Discrimination against blind chess players in relation to chess players with eyesight! Conviction for violating the prohibition of discrimination!
JUDGMENT
Negovanovic and others v. Serbia 25.01.22 (app. no. 29907/16 amd 3 others)
SUMMARY
The case concerned alleged discrimination by the Serbian authorities against blind chess players, its
own nationals, who had won medals at major international events, notably in the Blind Chess
Olympiad. Unlike other Serbian athletes with disabilities and sighted chess players who had attained
the same or similar sporting results, the applicants had been denied certain financial benefits and
awards for their achievements as well as formal recognition through an honorary diploma which,
they alleged, had had a negative effect on their reputations.
The Court found that, while it was legitimate for the Serbian authorities to focus on the highest
sporting achievements and the most important competitions in its award system, there was no
objective and reasonable justification for treating the applicants differently on the basis of their
disability.
PROVISION
Article 1 of the 12th Additional Protocol
PRINCIPAL FACTS
The applicants, Branko Negovanović, Sretko Avram, Živa Markov and Dragoljub Baretić are Serbian
nationals who were born between 1936 and 1955 and live in Novi Sad (Serbia).
Between 1961 and 1992 the four men won a number of medals for Yugoslavia, as part of the
national team, at the Blind Chess Olympiads. Mr Baretić’s highest achievement was a gold medal,
while the others won silver medals.
In 2006 Serbia introduced the Sporting Achievements Recognition and Rewards Decree which
provided for a national recognition and rewards system consisting of an honorary diploma, a lifetime
monthly cash benefit, and a one-off cash payment. In 2007 the Serbian Chess Federation
recommended that a number of chess players who had won medals in international competitions,
including the applicants, be formally proposed for the national sporting recognition awards.
However, unlike the sighted chess players with similar sporting achievements, the applicants were
not formally proposed to the Government by the Ministry of Education and Sport.
In February 2007 the Serbian Blind Persons Federation wrote to the ministry urging it to treat blind
chess players on an equal footing with all other athletes and chess players, with or without
disabilities, who had attained the same or similar sporting results. In July 2009 the Serbian Chess
Federation and the applicants lodged additional requests with the Ministry of Youth and Sport.
Three months later, the ministry informed the applicants that they did not fulfil the legal requirements set out in the Sporting Achievements Recognition and Rewards Decree, and that was why they had not been recommended.
The blind chess players immediately lodged a civil discrimination claim against the Republic of
Serbia, seeking both recognition of discrimination and compensation. The first-instance court ruled
in their favour in April 2010, awarding them damages, recognising that they were entitled to an
honorary diploma and a lifetime monthly cash benefit and ordering that they receive one-off cash
payments for their achievements. However, the judgment was quashed on appeal in July 2011 and a
retrial ordered. Moreover, the claims regarding the honorary diploma, lifetime monthly cash benefit
and one-off cash payment were ruled as inadmissible, as the appeals court considered that they
involved issues of an administrative nature which could not be decided on by a civil court.
Four months later, the first-instance court ruled once more in favour of the four men, establishing
again that they had been discriminated against and awarding each of them 500,000 Serbian
dinars (RSD) (approximately 4,870 euros (EUR)) in compensation plus RSD 405,000 (approximately
EUR 3,945) in litigation costs. However, that judgment was reversed in turn in June 2012, with the
appeals court ruling fully against them, stating that the Blind Chess Olympiad had not been one of
the competitions listed in the Sporting Achievements Recognition and Rewards Decree and, in any
event, they could have made use of the administrative disputes procedure but had not done so.
In March 2013 the Supreme Court of Cassation dismissed their appeal on points of law, noting that
the Blind Chess Olympiad was not one of the competitions listed in the regulations for the national
sporting recognitions awards and that no other blind chess players had received the awards, which
meant that there had been no difference in treatment between the blind chess players themselves.
The four men lodged an appeal with the Constitutional Court. Despite support for them from the
International Chess Federation which treated blind and sighted chess players as equals, in
December 2015 the Constitutional Court found that they had not suffered discrimination since their
medals had not been won in competitions listed in the Sporting Achievements Recognition and
Rewards Decree.
The blind chess players complained that they had been discriminated against by the Serbian
authorities by being denied certain financial awards, namely a lifetime monthly cash benefit as well
as a one-off cash payment, unlike all other athletes (with or without a disability) and sighted chess
players who had won similar international accolades. They furthermore complained that their
reputations had suffered because they had not received an honorary diploma. These complaints
were communicated to the Government under Article 14 (prohibition of discrimination), read in
conjunction with Article 8 (right to respect for private and family life) and Article 1 of Protocol No. 1
(protection of property), as well as under Article 1 of Protocol No. 12 (general prohibition of
discrimination).
THE DECISION OF THE COURT…
The Court ultimately examined the complaints from the standpoint of Article 1 of Protocol No. 12
only.
It rejected the Government’s objection as to the non-exhaustion of domestic remedies, noting that
the complaints concerned allegations of discrimination and that it was not unreasonable for the
blind chess players to have sought redress on the basis of the national anti-discrimination legislation,
which specifically provided for various forms of relief to victims of such treatment as well as
compensation for any pecuniary and non-pecuniary damage suffered. An administrative dispute
would not have offered a more reasonable prospect of success. Moreover, the Constitutional Court
had not rejected their complaints on the grounds that they had not properly exhausted other legal
avenues.
The Court has already held that States have considerably little leeway (“margin of appreciation”) in
establishing different legal treatment for people with disabilities. Recommendations adopted by the
Parliamentary Assembly of the Council of Europe and the United Nations Convention on the Rights
of Persons with Disabilities highlight the need to protect people with disabilities from discriminatory
treatment. Since the Serbian authorities had decided to set up a sporting achievements recognition
and rewards system, they had to do so in such a way as to comply with Article 1 of Protocol No. 12.
While it was legitimate for the Serbian authorities to focus on the highest sporting achievements and
the most important competitions in its award system, they had not shown why the high accolades
won by the applicants, as blind chess players, were less significant than similar medals won by
sighted chess players. The prestige of a game or a sport should not depend on whether it is practised
by persons with or without a disability. Indeed, the Court noted that the decree itself had placed the
Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled
sportsmen and sportswomen as meriting equal recognition. Moreover, the distinction between
Olympic and non-Olympic sports which had been used as an argument by the Serbian Government
was of no relevance since the Chess Olympiad for sighted chess players, which was among the listed
competitions in the decree, was neither part of the Olympic nor the Paralympic Games.
The Court concluded that there was no objective and reasonable justification for treating the blind
chess players differently on the basis of their disability. There had accordingly been a violation of
Article 1 of Protocol No. 12.
Just satisfaction (Article 41)
The Court held that Serbia was to pay each applicant 4,500 euros (EUR) in respect of non-pecuniary
damage. As regards pecuniary damage, they were to be paid the accrued and any future financial
benefits and/or awards which they would have been entitled to had their medals been won at the
Chess Olympiad for sighted chess players.
Separate opinions
Judges Kjølbro and Koskelo expressed a joint dissenting opinion, which is annexed to the judgment.
