Published on 24 June 2024
FOURTH SECTION
Application no. 29292/23
Răzvan-Mihai GHERGHINA
against Romania
lodged on 7 July 2023
communicated on 3 June 2024
SUBJECT MATTER OF THE CASE
The application concerns the alleged lack of access for the applicant, who uses a wheelchair, to a private hotel in Mangalia (on the coast of the Black Sea), located nearby a balneary complex in which he intended to undergo medically recommended balneary treatment, and to several other public places in the same city, including a public beach.
The applicant complained specifically about lack of access to those public places and the particular hotel he attempted to access before the National Agency for Payments and Social Inspection (hereinafter “the Agency”), a Government agency responsible to evaluate and monitor the compliance with specific requirements in the field of social assistance, including those set forth in Law no. 448/2006 on the protection and promotion of the rights of people with disabilities. The Agency informed the applicant that it had established that the buildings and places referred to by the applicant in Mangalia did not fully comply with the legal requirements facilitating access of disabled people, and that it had ordered specific measures to be taken in this respect.
The applicant’s subsequent compensation claim based on allegations of discrimination against the hotel and the Mangalia Municipality and local authorities was dismissed as unsubstantiated at two levels of jurisdiction. The High Court of Cassation and Justice (hereinafter “the HCCJ”) then allowed the applicant’s appeal on points of law and ordered a retrial stating that under the Law no. 448/2006 there was a legal presumption that disabled people suffered harm as long as minimal accessibility was not ensured.
In the fresh proceedings, the Constanţa Court of Appeal partly granted the applicant’s claim and ordered the Mangalia local authorities to pay the applicant non-pecuniary damages in amount of 3,000 RON (by the time this judgment became final, the amount awarded to the applicant was equal to the gross minimum monthly salary in Romania). The applicant submitted an appeal on point of law, which the HCCJ rejected as inadmissible finding that it did not rely on any of the limited grounds prescribed by the Civil Procedure Code.
The applicant complains under Article 6 of the Convention about the alleged unfairness of the proceedings before the HCCJ. He also complains under Article 14 and Article 1 of Protocol No. 12 to the Convention of being discriminated on account of his disability in the enjoyment of his rights.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant rightly denied the right of access to a superior court given the HCCJ’s judgment of 5 May 2022 rejecting his appeal on points of law, unlike that court’s judgment of 25 June 2020 in the same proceedings in which it had examined the merits of the applicant’s appeal on points of law (see Zubac v. Croatia [GC], no. 40160/12, §§ 76-99, 5 April 2018, and, mutatis mutandis, Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, 25 April 2013?
2. Having regard to the fact that the applicant obtained compensation at domestic level with respect to his allegations of discrimination regarding the municipality, and also having regard to the amount of that compensation, can he still claim to be a victim with respect to those allegations within the meaning of Article 34 of the Convention?
3. If so, has the applicant suffered discrimination on account of his locomotor disability in the enjoyment of his right to private life, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention, because of his alleged lack of access to medical treatment in balneary facilities aimed for his neuromotor rehabilitation (see, mutatis mutandis, Arnar Helgi Lárusson v. Iceland, no. 23077/19, 31 May 2022)?
4. Has the applicant suffered discrimination on account of his locomotor disability in the enjoyment of his rights provided for in the Law no. 448/2006, in Mangalia, contrary to Article 1 of Protocol No. 12 to the Convention?
5. Having regard to the two previous questions above, the parties are invited, in particular, to develop arguments on the nature of the State obligations under the respective provisions of the Convention and its Protocol No. 2 in relation to discrimination claims against private entities, such as the private hotel in the present case (see, mutatis mutandis, Pla and Puncernau v. Andorra, no. 69498/01, § 43, ECHR 2004-VIII).