CASE OF GUBERINA v. CROATIA

Conclusions: Violation of Article 14+P1-1 – Prohibition of discrimination (Article 14 – Discrimination) (Article 1 of Protocol No. 1 – Protection of property) Reopening of case (Article 41 – Pecuniary damage
Just satisfaction) Non-pecuniary damage – award (Article 41 – Non-pecuniary damage Just satisfaction)

SECOND SECTION

CASE OF GUBERINA v. CROATIA

(Application no. 23682/13)

JUDGMENT

STRASBOURG

22 March 2016

This judgment will become final in the circumstances set out in Article 44 ? 2 of the Convention. It may be subject to editorial revision.

In the case of Guberina v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
I??l Karaka?, President,
Neboj?a Vu?ini?,
Paul Lemmens,
Valeriu Gri?co,
Ksenija Turkovi?,
Jon Fridrik Kj?lbro,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 23 February 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23682/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (?the Convention?) by a Croatian national, OMISSIS (?the applicant?), on 28 March 2013.
2. The applicant was represented by OMISSIS, a lawyer practising in Zagreb, assisted by OMISSIS, a lawyer qualified in Romania and based in London. The Croatian Government (?the Government?) were represented by their Agent, Ms ?. Sta?nik.
3. The applicant complained of the unfair application of domestic tax legislation and alleged discrimination in that respect, contrary to Article 8 of the Convention and Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, and Article 1 of Protocol No. 12.
4. On 17 July 2013 the complaints under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, and under Article 1 of Protocol No. 12, were communicated to the Government. On 25 March 214 the President of the Section to which the case was allocated decided, under Rule 54 ? 2 (c) of the Rules of Court, to invite the parties to submit further observations in respect of the issues raised under Article 8 taken alone and in conjunction with Article 14 of the Convention.
5. In addition, third-party comments were received jointly from the Croatian Union of Associations of Persons with Disabilities (SOIH), the European Disability Forum (EDF) and the International Disability Alliance (IDA) (Article 36 ? 2 of the Convention and Rule 44 ? 3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1969 and lives in Samobor.
A. Background to the case
7. The applicant owned a flat in Zagreb situated on the third floor of a residential building, where he lived with his wife and two children.
8. In 2003, three years after he had bought the flat, the applicant?s wife gave birth to their third child. The child was born with multiple physical and mental disabilities.
9. After the birth the child underwent a number of medical treatments and his condition was under the constant supervision of the competent social care services. In April 2008 an expert commission diagnosed him with incurable cerebral palsy, grave mental retardation and epilepsy. In September 2008 the social services declared the child 100 percent disabled.
10. In the meantime, in September 2006, the applicant bought a house in Samobor, and in October 2008 he sold his flat. According to the applicant, the reason for buying a house was the fact that the building in which his flat was situated had no lift and for that reason did not meet the needs of his disabled child and his family. In particular, it was very difficult to take his son out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs.
B. Proceedings concerning the applicant?s request for tax exemption
11. On 19 October 2006, after he had bought the house in Samobor, the applicant submitted a tax exemption request to the tax authorities. He relied on section 11(9) of the Real Property Transfer Tax Act, which provided a possibility of tax exemption for a person who was buying a flat or a house in order to solve his or her housing needs, and if he or she, or his or her family members, did not have another flat or house meeting their housing needs (see paragraph 24 below). In his request the applicant argued that the flat he owned did not meet the housing needs of his family since it was very difficult, and in fact becoming impossible, to take his disabled child out of the flat from the third floor without a lift, given that he was in a wheelchair. The applicant therefore submitted that he had bought the house in order to make arrangements for the needs of his son.
12. On 6 May 2009 the Samobor Tax Office (Ministarstvo Financija ? Porezna uprava, Podru?ni ured Zagreb, Ispostava Samobor) dismissed the applicant?s request with the following statement of reasons:
?Section 11(9) of the Real Property Transfer Tax Act … provides for a tax exemption for citizens who are buying their first real property by which they are solving their housing needs under the conditions which must be cumulatively satisfied, including the requirement that the tax debtor, or his or her family members, do not have another flat or a house meeting their housing needs. During the proceedings it was established that the tax debtor Jo?ko Guberina had owned a flat measuring 114,49 square metres, in Zagreb …, which he had sold on 25 November 2008 to … Given that the surface of that real property, and in view of the number of the tax debtor?s immediate family members (five), satisfied the housing needs of the tax debtor and his immediate family, within the meaning of section 11(9.3) of the Real Property Transfer Tax Act, and given that it satisfied all housing needs in terms of hygiene and technical requirements as well as the basic infrastructure (electricity, water and [access to] other public utilities), under section 11(9.5) of the Real Property Transfer Tax Act, the tax debtor does not meet the cumulative conditions provided under section 11(9) of the Real Property Transfer Tax Act. It was therefore decided as noted in the operative part [of the decision].?
13. The Samobor Tax Office ordered the applicant to pay 83,594.25 Croatian kunas (HRK; approximately EUR 11,250) in tax.
14. The applicant appealed against the above decision to the Finance Ministry (Ministarstvo Financija, Samostalna slu?ba za drugostupanjski upravni postupak; hereinafter: the ?Ministry?), and on 6 July 2009 the Ministry dismissed his appeal as ill-founded, endorsing the reasoning of the Samobor Tax Office. The relevant part of the decision reads:
?The Real Property Transfer Tax Act (Official Gazette, nos. 69/07-153/02) provides in section 11(9) for a tax exemption for citizens who are buying their first real property by which they are solving their housing needs. It further provides conditions which the citizen must meet in order for it to be considered that he or she is buying the first real property by which he or she is solving his or her housing needs. In this connection one of the conditions, as provided under 9.5, requires that the citizen and the members of his or her immediate family do not have another real property (flat or house) meeting their housing needs; and under 9.6 it is provided that the citizen and the members of his or her immediate family must not have in their ownership a flat or a holiday house or another property of a significant value. Another property of a significant value is also a piece of land where construction is allowed or business premises where the citizen or his or her immediate family members do not perform a registered [business] activity, and the value of the real property is similar to the value of the real property (flat or house) which the citizen is buying.
Given the ratio of the cited provisions and the facts of the case undoubtedly established during the proceedings, [the Ministry] considers that the first-instance body correctly denied the appellant?s request for tax exemption … The right to tax exemption exists if the citizen, or his or her immediate family members, at the moment of the purchase [of the real property] do not own, or did not own, another real property meeting their housing needs or a flat, a holiday house or other real property of a significant value. As this is not the case in the case at issue, given that the appellant at the moment of the purchase [of the house] owned a flat in Zagreb … larger than the real property he was buying and in respect of which he sought tax exemption, it cannot be said that by buying the house the appellant bought the first real property by which he was solving his housing needs.?
15. On 7 September 2009 the applicant lodged an administrative action in the High Administrative Court (Visoki upravni sud Republike Hrvatske), arguing that in their decisions the lower bodies had ignored his specific family situation and in particular the disability of his child and thus the housing needs of his family. In the applicant?s view, it was necessary to recognise that in his particular case the existence of a lift in the building was the same relevant infrastructural requirement as access to water and electricity in general. He also stressed that the house was the first real property in respect of which he sought a real property transfer tax exemption.
16. On 21 March 2012 the High Administrative Court dismissed the applicant?s administrative action as ill-founded, endorsing the reasoning of the lower administrative bodies. The relevant part of the judgment reads:
?Given that the surface area of the flat [which the applicant owned] satisfied the needs of five members of the plaintiff?s family (provision 9.3) and that the flat at issue was equipped with the basic infrastructure and hygiene and technical requirements, the defendant correctly concluded that the plaintiff, in the given case, did not meet the conditions for a tax exemption set out in section 11(9) of the Real Property Transfer Tax Act.
The arguments from the administrative action have no effect on a different decision in this administrative matter and therefore the court considers that the impugned decision did not breach the law to the plaintiff?s detriment.?
17. On 25 May 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) relying on Article 14 of the Constitution and contending, inter alia, that, given the specific accommodation needs of his family due to the disability of his child, he had been discriminated against by an unfair application of the relevant tax legislation. He argued in particular that the competent administrative authorities had failed to correct the factual inequality arising out of his particular situation with regard to the generally implied meaning of the term basic infrastructural requirements meeting the housing needs of his family.
18. On 26 September 2012 the Constitutional Court, endorsing the reasoning of the lower bodies, dismissed the applicant?s constitutional complaint as ill-founded on the grounds that there was no violation of his constitutional rights. In particular, after having examined his complaints from the perspective of the right to a fair trial, the Constitutional Court held that no issue arose with regard to other complaints relied upon by the applicant.
19. The decision of the Constitutional Court was served on the applicant?s representative on 11 October 2012.
C. Other relevant information
20. The Government provided a report of the Ministry of Social Policy and Youth (Ministarstvo socijalne politike i mladih) of 6 November 2013 according to which the applicant?s child had been receiving monthly monetary assistance in the amount of HRK 1,000 (approximately EUR 130) in the period between 19 January 2006 and 10 September 2012, and the amount of HRK 625 (approximately EUR 80) from 11 September 2012 onwards. In addition, he had been engaged in various therapeutic and social assistance activities, and for the period between 29 June 2010 and 2 October 2011 the applicant?s wife had been accorded a special status related to her child?s disability during which period she, inter alia, received HRK 2,500 (approximately EUR 300) monthly.
21. According to the applicant, annual expenses related to the special needs of his son amount to some HRK 80,000 (approximately EUR 10,400). This concerns HRK 28,800 for physiotherapy; HRK 4,500 for logopaedics; HRK 900 for a child neurologist; HRK 7,200 for drugs; HRK 21,175 for a wheelchair (and the State provides an additional support of HRK 8,900); HRK 7,200 for swimming therapy; and HRK 9,150 for daily transport to the day care centre for ten months.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution
22. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:
Article 14
?Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.?
Article 34
?The home is inviolable … ?
Article 35
?Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.?
Article 48
?The right of ownership shall be guaranteed …?
2. Constitutional Court Act
23. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:
Section 62
?1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter ?a constitutional right?) …
2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.?
3. Real Property Transfer Tax Act
24. The relevant provision of Real Property Transfer Tax Act (Zakon o porezu na promet nekretnina, Official Gazette nos. 69/1997, 26/2000, 127/2000 and 153/2002) at the time relevant read:
Section 11
?The real property transfer tax shall not be paid by:
…
9. the citizen who is buying his or her first real property (flat or house) by which he or she is solving his or her housing needs if:
…
9.3. the surface area of the real property, depending on the number of members of the citizen?s immediate family, does not surpass:
…
– for five persons, up to 100 square metres,
…
9.5. the citizen, or members of his or her immediate family, do not have another real property (flat or a house) which meets their housing needs. The real property (flat or house) which meets the housing needs shall be considered any such accommodation which has basic infrastructure and satisfies hygiene and technical requirements. …
9.6. the citizen and the members of his or her immediate family do not own a flat, a holiday house and other real property of a significant value. Another property of a significant value is a piece of land where construction is allowed and business premises where the citizen or his or her immediate family members do not perform a registered [business] activity, and the value of the real property is similar to the value of the real property (flat or house) which the citizen is buying.
…
15. the citizens who have already used their right to a real property transfer tax exemption under the provisions 9, 11 and 13 [of this section] do not have a right to another real property transfer tax exemption.?
4. By-law on the accessibility of buildings for persons with disabilities and reduced mobility
25. The relevant provisions of the By-law on the accessibility of buildings to persons with disabilities and reduced mobility (Pravilnik o pristupa?nosti gra?evina osobama s invaliditetom i smanjene pokretljivosti, Official Gazette nos. 151/2005 and 61/2007) provide:
Section 1
?This By-law provides conditions and the manner of securing an unobstructed access, mobility, stay and work for persons with disabilities and reduced mobility (hereinafter: accessibility) as well as [the manner of] improving the accessibility of buildings for … residential … purposes …?
Section 2
?Accessibility, improvement of accessibility and the [methods for] conforming to accessibility of the buildings referred to in section 1 of this By-law shall be secured by mandatory building design and construction of the buildings so as to secure the elements of accessibility and/or to conform to the conditions of use of [mobility] devices for persons with disabilities … as provided under this By-law.?
III Basic elements of accessibility
Section 7
?The basic elements of accessibility are:
A. the elements of accessibility for overcoming differences in height, …?
A. The elements of accessibility for overcoming differences in height
Section 9
?In order to overcome differences in height in the premises used by persons with reduced mobility, the following elements of accessibility can be used: … lift …?
Section 12
Lift
?A lift shall be used as an element of accessibility for overcoming height differences and it must be used for overcoming height differences of more than 120 centimetres inside or in the outside area.
…?
5. Prevention of Discrimination Act
26. The relevant parts of the Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide:
Section 1
?(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation.
(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives.
…?
Section 8
?This Act shall be applied in respect of all State bodies … legal entities and natural persons …?
Section 16
?Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.?
Section 17
?(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:
(1) a ruling that the defendant has violated the plaintiff?s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff?s right to equal treatment (claim for an acknowledgment of discrimination);
(2) a ban on (the defendant?s) undertaking acts which violate or may violate the plaintiff?s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);
(3) compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages);
(4) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant?s expense.?
27. In 2009 the Office for Human Rights of the Government of Croatia (Ured za ljudska prava Vlade Republike Hrvatske) published a ?Manual on the Application of the Prevention of Discrimination Act? (Vodi? uz Zakon o suzbijanju diskriminacije; hereinafter: the ?Manual?). The Manual explains, inter alia, that the Prevention of Discrimination Act provides two alternative avenues which an individual can pursue, as provided under section 16 of that Act. Accordingly, an individual may raise his or her discrimination complaint in the proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of the Act.
6. Administrative Disputes Act
28. The relevant provision of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 20/2010, 143/2012 and 152/2014) provides:
Section 76
?(1) The proceedings terminated by a judgment shall be reopened upon a petition of the party:
1. if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court?s] judgment, … ?
B. Relevant practice
1. Relevant practice concerning discrimination
29. On 9 November 2010, in case no. U-III-1097/2009, the Constitutional Court declared a constitutional complaint alleging discrimination by a decision of the Parliament on the basis of the political affiliation of a deputy inadmissible for non-exhaustion of legal remedies. The Constitutional Court found that the appellant had failed to pursue both the relevant administrative remedies and the remedies provided under the Prevention of Discrimination Act. However, it declined to determine what the relationship between several possible avenues in a case concerning allegations of discrimination was, on the grounds that it was primarily for the competent courts to determine that matter.
30. In its decisions no. U-III-815/2013 of 8 May 2014, concerning alleged discrimination in obtaining social benefit, and U-III-1680/2014 of 2 July 2014, concerning alleged discrimination in employment, the Constitutional Court confirmed its case-law as to the availability of remedies under the Prevention of Discrimination Act.
31. The Government referred to the judgments of the Supreme Court, no. G?-41/11-2 of 28 February 2012, no. G?-25/11-2 of 28 February 2012 and no. G?-38/11-2 of 7 March 2012, by which actions under the Prevention of Discrimination Act alleging discrimination on the grounds of sexual orientation had been accepted.
2. Relevant practice concerning the application of tax legislation
32. The Government also cited case-law of the Administrative Court (Upravni sud Republike Hrvatske) and the High Administrative Court by which they dismissed actions challenging the refusal of a real property transfer tax exemption on the grounds of the appellants? failure to cumulatively meet the requirements under section 11(9.5) and (9.6) of the Real Property Transfer Tax Act (judgments in the cases no. Us-4028/2009-4 of 1 June 2011, no. Us-14106/2009-4 of 16 May 2012, and no. Us 3042/2011-4 of 19 September 2013; and a judgment of the High Administrative Court, no. Us?-269/2012-4 of 23 January 2013, by which it upheld a decision on tax exemption under section 11(9.3), (9.5) and (9.6) of the Real Property Transfer Tax Act).
33. In each of these cases the administrative authorities conducted a thorough assessment of the comparable values of properties when deciding whether the appellant had a real property of a significant value within the meaning of section 11(9.6) of the Real Property Transfer Tax Act.
III. RELEVANT INTERNATIONAL MATERIAL
A. United Nations
1. Convention on the Rights of Persons with Disabilities
34. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities, A/RES/61/106, 24 January 2007 (hereinafter: the ?CRPD?), ratified by Croatia on 15 August 2007, provide:
Article 2
Definitions
?For the purposes of the present Convention:
…
?Reasonable accommodation? means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; …?
Article 3
General principles
?The principles of the present Convention shall be:
…
(b) Non-discrimination;
…
(f) Accessibility; …?
Article 4
General obligations
?1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes:
(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
…
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.
…?
Article 5
Equality and non-discrimination
?1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.?
Article 7
Children with disabilities
?1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
…?
Article 9
Accessibility
?1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
(b) Information, communications and other services, including electronic services and emergency services.?
Article 19
Living independently and being included in the community
?States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; …?
Article 20
Personal mobility
?States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:
(a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;
(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; …?
Article 28
Adequate standard of living and social protection
?1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.
…?
2. Practice of the United Nations Committee on the Rights of Persons with Disabilities (CRPD)
35. In its General Comment No. 2 (2014) on Article 9: Accessibility, CRPD/C/GC/2, 22 May 2014, the CRPD Committee noted:
?1. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies.
…
29. It is helpful to mainstream accessibility standards that prescribe various areas that have to be accessible, such as the physical environment in laws on construction and planning, transportation in laws on public aerial, railway, road and water transport, information and communication, and services open to the public. However, accessibility should be encompassed in general and specific laws on equal opportunities, equality and participation in the context of the prohibition of disability-based discrimination. Denial of access should be clearly defined as a prohibited act of discrimination. Persons with disabilities who have been denied access to the physical environment, transportation, information and communication, or services open to the public should have effective legal remedies at their disposal. When defining accessibility standards, States parties have to take into account the diversity of persons with disabilities and ensure that accessibility is provided to persons of any gender and of all ages and types of disability. Part of the task of encompassing the diversity of persons with disabilities in the provision of accessibility is recognizing that some persons with disabilities need human or animal assistance in order to enjoy full accessibility (such as personal assistance, sign language interpretation, tactile sign language interpretation or guide dogs). It must be stipulated, for example, that banning guide dogs from entering a particular building or open space would constitute a prohibited act of disability-based discrimination.?
3. Practice of the United Nations Committee on Economic, Social and Cultural Rights
36. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 5: Persons with Disabilities, E/1995/22, 9 December 1994 noted:
?3. The obligation to eliminate discrimination on the grounds of disability
15. Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ?subtle? forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ?disability-based discrimination? may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.?
37. The CESCR reaffirmed its General Comment No. 5 in its General Comment No. 20: Non-discrimination in economic, social and cultural rights, E/C.12/GC/20, 2 July 2009, in the following terms:
?B. Other status
27. The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ?other status? is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. …
Disability
28. In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ?any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights?. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.?
B. Council of Europe
1. The Committee of Ministers Recommendation Rec(2006)5
38. The relevant parts of the Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, of 5 April 2006 read:
?1.2. Fundamental principles and strategic goals
1.2.1. Fundamental principles
Member states will continue to work within anti-discriminatory and human rights frameworks to enhance independence, freedom of choice and the quality of life of people with disabilities and to raise awareness of disability as a part of human diversity.
Due account is taken of relevant existing European and international instruments, treaties and plans, particularly the developments in relation to the draft United Nations international convention on the rights of persons with disabilities.
…
1.3. Key action lines
People with disabilities should be able to live as independently as possible, including being able to choose where and how to live. Opportunities for independent living and social inclusion are first and foremost created by living in the community. Enhancing community living (No. 8) requires strategic policies which support the move from institutional care to community-based settings, ranging from independent living arrangements to sheltered, supportive living in small-scale settings. It also implies a co-ordinated approach in the provision of user-driven, community-based services and person-centred support structures.
2.7. Fundamental principles
The fundamental principles which govern this Action Plan are:
? non-discrimination;
? equality of opportunities;
? full participation in society of all persons with disabilities;
…
4.3. People with disabilities in need of high level of support
4.4. Children and young people with disabilities
The needs of children with disabilities and their families must be carefully assessed by responsible authorities with a view to providing measures of support which enable children to grow up with their families, to be included in the community and local children?s life and activities. Children with disabilities need to receive education to enrich their lives and enable them to reach their maximum potential.
Quality service provision and family support structures can ensure a rich and developing childhood and lay the foundation for a participative and independent adult life. It is important therefore that policy makers take into account the needs of children with disabilities and their families when designing disability policies and mainstream policies for children and families.?
2. The Parliamentary Assembly Resolution 1642(2009) on Access to rights for people with disabilities and their full and active participation in society, reaffirmed by the Parliamentary Assembly Recommendation 1854 (2009) of 26 January 2009
39. The relevant part of the Parliamentary Assembly Resolution 1642(2009) on Access to rights for people with disabilities and their full and active participation in society reads:
?8. The Assembly considers that in order to enable the active participation of people with disabilities in society, it is imperative that the right to live in the community be upheld. It invites member states to:
…
8.2. provide adequate and sustained assistance to families, above all through human and material (particularly financial) means, to enable them to support their disabled family member at home; …
12. The Assembly considers that the creation of a society for all implies equal access for all citizens to the environment in which they live. …?
C. European Union
40. The relevant provisions of the Charter of Fundamental Rights of the European Union (2000/C 364/01) read:
Article 21
Non-discrimination
?1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.?
Article 26
Integration of persons with disabilities
?The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.?
41. On 17 July 2008, in the case C-303/06, S. Coleman v Attridge Law and Steve Law, the Grand Chamber of the European Court of Justice (ECJ) dealt with the question whether Directive 2000/78 of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, must be interpreted as prohibiting direct discrimination on grounds of disability only in respect of an employee who is himself disabled, or whether the principle of equal treatment and the prohibition of direct discrimination apply equally to an employee who is not himself disabled but who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child?s condition. In this connection the ECJ concluded:
?56. … Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).?
42. On 16 July 2015, in the case C?83/14, CHEZ Razpredelenie Bulgaria AD, the Grand Chamber of the ECJ dealt with the question of indirect discrimination on the grounds of ethnic origin related to the interpretation of the Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Charter of Fundamental Rights of the European Union, in particular whether the principle of equal treatment is to benefit only persons who actually possess the racial or ethnic origin concerned or also persons who, although not being of the racial or ethnic origin in question, nevertheless suffer less favourable treatment on those grounds. The relevant part of the judgment reads:
?56. … the Court?s case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person[s] but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman, C?303/06, EU:C:2008:415, paragraphs 38 and 50).?
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
43. The applicant complained of alleged discrimination in connection with an unfair application of domestic tax legislation. He relied on Article 14 of the Convention and Article 1 of Protocol No. 1, which read as follows:
Article 14
?The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.?
Article 1 of Protocol No. 1
?Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.?
A. Admissibility
1. The parties? arguments
44. The Government argued that the applicant had failed to raise his discrimination complaint during the proceedings before the administrative authorities concerning the adoption of the decision on his request for tax exemption. In particular, he had not relied on the provisions of the Prevention of Discrimination Act in his appeal against the first-instance decision nor had he raised the matter in his administrative action before the High Administrative Court. Moreover, he could have instituted separate civil proceedings for damages under the Prevention of Discrimination Act but he had failed to avail himself of that opportunity. Thereby, he had failed to use the effective domestic remedies concerning the allegations of discrimination. The Government conceded that the Constitutional Court had not declared the applicant?s constitutional complaint inadmissible for non-exhaustion of remedies but they considered, without elaborating further on the matter, that the provision on exhaustion of remedies under the Constitutional Court Act had a different scope and meaning from the rule of exhaustion of remedies under the Convention. The Government also pointed out that in his constitutional complaint the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property.
45. The applicant submitted that he had properly exhausted remedies before the administrative authorities and the Constitutional Court. In particular, his complaints at the domestic level concerning the alleged discrimination by unfair application of the tax legislation had not been distinguishable so as to require a separate examination of the discrimination from the property complaint. Thus, by properly exhausting the administrative remedies he had not been required to pursue another remedy under the Prevention of Discrimination Act with the same objective since it was the Court?s well-established case-law that in the case of several potentially effective remedies an applicant was required to use only one of them. In any case, the Constitutional Court had not declared his constitutional complaint inadmissible for non-exhaustion of domestic remedies, which suggested that he had properly exhausted the relevant remedies before the administrative authorities. The applicant also stressed that he had properly raised his complaints before the Constitutional Court, complaining in substance of a discriminatory violation of his property rights related to an unfair application of the tax legislation.
2. The Court?s assessment
46. The Court reiterates that under Article 35 ? 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vu?kovi? and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, ?? 70-71, 25 March 2014; and Gherghina v. Romania (dec.) [GC], no. 42219/07, ? 85, 9 July 2015).
47. Article 35 ? 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vu?kovi? and Others, cited above, ? 72).
48. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, ? 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; and Jeli?i? v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005; and Jasinskis v. Latvia, no. 45744/08, ? 50, 21 December 2010).
49. The Court notes at the outset that there is no dispute between the parties that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination. In particular, an individual may raise his or her discrimination complaint in the proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of that Act (see paragraphs 26-27 above).
50. In the case at issue the applicant contended during the administrative proceedings that the competent tax authorities had failed to treat his situation differently when determining the question of tax exemption for solving his housing needs given the disability of his child and the needs of his family. However, the High Administrative Court considered these arguments irrelevant and declined to give any ruling to that effect (see paragraphs 15-16 above). The Court finds that the applicant thereby raised in substance his discrimination complaint related to his property rights in these administrative proceedings (compare Glor v. Switzerland, no. 13444/04, ? 55, ECHR 2009). He was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 ? 1 of the Convention (see paragraph 48 above).
51. In any case, the Court notes that the Constitutional Court did not declare the applicant?s constitutional complaint inadmissible for non-exhaustion of legal remedies, as it was its practice in other cases concerning discrimination complaints where the appellants had not properly exhausted remedies before the lower domestic authorities (see paragraphs 29-30 above). Accordingly, the Court has no reason to doubt the applicant?s proper use of remedies before the administrative and judicial authorities (see Vladimir Romanov v. Russia, no. 41461/02, ? 52, 24 July 2008; Bjedov v. Croatia, no. 42150/09, ? 48, 29 May 2012; and Zrili? v. Croatia, no. 46726/11, ? 49, 3 October 2013).
52. As to the Government?s argument that the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property in his constitutional complaint, the Court notes that the applicant expressly relied on Article 14 of the Constitution, guaranteeing protection from discrimination, and complained of discrimination by allegedly unfair application of the relevant tax legislation (see paragraph 17 above). He thereby, by raising explicitly his discrimination complaint, which was in substance related to his property rights, provided the Constitutional Court with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 ? 1 of the Convention, namely of putting right the violations alleged against them (see, amongst many others, G?fgen v. Germany [GC], no. 22978/05, ?? 144-146, ECHR 2010; Lelas v. Croatia, no. 55555/08, ? 51, 20 May 2010; Karapanagiotou and Others v. Greece, no. 1571/08, ? 29, 28 October 2010; Bjedov, cited above, ? 48; Tarbuk v. Croatia, no. 31360/10, ? 32, 11 December 2012; and Ja?imovi? v. Croatia, no. 22688/09, ?? 40-41, 31 October 2013).
53. The Court therefore rejects the Government?s objection. It also notes that the applicant?s complaints are not manifestly ill-founded within the meaning of Article 35 ? 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties? submissions
(a) The applicant
54. The applicant submitted that the domestic authorities had established his liability to pay the tax on the basis of an imprecise and unforeseeable provision and without a proper assessment of the particular circumstances of his case. Moreover, they had failed to make any assessment of proportionality of the interference with his property rights. The applicant therefore considered that the refusal to grant him the tax exemption imposed an excessive individual burden on him, contrary to Article 1 of Protocol No. 1. Whereas the applicant accepted that the domestic authorities enjoyed a wide margin of appreciation in the matters of taxation, he pointed out that it was the Court?s well-established case-law that their discretion could not be exercised in a manner incompatible with Article 14 of the Convention.
55. The applicant pointed out that the reason for the refusal of his request for tax exemption was the fact that, under the domestic authorities? understanding of section 11(9.5) of the Real Property Transfer Act, the flat he had owned had been suitable for the housing needs of his family, in view of its surface area (section 11(9.3) of the Real Property Transfer Act) and other infrastructural requirements. Further conditions, such as value of the previously owned property (section 11(9.6) of the Real Property Transfer Act), had had no bearing in the domestic authorities? assessment of his case. This had suggested that in a case such as his, where an individual had already owned a real property, the relevant law envisaged the assessment of the suitability of the previously owned property as the central element for deciding on requests for tax exemption when buying a new real property suitable for living. However, in the applicant?s view, the domestic authorities had failed to conduct an adequate assessment of the circumstances of his case and thus obviously deprived him of adequate procedural means for the protection of his rights.
56. The applicant also pointed out that he had not sought any preferential status but had merely requested the authorities to exempt him from the obligation to pay tax due to the particular circumstances of his case. For the applicant it was obvious that he had not sought tax exemption so as to become unjustly enriched, since he had sold his old flat in order to buy a smaller real property adapted to the needs of his family related to the disability of his son.
57. The applicant further argued that accessibility, as a fundamental feature of housing, qualified as a basic infrastructure equally for all. Thus, any difference in treatment in that respect would imply discrimination. Moreover, in view of the principle of reasonable accommodation, the decisions of the domestic authorities, which failed to adapt the definitions they had used with regard to the particular needs of persons with disabilities, suggested indirect discrimination or discrimination by failure to treat differently people whose situations significantly differed.
58. In the applicant?s view the ground for his discrimination was disability by association related to the needs of his son which had been ignored by the competent domestic authorities. In particular, their assessment of the basic infrastructural requirements for adequate housing had been conducted with regard to the needs of able-bodied people ignoring the fact that the existence of a lift for a disabled person was a fundamental and indispensable feature for housing mandated by the need for an easy and unencumbered access. The authorities had thus discriminated him against by failing to interpret the term ?property that satisfies a family?s housing needs? in a way taking into consideration the accessibility of the property in question. This discriminatory treatment, in the applicant?s view, had no reasonable justification, particularly given that the problem of accessibility impeded his son?s possibility to go out of the flat and thereby restricted all his other rights, such as to adequate health treatment, education and personal development. That consequently affected the entire family which had needed to cope with the problem of accessibility and also had to bear a significant financial burden related to his son?s disability.
(b) The Government
59. The Government accepted that there had been an interference with the applicant?s property rights but they considered that such interference had been lawful, that it had pursued a legitimate aim of securing public finances and that it had been proportionate. Specifically, the Government stressed that the State enjoyed a wide margin of appreciation in matters of taxation and that the domestic authorities had been best placed to assess individual cases. In the case of the applicant, the domestic authorities had sufficiently taken into account his personal situation but had considered that he could not be exempted from taxation as he had not met the requirements under the relevant domestic law.
60. In particular, the Government submitted that section 11 of the Real Property Transfer Act was clear to the effect that a tax exemption could be granted only if the conditions under that provision had been cumulatively met. In the case at issue, the applicant had failed to meet two conditions. First, the flat he had owned at the moment when he had bought the house objectively satisfied the requirements for adequate housing for him and his family. It had basic infrastructure and satisfied hygiene and technical requirements and the tax authorities had no discretion in assessing the term ?housing needs?. In the Government?s view, the tax authorities were neither equipped nor competent to objectively assess numerous specific housing needs of persons who sought tax exemption. With regard to the second condition, the Government submitted that the applicant had not met the value requirement in that he had owned a flat of a significant value. Therefore, the fact that the building was not equipped with a lift had been of no relevance. It was in fact the intention of the relevant domestic law to provide tax exemption as an assistance to those individuals who were buying their first real property and in particular those who did not have any property of a significant value. In the case at issue, the domestic authorities had acted within their margin of appreciation and they had accordingly assessed that the applicant did not need any such financial assistance, which led to the dismissal of his request for tax exemption. Accordingly, in the Government?s view, the applicant had not been required to bear an excessive individual burden.
61. The Government also argued that there had been no discriminatory treatment of the applicant related to the disability of his child since the reason for the dismissal of his tax exemption request was his financial situation. This had an objective and reasonable justification in that the State had sought to protect financially disadvantaged individuals, which the applicant was not given that he had owned an adequate flat.
62. The Government further stressed that the State, as a party to the CRPD, had implemented a number of positive measures aimed at securing accessibility for disabled people and that almost seventy per cent of public buildings in Zagreb had undergone adaptation to that effect. Moreover, a recent visit by the United Nations Special Rapporteur on Disability to Croatia had applauded these efforts made by the State. With regard in particular to the tax exemptions under the Real Property Transfer Act, the Government stressed that the positive measures implemented by the State were primarily aimed at financially disadvantaged individuals and they could not address the needs of all vulnerable groups. However, the State had put in place various tax advantages for disabled persons related, for instance, to income and health services taxation. Moreover, in harmonising its activities with the relevant international requirements, the State had adopted the National strategy for securing equal opportunities for the persons with disability for the period between 2007 and 2015, and is actively conducting various activities at the national and local levels for meeting the needs of disabled people.
(c) The third-party intervention
63. The third-party interveners submitted that the relevant standards of the CRPD, in particular related to the concepts of accessibility, non-discrimination and reasonable accommodation, should inform the Court in assessing the State?s compliance with its Convention obligations concerning people with disabilities. They in particular submitted that there was an intimate link between accessibility and reasonable accommodation which ultimately had the same goal of ensuring effective enjoyment and exercise of rights on an equal basis with others. There were, however, differences between the two concepts in that the measure of general accessibility should be provided in anticipation of the accessibility needs of the disabled population, whereas reasonable accommodation included specific measures directed at a particular individual with a disability, which should be provided immediately.
64. The third-party interveners further pointed out that international human rights law had developed to ensure prohibition of discrimination by association, which concerned instances where an individual was discriminated against not on the grounds of his or her own characteristic but due to his or her relationship to someone else who had such a characteristic. This principle was well-enshrined in several jurisdictions across Europe and could also be found in the Croatian Prevention of Discrimination Act. There had also been an increasing call by international human rights mechanisms for positive measures to be taken by the State to ensure access to housing by persons with disabilities. National jurisdictions, in particular within the European Union, had started to implement these actions, some of which also included tax reductions or exemptions.
65. The third-party interveners also stressed that the enjoyment of rights by persons with disabilities should be secured without any discrimination. Moreover, living in inaccessible homes hindered participation in the life of the community and led to isolation and segregation of the disabled individual and the entire family. In particular, the third-party interveners emphasised that failure to provide reasonable accommodation amounted to disability-based discrimination.
2. The Court?s assessment
(a) General principles
66. The Court notes that the central tenet of the applicant?s complaint is his alleged discriminatory treatment in the application of the relevant tax legislation, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The Court will therefore address his complaint in this respect on the basis of the relevant principles following from its case-law under Article 14 of the Convention.
67. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ?the enjoyment of the rights and freedoms? safeguarded thereby. Although the application of Article 14 does not presuppose a breach of t