The author of the communication is Dionisio González Otero, a Spanish national affiliated with Organización Impulsora de Discapacitados. The author claims that he and other persons affiliated with Organización Impulsora de Discapacitados are victims of a violation by the State party of their rights under articles 3, 4, 5 and 27 to 29 of the Convention. The Optional Protocol entered into force for the State party on 3 May 2008.
The author is a person with a disability and the president of Organización Impulsora de Discapacitados, a not-for-profit organization that promotes the integration of persons with disabilities. On 10 February 2012, Organización Impulsora de Discapacitados applied to the Directorate General for Gambling Regulation for a licence to operate the following charity lottery games: Euroboleto, Euromillonario, Busca OID and Busca OID tus 25,000 euros. On 25 June 2012, the Directorate General for Gambling Regulation rejected the application made by Organización Impulsora de Discapacitados on the grounds that it did not comply with Act No. 13/2011, on gambling regulation, which accords exclusive rights to organize and operate lottery games to Sociedad Estatal de Loterías y Apuestas del Estado (the State Lotteries and Gambling Corporation) and Organización Nacional de Ciegos Españoles (ONCE, the National Organization for Blind Persons).
Organización Impulsora de Discapacitados appealed against the decision of 25 June 2012. On 15 December 2014, the Ministry of Finance and Public Administration dismissed the appeal, indicating that the organization of lottery games other than those that ran only sporadically was reserved for operators authorized under Act No. 13/2011, that Organización Impulsora de Discapacitados was not covered by this Act, and that its lottery games did not meet the requirement of being sporadic. Organización Impulsora de Discapacitados filed an administrative appeal against this decision before Madrid High Court in which it claimed that the refusal of authorization restricted the freedoms enshrined in the Treaty on the Functioning of the European Union and violated several provisions of the Spanish Constitution.
On 28 March 2016, Madrid High Court dismissed the appeal, pointing out that Organización Impulsora de Discapacitados was a private organization whereas Sociedad Estatal de Loterías y Apuestas del Estado and ONCE were public bodies. The Court also noted that States are free to establish their own policies on gambling and lotteries and that Organización Impulsora de Discapacitados could be authorized only to run “sporadic” lottery games. The Court highlighted that Act No. 13/2011 establishes an exclusive right to operate lottery games in order to protect State interests against the risk of fraud and other criminal activity. On 1 June 2016, Organización Impulsora de Discapacitados filed an appeal in cassation before the Supreme Court, claiming that the exclusive concession of this right to ONCE and Sociedad Estatal Loterías y Apuestas del Estado discriminated against other groups and associations of persons with disabilities. On 16 June 2017, the Supreme Court dismissed the appeal, ruling that the exclusive concession of rights to ONCE and Sociedad Estatal Loterías y Apuestas del Estado was not discriminatory as they were public bodies under State control whereas Organización Impulsora de Discapacitados was an autonomous private organization. On 18 July 2017, Organización Impulsora de Discapacitados petitioned the Constitutional Court for amparo against the decision of 16 June 2017. This appeal was declared inadmissible for lack of evidence of constitutional significance.
The author alleges violations of his own rights and of the rights of all other members of Organización Impulsora de Discapacitados under articles 3, 4, 5 and 27 to 29 of the Convention owing to the State party’s refusal to authorize Organización Impulsora de Discapacitados to run its own lottery games, which places Organización Impulsora de Discapacitados at a disadvantage relative to ONCE and other organizations. The exclusive concession of the right to operate lottery games to ONCE and Sociedad Estatal Loterías y Apuestas del Estado is discriminatory to persons with a disability since, by according ONCE preferential treatment as one of the exclusive operators of lottery games, the concession discriminates against persons with disabilities that are not visual. The author reiterates that, while ONCE is an organization dedicated exclusively to assisting persons with visual impairments, Organización Impulsora de Discapacitados covers all forms of disability. According to the author, the “reasons of public order” cited by the national courts and invoked in Act No. 23/2011 in justification of the exclusive concession – namely protecting consumers and preventing fraud and the incitement of excessive expenditure on gambling – are discriminatory. The author also states that, as exclusive operators, Sociedad Estatal Loterías y Apuestas del Estado and ONCE are exempted from paying gambling tax and receive public funding, which is also discriminatory against other organizations such as Organización Impulsora de Discapacitados.
On 16 February 2022, the State party submitted a request for discontinuation of the case, arguing that the author had not provided proof of being the president of Organización Impulsora de Discapacitados and representing its members and that he had also failed to provide proof of his affiliation and that he was acting on behalf of a group of members. On 2 March 2023, the request was forwarded to the author for comment. The author did not submit any comments. A final reminder was sent to the author on 22 November 2023 but he did not respond. The author has not contacted the Committee’s secretariat since the date on which he submitted the communication, and the secretariat has lost contact with him.
At its meeting on 29 August 2024, the Committee, having noted that the author had failed to respond to the repeated requests for comments on the State party’s observations on the communication and for confirmation of his interest in continuing the procedure, decided to discontinue consideration of communication No 91/2021.