12. Protection against discrimination under Article 14

Question 1

What is art. 14 about?

Answer 1

Protection against discrimination

Question 2

What charactersize art. 14?

Answer 2

• Article 14 is an autonomous provision of the convention, which contains a general prohibition of both direct and indirect discrimination, in relation to the enjoyment of the rights guaranteed by the convention and protocols.

Question 3

When considering allegations of violations of art. 14 there are 4 key questions - which?

Answer 3

1. Does the compliant of discrimination fall within the scope of a protected right?
2. Is the alleged reason for the discrimination one of the grounds listed in article 14?
3. Can the applicants properly compare themselves with another class of persons which is treated more favourably?
4. Is the difference in treatment reasonably and objectively justified?

Question 4

What is the positive obligation from art. 14?

Answer 4

states are obliged to take steps to prevent discrimination falling within the ambit of the article.

Question 5

When is the scope of the convention violated?

Answer 5

• The scope of the convention will be violated where states fail to treat persons in different situations differently without any objective and reasonable justification for doing so. However the states enjoy a considerable margin of appreciation.

Question 6

What is important when a discrimination has happended?

Answer 6

However the court has indicated that, whether the discrimination arises by some action or by a failure to ensure non-discrimination, the justification for the differential treatment must meet a legitimate aim and there must be a reasonable relationship of proportionality between that aim and its realisation.

Question 7

The conceptual issues?

Answer 7

Before a case, there was some doubt as to the relationship between article 14 and the articles which define the other rights and freedoms.
o In a case: the breach of article 14 does not presuppose the violations of the rights guaranteed by the other articles of the convention.

Question 8

Can there be a violation of art 14 only?

Answer 8

Thus to summarise, while there can never be a violation of article 14 considered in isolation, there may be a violation of article 14 considered together with another article of the convention, in cases where there would be no violation of that other article taken alone. Discrimination is prohibited, not only in the restrictions permitted, but also in laws implementing the rights guaranteed, even if those laws go beyond the obligations expressly provided by the convention.

Question 9

what forms of differential treatment constitute “discrimination”?

Answer 9

Two alternative theses - the court adopted the weaker of these two:
• The weaker: differential treatment is justified if it has an objective aim, derives from the public interest, and if the measures of differentiation do not exceed a reasonable relation to that aim.
• The stronger thesis: differential treatment is justified only if, without regard to the purpose of the measures in question, the facts themselves require of permit differential treatment.

Question 10

Theres an weaker and stronger thesis that can constitute “discrimination”, what can not itself justify differental treatment?

Answer 10

o The two theses both start from the idea that a difference of status, of sex, race, language and so on, cannot itself justify differential treatment.

Question 11

Are the grounds in art. 14 Exhaustive?

Answer 11

The grounds listed in article 14 are not exhaustive. Discrimination based on any other status is also prohibited.

Question 12

What can you say about that the court has expanded the protection of art. 14?

Answer 12

• The court has clearly expanded the protection of article 14 by including in other status, situations beyond innate personal characteristics, such as situations that could loosely be described as impacting on personal circumstances. However it will generally be easier to establish a situation as falling within article 14 where the ground of differentiation is a personal characteristic. It is properly true that different treatment which is based other than on a personal characteristic may be easier for the state to justify.

Question 13

How’s the court’s methodology

Answer 13

• Over the years, the court’s methodology in dealing with complaints under article 14 has developed considerably.
• At one time, there was much focus on whether there had been a violation of the substantive provision of the Convention before considering whether there was a discrimination. If a violation of the substantive provision was found, then there was a tendency not to consider that provision in conjunction with Art. 14.

Sometimes, the Court finds a violation of both the substantive provision, and of that provision when read with Art. 14.

Question 14

(1) Does the compliant of discrimination fall within the scope of a protected right?

Answer 14

• Article 14 only applies in respect of “the enjoyment of the rights and freedoms as set forth”, in the convention, including its protocols. But there is no requirement, that there is a breach of another convention right.
• The court generally takes a broad-bruch (bred tilgang) approach as to whether a claim falls within the ambit of one of the substantive articles, and this can sometimes lead to a considerable confusion about the outer limits of the operation if a particular article.

Question 15

(2) Is the alleged reason for the discrimination one of the grounds listed in article 14?

Answer 15

• Article 14 includes a list of prohibited grounds of discrimination: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth.
• The list is not exhaustive, however, as the article also states that discrimination based on “other status” is prohibited.
• The open-ended nature of the phrase “other status” can make it difficult to apply in some cases.

Question 16

(3) Can the applicants properly compare themselves with another class of persons which is treated more favourably?

Answer 16

• The court has referred to the comparators being in similar situations, or in relative similar situations or in analogous situations. The purpose if this test is to enable the court to determine whether the less favourable treatment is attributable to one of the article 14 prohibited grounds of discrimination, and not to other factors. For the test to function, the situation of the applicant and the comparator must be analogous in all material respects so that it can properly be concluded that the difference between them arises from an article 14 ground.
• Article 14 also applies where there is indirect discrimination. This occurs where the same requirement applies to both groups, but where a significant number of one group is unable to comply with the requirement.

Question 17

(4) Is the difference in treatment reasonably and objectively justified?

Answer 17

• In asserting a legitimate aim for the differential treatment, the respondent state must not only show the nature of the legitimate aim it is pursuing, but must also show by convincing evidence the link between the legitimate aim pursued and the differential treatment challenged by the applicant.
• The purpose of saving public money can be a legitimate aim under article 14.
• The case-law of the court shows that not all grounds of discrimination are equally potent.
o Where the differential treatment is based on the sex or gender, on grounds of nationality, on grounds of race, on grounds of religion, on grounds of legitimacy, on grounds of sexual orientation, and disability, very weighty reasons are required to justify the differential treatment.
• Age is a ground for discrimination under article 14, but the court has not yet held it to be one where weighty reasons are needed.

Question 18

Is the difference in treatment reasonably and objectively justified?

Sex and gender

Answer 18

• Where the basis for the difference of treatment is grounds of sex, the states enjoy no margin of appreciation and will find it very difficult to establish objective and reasonable justification.
• The court has rejected a government’s argument that allowing women parental leave and not men amounted to positive discrimination in favour of women.
• The court has used article 14 to underline the importance of highlighting the gender discrimination involved in a failure to protect in cases of domestic violence.

Question 19

Is the difference in treatment reasonably and objectively justified?

Race and ethnicity

Answer 19

• States are required to “use all available means to combat racism”, and no difference of treatment based on race or ethnicity is capable of being objectively justified.
• Even in less dramatic factual situations, the court requires very weighty reasons for distinctions between nationals and non-nationals.

Question 20

Is the difference in treatment reasonably and objectively justified?

Other status

Answer 20

• In relation to those characteristics that are not listed in the article, the court has elevated those that can be seen as personal characteristics or linked to them, to a similar status in terms of weighty reasons.

Question 21

Is the difference in treatment reasonably and objectively justified?

Sexual orientation

Answer 21

• However, applying the living instrument principle it has now recognised sexual orientation as a ground for discrimination under “other status” requiring very weighty reasons to justify differential treatment and so avoid discrimination. This was first recognised in a case concerning custody, but has since been recognised in a range of areas such as criminal law, tenancies, social insurance and adoption.
• There is also a developing body of cases dealing with same-sex relationships. In theses cases, the court has not gone as far as recognising a right to same sex marriage as protected under the convention. However it has found that where a state puts in place a legal protection for nun-married couples, it must do so in a non-discriminatory way.

Question 22

Is the difference in treatment reasonably and objectively justified?

Disability and health

Answer 22

• The court has also developed its case-law in relation to disability.
• The court has noted, that it is within the margin of appreciation of the state to make educational decisions on the particular form of reasonable accommodation.
• The court has also recognised health-related grounds for discrimination, especially in cases dealing with HIV-related illness.
o The court found that persons suffering from HIV fall into this category given the social stigma, negative stereotyping, and discrimination they have historically faced.

Question 23

Is the difference in treatment reasonably and objectively justified?

Status not based on “inherent” characteristic

Answer 23

• In contrast, where the difference of treatment is not bases on an “inherent” characteristic, it is likely that the court will require a lower level of justification and allow a wider margin of appreciation to the state. Similarly the margin of appreciation is usually wide when it comes to general measures of economic and social strategy. Some examples include housing policy, taxation and social security

Question 24

Discrimination and minorities

Answer 24

• A development in the case-law, which may be based upon recognition that minorities need special and collective protection if their human rights are to be respected, warrants a discussion distinct from the reference to individual cases involving discrimination on racial or ethnic grounds.
• The court has also increasingly recognised the structural problems caused by the stereotyping of a group which can lead to direct but especially indirect discrimination.

Question 25

The burden of proof under article 14

Answer 25

• The practice of the court is that it is for the applicant to show that there has been a difference of treatment, but that it is then for the respondent state to show, that the difference in treatment can be justified. There is, however, no formal burden of proof, nor are there formal rules of evidence. The court will adopt conclusions that are supported by the free evaluation of all the evidence before it.
• In some cases, the court has relied upon statistics to establish a difference in treatment, especially in relation to discrimination between men and women.

Question 26

Biao v. Denmark

Answer 26

Biao v Denmark (violation) – The applicant was a Danish citizen of Ghanaian origin. He wanted to settle in Denmark with his second wife, a Ghanaian national whom he had met and married during a visit to Ghana. The couple had a son who was a Danish citizen due to his father’s nationality. Mrs. Biao’s request for family reunification in Denmark was rejected, as well as her unsuccessful appeals. According to Danish laws on family reunification, a residence permit is generally granted if the ‘’attachment requirement’’ is fulfilled, which means that a couple’s aggregate ties to Denmark are stronger than those in any other country. However, the law had unintended consequences on Danish expatriates. In order to counter this, the State introduced the ’28- year rule’. This meant that the attachment requirement did not have to be met if one spouse was Danish national for 28 years or if a Danish non-national was born or lived in Denmark for 28 years. The applicant did not fulfil this and argued that there was a discrimination under Art. 14 with Art. 8.

Chamber held: No violation. The legislation did not intend to discriminate. As stated in D.H. there is no need for the applicant to prove intent for indirect discrimination. The Chamber did find that there was a difference of treatment based on the length of nationality rather than ethnic origin and given the wide margin of appreciation for migration issues, there was no violation.

ECtHR held: The Court examined the legislation and found that there was a prejudicial impact on those of different ethnic origin than nationals born in Denmark. It considered the reasoning for the legislation and found that it drew upon negative stereotypes of ‘non-western’ spouses. The GC went on to find that there was no objective and reasonable justification for the difference of treatment given the lack of compelling or very weighty reasons for the treatment.
Comment: The judgment affirms the increasing focus of the Court on stereotyping and structural reasons for discrimination by finding indirect discrimination which does not need proof of intent.

Question 27

Vallianatos v. Greece,

other status

Answer 27

Vallianatos v Greece (discrimination) – There was a violation of Art. 14 since a large number of European States have recognise same-sex relationships in some legal form.

Question 28

D.H. and Others v. the Czech Republic

discrimination and minorities

Answer 28

DH and Others v Czech Republic – Most children from the Roma minority in Ostrava attended special schools with simplified curriculum, forming majority of their students. Evidence showed that Romani children with average/above- average intellect are often placed in schools on the basis of results of psychological tests which are conceived for the majority population and do not take Romani specifics into consideration. The victims complained of a breach of Art. 14.

Chamber held: The issue was whether the reason for C’s placement was because of C’s ethnic or racial origin. The test does not refer to pupil’s ethnic origin. There was no breach of Art 2 Protocol 1 or Art 14. Commentary: Janis: the decision is difficult to understand as the Czech evidence was not considered.

Judge Barreto (dissenting): evidence showed that applicants possessed ‘average and above-average’ intellect and were not placed in schools for mental disability. Pupils who find it difficult to pursue a normal school education should be entitled to expect the State to take positive measures to compensate for their handicap and afford them a means of resuming the normal curriculum. The principle ‘all different, all equal’ should continue to guide the fight against discrimination.

Grand Chamber: The authorities were not motivated to discriminate. However, the segregated educational system was seen to be a source of concern. The GC considered that the tests might well be culturally biased, and was influenced by critical reports from the ECRI and the COE’s Commissioner for Human Rights. Thus, there was a violation of Art. 14.

Question 29

Article 1 of protocol 12: A general prohibition of discrimination

Answer 29

Art. 1 in P12 adds a general prohibition of discrimination.

The emphasis under Protocol 12 moves from a prohibition of discrimination to a recognition of a right of equality.

Although there is significant overlap between the provisions, Article 12 of Protocol 12 is not drafted as a replacement for Art. 14, and there is intended to be harmony of interpretation across the two provisions.

Art. 14 requires the applicant to show that there is differential treatment in an area within the ambit of the Convention rights.

Art. 1 of P12 requires the applicant to show that there is differential treatment in the enjoyment of any right set forth in national law. This will include rights granted by legislative measures, as well as rights granted by common law rules and by international law.