Court View

With Court View, MHREC plans on putting the spotlight on landmark human rights cases on a regular basis in order to bring to light particular human rights issues and provide an opportunity for reflection and discussion.

This week’s landmark case is a Case Note by the Office of the Ombudsman “Disabled Reserved Parking Policy Changed” from the Maltese Ombudsman Case Notes: Edition 39 For the Period January- December 2019. This case relates to a disabled reserved parking space which highlights a broader issue as a violation of Article 14 (prohibition of discrimination) of the European Convention on Human rights, in conjunction with Article 8 (right to respect for private and family life).

This case related to a son’s complaint on the refusal of a reserved parking space in front of his mother’s residence. The elderly woman required the constant assistance of her family members who had to transport heavy oxygen cylinders and also a wheelchair any time she wished to go out. When her disability aggravated, it became clear that it was no longer possible for her to live a normal life unless she had free and unhindered access to her residence. The difficulties were further compounded by the fact that she lived in a one way uphill road in a highly densely populated area where it was extremely difficult to find a free parking space.

Despite the fact that Transport Malta stated that it did understand that certain individuals could not drive and were therefore passengers, it still refused to allow the son of the woman with this severe disability a reserved parking space, as he was not the one who had the disability.  

The Commission for the Rights of Persons with Disability (CRPD) took this issue up and demanded a change in policy. This was successful, with a policy change commencing in November 2018 which allowed for relatives of blue badge holders living in the same home as the blue badge holder to apply for a reserved parking space.

Human Rights Violation?

Looking at this case from a human rights perspective, under Article 14, discrimination occurs when ‘you are treated less favourably than another person in a similar  and this treatment cannot be objectively and reasonably justified’, however it must be shown that another right in the European Convention of Human Rights was violated. In this case, the mother who had a disability was kept from enjoying the right to private life, under Article 8, as this right states that ‘public authorities may need to help you enjoy your right to a private life, including your ability to participate in society.’

Article 14 in conjunction with article 8 can be seen in the ECHR case of Arnar Helgi Lárusson v. Iceland 31.05.2022 (app. no. 23077/19). In this case, an Icelandic national using a wheelchair for mobility, complained to the courts about the lack of wheelchair accessibility at municipal centres for arts and culture, in the form of lifts, ramps, and disabled parking spaces.

The Court agreed that such complaints fell under the term ‘private life’ under Article 8 of the European Convention on Human Rights, as the general lack of wheelchair accessibility could affect the wheelchair users’ human right to personal development and the ‘right to establish and develop with other human beings and the outside world’. The Court held that Article 14 could be applied in conjunction with Article 8 for the situation at hand.

In this case, the Court found there to be no violation of Article 14 in conjunction with Article 8, as it was found that the owners of the buildings in question had taken adequate measures to improve accessibility to public buildings for wheelchair users. However, this case is important for those with disabilities as it allowed for Article 14, the right to not be discriminated against, to be read in conjunction with Article 8, the right to private life, to protect those with disabilities in circumstances where there has been a violation. In referring to the Case Note of the Parliamentary Ombudsman, the elderly woman with a disability can be said to have had her human rights violated as she was kept from her right to establish and develop relationships with other human beings and the outside world due to the lack of a reserved disabled parking space. 

Maltese situation

The former Commissioner for the Rights of Persons with Disabilities, Olivier Scicluna, acknowledged the worrying situation relating to the human rights of persons with disabilities. As reported in the Malta Independent in September of 2020, he stated that ‘discrimination on the basis of disability is still embedded in most of our structures’. The Times of Malta revealed earlier this year that the Commission for the Rights of Disabled Persons investigated 628 cases of disability discrimination in Malta in 2021 – 263 of these cases of these were related to accessibility issues. This figure is a 30% increase on the figure from 2020.

An example of such cases can be seen through a recent issue in Rabat. As reported by the Times of Malta, a pole was erected in the middle of the foot of a wheelchair ramp, rendering the ramp completely useless. The ramp was located at the entrance to a housing complex, right beside a disabled reserved parking space. Other cases included Transport Malta being investigated for renewing the driving license of a person with disability for three years, rather than the standard ten years. More complaints related to lack of wheelchair accessibility to schools, bank ATM’s, and even to a case where a childcare centre rejected a child with disability because of a lack of LSEs.

All the above instances highlight the fact that discrimination on the basis of disability is still very much embedded in every day structures of Maltese life. Even members of society, unfortunately, participate and contribute to this unfair system. 

As stated by Oliver Scicluna, “Society, too, is still rife with discrimination: from the bus driver refusing to let on the guide dog, neighbours who fail to cooperate with their disabled peers or reserved parking spaces constantly being removed, painted over or generally ignored by those who do not require their use.”

Alannah Dennehy

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