G.B. v. Lithuania

The author of the communication is G.B., a national of Lithuania born in 1962. The author claims to be the victim of violations by the State Party of articles 3 (a), 5 (3), 9 (1) (a), 19 (a), 20 (a) and (b) and 28 (1) of the Convention. The Optional Protocol entered into force for the State Party on 17 September 2010. The author is represented by counsel.

On 29 January 2020, the State Party requested that the admissibility of the communication be examined separately from the merits. On 2 April 2020, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the State Party’s request.

On 7 and 21 January 2021, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the requests from the author’s counsel for protection measures and for his anonymity, respectively.

Following an accident, the author had an operation on 23 December 2001, spent 57 days in coma and lost 80 per cent of his capacity to work. He cannot walk, as the entire left side of his body is paralysed, and he is unable to use a wheelchair or wash himself. The author thus requires reasonable accommodation in the form of adaptation of his apartment. In an undated quotation, Barnasta, a private limited liability company, estimated the costs of the work necessary to the author’s apartment on Sopranų Street in Kaunas at €15,379.70. The author’s monthly income is €419.50.

On 20 May 2002, the author applied to the Municipality of Kaunas for reasonable accommodation. From 2006 to 2009, the author’s application for accommodation was suspended, as he was searching for another dwelling.³ On an unspecified date in 2015, following the absence of any action by the Municipality, he sued the latter and claimed €15,379.70 in pecuniary compensation, to cover the amount given in the quotation, €3,000 in nonpecuniary damages and 5 per cent annual interest. On 11 November 2015, Kaunas District Court dismissed his application, which it had considered in relation to the adaptation of an apartment he had meanwhile bought on Kudirkos Street in Kaunas, on the ground that adaptation of accommodation for persons with disabilities was possible only when the person had declared their place of residence at the dwelling and lived there. The author failed to comply with those criteria, despite having been informed of them several times. The author was evicted from the dwelling on Sopranų Street on 18 August 2015 pursuant to a decision dated 16 September 2010. He registered his place of residence on Kudirkos Street on 6 October 2015.

3. The State Party notes that, during the Soviet occupation, real estate property was nationalized and, after Lithuania regained its independence, newly adopted laws allowed citizens to have their property rights restored. Property was thus returned to the owners and persons living in affected apartments were paid market value compensation. Thus, on 29 December 2008, a decision was adopted to provide the author and his family with 254,000 Lithuanian litas, as their apartment on Sopranų Street was to be returned to its owners. The author and his family bought the apartment on Kudirkos Street on 7 October 2009 with the money. As the decision was implemented on 29 December 2008, the family had to vacate the old apartment by 29 April 2009. On 13 October 2009, the author requested the adaptation of the apartment on Kudirkos Street, although his wife kept requesting an adaptation of the apartment on Sopranų Street until 2015. ↩

On 2 June 2017, a housing adaptation commission established by the Municipality of Kaunas on 26 April 2017 informed the author that it had decided to adapt his accommodation, within six months, according to that commission’s preliminary description of the adaptation necessary, provided that he present proof that the majority of the owners of the building consented to the adaptation of the communal areas, as required in the Civil Code. The legislation in force at the time provided for such adaptation to be done according to a waiting list. However, the author did not agree to those conditions. The author submits that he provided proof of consent on 16 May 2017. According to the relevant part of article 11 (3) of the Law on social integration of persons with disabilities, when the owners of the apartments or other parts of the building decide not to adapt the commonly used spaces of the apartment buildings or they decide that the spaces should be adapted with funds not provided by them, the decision is made by the municipal authorities, following the procedure laid out in the procedure for adapting housing for persons with disabilities of the Minister of Social Security and Labour.

In its decision dated 7 November 2017, Kaunas Regional Court referred to articles 2, 19 (a) and 28 (1) of the Convention. It found that the long period that the author had been required to wait for the housing adaptation was contrary to his rights under the Convention and under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), and that it could not be justified by the limits established in applicable regulations. The Court found that the author was entitled to compensation of no more than the equivalent of 148 basic social payments and granted pecuniary compensation amounting to €5,624, which is the maximum amount that can be awarded for reasonable accommodation under section 55 of Order No. A1-560 of the Minister of Social Security and Labour, and €1,500 for non-pecuniary damages with 5 per cent annual interest in relation to the absence of a reaction by the Municipality for 15 years. On 6 February 2018, the author filed a cassation appeal. On 13 February 2018, the Supreme Court declared his appeal inadmissible as his submissions did not meet the cassation requirements.

The author claims that, in its decision dated 7 November 2017, Kaunas Regional Court qualified the lack of provision of reasonable accommodation since 20 May 2002 as a breach of articles 19 (a) and 28 (1) of the Convention. The Court did not question the quotation of Barnasta for €15,379.70 or the need for the work mentioned in it. According to the author, section 55 of Order No. A1-560 and the amount of the award granted to him are contrary to his full enjoyment of his right to live in the community with choices equal to others and to his full inclusion, as the award only amounts to 36 per cent of the quotation. Furthermore, it is insufficient for accommodating him in his dwelling. Section 55 of Order No. A1-560 and the award granted under it are therefore also contrary to his rights to an adequate standard of living and adequate housing under article 28 (1) of the Convention.

According to the author, section 55 of Order No. A1-560 is contrary to his rights under articles 5 (3), 9 (1) (a) and 20 (a) and (b) of the Convention. The author argues that awarding €5,624 instead of €15,379.70 does not amount to taking “all appropriate steps” or to providing “reasonable accommodation” under article 5 (3) of the Convention. The amount of the award was also contrary to his right to participate fully in all aspects of life and to have access to the physical environment, including buildings, under article 9 (1) (a) of the Convention, as, at the time of the submission of the communication, he had been “imprisoned” at his home for 16 years. It is further contrary to his right to personal mobility under article 20 (a) and (b) of the Convention, as he is unable to move around inside his apartment because the doors are insufficiently wide, he is unable to shower or use the toilet independently and the State Party has failed to allow the author to have Barnasta install assistive technologies in his apartment.

The author invites the Committee to request that the State Party reopen his case, pay him the difference between the Barnasta quotation and the award granted to him of €9,755.70 plus 5 per cent interest compounded annually, non-pecuniary damages of €10,000 and costs of €10,000. The author requests that the State Party be invited to educate public servants and judges about the rights under the Convention; to dismiss public servants who deny the binding nature of the Convention and the Committee’s Views and concluding observations; to ensure that the present breaches of the Convention are investigated promptly, thoroughly and impartially; to hold the perpetrators to account; and to avoid committing the same breaches in the future.

In its observations dated 29 January 2020, the State Party notes that the author filed a claim for compensation directly with Kaunas District Court rather than presenting it to the Municipality, as the legislation in force at the time allowed. The State Party argues that the author breached the rights of other persons with disabilities on the waiting list who were waiting for compensation and who complied fully with the requirements by applying directly to the District Court instead of applying to the Municipality.

The State Party argues that the author only complained about the amount of pecuniary and non-pecuniary compensation granted to him and that he never complained about violations of articles 5 (3), 9 (1), 19 (a), 20 (a) and (b) and 28 (1) of the Convention or about the incompatibility of the regulations on housing adaptation with the Convention. The State Party notes that the amount was determined in accordance with article 55 of the description of the adaptation of accommodation in force at the time, according to which a maximum of €5,624 may be allocated to cover the costs of adjustments to one dwelling for a person with disabilities. The State Party therefore submits that the communication is inadmissible under article 2 (d) of the Optional Protocol for failure to exhaust domestic remedies.

The State Party further submits that the communication is inadmissible under article 2 (e) of the Optional Protocol as insufficiently substantiated and incompatible with the provisions of the Convention. According to the State Party, the author has not indicated how it has breached his rights under the Convention. In accordance with article 9 (1) of the Convention, the State Party’s legislation ensures the adaptation of accommodation for persons with disabilities according to their requirements and it has mechanisms in place for the provision of such services. The State Party observes that the Convention does not regulate the exact rules on the adaptation of accommodation. Therefore, the application of a requirement to declare one’s place of residence beforehand should be considered reasonable.

In his comments dated 28 February 2020, the author affirms that he has exhausted domestic remedies. The State Party’s argument to the contrary concerning his claim under article 5 (3) of the Convention constitutes an abuse of procedure. The author argues that exhaustion of this provision entails the exhaustion of his claim under article 3 (a) of the Convention, as he could not have his apartment made accessible without the consent of his neighbours. He also exhausted remedies in relation to his claims under articles 9 (1), 20 (a) and (b) and 28 (1) of the Convention, as he could not afford to pay for the works and assistive technologies required for him to be able to enjoy adequate housing and personal mobility. The author affirms that his objection to the amount of the compensation amounts to a complaint of a violation of articles 5 (3), 9 (1), 19 (a) and 20 (a) and (b) of the Convention. He claims that the provisions of the Convention cannot serve as a legal basis for a cassation appeal under the Civil Procedure Code.

The author notes that the State Party does not claim that any adaptation listed in the quotation of Barnasta would be unreasonable or unnecessary or that another provider could deliver it more cheaply. He affirms that he has sufficiently substantiated the claim that the inadequacy of the compensation constitutes a breach of his rights under article 5 (3) of the Convention and that his other claims are consequently also sufficiently substantiated. His claim of €3,000 for non-pecuniary damages for the delay, the nature of the domestic procedure and his moral suffering amounts to the substantiation of his claim under article 3 (a) of the Convention. Moreover, an important part of the domestic proceedings concerned the neighbours’ refusal to provide consent for discriminatory reasons. He has also sufficiently substantiated his claims under article 9 (1), as he cannot access the physical environment without reasonable accommodation, article 20 (a) and (b), given the lack of personal mobility and assistive technologies, and article 28 (1) of the Convention, as the State Party refused to adapt his apartment to his requirements or to pay him the compensation required. The State Party’s arguments on admissibility actually concern the merits, amounting to an abuse of procedure.

The author argues that the State Party is responsible for his request for adaptation having been suspended from 2006 until 2009, as it had unilaterally decided to expropriate his apartment on Sopranų Street and forced him to look for a new one and live without reasonable accommodation in the meantime. The author disputes the claim that the delay in the procedure was due to his failure to declare his place of residence and to live there: as the apartment on Kudirkos Street was not adapted at all, he could not move there. On 6 October 2015, the police forcibly moved him to the apartment on Kudirkos Street and he was ordered to pay for this intervention.

The author notes that the domestic courts did not accept the State Party’s argument that he failed to apply for reasonable accommodation to the Municipality of Kaunas. The State Party required him to produce evidence of the neighbours’ consent even though the latter were hostile to him and insulted him, in breach of his rights under article 3 (a) of the Convention. The author affirms that the Convention does not authorize setting a limit of €5,624 for providing reasonable accommodation. The author requests that he be granted the difference between the amount in the quotation and the compensation granted, a three-month gross average Lithuanian salary as non-pecuniary damages related to the delay in the procedure and his legal costs.

In its observations dated 27 July 2020, the State Party reiterates that the communication is inadmissible. On the author’s allegations relating to article 5 (3) of the Convention, it notes that the Law on social integration of persons with disabilities constitutes the main domestic law on the rights of persons with disabilities. On 1 September 2016, an amendment to article 11 (3) of the law entered into force, which provides that, in case of disagreement with the owners of communal areas regarding their adaptation, the municipality can decide to adapt the area regardless. According to the State Party, the author distorts the facts of the domestic proceedings, which were less about the co-owners’ refusal to adapt the communal areas of the house than about the award of compensation and damages. The State Party notes that the maximum amount of compensation is determined taking into account the possible housing adaptation works, the price of the equipment required and the economic situation of the country.

Regarding the author’s allegations under articles 9 (1), 19 (a) and 20 (a) and (b) of the Convention, the State Party reiterates that the Convention does not regulate the conditions for providing accommodation and that a legal requirement of declaring one’s residence should be considered reasonable. The procedure for adapting housing for persons with disabilities of 19 February 2019, approved by the Minister of Social Security and Labour, establishes requirements for applicants for adapted housing and determines what kind of works can be performed, inter alia. This procedure is currently being improved, taking into account the proposals of non-governmental organizations. The requirement that the adapted accommodation be the actual place of residence of the person concerned does not apply if the accommodation is not completed or equipped. The regulation in force at the time of the facts provided for adaptation by the municipality or by the individual with funding from the municipality. The author had the right to have his housing adapted, but he did not express any such wish to the Municipality of Kaunas. Since 2019, housing can be adapted without regard to the order of the submission of applications. The current procedure provides that, for a person with a special permanent care need or a need for any type of wheelchair, compensation for the costs of housing adaptation may be paid to cover all or part of the difference between the value of the unsuitable housing sold and the adapted housing purchased. The costs are paid when the applicant’s accommodation is included in the list of housing to be adapted in the current year and if the applicant actually and by declaration resides in the housing. Various types of mobility aids, devices and assistive technologies can be provided, including to the author.

Regarding the author’s claim under article 28 of the Convention, the State Party notes that, under the Law on housing acquisition or lease, a person with disabilities is entitled to housing assistance in case of a severe or moderate degree of disability, or 40 per cent or lower level of working capacity, and if the value of the person’s property and their income do not exceed prescribed amounts. The State Party reiterates that the housing commission decided to adapt the author’s housing at the expense of the Municipality, but that the author did not agree with the conditions set. The State Party considers that it has ensured the author’s right to choose his place of residence on an equal basis with others and facilitated his mobility. There has not therefore been a violation of the Convention.

In his comments dated 14 November 2020, the author reiterates his previous claims and, in addition to the remedies previously requested, he requests €1,000 in damages concerning the State Party’s argument that he breached the rights of other persons with disabilities, which he qualifies as an insult and reprisal.

In its additional observations dated 17 March 2021, the State Party argues that, in his latest comments, the author raises a new claim under article 3 (a) of the Convention and that it is unacceptable for authors to raise new claims without any limitation at any stage of the proceedings. The State Party notes that, in a decision dated 29 December 2016, the Supreme Court stated that, for an apartment to be adapted to the requirements of a person with disabilities, the person has to file a corresponding request. However, the author did not declare his place of residence in a timely manner and did not express his wish to the Municipality to adapt his apartment independently. As he did not agree to have his apartment adapted to his requirements within six months with municipal funds following the provision of proof of his neighbours’ consent and of the absence of restrictions concerning the apartment, he was provided with compensation instead. According to the State Party, it would be an excessive burden on its budget if persons who had refused full adaptation of their apartments later received full reimbursement for their expenses to adapt their apartments to their individual requirements.

The State Party argues that there is no evidence of the neighbours’ disagreement with the adaptation of the communal areas or their insults. The author did not raise these points at the domestic level and his counsel has committed an abuse of the right to submit a communication in fabricating them. Moreover, even if the neighbours had disagreed, the Municipality could have decided to adapt the communal areas without their consent. The State Party disputes that the author’s request to suspend the examination of his adaptation request between 2006 and 2009 resulted from the authorities’ intimidation of persons with disabilities. On the contrary, he was adequately compensated for the restitution of the apartment on Sopranų Street. The courts established that there was no evidence that this apartment was adapted to his requirements. Furthermore, the equipment there could be easily have been moved to his new apartment.

The State Party considers that the author’s request for pecuniary and non-pecuniary compensation is unsubstantiated and excessive, as he has already received compensation; that his request for €1,000 for alleged insults is incomprehensible as the authorities never insulted him; and that his request to pay €13,000 is excessive taking into account the poor quality of the representation and controversial given the author’s material situation. Moreover, the domestic authorities are better placed to decide upon the issue of compensation.

In his comments dated 28 July 2021, the author argues that the Optional Protocol does not set a time limit for making claims under the Convention and that the State Party has had a reasonable opportunity to reply to his claim under article 3 (a) of the Convention. He reaffirms that Kaunas Regional Court analysed the applicability of articles 19 (a) and 28 (1) and that he invoked articles 9 (1) and 20 (a) and (b) of the Convention in substance.

The author argues that the State Party falsely claims that he was fully compensated for the confiscation of his apartment on Sopranų Street. The apartment was 52.36 square metres, but he was compensated for only 42.76 square metres and not at all for the garage, a storage space or his investment in work to the property, including the fact that he had widened two doors and removed thresholds. According to the author, his expulsion from a partially adapted apartment to a non-adapted apartment without full compensation or an eviction order constitutes torture. According to the author, the State Party rationalizes the neighbours’ discrimination against him, and the lack of adaptation shows that his apartment cannot be adapted without the signatures of the neighbours. The author was unable to accept the draft settlement agreement of 2 June 2017, as it contained no time frame or budget. The author argues that section 55 of Order No. A1-460 of 10 August 2015 sets a ceiling of €8,740 for adaptation equipment and €7,030 for adapting an apartment, or €15,770 in total, which is more than the amount indicated in the Barnasta quotation.

According to the author, the State Party’s submission of 17 March 2021 constitutes an attack on him and his counsel and reprisal for defending the author’s rights, for which he requests compensation of one average monthly salary to be paid to both him and to his counsel. The author argues for pecuniary damages of €9,755.70 plus €2,000 to compensate his investment in the partial adaptation of his apartment on Sopranų Street. The author requests that the Committee formulate the amount of compensation due to him in specific figures.

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 70 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes the author’s claims regarding the suspension of his application for the adaptation of his apartment from 2006 to 2009 and the decision dated 29 December 2008 regarding the compensation for the expropriation of his apartment on Sopranų Street. However, the Committee notes that the Optional Protocol entered into force for the State Party on 17 September 2010 and that the author has not substantiated the claim that said facts constituted violations that continued on or after said date. Therefore, the Committee finds these parts of the communication inadmissible under article 2 (f) of the Optional Protocol.

The Committee notes the State Party’s submission that the communication is inadmissible under article 2 (d) of the Optional Protocol as the author did not raise the incompatibility of the regulations on housing adaptation with the Convention in the context of domestic proceedings. In that regard, the Committee observes that the communication largely concerns the alleged inadequacy of the compensation granted to the author in connection with the adaptation of his apartment and the conditions set by the authorities for said adaptation. Specifically, the Committee notes the State Party’s uncontested argument that a municipal housing adaptation commission established on 26 April 2017 informed the author that it had decided to adapt his accommodation, within six months, subject to the condition that he would provide proof that the majority of the owners of the building had consented thereto and of the absence of certain restrictions concerning the apartment. The Committee thus notes that reasonable accommodation was offered to the author in the form of adaptation of his apartment by the municipal authorities. Regarding the author’s claim that said accommodation was unreasonable, as he could not fulfil the conditions applicable and that the draft settlement agreement did not contain a budget or time frame, Kaunas Regional Court noted in its decision of 7 November 2017 that the author had disagreed with the decision by the housing adaptation commission, but that there was no indication on file that he had complained, in substance, to the domestic courts that those conditions and circumstances were contrary to his rights under the Convention. Furthermore, the decision of Kaunas Regional Court of 7 November 2017 mentions that the draft agreement included a six-month time frame. Moreover, regarding the author’s claims about his eviction and the calculation of interest, the Committee notes the absence of any documents on file concerning the execution of the eviction, or of any indication that he argued, in substance, that the start date of the interest constituted a violation of his rights under the Convention, or that he had been subjected to torture. The Committee thus considers that the author has failed to exhaust domestic remedies in relation to these claims under articles 3 (a), 5 (3), 9 (1) (a), 19 (a), 20 (a) and (b) and 28 (1) of the Convention and finds them inadmissible under article 2 (d) of the Optional Protocol.

The Committee notes the State Party’s submission that the communication is insufficiently substantiated under article 2 (e) of the Optional Protocol. In that regard, the Committee notes that the author claims a violation of his rights under the Convention regarding the delay in adapting his apartment. However, the Committee notes that Kaunas Regional Court determined that said delay constituted a breach of his rights under the Convention and that it awarded him compensation for pecuniary and non-pecuniary damages. To the extent that the author maintains those claims in his communication, the Committee considers that he has insufficiently substantiated his claim that the violation of his rights has not been effectively remedied by means of the compensation granted to him. The Committee further notes the author’s allegations that the State Party’s submissions in the present communication constitute reprisals against him and his counsel. However, the Committee considers that the author has not provided any evidence to show that the State Party’s submissions constitute intimidation or reprisals against them. The Committee therefore considers that these parts of the communication are inadmissible under article 2 (e) of the Optional Protocol as insufficiently substantiated.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 (d)–(f) of the Optional Protocol;