Nyusti and Takács v Hungary, Un Doc CRPD/C/9/D/1/2010 (23 April 2013)
The UN Committee on the Rights of Persons with Disabilities (Committee) held that member states must establish minimum standards to ensure accessibility to banking services for people with disabilities in order to comply with their obligation to avoid discrimination on the basis of disability.
The complainants are two visually impaired Hungarian citizens, both clients of Hungary’s largest private financial institution, the OTP. Their complaint concerns the lack of equal treatment they enjoy compared with other clients of the OTP, who pay the same banking fees but have unimpeded access to automatic teller machines (ATMs).
The domestic case was brought on the basis of provisions of national legislation, namely the Equal Treatment Act (2003), Disabilities Act (1998), and Act on the Formation and Protection of the Built Environment (1997). In the first instance the Metropolitan Court (Court) ruled that the OTP’s behaviour resulted in direct discrimination. The OTP’s argument that retrofitting ATMs operated by the OTP did not constitute positive discrimination was rejected.
The Court clarified that the right to equality does not mean that services must be provided to every client in an identical manner. Rather, the right to equality imposes on service providers (including private sector operators) an obligation to ensure that clients with impairments may access services on their own, without assistance, just like any other client. The Court ordered the OTP to retrofit certain ATMs according to geographical location.
The complainants appealed the first instance decision, arguing that all ATMs must be made accessible in order to put an end to the discrimination. The OTP also appealed the decision, stating once again that the complainants’ action should be dismissed and that their request for making the ATMs accessible put the OTP’s blind or visually impaired clients’ personal safety and the safety of their accounts in peril. The Court of Appeal rejected the complainants’ appeal, stating that the Court of Appeal could not intervene in contracts that were freely concluded by both parties and that seeking assistance to use bank facilities did not violate the human dignity of persons with disabilities.
The complainants then requested review by the Supreme Court, which ruled in line with the Court of Appeal, stating that the ATMs designed for sighted persons did disadvantage visually impaired persons, but that the OTP is exempt from the obligation to provide equal treatment under the Equal Treatment Act and that the parties freely concluded a contract and agreed to a disadvantaged situation through implied conduct.
The Committee reminds Hungary that it must, under article 4, paragraph 1(e) of the Convention, “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise” and that, pursuant to article 9 of the Convention, people with disabilities must have equal access to information, communications and electronic services. Article 9, paragraph 2(b) specifically calls on State parties to “ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities”.
The Committee found that Hungary failed to fulfil its obligations under article 9 of the Convention not only to establish minimum standards for the accessibility of banking services provided by private financial institutions for persons with disabilities, but also to provide appropriate and regular training to judicial officials on the scope of the Convention so that they may adjudicate cases in a manner that is sensitive to the needs of people with disabilities. Further, State parties are required to ensure that their legislation and its implementation are consistent with their international obligations to ensure that persons with disabilities enjoy rights and freedoms on an equal basis with others.
According to a 2009 survey conducted by the Australian Bureau of Statistics, four million people in Australia (18.5%) report having a disability. The Convention was ratified by Australia in 2007 and entered into force in 2008. The Disability Discrimination Act 1992 (Cth) has a similar objective, ensuring that people with disabilities are treated equally.
Interestingly, a survey commissioned by the Australian Human Rights Commission in 2000 found that ATMs in Australia are far from accessible to people with disabilities. The report found that many vision-impaired persons found it impossible or extremely difficult to access ATMs without assistance, and other people with disabilities also encountered various difficulties.
This decision serves as a reminder to Australia and other states to take active steps to ensure that people with disabilities are able to access services on an equal basis with others.
This decision is available online at: http://www.ohchr.org/EN/NewsEvents/Pages/accesstobankingservices.aspx
Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.