OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 22 April 2021 (1)
Case C‑824/19
TC,
UB
v
Komisia za zashtita ot diskriminatsia,
VA
intervener:
Varhovna administrativna prokuratura
(Request for a preliminary ruling
from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))
(Reference for a preliminary ruling – Equal treatment in employment and occupation – Discrimination on grounds of disability – Directive 2000/78/EC – Pursuit by a blind person of the activity of professional juror in criminal proceedings – Article 4(1) – Genuine and determining occupational requirement for pursuit of the activity of juror – Rules of criminal procedure – Article 5 – Reasonable accommodation – Charter of Fundamental Rights of the European Union – Article 47 – Right to a fair trial – United Nations Convention on the Rights of Persons with Disabilities – Article 13 – Access to justice)
I. Introduction
1. The present case concerns discrimination on grounds of disability in the workplace. It is concerned with the pursuit of the activity of juror in criminal proceedings, an activity which is pursued in this case for remuneration, and therefore in a professional capacity, by a blind person.
2. The Court is asked to interpret Directive 2000/78/EC, (2) which prohibits discrimination on grounds of disability, in the light of the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities (3) (‘the UN Convention’), and to determine whether the total exclusion of a blind person from participating in criminal proceedings as a paid juror can be justified on the basis of Article 4(1) of that directive. The referring court seeks, in particular, to ascertain whether sight constitutes a genuine and determining occupational requirement within the meaning of that provision.
3. The request for a preliminary ruling was made in the context of proceedings between, on the one hand, TC and UB, respectively the court president and a judge of a criminal chamber, and, on the other hand, the Komisia za zashtita ot diskriminatsia (Commission for Protection against Discrimination, Bulgaria) and VA, a blind juror of that chamber. TC and UB challenged the decision of the Commission for Protection against Discrimination imposing fines on them for discriminating on grounds of disability against VA, whom they had refused to allow to sit in court.
4. This case must lead the Court to strike a balance between, on the one hand, the obligation of the State as employer to take appropriate measures to integrate disabled persons into the working environment, in the present case to pursue the paid activity of juror in criminal proceedings, and, on the other hand, national rules of criminal procedure intended to ensure a fair trial.
5. Following my assessment, I shall propose that the Court should rule that, in the case of a paid activity, Member States must, wherever possible, interpret their rules of criminal procedure in such a way as to allow blind persons to participate as jurors in criminal proceedings. With particular reference to a person, such as the one in the main proceedings, who meets the criteria laid down in national law to be a juror in such cases and who has been admitted to work in that capacity, I would propose that the Court rule that the total exclusion of that person from participation in such proceedings, on the basis of an assessment of her presumed inability to perform the duties of a juror on account of disability, is disproportionate and constitutes discrimination contrary to Directive 2000/78, read in the light of the UN Convention.
II. Legal framework
A. International law
6. Article 5(2) of the UN Convention prohibits all discrimination on the basis of disability, in particular in the context of employment, under Article 27 thereof, and provides that States Parties are required to adopt reasonable accommodation measures in order to promote equality and eliminate discrimination.
7. Article 13 of that convention, entitled ‘Access to justice’, provides, in paragraph 1 thereof:
‘States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.’
B. EU law
8. Recitals 17, 20 and 23 of Directive 2000/78 state:
‘(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
…
(20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
…
(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.’
9. Article 2 of that directive, entitled ‘Concept of discrimination’, states:
‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
…
5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’
10. Article 3(1) of that directive, entitled ‘Scope’, is worded as follows:
‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
…
(c) employment and working conditions, including dismissals and pay;
…’
11. Article 4 of that directive, entitled ‘Occupational requirements’, provides, in paragraph 1 thereof:
‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
12. Article 5 of Directive 2000/78, entitled ‘Reasonable accommodation for disabled persons’, provides:
‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’
C. Bulgarian law
13. Article 6 of the Constitution of the Republic of Bulgaria (DV No 56 of 13 July 1991, as amended, DV No 12 of 6 February 2007) provides, in paragraph 1 thereof:
‘(1) All individuals are born free and equal in dignity and rights.’
14. Pursuant to Article 48 of that constitution:
‘(1) Citizens shall have the right to work. The State shall ensure that the conditions for the exercise of this right are established.
(2) The State shall secure the conditions for the exercise of the right to work for persons with physical and mental disabilities …’
15. Article 4(1) of the Zakon za zashtita ot diskriminatsia (Law on protection against discrimination) (DV No 86 of 30 September 2003, as amended, DV No 26 of 7 April 2015, ‘the Law on discrimination’) prohibits any direct or indirect discrimination based, inter alia, on disability.
16. Under Article 7(1)(2) of the Law on discrimination:
‘The following shall not constitute discrimination:
The difference in treatment of a person based on a characteristic related to one of the grounds referred to in Article 4(1), where that characteristic constitutes a genuine and determining occupational requirement by reason of the nature of a particular occupation or activity or of the context in which that occupation [or that activity] is carried out, the objective is legitimate and the requirement does not go beyond what is necessary to achieve it’.
17. Pursuant to Article 66 of the Zakon za sadebnata vlast (Law on the judiciary) (DV No 64 of 7 August 2007, as amended, DV No 29 of 8 April 2019, ‘the Law on the judiciary’), in the cases provided for by law, the formation of a court hearing a case at first instance is also to include ‘sadebni zasedateli’ (jurors), who are to have the same rights and obligations as judges.
18. Under Article 67(1) of the Law on the judiciary:
‘Any Bulgarian citizen who is capable of exercising his or her rights and who:
1. is between 21 and 68 years old;
2. has a current address in a municipality within the judicial district of the court to which he or she is applying;
3. has completed at least secondary education;
4. has not been convicted of an intentional offence, even if the conviction has been spent; and
5. does not suffer from any mental illness;
may be appointed as a juror.’
19. Article 8(1) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) (DV No 86, of 28 October 2015, as amended, DV No 16, of 22 February 2019, ‘the Code of Criminal Procedure’), provides:
‘In the cases and according to the procedures laid down by this Code, jurors shall participate in the formations of the courts.’
20. Article 13 of that code provides, in paragraph 1 thereof, that the court, the Public Prosecutor’s Office and the investigating authorities, within the limits of their competence, are required to take all measures to establish the objective truth and, in paragraph 2 thereof, that the objective truth is to be established according to the procedures and with the means provided for by that code.
21. According to Article 14(1) of that code, the court, the Public Prosecutor’s Office and the investigating authorities are to reach a decision on the basis of their personal conviction.
22. According to Article 18 of that code, the court, the Public Prosecutor’s Office and the investigating authorities are to reach a decision on the basis of the evidence which they have personally collected and examined, except where that law provides otherwise.
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
23. VA has a permanently reduced capacity to work due to sight loss. She studied law at university, passed the vocational aptitude test and then worked for the Association for the Blind and in the organisations of the European Blind Union.
24. In 2014, VA was admitted as a juror to the Sofiyski gradski sad (Sofia City Court, Bulgaria), following a procedure conducted by Sofia City Council. She was allocated to the Sofiyski rayonen sad (District Court, Sofia, Bulgaria) and, by lot, to the Sixth Criminal Chamber of that court, in which Judge UB sat, together with three other jurors. On 25 March 2015, she was sworn in before that district court in that capacity.
25. For a period of almost one and a half years, from 25 March 2015 to 9 August 2016, VA did not participate in a single oral procedure in criminal proceedings. In May 2015, she sent the President of the Sofiyski rayonen sad (District Court, Sofia), namely TC, a request to be assigned to another judge, but she received no reply.
26. On 24 September 2015, VA lodged a complaint with the Commission for Protection against Discrimination, claiming that she had been treated less favourably based on her disability by Judge UB, in so far as Judge UB had not allowed her to participate in any criminal proceedings, and by the president of the court, TC, who had not acted on her request to be reassigned to another judge in order to be able to exercise her right to work as a juror.
27. By decision of 6 March 2017, the Commission for Protection against Discrimination, after hearing UB and TC, found that they had discriminated against VA on the ground of disability, in particular for the purposes of Article 4 of the Law on discrimination, and imposed on each a fine of, respectively, 500 and 250 Bulgarian leva (BGN) (approximately EUR 256 and EUR 128).
28. Both UB and TC brought actions against that decision to the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria), which dismissed those actions. That court held, in particular, that the imposition of restrictions, as a matter of principle, on access to a particular profession or activity, such as that of a juror, on the ground that the disability in question would make it impossible to exercise it fully, was unlawful. According to that court, the rules of criminal procedure require that such a juror comply with the fundamental principles of that procedure, that is to say, in relation to formation of the court, immediacy, the establishment of the objective truth and arriving at a personal conviction. However, the presumption that the existence of a disability in all cases deprives a person of the ability to comply with those principles constitutes discrimination. That court added that the fact that VA had participated in a series of hearings in criminal proceedings as from 9 August 2016, when a legislative reform introducing the electronic allocation of jurors had come into force, supported those findings.
29. UB and TC brought appeals on points of law against the decisions of the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia) before the referring court, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria). In support of her appeal, UB argued that the first-instance court wrongly gave precedence to the Law on discrimination over the higher-ranking Code of Criminal Procedure and the principles enshrined in that code. She stated that, as a criminal judge, she was required to comply with the Law on discrimination and those principles when examining cases brought before the court in which she sits, and to ensure that all members of the formation of the court treat the evidence on the file in the same way and directly assess the conduct of the parties. TC, for his part, argued that the first-instance court should have applied Article 7(1)(2) of that law, concerning the existence of a genuine and determining occupational requirement. Given the nature of the duties of jurors, those duties cannot be carried out by persons whose disabilities result in an infringement of those principles.
30. In that context, having regard to the rules of criminal procedure, the referring court notes that it is not clear whether the unequal treatment of a blind person, such as VA, in the course of that person’s pursuit of the activity of juror, is lawful in the light of the provisions contained in the Charter of Fundamental Rights of the European Union (‘the Charter’), the UN Convention and Directive 2000/78 which seek to ensure equal treatment in employment and occupation for people with disabilities.
31. The Varhoven administrativen sad (Supreme Administrative Court) therefore decided to stay the proceedings and to refer the following questions to the Court of |Justice for a preliminary ruling:
‘(1) Does the interpretation of Article 5(2) of the [UN Convention] and of Article [2](1), (2) and (3) and Article 4(1) of [Directive 2000/78] lead to the conclusion that it is permissible for a person without the ability to see to be able to work as a juror [(‘sadeben zasedatel’)] and participate in criminal proceedings, or:
(2) Is the specific disability of a permanently blind person a characteristic which constitutes a genuine and determining requirement of the activity of a juror [(‘sadeben zasedatel’)], the existence of which justifies a difference of treatment and does not constitute discrimination based on the characteristic of “disability”?’
32. The request for a preliminary ruling was lodged at the Registry of the Court on 12 November 2019. VA, the Polish and Portuguese Governments and the European Commission submitted written observations. No hearing has been held.
IV. Analysis
33. I note, first of all, as a preliminary observation, that the questions raised, relating to the interpretation of Directive 2000/78, do not concern all jurors in criminal proceedings, but only those who, as provided for by the Bulgarian system, as set out in the order for reference, carry out their duties in the context of a paid and, therefore, professional activity.
34. Next, I would point out that the juror in the main proceedings, VA, is not only visually impaired, but blind.
35. In the following analysis I shall answer the questions referred for a preliminary ruling by examining them together. I shall first of all conclude, without too much difficulty, that the situation of a person such as VA clearly falls within the scope of Directive 2000/78, and then I shall focus on the key question of whether the difference in treatment to which she is subject is covered by a derogation, in particular that in Article 4(1) of that directive, relating to the existence of a genuine and determining requirement, and whether it serves a legitimate objective in a proportionate manner.
A. The application of Directive 2000/78
36. I would recall that, as is apparent from its title and preamble, Directive 2000/78 seeks to lay down a general framework in order to guarantee equal treatment in employment and occupation to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include disability. (4)
37. The present case clearly falls within the scope of Directive 2000/78.
38. In the first place, as I indicated in my preliminary remarks, it concerns the paid activity of juror in criminal proceedings. (5) It is clear from the information provided by the referring court that the activity of juror is remunerated and is carried out for an apparently unlimited duration.
39. In the second place, this case is concerned with disability, within the meaning of Article 1 of Directive 2000/78, as defined in the case-law, namely a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. (6) Indeed, impairment of a sensory capability, in this case sight, constitutes impairment of a physical capacity under that article.
40. In the third place, the difference in treatment to which VA was subject and which, it seems undisputed, was directly linked to her disability relates to access to employment within the meaning of Article 3(1)(a) of Directive 2000/78, that of juror, and to an employment condition for the purposes of Article 3(1)(c) of that directive, that is to say the absence of complete visual impairment.
41. It follows that the treatment of VA by the judge and the president of the court concerned, that is to say the fact that she was never appointed as a juror in criminal proceedings, falls within the scope of Directive 2000/78. VA has been excluded from pursuing the paid activity of juror in criminal proceedings on the ground that she is blind and thus on the basis of a characteristic directly related to one of the grounds in Article 1 of Directive 2000/78, namely disability.
42. It is necessary to ascertain whether that difference of treatment is nevertheless covered by one of the derogations provided for in that directive.
B. The existence of a derogation from the prohibition of discrimination on the ground of disability
43. Two provisions of Directive 2000/78 are relevant for assessing whether a difference of treatment directly based on disability is nevertheless permissible and therefore does not constitute prohibited discrimination for the purposes of that directive.
44. First of all, Article 2(5) of the directive provides that the directive is to be without prejudice to measures laid down by national law which are necessary for the protection of the rights and freedoms of others.
45. That provision could cover a legislative measure to protect a third party, such as a defendant, whose rights of defence in criminal proceedings might be affected. Nevertheless, under Article 2(5), a legislative measure is necessary. It appears that the national law at issue in the main proceedings contains no such measure to exclude blind persons from the paid activity of juror. (7) I note, moreover, that the referring court, which is responsible, where appropriate, for verifying this, makes no reference to such a provision. The exclusion of blind persons from working as a juror does not therefore appear to be covered, in the present case, by a justification based on Article 2(5).
46. Next, according to Article 4 of Directive 2000/78, entitled ‘Occupational requirements’, Member States may provide, in accordance with paragraph 1 of that article, that a difference of treatment which is based on a characteristic, such as a particular physical ability, related to any of the grounds referred to in Article 1 of that directive, inter alia disability, is not to constitute discrimination if it constitutes a ‘genuine and determining occupational requirement’, provided that the objective is legitimate and the requirement is proportionate.
47. The question of whether or not a difference of treatment on the ground of disability can be justified on the basis of Article 4(1) of that directive lies at the heart of the questions referred in this case. I would point out that the judge and the president of the court argue that the rules and principles of criminal procedure – namely the principle of immediacy, the direct assessment of the evidence in arriving at the objective truth, personal conviction and the treatment of members of the formation of the court in the same way as regards the taking of evidence – preclude the participation in criminal proceedings of a blind juror. Sight is, in their view, a genuine and determining requirement for the activity of a juror, for the purpose of complying with those rules and principles.
48. The Court has already held that the requirement of possessing particular physical capabilities may be considered as a genuine and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78 for carrying on the profession of airline pilot (8) or firefighter. (9) It follows from the case-law of the Court that a particular level of visual acuity may similarly be regarded as constituting a genuine and determining requirement for carrying on the profession of lorry driver. (10)
49. Does this also apply to the faculty of sight for the purposes of pursuing the paid activity of juror in accordance with the rules and principles of criminal procedure?
50. I would recall that, according to recital 23 of Directive 2000/78, it is only in very limited circumstances that the derogation relating to the existence of a genuine and determining occupational requirement, referred to in Article 4(1) of that directive, is applicable.
51. The national rules of criminal procedure on which the judge and the president of the court rely in support of their position are intended to ensure a fair trial.
52. That objective is clearly legitimate. The right to a fair trial is a fundamental right enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’), and Article 47 of the Charter. The question which arises is whether it is necessary for a juror to be able to see in order to ensure a fair trial and, if so, whether the exclusion of a blind person from participation as a juror in any criminal proceedings is an appropriate response which does not go beyond what is necessary to achieve that objective.
53. In the remainder of my Opinion, I shall first demonstrate that the answer to that question rests on a delicate balance between two fundamental rights, on the one hand, the right to a fair trial (subsection 1) and, on the other hand, the right of a disabled person not to be discriminated against in the working environment (11) (subsection 2), before drawing the relevant conclusions for a case such as that in the main proceedings (subsection 3).
1. The fundamental right to a fair trial
54. In order to understand the rules governing a fair trial applicable to a juror in criminal proceedings, I shall first outline that role and set out the resulting implications.
(a) The role of a juror in criminal matters
55. Jurors are citizens who collectively participate in criminal justice by reaching a verdict as to guilt, either alone or with professional judges, in some cases even deciding on the sentence with those judges. (12)
56. Unlike professional judges, jurors receive no training as a judge. Chosen from the general population, usually by lot, they are deemed to represent society in all its diversity. (13)
57. Jurors perform their role either in the context of a ‘traditional’ jury, that is to say in a trial in which professional judges are unable to take part in the jurors’ deliberations on the verdict, or in courts comprising jurors and professional judges. In the latter case, which is that chosen by the Republic of Bulgaria, jurors sit and deliberate alongside professional judges. (14)
58. The jury system is guided by the desire to involve citizens in the administration of justice, particularly in relation to the most serious offences. (15) They thus contribute to the establishment of an impartial court, devoid of prejudice or bias. (16)
59. In view of the decisive role of jurors in criminal proceedings, since they share or alone bear responsibility for a verdict of guilt, which may have considerable consequences for the accused in terms of deprivation of liberty, Member States have laid down rules of criminal procedure which govern the trial and apply fully to jurors.
(b) The rules and principles of criminal procedure intended to ensure a fair trial
60. The rules and principles of criminal procedure put forward by the judge and the president of the court, as well as by the first-instance court, are the principle of immediacy, the direct assessment of the evidence which must make it possible to arrive at the objective truth and personal conviction.
61. On numerous occasions, the European Court of Human Rights has had the opportunity to consider the principle of immediacy, which exists in many legal orders. Its findings are reflected in a recent judgment of the Court of Justice. (17) The Court held that the principle of immediacy is an important aspect of criminal proceedings. It requires that those who have the responsibility for deciding the guilt or innocence of an accused ought, in principle, to be able to hear witnesses in person and assess their trustworthiness. The assessment of the trustworthiness of a witness has been acknowledged to be a complex task which usually cannot be achieved by a mere reading of his or her recorded words. (18) In particular, it is important for it to be possible for the accused to be confronted with the witnesses in the presence of the judge who ultimately decides the case. (19) The judge is here understood to include all members of the formation of the court and therefore includes, in the present case, jurors.
62. Immediacy thus reflects the need for jurors to hear witnesses at the hearing and to assess the evidence directly at that hearing. (20) As essentially stated by Advocate General Léger in his Opinion in Baustahlgewebe, (21) the concept of ‘immediacy’ presupposes a direct relationship between the judge and the party concerned, so that a judge who was not present at the hearing cannot decide on the case. (22)
63. Personal conviction is connected with that direct assessment of the evidence at the hearing. (23)
64. It is by participating in the hearing and by attending to the parties’ exchange of arguments before them that jurors acquire direct knowledge of evidence relevant for a conviction or acquittal and are thus able to form a personal conviction as to the guilt or innocence of the accused.
65. That mechanism of personal conviction exists in many continental legal systems and is illustrated by certain instructions to jurors, according to which they must ask themselves, and consider, what intellectual impression has been made on them by the evidence brought against the accused and the arguments in his or her defence. (24)
66. In order for it to be possible to form a personal conviction after the oral procedure, it is in principle necessary for the judges and the jurors be able to hear the oral argument, which, in accordance with the order for reference, is the case with VA.
67. The question raised in the present case is therefore whether it is necessary for a juror hearing oral argument also to be able to see in order to adjudicate in accordance with the principle of a fair trial, based, inter alia, on the principle of immediacy and the rule of personal conviction, and thus in order fully to perform his or her duties.
68. I would point out that it does not automatically follow from the rules and principles which I have just set out that sight constitutes a genuine and determining requirement of a fair trial in criminal proceedings since all the evidence is discussed at an oral hearing before the judges and jurors.
69. There are, however, cases where sight seems to be a necessary faculty for the proper performance of the duties of a juror. These are cases where evidence decisive to the verdict consists of photographs, video surveillance recordings, graphics or drawings, and where its assessment depends entirely or largely on the visual impression which it makes.
70. This is the case, for example, in cases of murder, physical assault, including sexual assault, or fraud by means of forged documents, where the evidence is based primarily on visual media. (25) While it is true that a description of photographs or films and discussion of them at the hearing will enable a juror to form an opinion, this will not be the result of the direct impression which the photographs or films have on him or her. Moreover, even if a blind juror could be personally assisted by an impartial third party, the latter’s intervention might influence the former’s perception of the photographs and films. At the very least, the juror would be unable to form his or her own opinion directly from that evidence but would have to do so indirectly through the third party.
71. Apart from such cases, it remains to be determined whether sight may be regarded as constituting a genuine and determining occupational requirement for performance in full of the activity of a juror in criminal proceedings.
72. In that regard, it is important to point out that, in the absence of regulation in that area by EU law, determination of the rules of criminal procedure is essentially a matter for national law alone. In particular, neither Article 6 ECHR nor Article 47 of the Charter governs the admissibility of evidence as such, since this is primarily a matter for the national law of the Member States. (26) The same applies to the rules relating to the assessment of evidence obtained in criminal proceedings against persons suspected of having committed criminal offences. (27)
73. Nor does EU law regulate the conditions for serving as a juror, such as age, place of residence or absence of a criminal conviction. (28) I note that a mental or physical disability, or even a state of health, which is such as to prevent a person from carrying out the tasks required of a juror is an obstacle to service as a juror in the law of many Member States. (29) Blindness is often regarded as constituting an obstacle to jury service.
74. I note, for example, that in the case of a juror in Germany who had been excluded from participating in criminal proceedings on account of his blindness and had brought an action for infringement of the prohibition of discrimination on grounds of disability, the Bundesverfassungsgericht (Federal Constitutional Court, Germany) ruled that his exclusion on the basis of the principle of immediacy provided for in criminal law was not contrary to the Basic Law. (30) In my view, the rules of criminal procedure, and in particular principles such as immediacy, may quite legitimately result in the exclusion of blind jurors from participation in certain criminal proceedings. I note, moreover, that the existence of such a disability may also constitute a ground for exclusion from the list of jurors who may be appointed in criminal proceedings under specific provisions of national criminal law. (31)
75. The question arises whether a blind juror can be regarded, on the basis of general principles of criminal law such as those relied on in the case in the main proceedings, as being unable to carry out his or her duties in all criminal proceedings.
76. In answering that question, it is important to take into account the provisions of Directive 2000/78 on the prohibition of discrimination on grounds of disability in employment and on the protection of disabled persons with a view to their integration into the working environment, read in the light of the UN Convention. It is necessary to examine whether those provisions may have an effect on the wide discretion left to Member States in the appointment of jurors in criminal matters and on the possible exclusion of blind jurors.
2. The fundamental right of persons with disabilities not to be discriminated against in employment and occupation
77. As is clear, in particular, from the preamble to Directive 2000/78, the European Union is committed to combating discrimination on the grounds of disability by seeking to eliminate inequalities based on disability. In particular, it affirmed the importance of taking appropriate action to promote the integration of people with disabilities into professional life (32) to contribute to their full participation in economic, cultural and social life and to realising their potential. (33)
78. That integration is ensured by means of the adoption by both public and private employers of ‘reasonable accommodation’ measures for people with disabilities, in accordance with Article 5 of Directive 2000/78, that is to say appropriate measures, where needed in a particular case, to enable a person with a disability to participate in employment, unless such measures would impose a disproportionate burden on the employer.
79. Recital 20 of Directive 2000/78 specifies that appropriate measures are effective and practical measures to adapt the workplace to the disability, such as adapting premises and equipment or the distribution of tasks. (34)
80. In order to identify the type of measures which are appropriate in a case such as that in the main proceedings, involving a person who is blind and wishes to work as a juror in criminal trials, it is important to refer to the UN Convention.
81. As the Court ruled in Glatzel, (35) the primacy of international agreements concluded by the European Union over provisions of secondary legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements. Reference should be made to Article 13 of that UN Convention, which deals with ‘access to justice’ for persons with disabilities. That provision stipulates that States Parties to that convention are to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings.
82. That provision is explained in a recent document entitled ‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’, published by the United Nations. (36) That document aims to provide comprehensive, though non-binding, guidance and practical instruction on how to ensure access to justice for persons with disabilities. (37)
83. According to those principles and guidelines, the right of equal access to justice requires that persons with disabilities have the opportunity to participate directly in the adjudicative process, including as jurors. To that end, States are called upon to remove all disability-related barriers, including laws, that prevent persons with disabilities from being judges or jurors, and to ensure the equal participation of those persons in the jury system by providing them with all necessary support, reasonable accommodations and procedural accommodations. (38) Those accommodation measures include the provision of independent intermediaries or facilitators trained to provide communication assistance to parties, such as oral interpreters, who must perform their functions effectively, accurately and impartially. They also include technical support in the form of voice telecommunications products. (39)
84. In the case of a blind person, those accommodation measures might take the form of material assistance, such as the provision of documents in Braille, personal assistance, such as the support of an impartial and certified third party, or organisational assistance, such as the appointment of a blind juror only to cases which do not require a visual assessment of the evidence.
85. The Commission takes the view that such accommodation measures should be considered for jurors, such as VA, and that the total exclusion of blind people from all participation as jurors in criminal proceedings is excessive and contrary to the prohibition of discrimination on the ground of disability.
86. While I largely share that view in a case such as that in the main proceedings, I shall show in the following subsection (subsection 3) that the answer to the questions raised depends in part on how Member States choose to protect the interest of the accused in the context of a fair trial, and hence on the national law provisions adopted by the Member State concerned.
3. The conclusions to be drawn from the two fundamental rights for the present case
87. It follows from the foregoing analysis that Member States have considerable leeway in establishing rules of criminal procedure to ensure a fair trial and thus to protect the interests of the accused.
88. I note that although the Member States are also required to adopt reasonable accommodation measures for persons with disabilities, certain rules of criminal procedure may reduce the scope for adopting such accommodation measures for a blind juror and limit his or her participation in criminal proceedings.
89. That is true of rules providing that a juror’s tasks may include a visit to a crime scene involving a reconstruction of the offence. In such a situation, as in cases where evidence is based primarily on visual media such as photographs, (40) sight may again be regarded as essential to enable a juror to form his or her own opinion about the reconstruction at which he or he is present, with no accommodation measure being able to make up for his or her disability.
90. The same applies to possible rules of national law on evidence prohibiting the presence of a third party with a juror because that presence would result in the maximum number of persons allowed to take part in deliberations being exceeded or would undermine the principle of immediacy understood strictly – that is to say understood as preventing even an impartial intermediary from coming between a juror and the evidence which he or she must assess. (41)
91. As I have stated in points 73 and 74 of this Opinion, other rules may provide that persons with physical disabilities, such as blindness, are not, in principle, eligible to be included on lists of jurors in criminal matters. Such rules, which potentially preclude the involvement of any blind juror in criminal proceedings, may be explained in part by a conception of the role of body language in those proceedings, namely that facial expressions or body movements in general are an essential element in the assessment of evidence, thus making sight a genuine and determining requirement for the duties of a juror. (42)
92. I would point out, however, that the present case is not concerned with such national law requirements relating to the activity of a juror or to the conditions for his or her selection. In particular, the Law on the judiciary, which governs the selection of jurors, lays down no minimum physical requirement and provides no ground for exclusion on the basis of a physical deficiency or disability, or other physical health issue which might prevent jurors from performing their duties.
93. Thus, although VA is blind, it is clear from the order for reference that she fulfilled the criteria for eligibility as a juror. Moreover, she was admitted as a juror to the Sofiyski gradski sad (Sofia City Court) and assigned to a criminal chamber of a court in that city, before which she was sworn in.
94. Her total exclusion from the activity of juror was the result of an assessment by two persons of her presumed inability to carry out that activity because of her disability, taking into account principles of national criminal law such as immediacy and personal conviction.
95. The question which arises is whether total exclusion from pursuing the activity of juror on the basis of such an assessment is consistent with Article 4(1) of Directive 2000/78.
96. I would recall that that provision, which constitutes a derogation from the right to equal treatment of persons with disabilities, must be interpreted strictly and that, according to its wording, a difference in treatment which is based on a genuine and determining occupational requirement must be provided for by the Member State. In my view, it is for the national legislature, in the first place, to strike a balance between the fundamental rights connected with a fair trial and the fundamental rights relating to the protection of persons with disabilities, by providing in its national law, where appropriate, that sight constitutes a genuine and determining occupational requirement. That requirement must also be proportionate to the objective pursued, that is to say capable of ensuring a fair trial without going beyond what is necessary for that purpose.
97. In a case such as that in the main proceedings, where it is not clear from the national law that the legislature has provided that sight constitutes such a requirement, I consider that Directive 2000/78, read in the light of the UN Convention, requires that the rules and principles of criminal law be interpreted in such a way as to ensure that a blind juror can, wherever possible, participate in criminal trials.
98. In that regard, as I have explained, in systems of criminal procedure in which a hearing plays a key role and in which, in accordance with the principle of immediacy, all the decisive evidence must be discussed in court before jurors, the fact that a juror is blind is not necessarily an obstacle to his or her being able to perform adjudicatory functions. In principle, as long as he or she can hear the oral argument, he or she should be capable offorming a personal conviction on an equal footing with other jurors, at least in cases which do not require an assessment of the evidence based on the visual impression it makes.
99. I consider that this is the meaning of Directive 2000/78, read in the light of the UN Convention, which aims, as I have stated, to integrate people with disabilities into social life and into the working environment. This is particularly true of an activity such as that of juror, which allows the person concerned to play a fundamental role in society by participating in the administration of justice. That approach is all the more justified since jurors are supposed to represent citizens in their diversity and it is therefore important not to exclude people with a disability, such as blindness.
100. I would add that it is necessary from the outset and on principle to avoid answering in the negative the question whether a blind person is capable of performing the duties of a juror. Although it should be possible for a person with a disability to be excused from performing the duties of a juror if he or she so wishes, he or she should not, by contrast, be automatically excluded from performing those duties. The fact that VA has been involved in a large number of criminal proceedings (43) without any apparent difficulties, which it is for the national court to verify, is an indication that she is capable of performing those duties in accordance with the rules of criminal procedure. If that is the case, and in the absence of any provision in the national law relating to minimum physical requirements for a juror or to his or her physical health in general, I consider that the total exclusion of blind persons from performing the duties of professional juror does not comply with the proportionality requirement laid down in Article 4(1) of Directive 2000/78, in so far as that exclusion, at the very least, goes beyond what is necessary for that purpose.
101. Finally, I would point out that the rule relied on by Judge UB in the case in the main proceedings, according to which it is her duty to ensure that all members of the formation of the court treat the evidence on the file in the same way, (44) does not prevent the particular circumstances of a blind juror from being taken into account, in particular through the provision of material, personal or organisational assistance to such a juror. On the contrary, taking those circumstances into account may be regarded as a reasonable accommodation which the State as employer must provide to disabled persons in accordance with Article 5 of Directive 2000/78, read in the light of recital 17 thereof. (45)
102. I therefore consider that a national court hearing a case such as that in the main proceedings is required to interpret its national law, wherever possible, in the light of the wording and purpose of Directive 2000/78 in order to achieve the result sought by that directive, that is to say to integrate persons with a disability such as blindness into the working environment, in this case into the paid activity of a juror, and to exclude them only if they are incapable of carrying out the tasks required of their duties. I would highlight the importance of not having a preconceived attitude towards such persons, by excluding them from the outset because they cannot see. It is important to determine whether those persons, with or without specific assistance, (46) are capable of serving as jurors in cases where they have not themselves requested to be exempted.
103. I would point out that such an approach does not prevent a blind person, such as VA, from being excluded from some criminal proceedings in which sight is essential and decisive for the assessment of evidence, such as those referred to in point 69 of this Opinion. On the other hand, in the absence of provisions in national criminal procedural law relating to minimum physical requirements for a professional juror or to his or her physical health in general, the total exclusion of that person from participation in such proceedings based on his or her presumed inability to perform his or her duties on account of his or her disability is, in my view, disproportionate and constitutes discrimination contrary to Directive 2000/78, read in the light of the UN Convention.
V. Conclusion
104. In the light of the foregoing, I propose that the Court answer the questions raised by the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) as follows:
(1) Article 2(1) and (2), Article 4(1) and Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Article 5(2) of the United Nations Convention on the Rights of Persons with Disabilities, approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009, must be interpreted as meaning that Member States must take appropriate measures to integrate a person who is blind into the working environment, and to allow him or her, wherever possible, to pursue the paid activity of juror in criminal proceedings.
(2) In the absence of provisions in national criminal procedural law relating to minimum physical requirements for a professional juror or to his or her physical health in general, Article 2(1) and (2), Article 4(1) and Article 5 of Directive 2000/78, read in the light of Article 5(2) of the United Nations Convention on the Rights of Persons with Disabilities, mean that a blind person who fulfils the criteria under national law to be a paid juror in criminal proceedings and who has been admitted to work as a juror in a court of law cannot be totally excluded from participating in those cases based on his or her presumed inability to perform the duties of a juror on account of his or her disability.