A lawyer in a wheelchair has won the first case on the discrimination of disabled persons in Ukraine
Dmytro Zharyi, wheelchair bound, has won a case on discrimination of persons with disabilities against a pharmacy chain. The whole chain is stripped of its license. But the major victory, the plaintiff says, is that the court has acknowledged the fact of discrimination. Mr. Zharyi is also sure that his victory will increase disabled persons’ chances of defending their rights in the courts of law.
A pharmacy for the healthy
It is extremely difficult for a person using a wheelchair to get into the pharmacy, if it is not appropriately equipped with a ramp. And it is humiliating, and often quite risky – to ask the pharmacy staff to assist a disabled person by carrying a wheelchair out of premises.
Persons with disabilities, elderly people, as well as moms with buggies visit pharmacies more often than young and healthy – but it is exactly their access to such institutions is usually limited.
At the first glance, everything looks quite simple – just equip a pharmacy with a comfortable spacious ramp. But the state has a cast-iron excuse – lack of money, while commercial enterprises often don’t consider such a step necessary.
After another failed attempt to get into the pharmacy in a “human” way, Dmytro Zharyi, a lawyer in a wheelchair, launched in July 2010 his court struggle against discrimination of persons with disabilities.
That was a usual pharmacy – one of those quite a few in the city of Dnipropetrovsk. But despite pleas (and later complaints) of a person in a wheelchair, its owners never organized a free access to the premises for persons with disabilities.
According to the plaintiff, the pharmacy’s manager at first didn’t even know what “a ramp” is. Later on, she expressed her sympathy – while saying that whatever appeals will hardly help. Dmytro Zharyi asked her to pass his complaints to the pharmacy chain’s owner and, when possible, to restore a ramp according to the architectural and construction standards.
“I gave them half a year to improve the situation. I knew that hardly anything will be done, – but still had some hope that they will at least try to correct something. Unfortunately, it never happened.” – Mr. Zharyi recalls.
Within six months the lawyer has filed a statement to the State Inspectorate for Quality Control of Medicines in Dnipropetrovsk region and to the Main Architecture and Planning Department of the city of Dnipropetrovsk, drawing attention to the fact that the pharmacy acts in breach of law where it comes to persons with disabilities. But these institutions’ responses were merely formal: they neither acknowledged violations, nor stated that standards and regulations are observed. And the lawyer had to struggle for several months just in order to get the response.
“When I finally got my hands on all the responses, it felt very uncomfortable – I haven’t got even minimal protection. – Zharyi tells his story. – So in order to prove that a person with disability can defend himself as anyone else, I had to order the construction and technical assessment of what they’ve called “the ramp” from a private expert, at my own cost.” The assessment report stated that the existing ramp is not only inconsistent with architectural standards, but is also dangerous to use.
Finally, Dmytro Zharyi filed a lawsuit to the Dnipropetrovsk regional administrative court. It’s not that he would like to “punish” this very pharmacy, – but rather to influence the situation in the country regarding free access for the persons with disabilities. This could be done only by taking a firm and decisive stand regarding the offender.
Thus, Mr. Zharyi included the demand of stripping the pharmacy chain of its license to the list of his numerous demands. The pharmacy reacted to such a suit immediately. “The pharmacy’s representatives wanted to make sure that I’m a real person with a disability, and not just a figurehead motivated to remove the pharmacy from the market”, – Dmytro Zharyi carries on.
As soon as he filed a motion to check licensing documents, the defendant’s representatives started talking of a possible hostile takeover.
“They said that I was not merely seeking justice, but that I decided to “take over” the whole pharmacy chain. But this is not the case! I just defend human rights, rights of persons with disabilities to live independently, as stipulated by the Art. 9 of the UN Convention on the Rights of Persons with Disabilities. It was intentional that I haven’t foreseen any single hryvnya of compensation for moral damage inflicted upon me in my statement of claim: thereby, no one has a reason to think that I do this for any material gain. There are things more important than money”, – the lawyer says.
Dmytro Zharyi has lost in the court of the first instance. But his appeal to the Dnipropetrovsk administrative court of appeals was so convincing, that within few months the pharmacy moved out, passing the ill-fated ramp to the new tenants.
“Unfortunately, the new pharmacy opened on the premises is exactly like the previous one, with the same kind of ramp. And regarding this new pharmacy everything should be done again from the very beginning.” – the lawyer says, rather distressed.
Are judges afraid of discrimination?
There were not many court cases on discrimination in the whole world, leaving alone Ukraine. And even less court cases on discrimination against persons with disabilities were won.
Iryna Fedorovych, a Co-chair of the Coalition for Combating Discrimination, sees the roots of such a situation in the fact that effective mechanism of protection from discrimination does not exist in Ukraine. And this, among other reasons, keeps individuals from turning to courts for restoration of their rights.
This is why a lawyer Dmytro Zharyi still doesn’t believe that he managed to convince the court of appeals to take his side.
Dnipropetrovsk administrative court of appeals ruled that inactivity of the State Administration of Ukraine on Medical Products in Dnipropetrovsk region went against the law when it came to the inspection if the pharmacy implemented the licensing demands properly. Besides that, the court obliged to look into the possibility of stripping the pharmacy sued by Mr. Zharyi from its license for retail of medicines.
“This decision is unique as such – to oblige the state body to look into the issue of stripping the whole pharmacy chain of license because of discrimination… This for sure never happened on the territory of Ukraine, and I’ve never heard that anywhere in the world such harsh sanctions were used because rights to free access for persons with disabilities were breached. And if the court of cassation will not revoke the court of appeals’ decision – we’ll have a unique precedent where the rights of persons with disabilities are defended”, – says Dmytro Zharyi.
He is convinced that this is not just an isolated decision, but a problem which will concern many commercial entities around Ukraine. Thus, from now on any pharmacy (or similar business) owner will know that the whole chain might be closed down if the rights of persons of disabilities are breached in one outlet – and will have to set up a ramp according to the norms and standards at least as a precautionary measure.
Dmytro Zharyi’s victory is just a drop in an ocean of the court practice on discrimination cases which is just formed. The main difficulty of such cases is that the definition of “discrimination” in Ukrainian legislation does not explain, what arguments could support it. The case of Dmytro Zharyi presents a concrete court decision which might provide incentive to other individuals to file lawsuits at their places of residence.
But at least two main problems still remain when it comes to forming court practice regarding anti-discrimination cases, according to a human rights defender Volodymyr Yavorskyi. First: those discriminated turn to courts very rarely. “In eight years I managed to convince only two persons to pursue the case up to the court level – it is very complicated. Therefore, the more people tried – the more examples of the court practice, even the negative one, would appear. But this would be the court practice which could be analysed, interpreted, some new arguments could be sought – and the due process would ensue”, – Mr. Yavorskyi says.
Second: judges turn down such cases as they don’t know how to give reasons in favour of their decisions on the matter. “They are afraid of taking wrong decisions, as every judge’s decisions are accounted for – how many of them are revoked by the higher instance. And if there will be quite a few of such revoked decisions – the relevant commission will downgrade the judge’s status. And if the qualification is lower, there will be no prospectives of promotion, no bonuses will be provided, etc. At the same time, no one keeps record of a number of cases turned down”, – Mr. Yavorskyi sums up.
Still, Ukraine has got some cases regarding discrimination. Thus, women’s rights centre “La Strada” filed a lawsuit due to the Prime Minister’s discriminatory statements regarding women.
But Mr. Yavorskyi thinks that these examples do not serve to the best advantage of the court practice to be formed. For example, the European Court of Human Rights does not consider such cases as discriminatory altogether. Therefore, one needs to look for situations where an individual is specifically deprived of his/her rights.
One of such cases took place last summer, when the court in Kharkiv acknowledged the fact of discrimination against Ihor Iasinskiy, who was denied employment due to his pre-retirement age. But even in this particular case the court did not find it necessary to compensate for moral damage.
For someone with nerves of steel
The experts unanimously say that defending one’s rights in courts is not for faint-hearted. “We are at the very beginning of a very long journey where the culture of implementing the anti-discrimination legislation in Ukraine should be worked out. And there is a long process ahead where the legislation will be improved through the courts’ blunders, so the society will learn the hard way”, – says Aksana Filipishina, representative of the Parliament Commissioner for Human Rights.
Would many people in Ukraine agree to go the court and try to prove their case for two years and a half? “Just few of those who suffered from discrimination because of their age, gender, skin colour or health, understand that their rights were breached; and even less are aware how to defend them and whom to approach for the legal assistance”, – says Liana Moroz, “Rule of Law” program manager at the International Renaissance Foundation.
And it is hardly possible without a lawyer who is “stubborn” and dedicated to his/her cause.
It’s interesting that the lawyers themselves are quite often in search of discrimination cases. Based on such cases, they can influence the overall situation. This is why many non-governmental organizations have the strategic planning funds, where a group of lawyers is ready to take the discrimination case.
“Sometimes they say “suited” or “ideal” victim. What is meant here is that the problems of a person with drug addiction or a homeless person will be hardly understandable for a general public. But a young pregnant lady, who is discriminated, will generate a public support”, – says Serhiy Burov, the head of the coordination council at the M’ART NGO. – “Therefore, it is important to find a person who understands, that her/his case might help the others, and will be ready for a strategic litigation”.
Strategic litigation is always aimed at change of the legislation or existing norms’ interpretation. These changes should concern a certain group of persons which is constantly under discriminatory pressure. The strategic court litigation might quite often be planned in a way that envisages the changes on the international institutions’ level – such as decisions of the European Court of Human Rights.
“In a strategic litigation case it is very important that the victim understands what s/he is up to”, – Mr. Burov carries on. – “It happens most often that it takes a very long time, and a victim goes through quite uncomfortable times. S/he has to understand that s/he will change the situation for others rather than for her. At the end of the day s/he will get something for her/himself as well, but during the court procedure s/he might be under pressure, or even threat. Therefore it is important to think over the system of defence. The civic support or a broad informational campaign can provide such a defence.”
Dmytro Zharyi had the strength to go all the way until the victory. But even in his story it is too early to celebrate. The pharmacy chain might still have its day in the court of cassation.
P.S. While this text was prepared for publishing, it became known that [the Prime Minister] Mykola Azarov charged the Ministry of Health together with the Ministry of regional development with drafting the changes to the pharmacies’ and medical institutions’ licensing terms – in order to secure free access to the premises for the persons with disabilities.
“I was astonished by the story when the fact that a pharmacy’s ramp was absolutely not suitable for a wheelchair had to be proven by a disabled person in the court of law. Pharmacy owners took the demand to ensure free access for persons with disabilities in a rather formal way, and later they even tried to deny their obvious blunder”, – Prime Minister said.
