Structural ableism and the ECtHR: A critical examination of the court’s accessibility jurisprudence

Abstract

Accessibility is a fundamental tenet of the Convention on the Rights of Persons with Disabilities (‘CRPD’). By mandating the removal of accessibility barriers in the physical environment and the dismantling of structural forces that perpetuate inaccessibility, the CRPD seeks to foster the inclusion and participation of people with disabilities in society. Yet, despite the robust accessibility standards of the CRPD, accessibility has been largely overlooked in the disability jurisprudence of the European Court of Human Rights (‘ECtHR’). This article critically analyses the absence of accessibility in ECtHR jurisprudence from a structural perspective. It contends that only by framing accessibility as a structural issue can we meaningfully engage with the lack of accessibility for people with disabilities. The article develops a conceptual framework of structural ableism and argues that the recognition and application of that framework is essential for the ECtHR to acknowledge the structural forces that create and sustain physical inaccessibility for people with disabilities. This would enable the Court to align more closely with the CRPD’s accessibility standards. The study concludes by proposing four fundamental steps to bridge the current gulf between the CRPD standard on accessibility and the ECtHR jurisprudence.

Introduction

The European Court of Human Rights (‘ECtHR’) has emphasised that when applying the European Convention on Human Rights (‘ECHR’), ¹ it must have regard to common standards and emerging consensus in Europe, including rules and standards in international law. Specifically, concerning the rights of people with disabilities (‘PwD’), the ECtHR has underlined the importance of taking the Convention on the Rights of Persons with Disabilities (‘CRPD’) ² into consideration. ³ Crucially, the CRPD has been ratified by all Council of Europe Member States, reflecting a clear consensus and a common standard on disability rights in Europe.

The CRPD entails ‘a golden promise’ of full and effective participation and inclusion of PwD in mainstream society. ⁴ Accessibility is one of the pillars of the CRPD and a precondition for the participation of PwD in society. ⁵ Yet, accessibility is virtually absent from ECtHR disability jurisprudence. This article examines the gap between the CRPD standard on accessibility and the corresponding standard – or lack thereof – in ECtHR jurisprudence. It does so from a structural perspective, developing an account of ‘structural ableism’ by drawing on Iris Marion Young’s account of structural injustice. ⁶ This endeavour represents a novel attempt to integrate concepts from political philosophy and disability studies, establishing a framework for exploring the CRPD’s accessibility norms and the ECtHR jurisprudence through a structural lens. Although the CRPD has been analysed through various transformative perspectives, a structural perspective has been notably absent. This article seeks to address that gap.

This article begins by presenting an analytical framework that serves as the foundation for articulating a structural view of disability rights. Specifically, the framework explores the concept of structural ableism, emphasising its significance for understanding accessibility and measuring it against the mainstream human rights framework underlying the ECHR. The following section examines the normative content, nature and scope of two key concepts under the CRPD: the reasonable accommodation obligation and the general accessibility duty. While scholarly writings have emphasised the role of reasonable accommodation as a ‘gateway’ ⁷ and ‘facilitator’ ⁸ to disability equality, the role of general accessibility has received less attention. This article brings accessibility out of the shadows, arguing that it is accessibility rather than reasonable accommodation that is the key to structural change.

The third section critically examines the ECtHR’s interpretation of disability rights in cases concerning the lack of accessibility for PwD. It highlights the sizeable gap between the Court’s approach to accessibility and the structural justice framework embedded in the CRPD. Building on this analysis, the article argues that the Court’s failure to identify and address structural inequality sustains – and even perpetuates – structural ableism. This article advocates for a structural shift in the Court’s approach to accessibility, proposing four steps to bridge the current gulf. In doing so, the article revisits several ECtHR judgments that demonstrate the Court’s capacity to recognise and respond to structural discrimination.

This study demonstrates that the ECtHR’s interpretation of disability rights lacks a structural perspective, exposing a profound disconnect between its narrow, individualised understanding of accessibility and the broader structural approach advocated by the CRPD. At present, the Court’s approach to accessibility remains rooted in the mainstream human rights framework that fails to recognise the structural forces that cause and produce physical inaccessibility for PwD. The central argument here is that the Court needs to leave behind its reactive and individualistic approach and address accessibility in structural terms by situating it within a broader discourse on structural inequality guided by the CRPD’s inclusive equality paradigm.

Accessibility – A structural view

Participation and inclusion in an ableist society

Marginalization is perhaps the most dangerous form of oppression. A whole category of people is expelled from useful participation in social life and thus potentially subjected to severe material deprivation and even extermination. ⁹

Young’s words above are particularly relevant in the context of PwD. Despite the CRPD’s extensive ratification rate and its ‘paradigm shift in the conceptualisation of disability equality’, ¹⁰ the marginalisation and exclusion of PwD from mainstream society remain pervasive. Studies illustrate that PwD are frequently restricted from accessing quality employment ¹¹ and education, ¹² experiencing adverse socioeconomic conditions and barriers to social inclusion. ¹³ This exclusion has been linked to the fact that societal structures have historically been designed ‘with only non-disabled in mind’. ¹⁴ In other words, ableism is embedded in the very structure of our society.

Ableism has been defined as ‘ideas, practices, institutions, and social relations that presume able-bodiedness, and by so doing, construct persons with disabilities as marginalized, oppressed, and largely invisible ‘others’’. ¹⁵ Ableism not only generates social stigma but also constitutes the fundamental driver of many discriminatory practices directed against PwD. ¹⁶ The numerous barriers PwD encounter in the human-built environment represent one manifestation of ableism, ranging from the absence of lifts and ramps to information being provided in inaccessible formats. ¹⁷

Ableism is also embedded in legal frameworks and enforcement systems, as evidenced by the historical invisibility of PwD within international human rights law and their marginalisation in legal scholarship. ¹⁸ In this context, the disability scholar Anna Lawson, argues that even though lawyers have noticed ‘the exclusion and humiliation’ faced by PwD, they have failed to view this as a violation of human rights and an insufficient social response to impairments. ¹⁹

Against this background, it may come as little surprise that the concept of structural ableism is virtually absent from legal discourse. However, it has received some academic attention recently within the field of healthcare ²⁰ and education, ²¹ defined by Elizabeth Stringer Keefe as:

(...) a complex system of hierarchical and discriminatory processes, policies, and institutions that privilege and prefer able-bodied people, fail to represent or meaningfully include disabled persons’ voices, and are grounded in a network of ableist beliefs and practices that maintain and reproduce unequal outcomes for disabled people and benefit able-bodied people. ²²

Accordingly, it can be asserted that structural ableism is one form of structural injustice, defined by Young as:

(…) social processes [that] put large groups of persons under systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising capacities available to them. ²³

These social-structural processes are embedded in the form of legal, institutional or social rules and, whether implicit or habitual, ‘carry the effects of past assumptions, decisions, and interests with them’. ²⁴ Almost treated like a natural fact and independent of human agency, these processes become difficult to change despite widespread questioning of their value. ²⁵ One illustrative example is the medical model of disability, which remained dominant until the 1970s, portraying PwD as objects of pity rather than holders of rights. ²⁶ Although there has been a profound shift in the conceptualisation of disability since then, the implications of the medical models persist. The CRPD Committee has repeatedly expressed concerns over legislation of Member States that still reflect a medically driven incapacity and ableist approach to disability, thus legitimising and normalising discriminatory treatment and exclusion of PwD. ²⁷

This article argues that the core mandate of the CRPD is to dismantle structural ableism by ‘target [ing] deep-rooted structural inequalities, systemic prejudices and institutional biases’ ²⁸ and to redress the systematic discrimination that is interwoven in every structural aspect of society. ²⁹ Guided by its inclusive equality paradigm, the CRPD promotes the full and effective inclusion and participation of all individuals by broadening the traditional understanding of inequality. It calls for a fundamental alteration of existing societal structures and addresses the underlying structural forces that lie at the core of inequality. ³⁰

Importantly, the CRPD’s approach to equality is built on an understanding that the traditional non-discrimination model had been unsuccessful in securing the rights of PwD. ³¹ Therein, disabilities were ‘largely unnoticed as an equality issue’, ³² as evidenced by the fact that ‘disability’ is not listed as a prohibited ground in the major human rights instruments based on that model, such as the ECHR.

Informed by this observation, this article now turns to further examine the structural limitations of the traditional liberal discrimination paradigm that underpins the mainstream human rights framework. It argues that the fundamental tenet of this model reinforces structural ableism by failing to encompass structural factors of inequality.

The structural limitations of the mainstream human rights framework

Individualism is a fundamental premise for traditional equality law. It demands that each individual is treated based on their own merit, regardless of whether they are a part of a group. ³³ The equality theorist Sandra Fredman identifies two drawbacks to this approach that are particularly relevant in the context of PwD. The first is the assumption that discrimination is a problem of the individual, abstracted from the institutions and structures of society. The second is the assumption that individual merit can be measured objectively, divorced from the social context in which they exist. ³⁴ Young’s scholarship provides a compelling framework for critically examining these assumptions.

Young notes that most theories of equality accept the notion that individuals are the units of comparison when situations of inequality are evaluated. ³⁵ Conversely, Young asserts that ‘the comparison of individuals yields little basis for judging injustice’. ³⁶ She argues that by simply identifying inequality between individuals at a particular point in time, we fail to grasp the pattern of inequality that caused the unequal condition. ³⁷ Young advocates for a group-based comparison that facilitates the identification of structural inequalities that produce basic and persisting injustice. ³⁸

According to Young, equality refers ‘primarily to the full participation and inclusion of everyone in a society’s major institutions’. ³⁹ In this context, Young argues that power is relational and exercised through communication between ‘the exerciser and the others’ and domination is not a product of individual action but a ‘structural or systematic phenomena which exclude people from participating in determining their action or the conditions of their actions’. ⁴⁰ She points out that most social activities involve participation in organised social events. Societal structures that restrict some from such participation are unjust, depriving people of ‘cultural, practical, and institutionalized conditions for exercising capacities in a context of recognition and interaction’. ⁴¹ People who find themselves in such social structures experience ‘multiple forms of exclusion, unequal burden or costs’. ⁴² Young provides the example of a government hearing on an issue affecting a poor rural population, where the absence of transportation for the affected group effectively deprives them of the opportunity to be heard. ⁴³

Young advocates for the ‘politics of difference’ that entails the need to accommodate differences to ensure ‘equality as the participation and inclusion of all groups’. ⁴⁴ ‘Difference,’ according to Young, does not concern group attributes but is a relational and contextualised concept. It neither contains ‘amorphous unity nor pure individuality’. ⁴⁵ Although Young admits that the assimilationist ideal ‘of universal humanity that denies natural differences’ has been of enormous importance in the historical fight against exclusion and marginalisation of certain groups, ⁴⁶ she maintains that it is based on a universal measure that ‘achieves its value by its determinately negative relation to the Other’. ⁴⁷ Consequently, it essentialises differences and uses them to define and label the excluded and the oppressed. ⁴⁸ Along similar lines, Fredman discusses how the minority rights approach has been strategically productive and central to the mobilisation around disability rights movements. ⁴⁹ However, critiques have prompted a shift away from describing PwD as ‘a vulnerable population group’ towards a universalist approach where disability is viewed ‘as fluid and continuous’. ⁵⁰ The universalist approach was particularly influential on the CRPD. ⁵¹ Rather than calling for normalisation, it advocates a disability policy that is inclusive of all and expands the scope of ‘normal’. ⁵²

Yet, within the mainstream human rights framework, disability has been excluded from what is considered ‘normal’. That framework was designed to address questions about the State’s interference with individuals who are conceptualised in liberal terms as autonomous and self-sufficient agents, overlooking dependent individuals. ⁵³ Consequently, disability rights claims are often perceived as ‘exceptional’ or ‘abnormal’ ⁵⁴ and difficult to assimilate with the mainstream framework’s emphasis on civil and political rights and ‘negative liberty’. ⁵⁵ As the human rights scholar Colm O’Cinneide has stressed:

[R]ights claims that are not predicated upon assumptions of individual self-sufficiency often face difficulties in finding a foothold within “mainstream” civil and political rights instruments. ⁵⁶

O’Cinneide argues that the ECHR reflects the limits of this framework as it ‘protects the dignity of the autonomous individual’ and does not extend its protection to ‘the semi-autonomous individual denied equality of social entitlements’. ⁵⁷ Hence, disability rights claims that go beyond ‘the conventional type of civil-political claim’ will rarely succeed before the ECtHR. ⁵⁸

This laissez-faire paradigm of the liberal framework is precisely what the CPRD seeks to deconstruct. ⁵⁹ In this context, O’Cinneide draws attention to how the CRPD ‘gives effect to a distinctive vision of the rights of individuals within society’ in comparison to other human rights instruments. ⁶⁰ More precisely, how the various positive obligations of Member States underscore the State’s ‘active role in creating the social conditions necessary for individuals to be treated with dignity’. ⁶¹ For instance, by requiring the State to take appropriate measures to ensure that PwD have access to the physical environment. Unlike the mainstream human rights framework, the CRPD is founded on the recognition that PwD depend on a collective social action to guarantee the enjoyment of their fundamental rights. ⁶²

In this respect, Young has stressed that ‘dependency in itself need not be oppressive’. ⁶³ However, viewing accessibility for PwD as a matter of ‘special needs’ fails to acknowledge that their exclusion from the mainstream is a problem of discrimination and a violation of their fundamental rights. ⁶⁴ It overlooks the fact that marginalisation is one face of oppression. ⁶⁵

Thus, this ‘myth of independence’ shapes our understanding of accessibility as a means of enabling PwD to ‘join the ranks of the privileged’ instead of ‘dismantl [ing] those ranks and the system that maintains them’. ⁶⁶ Accessibility is not about mainstreaming but about inclusion. ⁶⁷ Inclusion ‘provides a means with which to respond to the systemic and structural impediments to full participation in society’. ⁶⁸ The traditional liberal discrimination paradigm of the mainstream human rights framework has significant limitations in addressing those impediments for what they are – a structural issue. Consequently, as argued by the human rights scholar Mirjana Najcevska, the only way to solve structural discrimination is by leaving behind the reactive and individual-oriented approach to discrimination and revising the fundamental values of social organisations. ⁶⁹

Intersectionality theory deepens this critique of the mainstream human rights framework by exposing how the single-axis model of discrimination presumes homogeneous identity groups and neglects the complexity of lived experience. ⁷⁰ This is especially evident in the disability context, where PwD often face discrimination that stems not only from disability itself but from the interaction of other characteristics such as race, gender or age, that operate simultaneously and inseparably. Without recognising these intersecting dimensions, the mainstream human rights framework risks obscuring the very dynamics of exclusion it seeks to address and ignoring the structural forces that shape and sustain them. In contrast, the CRPD embeds intersectionality into its design, ⁷¹ recognising how discrimination operates across axes of disability, gender, race, class and other status. ⁷² In doing so, it advances an inclusive model of equality capable of responding to the multifaceted realities of exclusion faced by PwD.

The first section of this article puts forth two central claims. First, it contends that structural ableism is one manifestation of structural injustice – a multifaceted system of discriminatory processes that subtly or overtly hinder the participation and inclusion of PwD in society on an equal footing with able-bodied people. Structural ableism operates as a pervasive force that influences public perception, shapes policies and laws and perpetuates socially constructed barriers faced by PwD. It is so deeply embedded in the structures of power and privilege in our society that addressing it requires systematic alterations to society’s structures, institutions and policies that perpetuate and sustain it.

Secondly, this article argues that the mainstream human rights framework underlying the ECHR fails to capture and address structural ableism due to its inherent structural limitations. In other words, by focusing primarily on individual rights and the protection of negative liberty for self-sufficient individuals, it neglects the social and structural dimension of inequality that perpetuates and reinforces structural ableism. In contrast, the CRPD’s inclusive equality paradigm mandate aims to dismantle structural ableism by providing a framework that is capable of deconstructing the system that upholds structural inequality. Furthermore, it challenges the entrenched manifestation of ‘normality’ in the structures of law and society and offers a vocabulary that encompasses the needs and entitlements of all PwD, including those experiencing discrimination at the intersection of multiple identities.

This article moves to an examination of the accessibility standards established by the CRPD, followed by a critical analysis of how ECtHR jurisprudence has addressed – or failed to address – issues of inaccessibility within this framework.

Accessibility and the CRPD: From individual measures to structural change

There are two key concepts of the CRPD that both serve to facilitate the inclusion and participation of PwD in society. The former, reasonable accommodation, entails a specific response in a particular situation requiring positive measures to remove the disadvantage experienced by a single individual. The latter, accessibility, involves proactive and general measures designed to structurally transform the environment to ensure accessibility for PwD. This article argues that while reasonable accommodation is relevant to addressing structural inequality accessibility is central to dismantling it.

Reasonable accommodation and article 5 CRPD

Reasonable accommodation in the CRPD is defined in Article 2 as:

(…) necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

The reasonable accommodation concept appears as a right to equality and non-discrimination in Article 5 (3) and is firmly entrenched in the CRPD through numerous other substantive articles. ⁷³ Its principal objective is to ensure that PwD are not denied equal opportunity to participate in society due to the failure of various social actors, whether public or private, to accommodate their differential characteristics. ⁷⁴ Specifically, two principal features of the concept should be noted.

First, the concept has been viewed as a ‘profoundly individualised and circumstantial notion of equality’. ⁷⁵ Thus, unlike traditional non-discrimination law, where personal characteristics should not be considered, individual differences are specifically incorporated into the CRPD’s equality paradigm. ⁷⁶ The Committee has characterised it as an ex nunc duty, meaning that ‘it is enforceable from the moment an individual with an impairment needs it in a given situation.’ ⁷⁷ It has further emphasised that this duty is reactive, individualised and must be negotiated with the applicant. ⁷⁸

Secondly, the concept is conditioned upon not imposing a disproportionate or undue burden on the duty bearer. This point is not defined in the Convention; however, the drafting sessions clearly demonstrate that this relates to resource implications. ⁷⁹ In other words, it establishes a threshold in the form of a proportionality test, which seeks to balance the burdens and benefits of all those who are affected by the accommodation. ⁸⁰ This is particularly significant in the context of accessibility, as this threshold limits the transformative potential of the obligation. Thus, it is more likely to cater to those who require only marginal adjustments to the prevailing social environment, while excluding those who need ‘significant structural adjustments’. ⁸¹

In this context, it has been argued that ensuring access on a case-by-case basis ‘will not change the society that allows for social marginalization and devaluation of people with disabilities’. ⁸² To achieve full equality, the focus should not be on simply facilitating an entrance to a building but on making structural changes to prevent inaccessible buildings from being built altogether. ⁸³ This is where the CRPD’s general accessibility duty becomes particularly relevant.

Accessibility and article 9 CRPD

Accessibility is a precondition for full and equal participation of PwD in society and their full enjoyment of human rights. ⁸⁴ This is enshrined in Article 9 CRPD, which outlines the general duty of Member States to:

(...) take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communication, (…) and to other facilities and services open or provided to the public (...).

Accessibility is embedded in multiple provisions of the CRPD, notably as a general obligation under Article 4(h), a fundamental principle in Article 3(f) and a distinct provision in Article 9. In this context, the legal scholar and CRPD expert Andrea Broderick has emphasised ‘the overarching role of accessibility in achieving the object and purpose of the CRPD’ ⁸⁵ and how failure to ensure accessibility ‘will have a knock-on effect on access to many other CRPD rights’. ⁸⁶

The obligation under Article 8 CRPD to raise awareness and combat stereotypes and prejudice against PwD is intrinsically linked to accessibility, as limited awareness and information frequently contribute to inaccessibility. ⁸⁷ In addition, there is a strong correlation between the accessibility duty and the concept of universal design in the CRPD. ⁸⁸ Universal design aims at making society accessible for all and ‘contribut [ing] to the creation of an unrestricted chain of movement for an individual from one space to another’. ⁸⁹ The general accessibility duty differs from the reasonable accommodation obligation in three important respects.

First, unlike the individualised ex nunc duty to provide reasonable accommodation, the ex ante duty to provide accessibility is related to groups. That means that Member States are obligated to ensure accessibility before a request is received from an individual to enter or use a place or service. In other words, reasonable accommodation aims at ensuring individual justice in particular situations whereas the general accessibility duty serves to ensure accessibility for PwD as a group through broad and uniform accessibility standards. An accommodation request from an individual with rare impairments may therefore fall outside the scope of any standard on accessibility. ⁹⁰

Secondly, the accessibility duty is unconditional so a failure to implement accessibility cannot be excused by referring to the burden of providing access or austerity measures. The disproportionality or undue burden threshold is therefore not applicable as a defence for the failure to provide general accessibility. ⁹¹

Thirdly, reasonable accommodation entails an ‘individualised and immediate’ right to non-discrimination, constituting a form of disability-based discrimination if not complied with. Conversely, the link between general accessibility and the non-discrimination norm is more elusive, ⁹² as the duty is ‘general and gradual’. As for the former, the Committee has described the duty as being ‘built into systems and processes’, regardless of the needs of particular PwD, and flowing from the prohibition of indirect discrimination. ⁹³ The latter entails that Member States are allowed to remove barriers to the existing physical environment gradually, provided they allocate sufficient resources and establish a clear timeframe and monitoring mechanisms. However, all newly designed facilities must be built consistent with the principle of universal design and thus immediately accessible to all. ⁹⁴

Yet, it is important to recognise that accessibility and reasonable accommodation share a ‘close and mutually reinforcing relationship’. ⁹⁵ The implementation of general accessibility standards does not render the individual right to accommodation redundant. For instance, although general accessibility into a school building is ensured, additional barriers may remain for some that cannot be remedied fully without providing individualised support through reasonable accommodation. Thus, to facilitate and promote full participation and inclusion of PwD, it is important to ‘ensure effective implementation of both Article 5 and Article 9 of the Convention in tandem’. ⁹⁶

In sum, the general accessibility duty fosters participation and inclusion in society by structurally transforming the environment, whereas the reasonable accommodation obligation is individualised and does not seek to alter societal structures. Consequently, the general and proactive accessibility duty responds more directly to structural inequality than the individualistic and reactive reasonable accommodation obligation. This means that while reasonable accommodation may be necessary for achieving inclusive equality, it is not sufficient since it is ultimately individualistic and limited in reach. Accessibility on the other hand is instrumental to that end as it contains general measures aimed at identifying and deconstructing the structural forces that produce and perpetuate structural inequality.

Accessibility and the ECtHR: A structural critique

In 2005, De Schutter claimed that ECtHR jurisprudence ‘illustrate [s] the reluctance of the Court to impose far-reaching obligations on States to remove the architectural or other barriers which impede the full social and professional integration of disabled people’. ⁹⁷ Now, 20 years later, these words are still relevant.

Lack of physical accessibility has been dealt with under several different rights of the ECHR. Yet, the Court seems to disregard structural factors underlying the lack of accessibility for PwD regardless of which right is engaged. This article argues that this omission feeds into the system of processes, policies and institutions that privilege able-bodied people, perpetuating structural ableism. The central argument emerging from the discussion is that structural ableism is not merely reflected in but actively sustained by the Court’s jurisprudence.

The cases examined focus on physical inaccessibility to public facilities and services. More specifically, they address the absence of general accessibility in the physical environment, excluding instances where individualised measures were required to rectify factual inequality, (‘pure’ reasonable accommodation cases). These cases are presented in chronological order, beginning with the leading Article 8 ECHR cases concerning the right to family and private life, dating back to before the adoption of the CRPD.

Pre-CRPD cases

In the seminal case of Botta v Italy ⁹⁸ (‘Botta’), the applicant claimed that the State had failed to adequately enforce laws prescribing that private beaches should provide physical accessibility for PwD, affecting the claimant’s right under Article 8 to develop his personality and participate in community life. ⁹⁹ The Court recognised that the State may be under a positive obligation to act to protect the respect for the private life of an individual when there is ‘a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life’. ¹⁰⁰ The Court held that no such link existed in this case as it concerned access to a beach far from the applicant’s residence, involving ‘interpersonal relationship of such broad and indeterminate scope’. ¹⁰¹ Consequently, the Court declared the application inadmissible.

Similar reasoning can be seen in Zehnalová and Zehnal v Czech Republic ¹⁰² (‘Zehnalová’), which concerned the lack of wheelchair accessibility to numerous buildings open to the public in the applicant’s hometown, including police stations and cinemas. Adding to the direct and immediate link test, the Court held that Article 8 was only applicable in ‘exceptional cases’ where the lack of access affects ‘[the] right to personal development and [the] right to establish and develop a relationship with other human beings and the outside world’. ¹⁰³ The Court found Article 8 inapplicable as the applicant relied on rights that were ‘too broad and indeterminate’ and ‘failed to give precise details of the alleged obstacles’. ¹⁰⁴

These initial judgments illustrate the stringent criteria required for the Court to address the lack of accessibility within the scope of Article 8. Moreover, the necessity of establishing a direct link between the applicant’s private life and the measure sought is so individualistic that it inherently constrains the framing of inaccessibility as a structural issue. Furthermore, this restrictive approach limits the non-discrimination protection under Article 14, as its accessory nature requires that a case fall within the ambit of a Convention right before any issue of discrimination can be considered. ¹⁰⁵ Thus, if Article 8 is not engaged, Article 14 cannot be invoked either.

In Mółka v Poland ¹⁰⁶ (‘Mółka’), the lack of wheelchair accessibility to a polling station was challenged. Although the Court acknowledged that it could not rule out the possibility that the case met the direct and immediate link requirement, it deemed it unnecessary to determine the applicability of Article 8, as the application was ‘in any event inadmissible on other grounds’. ¹⁰⁷ That is to say, the Court held that since the case ‘concerned one isolated incident’ and because the applicant had failed to demonstrate that he could not have entered the polling station with the assistance of a third person, the State could not be said to have failed in its duty to ensure the respect for his private life. ¹⁰⁸

Notably, assistance by a third person would have meant carrying the applicant on a stretcher – a measure which the applicant found embarrassing and degrading. Moreover, the assertion that the case was an isolated incident was entirely unfounded, as most complaints brought before the Court could be characterised in a similar manner. As noted, the ‘human rights claim of one vulnerable individual usually reveals a group of individuals with similar needs.’ ¹⁰⁹

This conclusion reflects a fundamental failure to comprehend the applicant’s circumstances and his right to participate in elections and engage in public life on an equal footing with others. The Court failed to acknowledge the structural inequality underpinning the applicant’s disadvantage, instead conveying the impression that access to polling stations is a matter of benevolence rather than a legal obligation.

Post-CRPD cases

The first post-CRPD case challenging general inaccessibility to public facilities was Enver Şahin v Turkey ¹¹⁰ (‘Şahin’). In this case, the applicant sought modifications to the physical environment to enable access to a university building and the continuation of his studies. However, the request was refused because of budgetary constraints. Instead, he was offered personal assistance to help him move around the three-storey building. ¹¹¹

The Court concluded that the authorities failed to honour their positive obligation under Article 14 read in conjunction with Article 2 Protocol 1, noting that despite the margin of appreciation (‘MOA’), a lack of financial resources is not an excuse for failing to reasonably accommodate PwD:

[T]the Court cannot accept the shelving of the question of the accessibility of the faculty premises for the applicant pending the availability of all the funds required to complete all the major development work laid down in legislation. What is at stake here is the principle that where the execution of a commitment made under the Convention calls for positive measures from the State, the latter must not merely remain passive. ¹¹²

The Court underscored the need for authorities to ‘take great care with the choices they make in this sphere’ considering the impact they can have on this vulnerable group. ¹¹³ Furthermore, it emphasised the essential role of personal mobility for the dignity, self-respect and personal autonomy of PwD, asserting that the authority’s proposal to provide personal assistance for mobility was inconsistent with the CRPD framework. ¹¹⁴ Finally, the Court criticised the lack of individual assessment from domestic courts and its reliance on an abstract proposal on architectural measures, without any balancing test. ¹¹⁵ It concluded that the State had not ‘reacted with requisite diligence to ensure that the applicant could continue to exercise his right to education on an equal footing with other students’. ¹¹⁶

Although the Court’s majority missed the opportunity to distinguish between reasonable accommodation and accessibility, the CRPD nonetheless played an interpretive role in the reasoning that demonstrates a progressive and holistic approach to disability rights. The judgment transcends the dichotomy of different types of rights and is instrumental to how the ECtHR has engaged with the CRPD, forging a link between the CRPD and ECHR.

In a dissenting opinion, Judge Lemmens found no violation, asserting that the applicant and his attitude contributed to the lack of assessment of his individual need. ¹¹⁷ Notably, Judge Lemmens distinguished between reasonable accommodation and accessibility. However, his reasoning ultimately undermines the otherwise valuable distinction between these concepts.

First, Judge Lemmens departed from the Committee’s interpretation of Article 9 CRPD by claiming that under the ECHR, the general accessibility duty cannot be regarded as an unconditional duty as this would expand the obligations accepted by States under the ECHR. ¹¹⁸ Secondly, he stated:

[T]he complaint should first of all have been assessed under Article 2 of Protocol No. 1 (accessibility), and then, if necessary, under Article 14 of the Convention (reasonable accommodation). ¹¹⁹

Thus, he juxtaposes the right to education with accessibility and the right to non-discrimination with reasonable accommodation. In doing so, he overlooks that the case concerned the State’s positive duty to provide an accessible environment, enabling the applicant to exercise his right to education on an equal basis with others, rather than the right to education itself. Therefore, ensuring accessibility facilitated the applicant’s ability to exercise his right to education. ¹²⁰

Returning to cases concerning Article 8, the Court continued to adopt the same restrictive and individualistic interpretation of Article 8, despite the broad ratification of the CRPD and its robust accessibility standards.

In Glaisen v Switzerland ¹²¹ (‘Glaisen’), the applicant had wished to see a movie that was only screened in one particular cinema in his town that was not adapted to wheelchair users. He was refused access for safety reasons and turned away.

The Court noted that it did not ‘rule out the possibility’ that going to the cinema was important for the applicant as he ‘considered himself a film buff’: ¹²²

Nonetheless, the Court considers that Article 8 cannot be construed as conferring a right of access to a particular cinema to watch a specific film, provided that there is general access to other cinemas in the vicinity. ¹²³

Consequently, the refusal to allow the applicant entry to the cinema was not deemed to impact his rights under Article 8 and the application was declared inadmissible.

The Court’s reliance on the applicant’s self-identity as a ‘film buff’ and suggestions of alternative accessible cinemas nearby, illustrates its individualistic focus and lack of awareness of the structural dimension of accessibility implicit in the CRPD. Furthermore, although this case concerns the denial of access, a clear discriminatory act according to the Committee, ¹²⁴ the Court did not address that specifically either. Notably, this case was adjudicated well after the adoption of the CRPD. However, the Court’s reasoning and its cursory reference to the CRPD make it clear that its principles and provisions were not applied. Had the Court applied the CRPD, it could not have ignored the structural dimension of accessibility requirements implied in this case.

Another case where the ECtHR was guilty of ‘cherry-pick [ing] paragraphs and sentences’ ¹²⁵ from the CRPD and the Committee’s General Comments (GC) without applying them in a manner that aligns with its substance and norms, is the judgment in Toplak and Mrak v Slovenia ¹²⁶ (‘Toplak’). The applicants complained of discrimination concerning their right to vote due to the lack of wheelchair access to polling stations. Notably, the Court implied that there is no obligation on States to generally adapt polling stations to ensure access for PwD:

[T]he States enjoy a margin of appreciation in assessing the needs of people with disabilities in respect of elections and the means of providing them with adequate access to polling stations within the context of the allocation of limited State resources (...). ¹²⁷

The Court proceeded to assert that although access was not provided in advance, assistance could have been provided ‘on the spot’ with reasonable accommodations. ¹²⁸ Curiously, the Court referenced GC2 in this context. However, had it engaged with these comments more rigorously as interpretative guidance, it would have recognised that they establish an unequivocal duty on States to ensure accessibility proactively, without requiring an individual request to enter or use a place or service. ¹²⁹ Moreover, it would have acknowledged that austerity measures cannot serve as a justification for the gradual implementation of accessibility. ¹³⁰ This case highlights the Court’s limited engagement with the CRPD’s accessibility duty and its failure to distinguish it from the concept of reasonable accommodation.

A year after the judgment in Toplak, the Court delivered its ruling in Arnar Helgi Lárusson v Iceland ¹³¹ (‘Lárusson’), marking the first and only instance in which it has considered accessibility within the scope of private life under Article 8, read in conjunction with Article 14.

The case concerned the lack of wheelchair accessibility to two public buildings that played a central role in the cultural and social life of residents in a small municipality. The applicant claimed the lack of access hindered him from taking part in the community’s activities, including with his three children, thus violating his right under Article 14 taken in conjunction with Article 8.

First, the Court examined whether the issue of accessibility fell within the scope of ‘private life’ under Article 8. The Court made a clear distinction between previous Article 8 cases concerning accessibility. Specifically, in contrast to Botta, Zehnalová and Glaisen, the applicant was thought to have clearly identified two particular public buildings and when considering ‘the importance of enabling people with disabilities to fully integrate into society and participate in the life of the community,’ ¹³² the Court recognised that the lack of accessibility was likely to affect the applicant’s right to private life. Therefore, Article 14 in conjunction with Article 8 was considered applicable and the Court proceeded to examine the merits of the case. ¹³³

The Court concluded that the applicant had not been discriminated against as the State had ‘demonstrate [d] a general commitment to work towards the gradual realisation of universal access’ ¹³⁴ and taken ‘considerable measures to assess and address accessibility needs in public buildings’. ¹³⁵ Imposing further requirements on the State would have amounted to a disproportionate or undue burden. ¹³⁶ One judge dissented, finding a violation.

This article contends that the majority’s reasoning in this case is fundamentally flawed, lacks clarity and stands in stark contrast to both the CRPD and the position of the Committee, primarily for two reasons.

First, the Court incorrectly applies the individualistic concept of reasonable accommodation in a case concerning a general situation of inaccessibility. According to the Court, the test to apply here was:

(...) whether the State made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, like the applicant, which, at the same time, did not impose “a disproportionate or undue burden” on the State (...). ¹³⁷

The Court’s application of the concept of reasonable accommodation is perplexing, given that it explicitly recognised the case concerned a general lack of accessibility to two public buildings that were inaccessible not only to the applicant but also to other wheelchair users. In the Court’s reasoning, it clearly distinguished between the distinct nature of accessibility and reasonable accommodation, including through references to GC and the CRPD provisions. ¹³⁸ After all, the applicant, together with an association of people with spinal injuries, had initiated civil proceedings in the domestic courts, alleging the buildings non-compliance with domestic building regulations rather than a failure to provide reasonable accommodation. ¹³⁹

As previously outlined, the duty to provide reasonable accommodation aims at ensuring individual justice and applies to particular situations that would otherwise fall outside the scope of any accessibility standard. This was not the issue in the case under review. Yet, the Court’s sole focus was on whether the State had complied with the ex nunc reasonable accommodation obligation, overlooking its unconditional ex ante duty to provide general accessibility to facilities and services open to the public. Consequently, it applied the individualised undue and disproportionate test to a situation of general inaccessibility and ‘failed to square the “circles of confusion” that exist between the interlinked reasonable accommodation and accessibility duties’. ¹⁴⁰

Secondly, the Court’s application of the concept of reasonable accommodation and the disproportionate and undue burden test is flawed. Furthermore, its reliance on the MOA doctrine fails to withstand scrutiny.

The Court stated that since States are usually allowed a wide MOA in cases concerning general measures of economic or social strategy, ‘a similarly wide margin of appreciation should be afforded to the State’ when a claim is made regarding a lack of accessibility to public buildings. ¹⁴¹ The Court’s rationale for finding these scenarios comparable remains unclear, lacking sufficient explanation. Particularly noteworthy is that this assertion contradicts numerous previous rulings where the Court has held that the MOA is ‘[substantially narrower] if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past’ and only very weighty reasons can justify restrictions. ¹⁴² In Guberina v Croatia, ¹⁴³ which concerned a father who was denied tax relief for the purchase of an accessible home for his child with disabilities, the Court explained its rationale as follows:

The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. ¹⁴⁴

The above reference to prejudice and social exclusion is only visible in a handful of disability cases and, with the exception of Guberina, only those concerning people with mental or intellectual disabilities. ¹⁴⁵ That is indicative of the Court’s reluctance to posit the lived realities of PwD in a broader discourse on structural discrimination. However, the majority’s reasoning in Lárusson is devoid of any discussions on the vulnerability of PwD, let alone the historical prejudice they have faced.

Having held that the State had a wide MOA in Lárusson, the Court continued assessing whether the lack of access to the buildings amounted to discrimination in private life. In doing so, the Court needed to examine whether a fair balance had been struck between the competing interests and if sufficient steps had been taken to improve accessibility. However, as the Court itself acknowledged, it lacked sufficient information on both factors, thereby constraining the scope of its assessment. ¹⁴⁶

The Court acknowledged that the domestic courts ‘did not explicitly recognise and assess the rights and interests of the applicant at stake’ as they had granted the municipality full authority to decide on accessibility improvements. ¹⁴⁷ Additionally, the Court had no information on ‘whether and in what time frame the necessary improvements may be achieved’, ¹⁴⁸ expected costs and why they had not been made. ¹⁴⁹

Although the Court lacked sufficient grounds to assess whether the MAO had been exceeded, it held that imposing further requirements on the State would constitute a disproportionate and undue burden. This reasoning stands in sharp contrasts with the Court’s approach in other disability cases where the absence of an individual assessment before domestic courts and the lack of a balancing test played a decisive role in establishing a violation. ¹⁵⁰ Instead of following that approach in Lárusson, the Court bypassed the balancing test and concluded that the lack of access to the buildings did not amount to a failure of the State ‘to correct factual inequalities in order to enable the applicant to exercise his right to private life on an equal basis with other’. ¹⁵¹

Notably, the Court emphasised that the municipality ‘seemed’ to have taken considerable measures to improve the accessibility of its public buildings following a parliamentary resolution. ¹⁵² However, that resolution only contained a plan for improving accessibility, lacking clarity on key specifics such as timelines, resources or costs. This contradicts GC2, which obligates States to identify and remove barriers to the existing environment continuously and systematically through strict implementation of action plans within specific deadlines. ¹⁵³

The Court has frequently emphasised that the ECHR must be ‘applied in a manner that renders its rights practical and effective and not theoretical and illusory’. ¹⁵⁴ In this respect, the Court has held that it is insufficient to rely on abstract domestic legislation ¹⁵⁵ or proposals ¹⁵⁶ that do not describe in detail how the accommodation or accessibility will be implemented in practice. Against this background, it could be argued that the applicant’s right was rendered ineffective by the Court’s reliance on the municipality’s ‘general commitment to work towards accessibility’ and an abstract plan. The Court overlooked the structural reality of wheelchair-bound individuals who were left waiting for the municipality to act, excluded from participating in activities hosted in the inaccessible buildings. However, in a dissenting opinion, Judge Zünd stated:

[T]here are good reasons to assume that the respondent State did not take sufficient measures to remedy the tangible structural causes of inequality in order to enable the applicant to exercise his right to private life on an equal basis with others’. ¹⁵⁷

Judge Zünd’s mention of the structural cause of inequality is rarely seen in ECtHR cases. However, he fails to distinguish between reasonable accommodation and general accessibility, construing a structural issue as an individual one.

Lárusson serves as an illustration of flawed reasoning stemming from the Court’s failure to recognise the structural patterns of inequality causing the lack of accessibility and impeding the equal participation and inclusion of PwD in society. Paradoxically, while the Court noted that the ECHR ‘should, as far as possible, be interpreted with other rules of international law of which it forms part’, taking special note of the CRPD and GC2 in that regard, ¹⁵⁸ it is evident that the Court did not actually apply those instruments as interpretative guidance to the ECHR. Instead, it interpreted the fundamental rights of PwD within such a broad MAO framework that it seemed to have delivered States a licence for discretionary acts when it comes to implementing measures that ensure accessibility to the human-built environment.

The analysis thus far has shown that the Court’s application of CRPD is ambiguous and inconsistent, exacerbating the discrepancies between the ECHR and the CRPD and undermining both legal protection and conceptual clarity. ¹⁵⁹ At the close of this discussion, it is useful to consider two additional disability cases which, although not directly concerned with accessibility, shed important light on the Court’s broader approach to disability rights. These judgments illustrate, on the one hand, how the absence of a structural perspective and the disregard of the CRPD can reinforce structural ableism, and on the other, how the Court is capable of adopting a more promising line of reasoning.

In Caamaño Valle v Spain ¹⁶⁰ (‘Valle’), the Court, for the first time, explicitly rejected applying the CRPD as a source of interpretation. ¹⁶¹ The case concerned the disenfranchisement of a woman with a mental disability. The Court found that the decision to revoke her right to vote was justifiable as it was within the MOA of each State to regulate the right to vote. ¹⁶² This decision represents a conservative and patronising incapacity approach to disability, resembling the medical model that fails to acknowledge PwD as rightsholders. Of particular note is the Court’s divergent from the CRPD provisions:

[T]he Court is not bound by interpretations given to similar instruments by other bodies, having regard to the possible difference in the contents of the provisions of other international instruments and/or the possible difference in role of the Court and the other bodies (...). ¹⁶³

However, the majority’s conclusion is followed by a robust dissent from Judge Lemmens, highlighting how the conclusion contradicts the Committee’s interpretation of Article 12 CRPD on legal capacity and Article 29 CRPD on participation in private and public life. Moreover, he highlighted the structural inequality inherent in the situation, emphasising that the State’s legislation deprived the woman of the opportunity to make her voice heard, effectively reducing her to a second-class citizen and denying a broad category of individuals the ability to influence policies that directly impacted their lives. ¹⁶⁴

Finally, Judge Lemmens noted that the case is not only important for PwD but for the Court and asked: ‘How does it see its role as a guarantor of human rights?’: ¹⁶⁵

The Court occasionally warns itself against failing “to maintain a dynamic and evolutive approach”, as this would “risk rendering it a bar to reform or improvement” (...). I am afraid that the present judgment could constitute a bar to the alignment of the Convention and domestic laws with the inclusive approach to equality as introduced by the CRPD in human-rights law. ¹⁶⁶

Judge Lemmens’s dissenting opinion serves as a stark reminder of the slippery slope the ECtHR risks descending if it moves away from the living instrument doctrine and reverts to the formalistic approach characteristic of 20th-century legal thought. ¹⁶⁷

Yet, in the recent judgment of I.C. v Moldova ¹⁶⁸ (‘I.C.’), the Court took a considerably different approach from that in Valle and adopted a structural lens in examining the exploitation and sexual abuse of a woman with an intellectual disability placed in a private home as part of a flawed deinstitutionalisation programme. The Court acknowledged that the woman’s vulnerability stemmed not only from her intellectual disability and gender but also from her lifelong institutionalisation, which had eroded her autonomy and capacity to resist coercion. Crucially, the Court did not treat these factors in isolation but recognised them as intersecting dimensions of disadvantage, explicitly situating her experience within broader systemic discrimination and institutional failures. ¹⁶⁹ Notably, the Court grounded its analysis in international disability rights standards, drawing on the 2015 report of the UN Special Rapporteur on the rights of PwD and on the CRPD Committee’s 2017 Concluding Observations on Moldova. ¹⁷⁰ This judgment signals a significant shift: it confronts both the stereotyping and the structural inequalities that underpin abuse and exclusion and it affirms the relevance of CRPD principles in ECtHR reasoning.

These two cases reveal the inconsistency that continues to characterise the Court’s treatment of disability rights. Valle exemplifies the Court’s reluctance to engage with the CRPD as interpretive guidance, while I.C. demonstrates its capacity to adopt a structural perspective consistent with the CRPD’s vision of equality. Read together, they highlight both the limitations and the potential of the Court’s evolving jurisprudence.

Bridging the gulf

The analysis of the case law illustrates the gulf between the CRPD standard on accessibility and the ECtHR jurisprudence. The Court’s approach to accessibility is individualistic, reactive and detached from sufficient consideration of how structural forces impede the equal participation and inclusion of PwD in society. Consequently, the ECtHR’s enforcement of disability rights is misaligned with the structural view inherent in the CRPD. This discrepancy thwarts the realisation of the CRPD’s inclusive equality model that holds the key to unlocking structural inequality and creating societies where active participation in everyday life is accessible to all, not just the able-bodied.

It can be argued that this discrepancy can be traced to the Court’s approach to disability rights remaining entrenched within the confines of the mainstream human rights framework, which overlooks the structural pattern of inequality responsible for generating and perpetuating inaccessibility for PwD. Thus, rather than dismantling structural inequality by fostering the inclusion and active participation of PwD in society through a robust accessibility standard, the Court effectively reinforces social institutions that privilege able-bodied people, thereby perpetuating and reproducing unequal outcomes for PwD. The question remains; how can the Court bridge this gulf?

This article has formulated a conceptual framework of structural ableism, arguing that its adoption and application are essential for recognising the structural forces that generate and sustain physical inaccessibility for PwD. Implementing this framework would align the Court’s approach with the CRPD’s accessibility standards. The analysis of the case law demonstrates four fundamental steps essential for the Court to progress in that direction.

Surmounting the admissibility bar

Botta, Zehnalóva, Mółka and Glaisen are illustrative of the individualistic and restrictive approach applied by the Court when assessing whether the issue of inaccessibility falls within the protection scope of ECHR rights. In these cases, the Court disregarded the structural inequality underlying the inaccessibility being challenged. This is particularly concerning as inadmissibility precludes the engagement of Article 14 and its non-discrimination protection, reflecting the Court’s reluctance to situate failures to ensure accessibility for PwD within its non-discrimination norm. As a result, a significant portion of the discrimination faced by PwD risks being overlooked. It is argued that by adopting a structural understanding of equality, the Court can surmount the admissibility bar and thus activate Article 14 to provide meaningful protection against structural inequality.

The recent judgment in Wa Baile v Switzerland ¹⁷¹ offers support for this proposition. The case concerned a Black Swiss man who was fined for refusing to comply with an identity check at a railway station, which he argued amounted to racial profiling. The Swiss government’s argument that the applicant lacked victim status was dismissed. Although the domestic courts had found the identity check unlawful, they had not acknowledged or remedied the applicant’s complaint of discrimination. The ECtHR therefore held that he retained victim status in relation to his claim under Article 14, taken together with Article 8, and the case was admissible. ¹⁷²

In its assessment, the Court underlined that States have positive obligations to secure the effective enjoyment of Convention rights. It emphasised that this duty is of particular importance where vulnerable minorities are at risk of victimisation and takes on added significance where Article 14 is engaged. ¹⁷³ The judgment exemplifies a context-sensitive approach to discrimination, recognising that structural inequality may persist even when other legal wrongs have been remedied and identifying racial profiling as a systemic practice rather than an isolated incident. ¹⁷⁴ In this way, the Court demonstrates its capacity to overcome admissibility barriers by adopting a structural perspective on discrimination, thereby activating Article 14 as a vehicle for addressing structural inequality.

Narrowing the margin of appreciation

It has been argued that the ECHR as a civil rights instrument ‘is not a particularly effective instrument to address the specific needs of persons with disabilities’. ¹⁷⁵ However, this perspective overlooks the fundamental principle that the ECHR applies equally to all individuals. The key distinction is that PwD may require additional positive measures to fully exercise their ECHR rights, including so-called ‘budget-neutral’ civil rights. ¹⁷⁶ Ultimately, human rights are legal entitlements, not acts of charity. ¹⁷⁷

However, the cases of Toplak, Lárusson and Valle demonstrate the Court’s reluctance to narrow the MOA by framing these cases within a broader discourse on historical and structural disadvantages experienced by PwD. This hesitancy reflects the Court’s unwillingness to engage with the issue of resource allocation as means of addressing those disadvantages.

While the Court has so far shown reluctance to narrow the MOA in disability cases, this should not be read as a matter of doctrinal constraint but rather as a reflection of judicial choice. The Convention framework already provides the tools to apply stricter scrutiny where warranted. The Court has confirmed this in its case law, holding that the MOA is substantially narrower when restrictions affect ‘a particularly vulnerable group’ ¹⁷⁸ that has suffered historical discrimination. This line of reasoning was recently reaffirmed in I.C., where the Court underscored that ‘very weighty reasons’ ¹⁷⁹ are required to justify restrictions imposed on such groups. Interestingly, the Court has not shown the same hesitancy in cases involving mental or intellectual disability (including I.C.), ¹⁸⁰ or in relation to other grounds of discrimination such as ethnic origin, gender or sexual orientation, where it has demonstrated a readiness to subject State actions to heightened scrutiny. ¹⁸¹ The failure to adopt the same approach in accessibility cases therefore reflects an inconsistency in application rather than a principled limitation. To guarantee ECHR rights to PwD on an equal basis with others, it is argued that the Court needs to recognise the pervasive patterns of structural inequality faced by PwD and demonstrate the resolve to narrow the MOA, enabling it to address structural ableism effectively.

Shifting the focus to accessibility

As a general principle of the CRPD and a precondition for the enjoyment of other fundamental rights, accessibility forms a crucial part of the interpretive framework of the CRPD. Yet, in Lárusson, Toplok and Şahin, the Court’s understanding of accessibility is limited to the concept of reasonable accommodation in line with its individualistic and reactive approach.

The Court’s focus on reasonable accommodation over general accessibility perpetuates the discount of structural inequality since the former only applies in a particular setting for a particular individual and from the moment of the request. Consequently, it disregards pre-existing accessibility obligations, overlooks historical disadvantages and fails to acknowledge the importance of dismantling social structures that impede the full and active participation of PwD. The Court must shift its focus and bring accessibility out of the shadows, clarifying the link between reasonable accommodation and accessibility and delineating the applicable criteria for each, in line with the Committee’s understanding.

Interestingly, the case of Şahin represents a significant contrast among all the cases explored. While the majority failed to distinguish between reasonable accommodation and general accessibility, it drew explicitly on the CRPD to underpin its progressive interpretation of ECHR rights. It is argued that this case shows that through a holistic and inclusive conceptual framework of equality, the Court can activate the ECHR to ensure the accessibility of PwD to the physical environment and bridge the current gulf between the ECtHR jurisprudence and the CRPD accessibility standards.

To move in that direction, the Court must abandon its reactive and individualistic approach and address accessibility in structural terms by embedding it within a broader discourse on structural inequality. Otherwise, the Court will continue to feed into structural ableism and ‘disabled people [will] remain inhabitants of structures conceived by and made for others—structures which, by their very nature, will render them forever strangers and outsiders’. ¹⁸²

Incorporating intersectionality as a tool for structural analysis

Finally, any serious attempt to align the Court’s approach with the CRPD’s structural understanding of inequality must also consider how intersecting systems of oppression shape accessibility barriers. Although the ECtHR has rarely engaged explicitly with intersectionality, it has acknowledged ‘particular vulnerability’ in a number of cases involving overlapping and intersecting forms of disadvantage. ¹⁸³

In Horváth and Kiss v Hungary, ¹⁸⁴ the Court recognised the disparate impact of disability classification on Roma students, implicitly capturing the interplay between disability and ethnicity. In I.C. the Court offered perhaps its most compelling engagement yet with intersectional vulnerability. Its reasoning not only affirms the normative relevance of CRPD standards, including GC5, ¹⁸⁵ but also illustrates how intersectionality can operate as an interpretive framework to expose structural inequality. ¹⁸⁶ By linking the failure to prevent abuse to the broader deinstitutionalisation context, the Court underscored the structural nature of the harm and the State’s corresponding positive obligations. As Lorena Sosa has highlighted, this judgment clearly anchors the individual violation within a wider landscape of structural failures, calling for a systematic transformation and thereby ‘aligning with the transformative equality principles to address root causes of inequality and systematic vulnerability’. ¹⁸⁷ This judgment suggests that the Court is increasingly willing to confront structural harm and engage with structural and intersectional discrimination where the context demands it. The challenge now is to ensure that such reasoning is not confined to extreme cases of exploitation and abuse but is extended to other areas, such as accessibility, where structural barriers faced by PwD are too often rendered invisible through narrow and individualised reasoning.

This article argues that these four steps provide a path for the Court to bring its jurisprudence into line with the CRPD’s accessibility standards and to confront the structural forces that generate and sustain inaccessibility. Yet, achieving this alignment requires more than doctrinal tools and judicial willingness. Here, litigation can play a critical role. ¹⁸⁸ This is particularly relevant in accessibility cases, where the Court has often treated barriers as individual or procedural issues rather than structural forms of exclusion. Well-framed claims that expose systematic patterns of inaccessibility and explicitly invoke CRPD standards can challenge this narrow approach. By presenting accessibility not merely as an individual accommodation but as a precondition for equal participation and inclusion, litigants can push the Court towards a jurisprudence that recognises and dismantles structural ableism. In this way, litigation can serve not only as a means for redress in individual cases but also a catalyst for transformative change in the Court’s approach to disability rights.

Conclusion

This article has argued that accessibility should not be considered in isolation from the structural realities that drive the exclusion and marginalisation of PwD. To this end, it has developed a conceptual framework of structural ableism, providing a lens through which to understand and recognise the systemic barriers that hinder the equal participation and inclusion of PwD in society.

This article has also asserted that the enforcement of the CRPD’s accessibility standards is the precondition for achieving inclusive equality for PwD. Through a critical analysis of ECtHR disability jurisprudence, this article has revealed a gulf between the CRPD standard on accessibility and the ECtHR jurisprudence. More specifically, it has shown how the ECtHR’s individualistic and reactive approach to accessibility has led to its failure to identify and address structural inequality, thereby reinforcing the very structures that the CRPD’s inclusive equality model seeks to deconstruct. To bridge the existing gap, this article has advocated for a structural shift in the Court’s approach to accessibility and has proposed four steps to facilitate this transition.

This article seeks to encourage dialogue on the Court’s failure to address structural inequality in its jurisprudence and its resulting complicity in maintaining and legitimising structural ableism. More importantly, it is hoped that the Court will recalibrate its approach by applying the CRPD’s accessibility standards more robustly in future cases, ultimately narrowing this gap.