ON BEHALF OF MONTENEGRO
HIGH COURT IN PODGORICA, as a second instance in a panel composed of judges: Radonja Radonjić, president of the panel, Nina Radunović and Ognjana Boljević, members of the panel, in the legal matter of the plaintiff Miroslava Mima lvanović from Kotor, represented by attorney Tijana Živković, a lawyer from Podgorica, against the defendant 9.000,00st order JU of the Center for Social Work for the municipalities of Kotor, Tivat and Budva, represented by Samardžić Rajka, Bachelor of Laws employed by the same and defendant 4910nd order Montenegro, represented by the legal representative of the Protector of Property and Legal Interests of Montenegro, and Vanja Stanković, advisor employed by the same, for the purpose of protection against discrimination, vs. €20, deciding on the appeal of the defendant II level filed against the verdict of the Basic Court in Podgorica P. no. 19.11.2021/07.12.2022 dated XNUMX. year, in the council session held on XNUMX. year, he brought
JUDGMENT
The appeal of the defendant II is REJECTED as unfounded and the judgment of the Basic Court in Podgorica P. no. is CONFIRMED. 4910/20 from 19.11.2021. year in paragraphs two, three, four, six, eight, nine and ten of the sentence in relation to this defendant.
Form and marriage
By the judgment of the Basic Court in Podgorica P. no. 4910/20 of 19.11.2021. year, it was decided:
"The claim is accepted, and it is established that the defendant of the first order committed direct discrimination against the plaintiff by conducting the administrative procedure with reference number no. 128/20- 0102-2468/2, in a way that made it difficult for the plaintiff to participate fully and effectively in the proceedings and to exercise her rights, as well as by not taking or implementing regulations and special measures appropriate to the plaintiff's disability, all with the aim of ensuring her effective participation in the administrative procedure for exercising the right to free access to information.
It is established that the defendant of the second order committed a more serious form of direct discrimination against the plaintiff, by conducting administrative procedures with final designation no. 02-037/20-298/2 and UPl- 113-037/20-48-5, in a way that hindered the full and effective participation of the plaintiff in the proceedings and the exercise of her rights, as well as by not undertaking or implementing regulations and special measures appropriate the plaintiff's disability, all with the aim of ensuring her effective participation in administrative procedures for realizing the right to free access to information.
The defendants of the first and second order are prohibited from repeating acts of discrimination, i.e. the defendants of the first and second order are prohibited from providing the requested information to the plaintiff in forms that are not accessible, as well as conducting administrative procedures according to the plaintiff's requests for free access to information in a way that makes it difficult for the plaintiff to fully and effectively participate in the proceedings. , as well as failure to take or implement regulations and special measures appropriate to the plaintiff's disability.
The defendants of the first and second order undertake to take all the necessary measures so that the committed discrimination will not be repeated, that is, the defendants of the first and second order undertake to deliver the requested information and/or documents to the plaintiffs in audio form in the future upon requests for free access to information, when whatever the plaintiff requests.
The defendant of the first order undertakes that, in the administrative procedure, job designation no. 128/20-0102-2468/2 to provide the requested information and documentation in audio format to the plaintiff.
The defendant of the second order undertakes that in the administrative proceedings no. 02-037/20-298/2 and UPl- 113-037/20-48-5 to the plaintiff to provide the requested information and documentation in sound format.
The defendant of the first order undertakes to pay to the plaintiff the amount of €1.500,00 each in the name of non-material damage compensation for repeated direct discrimination and violation of personal rights - the right to honor, the right to reputation, the right to private protection life, the right to dignity, with legal interest from the day the lawsuit is filed, until the final payment.
The defendant of the second order undertakes to pay the plaintiff, due to the severe form of direct discrimination based on disability, the amount of €3.000,00 each in the name of non-material damage compensation for the repeated direct discrimination suffered and the violation of personal rights - the right to honor, the right to reputation, the right to protection of private life, the right to dignity, with legal interest from the date of filing the claim, until the final payment.
The defendants of the first and second order undertake to publish, at their own expense, the final judgment from this litigation in all electronic and printed media in Montenegro.
The defendants of the first and second order are obliged to jointly and severally pay the amount of €1.020,93 to the plaintiffs in the name of compensation for the costs of the litigation, within 15 days from the day the judgment becomes final, under the threat of enforcement.
Against the first-instance verdict in paragraphs two, three, four, six, eight, nine and ten of the sentence, the defendant of the second order filed a timely appeal due to a significant violation of the provisions of the civil procedure from Article 367 paragraph 2 point 15 of the ZPP, wrongly and incompletely established factual situation and wrong application of substantive law. In the appeal, it is essentially stated that the court draws an incorrect conclusion about the responsibility of the second defendant because if it is taken into account that in cases no. 02-037/20-298/2 I UPI -113- 037/20-48-5 here the plaintiff the applicant for free access to information filed complaints with the Agency for Personal Data Protection and Access to Information, which procedures have not yet been completed and in which procedures the plaintiff's right to access the requested information will be exhausted. That the lawsuit was premature and there was room for rejection of the lawsuit in relation to the second defendant, because the right of the plaintiff will be exhausted in the administrative proceedings based on her appeals. That the first-instance court incorrectly applied the substantive law provisions referred to in the Law on Prohibition of Discrimination and the Law on Prohibition of Discrimination of Persons with Disabilities, because the administrative proceedings regarding which the court determines discrimination have not yet been completed. It was suggested that the contested part of the appeal be adopted, modified and rejected as unfounded.
No response to the complaints has been filed.
Examining the regularity and legality of the impugned verdict on the occasion of the appeal, while taking care of the proper application of substantive law and violation of the provisions of civil procedure in the sense of the provision of Article 379 paragraph 1 of the Civil Procedure Code, this court finds that the second order appeal of the defendant is unfounded.
The first-instance judgment was rendered without significant violations of the provisions of the civil procedure, which this court observes ex officio under Article 367, paragraph 2, items 3, 7 and 12 of the ŽPP, on the basis of a fully and accurately determined factual situation, with the correct application of substantive law, and it is not affected by a significant violation from Article 367 paragraph 2 point 15 of the Civil Code, which is pointed out by the appeal, because the judgment contains sufficient and valid reasons for decisive facts, which arise from the presented evidence.
The subject of the dispute is the plaintiff's request to establish that the defendant, by not providing the requested information in an accessible form that corresponds to her capabilities and needs, by conducting administrative proceedings in a manner that made it difficult for the plaintiff to fully and effectively participate in the proceedings and in exercising her rights, as well as by not undertaking or not implementing regulations and special measures appropriate to the plaintiff's disability in order to ensure her effective participation in the proceedings in question, acted in a discriminatory manner towards the plaintiff, and are the same reason for the present lawsuit.
From the state of the case files, it follows that the plaintiff is a disabled person, as she suffers from chronic juvenile arthritis that damaged her vision and limited all movements, that due to the said illness, the plaintiff uses a wheelchair to move around, while due to her visual impairment, the plaintiff can receive information via audio. format and in electronic format using speech software for computer and mobile phone. That on June 16.06.2020, 02.12.2019, the plaintiff submitted Requests for free access to information to the Center for Social Work for the municipalities of Kotor, Tivat and Budva, the defendant of the first order, and the Ministry of Labor and Social Welfare, the defendant of the second order, with which she requested to be informed about what measures and activities, in the period from 16.06.2020 to 1664, the defendants undertook to implement the second paragraph of the final judgment of the Basic Court in Kotor P. no. 16/16/25.11.2017 of XNUMX . That the plaintiff in paragraphs 2 and 3 of the aforementioned Request requested access to the documents in question in electronic format to the email address and in printed and audio form on CD and by mail delivery to the given address, which Requests were sent to the defendants via mail and email. That the JU Center for Social Work for the municipalities of Kotor, Tivat and Budva, acting on the request of the plaintiff dated June 16.06.2020, 128, issued Decision No. 20/0102-2468-2/15.07.2020 dated July 3, XNUMX, which allowed the plaintiff access to documents that are in the possession of that authority, namely: a copy of the adaptation project of the Center for Social Work for the Municipality of Kotor, for the purpose of adaptation for the access and movement of persons with reduced mobility and persons with disabilities, and a copy of the proof of payment for the project, and that it is stated in the same, that access to the requested information is achieved by delivering a photocopy of the documents, by mail, by registered mail to the applicant's address, within XNUMX days from the date of delivery of that decision. In connection with the plaintiff's request dated June 16.06.2020, 02, the defendant of the second order issued notification number UPI 037-20/298-2/29.06.2020 dated June XNUMX, XNUMX, which was delivered to the plaintiff with a delivery note for personal delivery. It was further determined that on July 09.07.2020, 02, the plaintiff filed a complaint with the Agency for the Protection of Personal Data and Access to Information, due to the silence of the administration, which initiated the administrative procedure UPI 037-20/298-3/16.06.2020, considering that at her request as of June 18, 20, the defendant of the second order did not decide by Decision, which was her obligation according to Article XNUMX of the Law on Administrative Procedure, and that she did not submit the requested information via e-mail and in sound format on a CD, as requested by the Request , with a proposal to approve the Appeal and order the defendant to decide on the request within XNUMX days of receiving the Decision.
Therefore, based on the mentioned Request for free access to information, the plaintiff received a response from the defendant in printed form to the requested address and in electronic form via e-mail in the form of written solutions and delivery of a copy of the project and invoice, as well as a CD in electronic format, while from the defendants of the second order received answers in the form of solutions.
When deciding on the claims, the first-instance court adopted them, citing the Law on Prohibition of Discrimination, the Law on Prohibition of Discrimination against Persons with Disabilities, the Law on Freedom of Access to Information and the Law on Obligations.
And in the opinion of this court, the first-instance court correctly decided in the above-mentioned manner. He gave sufficient, clear and convincing reasons for his decision, which this court accepts in all respects and directs the appellant to.
Article 46 of the Law on Prohibition of Discrimination (SI.list CG" no. 10/40, no. 11/018, no. 14/42 no. 17/2) stipulates that any form of discrimination is prohibited, based on any basis, paragraph 2, that discrimination is any legal or factual difference or unequal treatment, i.e. failure to treat one person, that is, a group of persons in relation to other persons, as well as excluding, limiting or giving priority to a person in relation to other persons , which is based on race, skin color, national affiliation, social or ethnic origin, connection with a minority nation or minority national community, language, religion or belief, political or other opinion, gender, gender reassignment, gender identity, sexual orientation and /or intersexual characteristics, health condition, disability, age, property status, marital or family status, belonging to a group or assumption of belonging to a group, political party or other organization, as well as other personal characteristics. Paragraph 3 stipulates that direct discrimination exists if, by an act, action or inaction, a person or a group of persons, in the same or a similar situation, is or has been placed, that is, may be placed in an unequal position in relation to another person or group of persons on one of the grounds from paragraph 2 of this article, and paragraph 4 stipulates that indirect discrimination exists if an apparently neutral provision of a law, other regulation or other act, criterion or practice leads or could lead a person or a group of persons to an unequal position in relation to other persons or a group of persons, on one of the grounds from paragraph 2 of this article, unless that provision, criterion or practice is objectively and reasonably justified by a legitimate goal, with the use of means that are appropriate and necessary for achieving the goal, i.e. in an acceptably proportional relationship with the goal to be achieved. Furthermore, the provision of Article 18 paragraph 2 of the same law, which stipulates that discrimination against persons with disabilities exists even in cases where no special measures have been taken to eliminate the limitations, that is, the unequal position in which these persons find themselves.
The Law on Prohibition of Discrimination against Persons with Disabilities (Official Gazette of the Republic of Montenegro No. 35/15 and No. 44/15) in Article 2 prohibits any form of discrimination against persons with disabilities, on any basis, and Article 15 point. 2,3 and 4 which stipulate that discrimination on the basis of disability in proceedings before authorities is considered to be: denying or restricting the rights of a person or group of persons with disabilities in proceedings before authorities, in the same or similar situation in which those rights are not denied or restricted to other persons, conducting administrative, judicial or other proceedings in a way that prevents or hinders the full and effective participation of persons or groups of persons with disabilities in the proceedings and the exercise of their rights, failure to undertake or implement regulations and special measures appropriate to disability in order to ensure the effective participation of persons with disabilities in legal proceedings before the authorities.
The Law on Free Access to Information (.SI.list CG" No. 044/12 and No. 030/17) in Article 23 stipulates that a person with a disability is provided with access to information in a way and in a form that corresponds to his capabilities and needs.
The UN Convention on the Rights of Persons with Disabilities in Article 21 point a and b prescribes that the signatory states shall take all appropriate measures to ensure that persons with disabilities can exercise freedom of expression and opinion, including the freedom to seek, receive and disseminate information and ideas on on the basis of equality with others through the use of all forms of communication defined in Article 2 of this Convention, at the choice of persons with disabilities, including: providing persons with disabilities with information intended for the general public in a timely manner and without additional costs for persons with disabilities in accessible formats and appropriate technologies to different types of disabilities, accepting and facilitating the use of sign language, Braille and augmentative and alternative communication and all other accessible ways, means and formats chosen by persons with disabilities in official relations.
Starting from the factual determination of the first instance court, that court correctly finds that the defendants of the first and second order, according to the plaintiff as a person with a disability, committed direct discrimination, namely the body of the defendant of the first order in the administrative procedure in which the decision number 128/20-0102- 2468/2 of July 15.07.2020, 02, by which she was allowed access to documents, namely a copy of the adaptation project of the Center for Social Work Kotor in order to adapt it for the access and movement of persons with reduced mobility and persons with disabilities, and a copy of the proof of payment for the project in the form inaccessible to the plaintiff. In this way, the defendant of the first order made it difficult for the plaintiff to participate in that administrative procedure in exercising her rights. In addition, the bodies of the second-order defendant also committed acts of direct discrimination on the basis of disability against the plaintiff by conducting administrative proceedings no. UPI 037-20/298-2/113 dated June 037, 20 and Decision no. UPI 48/5/02-037-20 dated August 298, 2, also in a form that is not accessible to the plaintiff, which made it difficult for the plaintiff to participate in those proceedings in exercising her rights. By not implementing the regulations and special measures appropriate to the plaintiff's disability, the defendant's 29.06.2020st-order body and the defendant's 113nd-order authorities committed an act of direct discrimination on the basis of disability, according to the cited provisions of the Law on Prohibition of Discrimination and the Law on Prohibition of Discrimination against Persons with Disabilities. Since the discrimination against the plaintiff on the basis of disability was committed several times by the second-order defendant, the court of first instance correctly finds that the authorities of the second-order defendant committed a more severe form of discrimination against the plaintiff.
The appeal allegations of the second-order defendant, that the first-instance court incorrectly applied substantive law, and that the lawsuit was premature, and that the court should have rejected it as such, do not stand. The plaintiff, in terms of Art. 26 of the Law on the Prohibition of Discrimination, she has the right to demand that the verdict establish that the defendants acted discriminatory towards her, and that they be prohibited from performing an act that threatens discrimination, i.e. a ban on repeating the act of discrimination, as well as the removal of the consequences of discriminatory treatment. In addition to the above, the plaintiff, in accordance with the Law on Prohibition of Discrimination, as well as the Law on Obligations, has the right to compensation for non-material damage.
As it follows from the testimony of the plaintiff, that since the age of three, she has had an illness that has damaged her vision and caused significant limitations in her movements, and because of this, she has to use a wheelchair. Her visual impairment is such that she cannot read, that is, she can only receive and use data in sound format and in electronic format with the use of speech software. Previously, she led proceedings against the Center for Social Work Kotor and Montenegro and those proceedings were legally concluded and the defendants were ordered to adapt the buildings of the Center for Social Work Kotor and the Ministry of Justice in Podgorica for access to disabled people like her. She wanted to receive information from the Ministry of Justice of Montenegro and the Center for Social Work Kotor in connection with what they had taken on the occasion of those final judgments, and to the aforementioned institutions and the Ministry of Labor and Social Welfare, she sent requests for free access to information, and the defendants allowed her access to the documents in their decisions. which are in the possession of those authorities. However, those answers were delivered to her in printed form and not in audio format on a CD, as she needed to be able to participate in the proceedings independently. She stated that her right to a personal assistant was recognized, but that she was not actually allowed to get a personal assistant, and that she paid for the help herself from her own funds, and for the reason that the information she received in printed form had to be given to her by someone else. she reads it several times so that she would remember it, so that she would later possibly write objections or complaints based on it. It's not a problem if someone reads it to her once or twice, but someone can't be by her side all the time to read her documents. For this reason, it was very difficult for her to participate in those proceedings, and as it was repeated several times, she decided to ask the court for protection, that is, to order the defendants to act according to the law, that is, to ensure her effective participation in those administrative proceedings on the way that the information she is looking for will be delivered to her in the appropriate format, i.e. in sound format, and this considering the degree of disability he has. There are various ways in which the defendants can properly respond to her requests. She explained that she felt discouraged and humiliated due to such actions by the defendant's authorities, because she is putting in a lot of effort based on her condition, but she is not being allowed to get everything that is prescribed by law, and that she is conducting these actions not only for herself but also for the sake of others disabled persons.
The inability of the plaintiff to receive information in a form that she can use in specific cases caused the plaintiff suffering, that is, a feeling of humiliation, discomfort and disrespect for her personality, due to the violation of human rights and freedoms guaranteed by the Constitution, the Law on Prohibition of Discrimination and the Law on Prohibition of Discrimination persons with disabilities, as well as the United Nations Convention on the Rights of Persons with Disabilities, so the severity of the injury and the circumstances of the specific case, in the opinion of this court, justify the awarding of fair monetary compensation, in the sense of Art. 210a ZOO.
When measuring the amount of compensation for non-material damages, the court took into account the importance of the injured property and the goal that this compensation serves, finding that the violation of personal rights and direct discrimination is immeasurable in money, but also that this compensation does not represent compensation but satisfaction for the plaintiff, which should to enable her to obtain certain pleasures, to help her restore her psychological balance, which has been disturbed by suffering mental pain. The first-instance court measured the amount of compensation based on a free assessment, in accordance with Article 220 of the Civil Code, finding that the damage in question was caused by discrimination against a young woman on the basis of disability, and that she suffered mental pain of greater intensity and due to the violation of personal rights and severe form of direct discrimination, which reasons are accepted by this court and referred to the appellant.
This court appreciated the appellant's other appellate statements, but found that, with the established and stated, and with the valid and clear reasons of the first-instance court, they do not affect the adoption of a different decision in this legal matter. All the more so with the fact that the appeals are exhausted through the allegations regarding which the first-instance court presented valid and clear reasons that justify the decision-making exactly in the manner presented by the sentence of the impugned judgment.
Since the grounds of the first-instance verdict are not in doubt by these allegations of the second-order defendant's appeal, the appeals should have been rejected as unfounded and the first-instance verdict confirmed in the contested part.
From the above, applying the provisions of Article 382 of the Civil Code, it was decided as in the sentence.
HIGH COURT IN PODGORICA
On 07.12.2022. years
PRESIDENT OF THE COUNCIL-JUDGE,
Radonja Radonjic
Bonus video:
