Constitutionality Review

Contested Provision

It is envisaged in the contested provision that an additional period of time up to a maximum of 8 years, upon the expiry of the period set out in the first paragraph, may be granted to the relevant municipalities and public institutions and organisations as well as owners of any facilities providing public service, open spaces and public transport vehicles so as to remedy the deficiencies found during the inspection.

Ground for the Request for Annulment

It was maintained in brief that the extension of the period specified in the relevant provision was contrary to the State’s positive obligation to take measures to protect the persons with disabilities and ensure their social integration as well as to promote healthy and orderly urbanization, and that such an extension infringed the principles of social state and equality, as well as being in breach of the right to life, right to protect and improve one’s corporeal and spiritual existence, right to respect for private life, right to education, and right to work. The contested provision was accordingly claimed to be unconstitutional.

The Court’s Assessment

Articles 2 and 3 of Law no. 5378 entail that any public facilities, open spaces and public transport vehicles be rearranged to be made accessible to the disabled persons, and designate a certain time-limit for the completion of such rearrangements as a transition period. In this regard, it is stipulated that an additional period not exceeding “two years” may be granted for the fulfilment of the obligations specified in the first version of the third sentence of Provisional Article 3 § 6 of the aforementioned Law, which was introduced by Article 34 of Law no. 6353. In accordance with Article 7 of Law no. 7252, this period was amended to “three years”, and subsequently to “four years” with Article 15 of Law no. 7333. Finally, the phrase “...four years...” in the aforementioned sentence was amended to “...eight years...” in accordance with the contested provision. Thus, the periods envisaged for the transition period in both Provisional Article 2 and Provisional Article 3 have been extended several times through statutory regulations.

It is clear that the extension, for several times, of the time-limit determined for rearranging public facilities, open spaces and public transport vehicles to accommodate the needs of disabled persons would have an unfavourable bearing on the disabled persons in so far as it relates to the opportunity to participate in social life, take part in working life and maintain their lives in a self-sufficient manner.

In addition, the relevant Law stipulates the establishment of a commission to inspect whether all kinds of public facilities, open spaces and public transport vehicles have been rearranged to accommodate the needs of disabled persons, and Provisional Article 4 thereof stipulates the imposition of administrative fines on those who have been determined by the inspection commissions to have failed to fulfil their obligations within the statutory time-limit. However, the continuous extension of the time-limit for such an arrangement renders the aforementioned inspection mechanism stipulated by the Law dysfunctional and precludes the imposition of administrative sanctions on those who fail to comply with the obligations stipulated by the Law. The continuous extension of time-limit may dissuade those, who are obliged to take steps in order to make these spaces and public transport vehicles accessible to disabled persons, from fulfilling their obligations.

In addition, it is clear that rearranging any public facilities, open spaces and public transport vehicles in a way making them accessible to disabled persons will not impose an excessive burden on the relevant public authorities and private persons, and that the said facilities, spaces and public transport vehicles may be made accessible to disabled persons with some minor modifications, repairs and additions.

Accordingly, having regard to the date on which the Law was published, the Constitutional Court has concluded that the impugned extension of the period for a further four years to carry out the necessary works and procedures to render any public facilities, open spaces and public transport vehicles accessible to disabled persons has been in breach of the State’s positive obligation to protect the disabled persons and to take the necessary measures for ensuring their social integration within the scope of the right to protect and improve one’s corporeal and spiritual existence.

Consequently, the contested provision has been found unconstitutional and therefore annulled.