The Appellate Court confirmed that the Government and the State Election Commission directly discriminated against persons with disabilities in their access to the voting process

The Appellate Court in Skopje in October, 2023 fully confirmed the judgment of the Basic Civil Court Skopje from March, this year and held that there had been a direct discrimination against persons with disabilities in access to voting process, by the Government of the Republic of North Macedonia and the State Election Commission (SEC). The Court found that they directly discriminated by not acting, i.e., failing to act and undertake appropriate measures to ensure that persons with disabilities have access, on equal basis with the others, to the infrastructure, as well as to and in the voting stations, thus violating the principle of reasonable accommodation. This resulted in preventing and restricting persons with disabilities to enjoy and exercise their right to vote, and their right to actively participate in the political and public life in the country.

The Court obliged the Government and the SEC to enable:

– access to flat roads, parking spaces properly marked with high-contrast color; placement of signs and numbers in a prominent place in a large format with high contrast or sound signaling to the polling stations;

– access to the voting spaces by installing handrails along the stairs and walls; to install access ramps, handrails, wider entrances, to provide an accessible lift or platforms on proper level and with steps;

– access in the voting spaces, its equal lighting, moving of furniture in order to enable greater possibility of movement; installation of properly adapted voting screens and installation of the ballot box at an appropriate height for persons with physical disabilities.

Additionally, the Court imposed an obligation for the Government and the SEC to publish in the media and in an appropriate format, the summary judgment by which it is found that they directly discriminated against persons with disabilities in their access to the voting process, no later than 15 days after its validity and legal effect.

Such a court decision follows after the Helsinki Committee for Human Rights filed the action for protection against discrimination of public interest (actio popularis) on February 1, 2021 and in the court proceedings was represented by the Lawyer Pavlina Zefikj. The whole process was realized with support of the OSCE Mission to Skopje, as part of the implementation of the project “Supporting North Macedonia in advancing Rule of Law and Human Rights” in 2020.

Second-instance procedure for protection against discrimination against persons with disabilities in their access to the voting process and violation of the reasonable accommodation

This decision of the Appellate Court in Skopje was made after the State Attorney’s Office of the Republic of North Macedonia, on behalf of the defendants, on 18 May 2023 filed an appeal against the first-instance judgment. The Appellate Court appreciated the appeal allegations of the defendants, but rejected them as unfounded for a number of reasons.

Namely, the Court confirms that when implementing the law and the electoral process, the Government and the SEC are obliged to provide unhindered, adequate access to the voting stations for persons with disabilities, in order for these persons to exercise their right to vote on equal basis with the others; confirmed that the defendant authorities are obliged to respect the relevant legal provisions related to the electoral process and the ratified conventions and within their competences to take actions for appropriate adaptation and accessibility to the infrastructure, goods and services for these persons. The Court further states that in order to establish discrimination committed in this way, it is sufficient to establish that the necessary actions were not actually taken, that is, that they were omitted to be taken, even though there are legal obligations and competences that impose them. It is not relevant for the Court whether the omission is with a certain intention, when in fact there is an obstacle for these persons to exercise their right to vote.

The Court appreciated, but rejected as unfounded the appeal allegations that the polling stations in which there are deficiencies have not been determined, what those deficiencies consist of and what are the specific actions that the defendants should take or failed to take. In this sense, the Court assesses that this is a declaratory lawsuit, the ultimate goal of which is to determine the existence or non-existence of a certain right or legal relationship, that is, to determine the truth or falsity of a document. A declaratory action can be filed if there is a legal interest on the part of the applicant. According to the Court, it is a positive claim for determination, in accordance with the provision of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention, guided by the true spirit of political ideals and traditions of respect for freedom and the rule of law as a common property of the European civilized and cultural environment, in this article as a fundamental principle guarantees the right to decide fairly and within a reasonable time on the rights and obligations of the citizens, in front of a legally established and impartial court, which in turn means that the citizen’s access to the court is raised to the level of fundamental freedom of every citizen, as his general human right.

The court determines that the competence and obligations of the Government derive from the Constitution, the laws and international documents, as well as according to the general competence of the Government to determine the policy of the implementation of laws and other regulations of the Assembly, and thus the responsibility for their implementation. Regarding the State Electoral Commission, the Court assesses that regardless of who owns the facilities in which the voting is conducted and who manages them, as public facilities that are intended for the electoral processes determined by the State Electoral Commission for this need, during the period of preparation of the elections and during the period of implementation of the elections they are under the authority of the Commission. Accordingly, the responsibility for determining the required number of voting stations and the obligation for their appropriate adjustment to the needs of citizens, including persons with disabilities, is under the authority of the Commission. For both courts, this competence of the State Election Commission derives from Article 167 and Article 168 of the Electoral Code of North Macedonia.

The Appellate Court once again emphasized the established principle of reasonable accommodation as a form of discrimination, defined by the Law on Prevention of and Protection against Discrimination and assessed that reasonable accommodation in the specific case is necessary to ensure the enjoyment or realization of all human rights and freedoms of persons with disabilities on an equal basis with others, and that the manner of reasonable accommodation requested with the lawsuit does not cause a disproportionate or unnecessary burden on the defendants.

Finally, the Court emphasizes that this is an obligation of the Government and the State Election Commission, which they accepted by signing the international conventions and by adopting and implementing laws, which is why they are obliged to implement it through appropriate statistics, assessment and provision of appropriate data for each voting place in terms of accessibility, and thus are obliged to take actions to adequately adapt to the needs of persons with disabilities if this has not been possible so far.

Action for Protection against Discrimination of Public Interest (actio popularis)

One of the crucial novelties in the new Law on Prevention and Protection against Discrimination (LPPD) was the introduction of the action for protection against discrimination of public interest (actio popularis) – Article 35. Under this provision, civic society organizations which pursue a justified interest in the protection of the interests of a particular group or within their activity they also deal with protection against discrimination, may file a lawsuit, if they render it plausible that the conduct of the plaintiff led to the discrimination of a large number of people. The Helsinki Committee proved its active legitimation for filing this action.

Discrimination against persons with disabilities in their access to the voting process and violation of the reasonable accommodation

After thorough analysis and researches in the voting stations, the Helsinki Committee claimed several violations on the side of the defendants including that some of the voting stations do not have available and accessible parking space, only a small part of those voting stations with available parking have a sign for persons with disabilities, an insignificant number of facilities have a universal sign for accessibility and an accessible ramp, in the majority of the voting stations there are no stairs to reach the voting spaces and most of the facilities do not have a lift;1 persons with disabilities do not have access to information about political debates, campaigns and events, the Guidelines for the application of Article 112-a (Voting of a voter person with special needs) of the Election Code does not contain the principles of reasonable accommodation and universal design, the SEC provides a medical model of defining the persons it treats as sick and debilitated, and in this categorization it also includes persons with sensory disabilities;2 restriction of persons with intellectual and psychosocial disabilities to exercise their right to vote and the right to run for office, unavailability of election materials and information in an accessible format for all persons with disabilities; irregular trainings for public and private actors on non-discrimination and on reasonable accommodation, based on the human rights approach instead of the traditional medical approach.3

The Basic Civil Court in Skopje held, and the Appellate Court confirmed, that the Government and the State Election Commission directly discriminated against persons with disabilities, i.e., that they violated the principles of reasonable accommodation and the access to infrastructure, goods and services.

Burden of proof

Both Courts clearly stated that, after shifting the burden of proof to the defendants, they did not propose or submit appropriate proofs which prove that there was no discrimination committed against persons with disabilities (after the recommendations given in the analysis and researches by 2019) and they undertook all necessary measures in the voting stations making them accessible for persons with disabilities and according to the principle of reasonable accommodation.

Additionally, the Appellate Court confirms the Basic Civil Court’s finding that in a democratic society it is of utmost importance for the state to protect, and to enable enjoying and exercising the right of persons with disabilities to vote. The Courts continue by stating that making the voting stations accessible according to the needs of persons with disabilities does not cause disproportionate or undue burden, considering that this issue concerns only some but not all voting stations.

Third party participation

According to the LPPD, on request by the party or on its own initiative may request the court to allow the Commission for Prevention and Protection of Discrimination (CPPD) to act as a friend of the court (amicus curiae). Considering this competence of the Commission, the Helsinki Committee requested the

Commission to exercise it. In April 2021, the CPPD addressed the Basic Civil Court in Skopje and requested it to accept their involvement in the process as a friend of the court by submitting an amicus curiae document. Amicus curiae or a friend of the court is a professional person, organization or body that is not a party in court proceedings, but with its expertise, experience and information in a certain area can advise the court on a certain legal matter, which is the subject of court proceedings.

As a professional and the central body for equality in the country, the Court submitted an amicus curiae which included interpretation of articles of the United Nations International Convention on the Rights of Persons with Disabilities relating to reasonable accommodation, accessibility, equality and non-discrimination – in relation to voting stations and enabling persons with disabilities to exercise their right to vote, as part of participation of the persons with disabilities in the political and public life. In this same submission, the Commission also provided a brief overview of the case law of the European Court of Human Rights, cases in which the court established discrimination on the grounds of disability due to the lack of adequate adaptation.

Another third party participant in the court proceedings was the Coalition MARGINS from Skopje, represented by the Lawyer Natasha Boshkova. The Coalition is both a member and the lead party of the Network for Protection against Discrimination and it advocates for changes and advancement of the antidiscrimination legislation in the country, it provides free legal aid and strategic litigation in cases of discrimination, including for victims of discrimination on the grounds of disability. Considering the mandate of the organization, the Court allowed their request to participate in the court proceedings on the side of the applicant.

Summary of the whole process after submitting the Actio Popularis

The Helsinki Committee for Human Rights filed the action for protection against discrimination of public interest (actio popularis) on February 1, 2021 and in the court proceedings was represented by the Lawyer Pavlina Zefikj. On April 19, 2022, the Basic Civil Court in Skopje there had been a direct discrimination against persons with disabilities in access to voting process, by the Government of the Republic of North Macedonia and the State Election Commission (SEC). The judgment was appealed by the State Attorney’s Office of the Republic of North Macedonia, on behalf of the defendant authorities.

On December 16, 2022, the Appellate Court in Skopje annulled the first-instance decision and sent the case for a retrial in front of the first-instance court. In the retrial, on March 31, 2023 the Basic Civil Court in Skopje again held that the two defendant authorities committed direct discrimination against persons with disabilities in access to voting process. After an appeal was filed by the State Attorney’s Office, the Appellate Court on October 30, 2023 fully confirmed the first-instance verdict and held that there had been a direct discrimination against persons with disabilities in access to voting process, by the Government of the Republic of North Macedonia and the State Election Commission (SEC), which resulted in preventing and restricting persons with disabilities to enjoy and exercise their right to vote, and their right to actively participate in the political and public life in the country.

 

1 Report on auditing and assessing the polling station accessibility for people with different abilities on the territory of Republic of Macedonia. State Election Commission, the International Foundation for Electoral Systems, OSCE Mission to Skopje, 2017.

2 Analysis of the Political Participation of Persons with Disabilities. Elena Kocoska, supported by the OSCE Mission to Skopje, 2017.

3 UN Committee on the Rights of Persons with Disabilities’ Recommendations to North Macedonia, 2018.