I was reading Disability Rights in Europe: from theory to practice, and came across a reference to the cases of Skjoldager v Sweden (( (1995) 22504/93 )) and Malone v UK (( (1996) 25290/94) )) at the European Court of Human Rights (“the ECtHR”).
Skjoldager v Sweden
The applicant, a psychologist, visited a care home for people with learning difficulties where he found a number of residents unlawfully locked in their rooms. Following his report, action was taken which eventually resulted in the removal of the locks. He was, however, denied further access to the residents. Where unlawful detention of this nature has occurred, Article 5(5) requires that compensation be paid. Because none was offered to the residents, the applicant complained to the European Commission. He did so in a represenative capacity, but in his own name because the muncipality had refused to provide him with the names of the residents (who were incapable of lodging the complaints themselves). The case was rejected on the ground that the applicant had no specific authority to make the complaint. The residents were, therefore, effectively outside the protection of the Convention.
Malone v UK
Mandy Malone, a wheelchair user, was the defendant in possession proceedings relating to her council house. Her request that these be heard in a court near to her home was refused. Consequently, in order to reach the court, she had to leave home at 4.30am and undertake a 950 kilometre round trip. As a result, she was confined to her bed for four days and requried medical assistance. Her complaint related to the unfairness of the process and the inaccessibility of the court building (she had to be carried up the steps of the court and experienced ‘excruciating discomfort’ due to the lack of suitable toilet facilities). The Strasbourg complaint was rejected on the grounds that she had ‘failed to appropriately bring to the attention of the court her difficulties’ (( Lawson, A and Gooding, C, Disability Rights in Europe: from theory to practice, 2005 at 28 )).
These two cases serve as a reminder of how difficult it can be to enforce disability rights at the ECtHR, and that the ECtHR”continues to have profound difficulty in identifying and addressing state responsibility for discrimination against disabled people” (( Ibid )). Indeed, there is a paradox here, as the Convention is also silent on the rights of children and gay and lesbian people, but this has not prevented the ECtHR developing caselaw to remdy the injustices they face.
If the ECtHR had some imagination, they would ensure that Article 14 specifically includes disability as an example of unlawful discrimination.