiss national who was born in 1966 and lives in Geneva
(Switzerland). He has been paraplegic since 1987.

On 4 October 2008 Mr Glaisen went on his own to the Pathé Rialto cinema in Geneva to see a film
which was not being shown in any other cinema in the city. As the building housing the cinema was
not adapted to wheelchair users, the applicant was refused access. The operating company relied on
internal safety instructions, turning him away before he could even buy a ticket.

On 28 September 2009, arguing that he had been the victim of discrimination, Mr Glaisen brought
proceedings against that company. His appeals were rejected by the Court of First Instance of the
Canton of Geneva on 15 September 2011, then by the Civil Division of the Court of Justice and lastly
by the Federal Court.

THE DECISION OF THE COURT

Article 14 in conjunction with Article 8

As to the protection against discrimination, the Court reiterated that Article 14 merely
complemented the other clauses of the Convention and Protocols thereto.

As regards the rights of disabled people and in the circumstances of the present case, the Court
found pertinent one of the principles of the 2006 UN Convention on the Rights of Persons with
Disabilities, namely that of “[f]ull and effective participation and inclusion in society” (Article 3 (c)). It
nevertheless reiterated that Article 8 of the Convention only applied in such circumstances to
exceptional cases where a lack of access to public buildings and buildings open to the public affected
the person’s life in such a way as to interfere with his or her right to personal development and right
to establish and develop relationships with other human beings and the outside world.

Pointing out that it was necessary to take account of the specificities of the case at hand, particularly
the applicant’s social and family situation, the Court did not overlook the fact that for Mr Glaisen,
who was paraplegic, the importance of going to the cinema was not just to see a film, that he might
be able to watch at home instead, but also involved exchanges with others. Moreover, Mr Glaisen,
who could not take part in many other leisure activities on account of his disability, saw himself as
an avid cinema-goer, and this was not questioned by the Government.

However, the Court took the view that Article 8 could not be construed as requiring access to a
specific cinema to see a given film in a situation where access to other cinemas in the vicinity was
possible. The Court indeed noted that in the surrounding area there were other cinemas adapted to
Mr Glaisen’s needs, and that he therefore generally had access to his local cinemas.

The Court thus concluded that the refusal to allow Mr Glaisen to enter the cinema to see a specific
film had not affected his life in such a way as to interfere with his right to personal development or
to establish and develop relationships with other human beings and the outside world.

The Court reiterated that States were afforded a broad margin of appreciation in situations where
they had to strike a balance between competing private and public interests or between different
Convention rights. Similarly, domestic courts had to give detailed reasons for their decisions, in
particular to allow the Court to exercise its European scrutiny.

As to the applicable domestic legislation, the Court observed that one of the aims of the Federal Law
of 13 December 2002 on the elimination of inequalities affecting disabled persons (LHand) was to
create the conditions for disabled persons to be able to participate in social life, especially by helping
them to be autonomous in making contact with others. Section 6 of the law sought to prevent
serious practices of segregation whereby disabled people might be excluded from certain activities
for fear that their very presence would disturb the tranquillity and social habits of other customers.
In addition, Article 2 of the ordinance of 19 November 2003 on the elimination of inequalities
affecting disabled people (OHand) defined as discrimination any difference in treatment which was
“particularly marked and entailing serious inequality, with the intention or consequence of
degrading or marginalising a disabled person”.

In the present case, the Court was of the view that the Federal Court had given sufficient reasons to
explain why the situation faced by Mr Glaisen was not serious enough to fall within the notion of
discrimination. The Court thus saw no cause to go against the findings of the Federal Court, which
had held that the Convention did not oblige Switzerland to adopt, in its domestic legislation, a
concept of discrimination of the kind sought by Mr Glaisen. It followed that he was not entitled to
rely on Article 8 of the Convention.

Article 10

The Court found that Article 10 of the Convention, more specifically the right to receive information,
did not go so far as to enable Mr Glaisen to gain access to the cinema showing the film he wished to
watch(echrcaselaw.com).


ECHRCaseLaw

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