Botta v. Italy (153/1996/772/973) 24 February 1998: Private life: includes person’s physical and psychological integrity: lack of facilities for disabled people at beaches

Italy – State’s failure to take measures to remedy omissions imputable to private bathing establishments which prevented disabled people from gaining access to a beach and the sea

I. ARTICLE 8 OF THE CONVENTION

Private life: includes person’s physical and psychological integrity - guarantee afforded by Article 8 of Convention primarily intended to ensure development, without outside interference, of personality of each individual in his relations with other human beings.

Applicant complained in substance of lack of action by State. Article 8: essential object to protect individual against arbitrary interference by public authorities – does not merely compel State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in effective respect for private or family life. These may involve adoption of measures designed to secure respect for private life even in sphere of relations of individuals between themselves.

Concept of respect: not precisely defined – regard to be had to fair balance that has to be struck between general interest and interests of the individual, while State has, in any event, a margin of appreciation.

Court has held that a State has obligations of this type where it has found a direct and immediate link between measures sought by an applicant and latter’s private and/or family life.

Right asserted by applicant (to gain access to beach and sea at a place distant from his normal place of residence during his holidays) concerned interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between measures State was urged to take and applicant’s private life.

Conclusion: inapplicable (unanimously).

I. THE CIRCUMSTANCES OF THE CASE

8. Mr Botta, who was born in 1939 and lives in Trezzano sul Naviglio (Milan province), is physically disabled.

9. In August 1990 he went on holiday to the seaside resort of Lido degli Estensi, near to the town of Comacchio (Ferrara province) with a friend, who is also physically disabled. There he discovered that the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea (particularly special access ramps and specially equipped lavatories and washrooms), in breach of Italian legislation, which required a clause obliging private beaches to facilitate the access of disabled people to be added to the relevant concession contracts and made provision for compliance to be enforced by the competent local authorities. According to Comacchio District Council, the compulsory clause was, however, only added to concession contracts signed after the adoption of the provisions concerned.

10. The applicant asserts that he was for a time able to gain access in his vehicle to certain public beaches without facilities, but was later prevented from doing so because a barrier had been erected across the entrance by order of the Ravenna harbor-master.

11. On 26 March 1991 the applicant sent a letter to the mayor of Comacchio asking him to take the necessary measures to remedy the shortcomings noted the previous year. No reply was received.

12. In August 1991 Mr Botta returned to Lido degli Estensi, where he found that none of the measures requested had been implemented, although they were mandatory. He was therefore obliged to ask the local coastal authority for permission to drive his vehicle onto a public beach without facilities. He also wrote to various local bodies, receiving the following replies: the president of the cooperative which ran the resort’s private beaches informed him that the concession contracts did not stipulate any obligation to install the facilities requested; the local coastal authority replied that it had to receive an official request before it could authorize the construction of special access ramps on the beaches; the mayor asserted that it was the private beaches’ responsibility to install the facilities in question, but nevertheless gave the applicant permission to drive onto a public beach in his vehicle.

In an undated memorandum the coastal authority gave him permission to drive onto a public beach without facilities in his vehicle for a limited period expiring on 31 August 1991.

13. On 9 August 1991 the applicant decided to lodge a complaint with the carabinieri against the Minister for Merchant Shipping, the Ravenna harbor-master and the mayor and deputy mayor of Comacchio. He alleged that, by failing to take any steps whatsoever to oblige the private beaches to install the facilities for disabled people prescribed by law on pain of cancellation of their licenses, these authorities had committed the offence of omitting to perform an official duty (omissione d’atti d’ufficio), as defined in Article 328 of the Criminal Code.

On 20 December 1991 he asked the Ferrara public prosecutor’s office to inform him where matters stood in the case.

On 5 May 1992 the public prosecutor’s office submitted that the proceedings should be discontinued.

14. In an order of 12 May 1992 the judge responsible for preliminary investigations (giudice per le indagini preliminari) attached to the Ferrara District Court ordered the discontinuation of the proceedings on the ground that, having completed his inquiry, he had not found any evidence that the offence defined in Article 328 of the Criminal Code had been committed, given that the beaches’ concession contracts all contained a clause which obliged bathing establishments to make the beaches accessible to disabled people and to install at least one changing cubicle and one lavatory for their use.

On 1 September 1992 Mr Botta once again wrote to the Ferrara public prosecutor’s office seeking information about the state of the proceedings.

On 16 September 1992 he was informed by telephone that the proceedings relating to his complaint had been discontinued.

15. According to information supplied by the applicant and not contradicted by the Government, although some of the private beaches in Lido degli Estensi have subsequently installed changing cubicles and lavatories for disabled people, in July 1997 none of them had yet built a ramp designed to permit disabled people to gain access to the beach and the sea. On 29 August 1997 Comacchio District Council informed the registry of the Court of the adoption, on 11 August 1997, of the resort’s new improvements plan, under which compliance with the law on bathing establishments had to be achieved by 30 April 1999 at the latest.

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

27. The applicant complained, firstly, of impairment of his private life and the development of his personality resulting from the Italian State’s failure to take appropriate measures to remedy the omissions imputable to the private bathing establishments of Lido degli Estensi (Comacchio), namely the lack of lavatories and ramps providing access to the sea for the use of disabled people. He relied on Article 8 of the Convention, which provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

He asserted that he was unable to enjoy a normal social life which would enable him to participate in the life of the community and to exercise essential rights, such as his non-pecuniary personal rights, not because of interference by the State but on account of its failure to discharge its positive obligations to adopt measures and to monitor compliance with domestic provisions relating to private beaches.

By adopting Law no. 13 of 9 January 1989 and Law no. 104 of 5 February 1992, the Italian State had taken on the obligation to guarantee disabled people full respect for their human dignity, namely the right to freedom and independence, integration into the family, education, employment and society. The State also, as in the present case, imposed obligations on third parties and had a duty to enforce the law. It therefore had positive obligations falling within the scope of Article 8 of the Convention.

Limiting the concept of private life to its affective aspects only would not be consonant with the trend of the Court’s case-law, which was based on a pragmatic, common-sense approach rather than a formalistic or purely legal one.

28. In the Commission’s view, the sphere of human relations at issue in the present case concerned a particularly broad range of social relations. The rights asserted by the applicant were social in character, concerning as they did participation by disabled people in recreational and leisure activities associated with beaches, the scope of which went beyond the concept of legal obligation inherent in the idea of "respect" for "private life" contained in paragraph 1 of Article 8.

In that context fulfillment by States of their domestic or international legislative or administrative obligations depended on a number of factors, in particular financial ones. As States had a wide margin of appreciation regarding the choice of the means to be employed to discharge the obligations set forth in the relevant legislation, the right asserted by the applicant fell outside the scope of Article 8.

In any event, the social nature of the right concerned required more flexible protection machinery, such as that set up under the European Social Charter. Article 8 was accordingly inapplicable.

29. The Government agreed. Interpreting Article 8 so broadly as to include in States’ positive obligations the obligation to ensure the satisfactory development of each individual’s recreational activities would amount to altering the meaning of the provision in question to such an extent that it would be unrecognizable to those who had drafted it.

Once the door was open for a development of that type, it would be extremely difficult to set limits. It would be necessary, for example, to take into consideration obstacles resulting from the insufficient means of those who wished to take part in such activities. That approach was likely to transform the Convention institutions into arbiters of the social policies of the States party to the Convention, a role which did not form part of either the object or the purpose of the Convention.

30. In the applicant’s submission, the Commission’s argument about the social character of the right in question was unacceptably reductionism. The right did, admittedly, have economic and social aspects and consequences, but it indubitably had all the features required to bring it within the concept of a legal obligation inherent in respect for family life.

The wide margin of appreciation to be left to the State according to the Commission, which had referred in particular to available financial resources, should not be taken to mean that arbitrary action by the State was justified or that it was legitimate to plead economic difficulties.

In connection with the latter point, the applicant referred to the provisions of Law no. 104/92, Article 42 of which provided for funds to be made available for all work designed to remove architectural obstacles. The fact that expenditure had not been properly estimated was something for which private individuals could not be held to blame.

Lastly, the reference to the new version of the European Social Charter was all the more unacceptable because it had not been opened for signature until 3 May 1996, that is four years after the application had been lodged with the Commission.

31. The Court must determine whether the right asserted by Mr Botta falls within the scope of the concept of "respect" for "private life" set forth in Article 8 of the Convention.

32. Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29).

33. In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and the Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38). However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

34. The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life.

Thus, in the case of Airey v. Ireland (judgment of 9 October 1979, Series A no. 32), the Court held that the applicant had been the victim of a violation of Article 8 on the ground that under domestic law there was no system of legal aid in separation proceedings, which directly affected her private and family life.

In the above-mentioned X and Y v. the Netherlands case, which concerned the rape of a mentally handicapped person and accordingly related to her physical and psychological integrity, the Court found that because of its shortcomings the Dutch Criminal Code had not provided the person concerned with practical and effective protection (p. 14, § 30).

More recently, in the López Ostra v. Spain judgment (mutatis mutandis, 9 December 1994, Series A no. 303-C), in connection with the harmful effects of pollution caused by the activity of a waste-water treatment plant situated near the applicant’s home, the Court held that the respondent State had not succeeded in striking a fair balance between the interest of the town of Lorca’s economic well-being – that of having a waste-treatment plant – and the applicant’s effective enjoyment of her right to respect for her home and her private and family life (p. 56, § 58).

Lastly, in the Guerra and Others v. Italy judgment of 19 February 1998 (mutatis mutandis, Reports of Judgments and Decisions 1998-..), the Court held that the direct effect of the toxic emissions from the Enichem factory on the applicants’ right to respect for their private and family life meant that Article 8 was applicable (p. .., § 57). It decided that Italy had breached that provision in that it had not communicated to the applicants essential information that would have enabled them to assess the risks they and their families might run if they continued to live in Manfredonia, a town particularly exposed to danger in the event of an accident within the confines of the factory (p. .., § 60).

35. In the instant case, however, the right asserted by Mr Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life.

Accordingly, Article 8 is not applicable.

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