Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention)
RELEVANT LEGAL FRAMEWORK The Sporting Achievements Recognition and Rewards Decree ( Uredba o nacionalnim priznanjima i nagradama za poseban doprinos razvoju i afirmacji sporta, published in the Official Gazette of the Republic of Serbia – OG RS – nos. 65/06 and 06/07) 24. Article 2 § 1 provided that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of Yugoslavia or of the State Union of Serbia and Montenegro or the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport, or who had been world record holders in such a discipline, as well as their coaches if they too were nationals of the Republic of Serbia, were all entitled to a “national sporting recognition award” ( nacionalono sportsko priznanje ). 25. Article 2 § 2, inter alia, defined the national sporting recognition award as consisting of an honorary diploma and a lifetime monthly cash benefit. 26. Article 2 § 2 (1) provided, inter alia, that the monthly cash benefit was to be in the amount of three average net salaries in the Republic of Serbia for the month of December of the previous year for a gold medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad. 27. Article 2 § 2 (2) provided, inter alia, that the monthly cash benefit was to be in the amount of two and a half average net salaries in the Republic of Serbia for the month of December of the previous year for a silver medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad. 28. Article 2 §§ 3 and 4 provided that the national sporting recognition award could be bestowed upon the same athlete or coach only once and that it was to be formally presented on the National Day of the Republic of Serbia. 29. Article 3 provided, inter alia, that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport or chess, were also entitled to a one-time cash payment in accordance with the decree. 30. Article 4 § 1 specified that for a medal won in a team sport at the Olympic Games, the Paralympic Games or the Chess Olympiad the team in question would be paid EUR 400,000 in RSD for a gold medal, EUR 350,000 in RSD for a silver medal, and EUR 300,000 in RSD for a bronze medal. 31. Article 4 § 2 provided, inter alia, that for a medal won at the Olympic Games or the Paralympic Games in individual sports athletes were personally entitled to a one-time cash payment in the amount of 15% of the sums mentioned in Article 4 § 1 above. 32. Article 4 §§ 4 and 5 provided that for a medal won at the Olympic Games or the Paralympic Games by a team the one-time cash payment was to be adjusted taking into account the size of the team itself. It also set out the exact calculation method for so doing. 33. Article 7 provided, inter alia, that the national sporting recognition awards referred to in Article 2 § 2 of this decree, as well as the one-time cash payment, were to be granted by the Government on the proposal of the ministry in charge of sports and that an athlete or player would be entitled to receive the lifetime monthly cash benefit upon reaching the age of 35. 34. In 2009 this decree was repealed and replaced by another decree regulating the same subject matter. Other decrees on the issue and their amendments were enacted in 2013, 2015, 2016, 2017 and 2019. The decree of 2009, inter alia, specified that athletes and players who had won a medal prior to 15 April 2009 would be entitled to the recognition and rewards as provided in the earlier regulations, that is in the decree summarised in paragraphs 24-33 above. The Prohibition of Discrimination Act ( Zakon o zabrani diskriminacije, published in OG RS no. 22⁄09) 35. Article 43 sets out the various forms of judicial redress available to victims of discrimination, including on the basis of disability. They include injunctive and declaratory relief, such as the recognition of the discrimination suffered and its prohibition in the future, as well as compensation for any pecuniary and non-pecuniary damage. The publication in the media of a civil court’s judgment rendered in this context may also be ordered. 36. This Act entered into force on 7 April 2009 and has since then been amended once, in 2021. The General Administrative Proceedings Act ( Zakon o opštem upravnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 33/97 and 31/01) 37. Article 208 § 1 provided, inter alia, that in simple matters an administrative body was obliged to issue a decision within one month as of when the claimant had lodged his or her request. In all other cases, the administrative body was to render a decision within two months thereof. 38. Article 208 § 2 enabled the claimant whose request had not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request had been denied. Where an appeal was not allowed, the claimant had the right to directly initiate an administrative dispute before a relevant court of law. 39. This Act was subsequently amended, in 2010, and was ultimately repealed and replaced by other legislation enacted in 2016. The Administrative Disputes Act ( Zakon o upravnim sporovima; published in OG FRY no. 46/96) 40. Article 6 provided that an administrative dispute could only be brought against an “administrative act”, which was an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”. Article 9 § 1, however, provided, inter alia, that an administrative dispute could not be instituted in respect of matters where “judicial redress” was “secured outside [of the context] of an administrative dispute”. 41. Articles 8 and 24 provided, inter alia, that a claimant who had lodged a request with an administrative body would have the right to bring an administrative dispute before a court of law in the following situations: (a) Where an appellate body failed to issue a decision upon his or her appeal within sixty days, or indeed a shorter deadline if so provided by law, the claimant could repeat the request and if the appellate body declined to rule within an additional period of seven days the claimant could institute an administrative dispute. (b) In accordance with, mutatis mutandis, the conditions set out under (a) above, where a first instance administrative body failed to issue a decision and there was no right to an appeal, the claimant could directly institute an administrative dispute. (c) Where a first instance administrative body failed to issue a decision upon the claimant’s request within sixty days, or indeed a shorter deadline if so provided by law, as regards matters where an appeal was not excluded, the claimant had the right to lodge the said request with the appellate administrative body. Where that body rendered a decision, the claimant had the right to institute an administrative dispute against it, and where it failed to rule the claimant could institute an administrative dispute in accordance with, mutatis mutandis, the conditions set out under (a) above. 42. This Act was repealed and replaced by other legislation on 30 December 2009. THE LAW joinder of the applications 43. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. alleged VIOLATIONs of Article 1 of protocol no. 12 Scope of the case Scope of the case Scope of the case 44. The applicants are blind chess players and Serbian nationals who had won medals for Yugoslavia internationally, notably in the Blind Chess Olympiad. They complained that they had been discriminated against by the Serbian authorities by being denied certain financial awards, i.e. a lifetime monthly cash benefit as well as a one-time cash payment (see paragraphs 24-33 above), unlike all other athletes and chess players, including sighted chess players or other athletes or players with disabilities, who had won similar international accolades. 45. The applicants furthermore complained that as part of the above-alleged discrimination, including the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma (see paragraph 25 above), they had suffered adverse consequences to their reputations respectively. 46. These complaints were communicated to the Government under Article 14 of the Convention, read in conjunction with Article 8 thereof and Article 1 of Protocol No. 1, as well as under Article 1 of Protocol No. 12. 47. Having regard to the substance of the applicants’ complaints and the relevant context, however, the Court, which is the master of the characterisation to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), is of the opinion that all of the complaints in the present case should be examined from the standpoint of Article 1 of Protocol No. 12 only (see, mutatis mutandis, Napotnik v. Romania, no. 33139/13, § 52, 20 October 2020). That provision reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” As regards the applicants’ complaints that they had been discriminated against by being denied certain financial awards (see paragraph 44 above) Admissibility Admissibility Admissibility (a) The Court’s jurisdiction ratione materiae 48. The Government argued that since the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree, the applicants had consequently not been entitled to acquire any pecuniary benefits in this connection. 49. The applicants maintained that they should have been granted the same awards as all other athletes and players, including sighted chess players, with similar international accolades. 50. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 therefore falls to be examined at the admissibility stage. 51. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019). 52. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010, and Napotnik, cited above, § 55). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that provision concerns four categories of cases in particular where a person is discriminated against: “i. in the enjoyment of any right specifically granted to an individual under national law; ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies that: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 53. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105, and Napotnik, cited above, § 56). 54. In this connection, the Court notes that the domestic law (see paragraphs 24-32 above), as interpreted by the national courts (see paragraphs 15, 17 and 19 above), provided that only chess players who had won medals at the Chess Olympiad, otherwise organised for sighted chess players only, were entitled to certain financial awards, thus effectively disqualifying all other chess players including those who, such as the applicants, had won their medals at the Blind Chess Olympiad. It follows that the Serbian authorities, when deciding to enact such legislation, clearly exercised their discretionary power in such a way as to treat differently the sighted and the blind chess players despite them winning similar international accolades. Consequently, the Court cannot but conclude that the applicants’ complaints fall under category (iii) of potential discrimination as envisaged by the Explanatory Report (see paragraph 52 above). 55. In view of the foregoing, Article 1 of Protocol No. 12 is applicable to the facts of the applicants’ complaints and the Government’s implicit objection in this regard must be rejected. (b) Exhaustion of domestic remedies (i) The parties submissions 56. The Government maintained that the applicants had failed to make use of an existing and effective domestic remedy. In particular, and as noted by the domestic civil courts themselves, the applicants should have properly brought an administrative dispute with respect to their complaints relating to the national sporting recognition awards (see paragraphs 13, 15 and 37-42 above). Moreover, the Government pointed out that the applicants had clearly been aware of this avenue of redress but had, for some reason, decided not to pursue it (see paragraph 9 above). 57. The applicants submitted that they had complied with the exhaustion requirement, particularly since their complaints had concerned discrimination and they had brought an anti-discrimination civil lawsuit in this regard (see paragraph 35 above). (ii) The Court’s assessment (α) Relevant principles 58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to firstly use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right domestically (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). 59. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, cited above, § 71). 60. To be effective, a remedy must likewise be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009, and Vučković and Others, cited above, § 74). 61. An applicant’s failure to make use of an available domestic remedy or to make proper use of it (that is to say by bringing a complaint at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law) will result in an application being declared inadmissible before this Court (see Vučković and Others, cited above, § 72). 62. The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 76, with further references). For example, where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her own choosing (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012; Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014; and O’Keeffe v. Ireland [GC], no. 35810/09, §§ 109-111, ECHR 2014 (extracts)). Also, it would, for example, be unduly formalistic to require the applicants to exercise a remedy which even the highest court of their country would not oblige them to exhaust (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 117 and 118, ECHR 2007 ‑ IV). 63. With respect to legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, it is incumbent on the aggrieved individual to test the extent of that protection (see Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 51, 1 December 2009). 64. As regards the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see and Vučković and Others, cited above, § 77, with further references). (β) Application of these principles to the present case 65. Turning to the present case, the Court notes that, as stated by the applicants themselves, the very substance of their complaints concerned allegations of discrimination (see paragraphs 44 and 57 above). In those circumstances it cannot be deemed unreasonable for them to have sought redress on the basis of the national anti-discrimination legislation, which specifically provided for various forms of injunctive and/or declaratory relief to victims of such treatment, as well as compensation for any pecuniary and non-pecuniary damage suffered (see paragraph 35 above; see also, mutatis mutandis, Vučković and Others, cited above, § 78). 66. Furthermore, an administrative dispute would not have offered, in the very specific circumstances of the present case, a more reasonable prospect of success, compared to the civil lawsuit (see paragraphs 60 and 62 above). The Government, for their part, provided no relevant domestic case-law showing that any other claimants had ever obtained redress through this legal avenue in respect of discrimination-related claims brought in connection with the sporting recognition awards system (see paragraph 64 above). 67. The applicants lastly, albeit unsuccessfully, tested the extent of the protection for fundamental human rights and freedoms afforded by the Constitutional Court, it being noted that as of 7 August 2008 a constitutional appeal has, in principle, been considered by the Court as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 61). The Constitutional Court was thus given an opportunity to expand this protection by way of interpretation (see paragraph 63 above; see also Vučković and Others, cited above, § 84, with further references) but held that there had been no discrimination in the present case. In so doing, however, it did not reject the applicants’ complaints on the grounds that they had not properly exhausted any other, prior, effective legal avenue, including the administrative dispute proceedings, as it could have done (see paragraph 19 above). It would hence also be unduly formalistic for the Court to now hold otherwise (see paragraph 62 above in fine; see also, mutatis mutandis, Dragan Petrović v. Serbia, no. 75229/10, §§ 55 and 57, 14 April 2020). 68. In view of the foregoing, the Government’s objection as to the non-exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected. (c) As regards other grounds of inadmissibility 69. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits (a) Submissions by the parties 70. The applicants essentially reaffirmed their complaints as set out in paragraph 44 above. They further maintained that the respondent State had continued to discriminate against blind chess players on the basis of their sensory impairment notwithstanding their undisputed sporting achievements. 71. The Government submitted that the applicants had not suffered any discrimination in the present case. The Sporting Achievements Recognition and Rewards Decree had pursued certain objectives, notably the recognition of only the highest sporting achievements in the most important competitions. In deciding which sports should be included, a number of criteria had been employed: (i) the popularity of the sport and its tradition in Serbia; (ii) the sport’s significance internationally; (iii) its contribution to the “development and affirmation” of the country’s reputation; (iv) the need to distinguish between “Olympic and non-Olympic sports”; and (v) the country’s budgetary constraints. 72. The Government further pointed out that although chess was not an Olympic sport, the International Olympic Committee had recognised FIDE as the supreme body responsible for the advancement of chess. FIDE had also adopted the rules of the game and had organised chess Olympiads, world championships and other competitions under its auspices. Chess had therefore been included among the sports listed in the Sporting Achievements Recognition and Rewards Decree, but not the Blind Chess Olympiad as such. In this connection, the Government stated that there had also been many other important competitions which had not been included based on the above-mentioned criteria. Among others, for example, amateurs, junior athletes and veterans had all been excluded. Most notably, even though the Serbian national youth team (the under 20s) had won the 2015 FIFA World Cup in football, which had been a major success in the Serbian context and a feat which had delighted the entire nation, the members of this team had not been eligible to receive any national sporting recognition awards. 73. The Government lastly endorsed the reasoning of the Supreme Court of Cassation and that of the Constitutional Court, including reasons to the effect that there had been no evidence that any other blind chess players had ever received the national recognition awards in question, the implication being that all blind chess players had thus been treated equally (see paragraphs 17 and 19 above). (b) The Court’s assessment (i) Relevant principles 74. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55, and Napotnik, cited above, § 69). 75. It can further be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see, for example, Napotnik, cited above, § 70). 76. In this vein, the Court reiterates that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017), which includes discrimination based on disability (see, for example, Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009). Moreover, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Molla Sali v. Greece [GC], no. 20452/14, § 133, 19 December 2018). Such a difference in treatment is discriminatory if it has no objective and reasonable justification, or in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 135). 77. Moreover, in cases concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, although the latter provision does not, for example, include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see, for example, Stummer v. Austria [GC], no. 37452/02, § 83, ECHR 2011, and Fábián, cited above, § 117, both with further references). 78. The Contracting States also enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, for example, Stummer, cited above, § 88). In cases concerning disability, the States’ margin of appreciation in establishing different legal treatment for people with disabilities has been deemed as reduced considerably ( see Glor, cited above, § 84). 79. Referring in particular to Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, and the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006, the Court has opined that there was a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor, cited above, § 53). This included an obligation for the States to ensure “reasonable accommodation” to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination (see, among other authorities, Enver Şahin v. Turkey, no. 23065/12, §§ 67-69, 30 January 2018; Çam v. Turkey, no. 51500/08, §§ 65-67, 23 February 2016; and G.L. v. Italy, no. 59751/15, §§ 60-66, 10 September 2020). 80. As to the burden of proof, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the difference in treatment was justified (see, for example, Molla Sali, cited above, § 137, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts)). (ii) Application of these principles to the present case (α) Whether there was a difference in treatment 81. The Court notes that the complaints in question concern the respondent State’s decision not to provide the applicants with at least one financial benefit, i.e. the lifetime monthly cash benefit, which they would have received had they won medals in competitions as sighted rather than blind chess players. In particular, this benefit was to be paid to sighted chess players for winning medals in the Chess Olympiad but not to blind chess players for winning medals in the Blind Chess Olympiad, the former competition having been listed in the decree but the latter competition not having been specifically mentioned therein (see paragraphs 24 and 25 above). The situation with the one-time cash payment, however, seems less clear since Article 3 of the decree referred only to persons who had won medals for Serbia rather than both Serbia and Yugoslavia (compare and contrast paragraphs 24 and 29 above; at the same time, however, see also paragraph 12 above in support of an affirmative position on the issue expressed by the Novi Sad Court of First Instance on 1 April 2010). 82. The applicants were thus at least partly treated differently based on a ground of distinction covered by Article 1 of Protocol No. 12, namely their disability (see, mutatis mutandis, paragraphs 75 and 76 above). (β) Whether the two groups of persons were in comparable situations 83. In view of the above, the applicants as blind chess players who had won their medals at the Blind Chess Olympiad, on the one hand, and the sighted chess players who had won their medals at the Chess Olympiad, on the other, must, in the Court’s opinion, be seen as two groups of persons engaging in the same activity, i.e. playing chess, and, furthermore, as two groups whose members had attained some of the highest international accolades. 84. It follows that the blind chess players and the sighted chess players, in the context of the present case and within the meaning of the Court’s case-law have to be deemed as two groups of persons in analogous or relevantly similar situations (see paragraphs 75 and 76 above). (γ) Whether there was an objective and reasonable justification 85. The Government argued that the Sporting Achievements Recognition and Rewards Decree had pursued a justified objective, specifically the recognition of only the highest sporting achievements in the most important competitions. The exact relevant criteria referred to by the Government have been set out in paragraph 71 above. 86. In this context, the Court reiterates at the outset that although Article 1 of Protocol No. 12 does not include the right to receive payment of a benefit of any kind, if a State does decide to create a particular benefit, it must do so in a manner which is compatible with this provision (see paragraphs 75 and 77 above). In other words and in the context of the present case, since the respondent State decided to set up a sporting achievements recognition and rewards system it had to do so in such a way as to comply with Article 1 of Protocol No. 12. 87. Furthermore, while it was obviously legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions, the Court notes that the Government have not shown why the undoubtedly high accolades won by the applicants, as blind chess players, would have been less “popular” or “internationally significant” than similar medals won by sighted chess players (see paragraph 80 above). Indeed, in its letter addressed to the Ministry of Youth and Sport, the IBCA itself stated, inter alia, that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment” and requested that they be treated “in accordance with the basic postulates of ethics and fair-play in sports” (see paragraph 21 above). In any event, it is, in the Court’s view, inconceivable that the “prestige” of a game or a sport as such, including for example some of the most popular sports such as football, basketball or tennis, should depend merely on whether it is practised by persons with or without a disability. Indeed, the Court notes that the decree itself placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen in the sports concerned as meriting equal recognition. 88. Also, in terms of the contribution of chess to the “development and affirmation” of the country’s reputation, equal treatment of blind and sighted chess players for similar achievements, in Serbian legislation as well as in practice, could only have served to enhance the country’s reputation abroad and promote inclusiveness domestically. 89. The Government likewise attempted to distinguish between Olympic and non-Olympic sports but this distinction is of no relevance in the present context since neither the Chess Olympiad for sighted chess players, which was among the listed competitions in the decree, nor the Blind Chess Olympiad for blind chess players, which was not included in the same decree, were part of the Olympic or Paralympic Games organised by the International Olympic Committee and International Paralympic Committee respectively (see paragraph 23 above). 90. As regards the budgetary constraints referred to by the Government, the Court notes that, apparently, of all the medal winners and champions over the years, that is a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition awards (see paragraph 22 above). Adding the four applicants to this number, therefore, clearly could not have undermined the country’s financial stability, particularly since there is also no suggestion that winning a medal at the Blind Chess Olympiad is, generally speaking, an easily attainable achievement capable of giving rise to many future entitlements. 91. Lastly, the Court considers that the Government’s submissions to the effect that there was no evidence that any other blind chess players had ever received the national recognition awards in question (see paragraph 73 above) are of no relevance in terms of the difference in treatment between sighted and blind chess players when it comes to their sporting recognition entitlements. (δ) Conclusion 92. In view of the foregoing and notwithstanding the State’s margin of appreciation, the Court cannot but conclude that there was no “objective and reasonable justification” for the differential treatment of the applicants merely on the basis of their disability, it being understood that the said margin is reduced considerably in this particular context (see paragraphs 75 and 78 above). There has accordingly been a violation of Article 1 of Protocol No. 12. As regards the applicants’ complaints that as part of the above-established discrimination, as well as the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma, they had suffered adverse consequences to their reputations respectively (see paragraph 45 above) 93. Having regard to the facts of the case and the submissions of the parties, as well as its findings as set out in paragraphs 81-92 above, the Court considers that it is not necessary to further examine either the admissibility or the merits of these complaints under Article 1 of Protocol No. 12 (see, for example and mutatis mutandis, Kaos GL v. Turkey, no. 4982/07, § 65, 22 November 2016, and Aktiva DOO v. Serbia, no. 23079/11, § 89, 19 January 2021). Application of Article 41 of the Convention 94. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 95. The applicants referred to the judgments rendered by the Novi Sad Court of First Instance on 1 April 2010 and 14 November 2011 respectively, notably the redress afforded therein for the pecuniary and non-pecuniary damage allegedly suffered (see paragraphs 12 and 14 above), and added that “blind chess players [should] also have the right to a cash reward as well as [a] regular monthly income” for their achievements. 96. The Government contested these claims. 97. The Court considers that the applicants have certainly suffered some non-pecuniary damage. Having regard to the nature of the violation found in the present case and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 4,500 in this connection, plus any tax that may be chargeable on that amount. 98. Concerning the pecuniary damage, the Government must pay each applicant the accrued and any future financial benefits and/or awards to which he would have been entitled had he been a sighed chess player who had won, for Yugoslavia, a relevant medal at the Chess Olympiad for sighted chess players (see paragraphs 24-34 above), together with the applicable domestic statutory interest as regards the accrued benefits and/or awards only (see, mutatis mutandis, Grudić v. Serbia, no. 31925/08, § 92, 17 April 2012). Costs and expenses 99. The applicant claimed no costs or expenses. Accordingly, the Court makes no award under this head. Default interest 100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention, finding that there had been no objective and reasonable justification for treating the applicants differently on the basis of their disability. It noted, in particular, that while it was legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions in its award system, they had not shown why the high accolades won by the applicants, as blind chess players, were less significant than similar medals won by sighted chess players. The prestige of a game or a sport should not depend on whether it is practised by persons with or without a disability. Indeed, the Court pointed out that the Sporting Achievements Recognition and Rewards Decree itself, introduced by Serbia in 2016, which provided for a national recognition and rewards system consisting of an honorary diploma, a lifetime monthly cash benefit, and a one-off cash payment, had placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen as meriting equal recognition. Moreover, the distinction between Olympic and non-Olympic sports which had been used as an argument by the Serbian Government was of no relevance since the Chess Olympiad for sighted chess players, which was among the listed competitions in the decree, was neither part of the Olympic nor the Paralympic Games.