Course 19

Question 1

What are the terms equality and non-discrimination?

Answer 1

Two sides of the same coin, not so much difference but they are used in a different context:

• Equality: that is something we want to achieve
• Discrimination: something we want to avoid or perhaps the right to non-discrimination

Question 2

What is equality?

Answer 2

Article 26 United Nations covenant on civil and political rights. There’s first of all equality before the law. Equality before the law is a merely formal equality. It means that the law as it is without any assessment of what that law is but that the law should be applied equally to all persons subject to the law.

• Does not mean real equality –> you need equal protection of the law = substantive equality: result under the application of the law = everyone is equally protect under the law: additional requirement relating to the substance of the law.

Question 3

What is discrimination?

Answer 3

1. Direct discrimination: difference in treatment that is based on identifiable characteristic of persons or in the terminology of the European convention on human rights that is based on the status of a person. So direct discrimination or a direct difference in treatment is something that is explicit.
2. Indirect discriminaion: Refers to a general policy or a general measure that has disproportionate disproportionately prejudicial effects on a particular category of persons. It looks neutral and there is no intention at face value to discriminate but what counts is the effect: general rule policy or measure hits one category of persons much more than another category of persons then we can speak of an indirect discrimination.

Question 4

Why is the difference between indirect & direct discrimination relevant?

Answer 4

Important to look further to see if there is no indirect discrimination.

Also effect attached to the required standard of proof: if a victim has to show discrimination, they have to show difference in treatment, on the basis of certain facts that person has been treated differently compared to other persons.

• Then the government or the public authority has to show that the difference is justified.

1. Alleged direct discrimination: victim has to show that the difference in treatment results from either an explicit provision in the law or from an explicit practice focusing on a certain category of persons or that the given action has been motivated by discriminatory motives and then burden of proof shifts to the government.
2. Alleged indirect discrimination: ECHR much more lenient in accepting what the applicant has to show.

Question 5

What does the applicant need to show in the case of an alleged indirect discrimination?

Answer 5

The victim will have to show that the treatments complained of prima facie negative negatively effects only a given category of persons or at least affects a given category of persons in a disproportionate way compared to another category of persons that is not undergoing such effects. Difficult to prove.

Usually the victim will refer to statistics:

• Once a policy has been adopted, after some time, statistics will become available and it can show that one category of people might be more hit.
• This is prima facie evidence that there might be a problem = disproportionate effect.

Often there is a NGO in these kinds of cases who can help the victim with the statistiscs, even though they are not required.

Where the victim has shown that a particular general measure or general law in fact affects one category of persons more than another category, here too the burden of proof will shift to the government and it will then be for the government to show well may well be that your figures show that there is different effect but that effect is not the result of what you say but is the result of objective factors which have nothing to do with the discrimination that you are complaining of.

Question 6

What is the failure to take differences into account?

Answer 6

• A failure to take differences into account can also constitute discrimination. So then we are talking about failure to treat different persons differently. Or to put it differently: the different discrimination can result from the equal treatment of different categories of persons.
• Case: Thlimmenos vs. Greece

Question 7

Thlimmenos vs. Greece

Answer 7

Statute in Freece that provides all persons very general convicted of a felony cannot be appointed a chartered accountant. And the reason behind that is that a chartered accountant that’s a person who must enjoy a certain trust in the community because that person must able to certify accounts etc.

Mr. Thlimmenos was a convicted felon because he had refused to do his military service because he was a a conscientious object.

He said before the ECHR: discriminatory because the law should have made a difference between me and convicted persons: the ECHR agreed.

So here because of the equal application of persons who were fundamentally different all convicted persons but for fundamentally different reasons, the court found here that there was not only a difference in treatment but also a discrimination: the legislation was actually discriminating because it did not make a difference.

Question 8

What does the CCPR say on equality?

Answer 8

Covenant on Civil and political rights: governance has at first view a more broad protection of equality and non-discrimination than the European convention on human rights.

Article 2: in the enjoyment of the rights guaranteed by the covenant there can be no discrimination. That is a provision that is applicable only to the enjoyment of those fundamental rights human rights that are protected by that covenant. This is comparable to article 14 of the European convention on human rights

Article 26: It prescribes equality and non-discrimination in general. It provides for equality with respect to the law, not only human rights law, but to the law, without making any exceptions.

• So that means that whenever the states grant specific advantages to individuals or grants specific obligations on individuals, it has to do so with respect for the principles of equality and non-discrimination
• That’s a much harder scope of application then only the area of fundamental rights. Here whatever area of the law that is regulated by the law by the domestic legislature must be one where equality and non-discrimination are respected.

Question 9

case of Brooks versus the Netherlands

Answer 9

• Case by the Human Rights Committee of 1987: body set up under the covenant on civil and political rights based on art. 26.
• Mrs Brooks was a a married woman at a given moment she becomes ill she is dismissed from her job and she receives an unemployment payment: the payment is only payed for 5 years: she claims of violation of art. 26 because she says that if she were a man, she would be able to continue to receive that unemployment payment.
  
  • Social welfare benefit.
• Governement said that she was complaining under the wrong covenant because there is also a covenant on economic, social and cultural rights: this is rejected by the Human Rights Committee:
  
  • Because art. 26 of the covenant protects equality, prohibits discrimination in any field regulated and protected by public authorities. It is not limited to the field of civil and political rights and so article 26 is applicable which means that the human rights committee then has to go on and has to examine whether there was a difference in treatment and if so whether that difference in treatment constituted discrimination.

Question 10

How does the European Convention protect against discrimination?

Answer 10

• Article 14: prohibits discrimination but only in the enjoyment of the rights and freedoms set forth in the convention = art. 2 of the covenant on civil and political rights.
• For the European court of human rights article 14 is the so-called independent existence, it comes into play only when the facts that issue fall within the ambit that’s the expression used by the European court within the ambit of one or more of the provisions of the convention or its protocols.

Question 11

What is the Belgian linguistic case?

Answer 11

1968: eg. under art. 6 there is no obligation to set up appeals court so when a state sets up an appeals court, the state goes beyond its obligations under the convention but still remains within art. 6: it still has to do with the adjudication of cases.

European court states: if the national legislature sets up the courts of appeal and provides for procedural rules to be followed by and before those courts of appeal it would violate article 14 if it would make it possible for some categories of persons to file an appeal and then to enjoy these rights before the Court of Appeal, while at the same time it would deny that possibility to other categories of persons.

So you can have a violation of art. 14, the prohibition of discrimination has not been respected, although the substantive article of the convention within the ambit of which article 14 has been applied is itself not violated. This means that article 14 imposes obligations on states beyond those obligations that already follow from the other articles of the European convention.

Question 12

When does article 14 apply according to judgements of the European court?

Answer 12

For the applicability of art. 14: ) it is sufficient that the facts of the case fall within the ambit of one or more of the provisions of the convention which means that the prohibition of discrimination extends beyond the enjoyment of the rights and freedoms which the convention and the protocols require each stage to guarantee and indeed ) it applies also to those additional rights falling within the general scope of an article of the convention for which the state has voluntarily decided to provide.

1968: Belgian linguistic case: a right to set up a court of appeal does not follow directly from the European convention, but if the state does so it should do so without discriminating between categories of people.

Example right to housing: there is no right under the convention which guarantees the right to the protection of a house, but where a state decides to provide such a benefit, it must do so in a way that is compliant with article 14 of the European convention.

Question 13

What is protocol 12?

Answer 13

Protocol 12 was adopted in 2000: only one substantive provision: art.1 provides 2 things:

1. Enjoyment of any right set forth by law shall be secured without discrimination on any grounds: not only human rights guaranteed by the convention, but everything that is given by domestic law shall be done so without discrimination.
2. No one shall be discriminated against by any public authority = broader

Overlap between the two paragraphs and that is even even acknowledged by the drafters of this protocol in the explanatory report, but that is not so important. The overall message is clear: the prohibition of discrimination applies to the enjoyment of rights and to any measure taken by the public authorities in the exercise of discretionary power which is not only applying to advantages but also to limitations imposed or sanctions imposed on individuals.

Question 14

What is the scope of application of protocol 12?

Answer 14

General scope of application, like art. 26 of the covenant on civil and political rights.

European Court did warn for a possible increase of cases.

• This fear did not materialize: there are not so many cases under art. 1 of the protocol 12 because there are not so many states that have ratified it:
• In the few cases where the European court had to examine complaints under article one of protocol number 12 it made clear that the term discrimination is used in protocol number 12 from a substantive point of view, has the same meaning as in article 14 of the European convention on human rights.

In Belgium we already have art. 10-11: which prohibit in a general way equality and non-discrimination.

Question 15

What are the negative obligations of states under clauses relating to equality and prohibition of discrimination?

Answer 15

Prohibition of discrimination: the state may not discriminate. This is a prohibition that is applicable both to granting advantages and to imposing restrictions.

• Positive actions
• Negative way: the principle of equality and non-discrimination

This can also apply to advantages that go further than what is required under the articles of the European convention.

Restrictions: limitations could be as such compatible with the convention, , but they may become a problem when they are applied to a certain category of persons and not to another category of persons.

Example: access to cinema is restricted to people over the age of 16: this would be perfectly justified under the European convention = restriction on the freedom to seek infromatio or to impart information (art. 10).

When you make that distinction between two categories of persons you have to look further or examine further whether there is not a discrimination and therefore violation of article 14 of the convention.

Question 16

When do we know if there is a discrimination?

Answer 16

1. Are there categories of persons in analogous or relevantly similar situations?
2. Is there a legitimate aim for making the difference = why do you make a distinction?
3. Reasonable relationship of proportionality?

Question 17

What is the first element that a person mush show if they want to claim discrimination?

Answer 17

First requirement is that there are categories of persons in analogous or relevantly similar situations. When someone complaints about the difference in treatment, that person must first of all be able to show that there are two comparable situations, that person belongs to a group of persons that are treated differently compared to another group of persons (the comparator group) and that the two groups are in an analogous or relevantly similar situation.

• If there are 2 groups that are not in analogous or relevantly similar situation well then there can be no discrimination: difference in treatment but no discrimination.

If it appears that the two comparator groups are indeed in a relevantly similar situation, then the reasoning must go on and a further inquiry will be needed to see whether the difference in treatment can be justified.

Question 18

What is the case Burden v. UK?

Answer 18

Burden and Burden are 2 sisters who were unmarried for their whole life and lived in the house of their parents and they realize that if one of them dies, they will have to pay an inheritance tax and the sisters claim that they are discriminated against compared to a married couple. Civil partnerships (gay) and marriages were exempt from that inheritance tax.

Argument UK: you cannot compare, these are 2 different situations because they are by law prohibited from marrying each other. Marriage imposes obligations vis-a-vis and it is not the same as two people living together.

European court: two sisters cannot be compared to a marriage or civil partnership couple, and for that reason they cannot complain of a difference in treatment. There was no violation of the prohibition of discrimination. A somewhat contested judgment, because the court did not really look very close into what was the relevance of these differences between the various groups for what was at stake in this case.

Question 19

Fabian v Hungary, judgment of the 5th of September 2017.

Answer 19

Applicant who werked in the public sector as a police officer and he could take early retirement at 47 but he still works in the private sector and then he goes back to civil service after 12 years. Parliament adopts a statute which suspends payment of that service pension which at that moment is called old age pension. It suspends payment of that pension for as long as the beneficiary is simultaneously employed within the civil service. If a retired civil servant is working later on in the private sector, there is no such limitation, and that private employee can receive a salary and at the same time this old age pension (linked to his employment in the civil service).

Discrimination between two categories of recipients of this old age pension, two categories who both are continuing to work after their retirement, but the difference is between those who work in the civil service and those who works in the private sector.

Question 20

What did the European Court state in Fabian v Hungary, judgment of the 5th of September 2017.

Answer 20

European court examines whether the 2 categories can be considered to be in relevantly similar situations: ex civil servants working in the civil service and private sector.

Applicant states: pension schemes does not make any difference. The court acknowledges this, but that is not enough and the court finds some differences:

• The state wanted to reduce public expenditure because it was financially unsustainable. So the court found: if you want to reduce public expenditure, your measure should have an effect on expenses covered by the public budget/state budget.
• So difference: if the person works for the civil service = we are paying him 2 times, instead of when he works for the private sector.

The other difference is that when the state is regulating the pensions of civil servants, it is doing so as the employer of the civil servants, whereas when it is regulating the pensions of those who are working in the private sector, it is not acting as the employer of those who are in the private sector.

So for the Grand Chamber the Conclusion is that they are not in a relevantly similar situation, and therefore no discrimination. We have to note that this was a judgment that was not adopted by a unanimous brand chamber, but it was a decision, adopted by 11 judges against six, but in fact on this specific issue of whether or not they were in a relevantly similar situation there was a majority of only 10 against seven.

Question 21

What is the next question after the comparibility?

Answer 21

The next question is whether there is a difference in treatment, and not only any difference in treatment but a difference in treatment based on identifiable characteristic or status.

the difference in treatment must be based on an identifiable characteristic and it must be based on a on a status by which a person or a group of persons is distinguishable from another person or from another group of persons.

Article 14 has a list but it is not exhaustive: birth or nationality, difference in treatment based on birth or a nationality that’s the characteristic of a person, but at the end of the whole an immigration it is set or other status which indicates that it is a non-limitative list.

Question 22

What is the last requirement for the discrimination?

Answer 22

Next, assuming that you have two comparable groups that there is a difference in treatment between these two comparable groups, the last element is that that there may be no objective and reasonable justification for the difference in treatment.

A difference in treatment does not necessarily mean a discrimination. Difference only becomes discrimination if it cannot be justified –> violation of art. 14.

Discrimination if there is no objective and reasonable justification. Here we come now to the constitutive elements of discrimination: there is no such justification if the difference in treatment does not pursue a legitimate aim or, if there is no reasonable relationship of proportionality between the means employed, that is the creation of a difference in treatment, and the aim sought to be realized.

Question 23

What are the constitutive elements of discrimination?

Answer 23

2 elements:

1. The legitimate must be the aim for making the difference. Why do you make a difference between two categories of persons?
   
   • There is no list of legitimate aims, unlike art. 8-11 but very broad. The aim may not conflict with other provision of the convention. You cannot invoke and aimed at in itself would be incompatible with the European Convention. Usually there’s not a big problem in finding a legitimate aim for making a difference in treatment. Usually, but not always.
2. Proportionality: you cannot go too far in making a difference in treatment: here states enjoy a certain margin of appreciation: not unlimited.

Question 24

Is the margin of appreciation for the difference in treatments the same as with other grounds?

Answer 24

No, it is stricter. There are grounds that are explicitly mentioned in art. 14: That is not a coincidence why these grounds are specifically mentioned there. It’s because the drafters of the convention thought that these grounds of differentiation, carry with them a risk of creating discrimination.

For some of these grounds, the European Court has said that they are practically unacceptable as a matter of principle. It has said so in particular with respect to differences in treatment based on racial or ethnic origin. It means that the court practically excludes this racial or ethnic origin as an acceptable reason for making a distinction between individuals and between groups of individuals.

For other grounds, it has said the justification to be given by the state to justify the difference in treatment, must be one based on very weighty reasons.

• This is the case with differences of treatment based on gender differences; in treatment based on sexual orientation, for instance homosexual or heterosexual; differences in treatment based on birth, are you born in wedlock or out of wedlock or in whatever situation;
• Nationality of persons, requires very weighty reasons while difference based on racial or ethnic origin is practically unacceptable.

Question 25

Biao v Denmark.

Answer 25

Applicant is a naturalized Danish citizen of Togolese origin and he is married to a woman who lives in Ghana. Applicant asks for family reunification in Denmark. The request is refused because the applicant does not comply with the conditions set out by the Danish law to obtain family reunion. Alternative conditions

1. Incoming partners may not have stronger ties with another country than with Denmark. That can happen. But in this case, it’s obvious that the Ghanese wife has much stronger ties with Ghana than with Denmark, and she therefore does not comply with this first condition. It is impossible to grant the request for family reunification on this first condition.
2. Alternatively: Mr. Biao must have held the Danish citizenship for at least 28 years. He only has it for 2 years and has been living there for 9 years.

Difference between 2 categories of Danes:

1. Danish born nationals
2. Danes who acquired the Danish nationality later in life

Also indirect difference in treatment: Rule has an indirect effect of favoring Danish nationals of Danish ethnic origin and placing at a disadvantage the Danish nationals who were of an ethnic origin other than Danish. It is the others with other ethnic origin who are feeling this effect in a more disproportionate way than the others.

Question 26

What was the governments reasoning in the case Biao vs. Denmark?

Answer 26

Danish governement has to show that the difference in the impact of the legislation pursued a legitimate aim and that it was the result of objective factors, that had nothing to do with ethnic origin.

Governement justification: want in Denmark policy of integrating foreigners who come into the country. And if you have people who have stayed only for a short time in Denmark and for some reason or another became Danes, but they have not been for a sufficiently long time in Denmark with the Danish nationality, we do not think that there are enough or sufficient chances for success of integration of the foreign spouse who will be brought in”. So there’s a certain reasoning behind this 28-year rule, that has to do with the prospect of success of integration of the foreign partner, in fact of integration of the whole couple in Danish society.

Question 27

What was the court’s reponse to the reasoning in Biao vs. Denmark?

Answer 27

The court finds this rather speculative because they do not look at the specific situation of mr. Biao, it might be that he is well integrated already. The rule is drafted in such a general way, without every paying attention to specific situations.

They looked in the preparatory works: a lot of negative arguments and stereotypes. But you cannot base your distinction on these stereotypes, they must be based on proven elements.

Conclusion of the court:

• There were no compelling or very weighty reasons unrelated to ethnic origin which would justify the indirect discriminatory effects of the 28-year rule, and therefore the court found violation of article 14 in this case combined with article 8 of the European convention.

With respect to a failure to take differences into account, what is the reasoning here? How should you look for an objective and reasonable justification, or it’s the same criterion but now you have to apply that criterion in the opposite sense. It means, after having found that there are objectively different situations, the question is: Was there a justification for an equal treatment? Was there a legitimate aim, behind nevertheless treating them all equally, and if so, didn’t this equal treatment not impose disproportionate burden on one group?

Question 28

What are the positive obligations for non-discrimination?

Answer 28

First: obligation to take positive measures in order to eliminate existing inequalities.

• Same as with right to private life, freedom of expression,… You cannot enjoy these rights if the state does not take certain postive measures.
• This is something that is very often controlled by international and national supervising institutions, like Centers for the protection of equality etc. Very often they asked the competent authorities to produce an action plan to combat discrimination of certain disadvantaged groups.

Question 29

What are the special measures of a temporary nature?

Answer 29

These are measures, not only or simply aimed at eliminating existing inequalities, but what characterizes these special measures is that they are for a certain time introducing another differential treatment. This time, a difference in treatment which is going to negatively affect the group that, until that moment, is the advantage group

• Affirmative action or positive discrimination.

Positive discrimination because you are discriminating one group in order to take positive action for another group. Now this sort of difference in treatment, which is affecting negatively one particular group. This can be accepted, if there is an objective and reasonable justification, clearly; and only to the extent that as long as that justification exists. Once the justification to eliminate an existing difference in treatment by advancing the group of persons doesn’t exist anymore, well than the affirmative action scheme should also be abolished.

Question 30

Can positive obligations also entail an obligation for the state to protect an individual against discrimination by private individuals?

Answer 30

Sensitive issue because some will say this is an ideological view because what differentiates human beings/individuals from public authorities, is that individuals must be able to choose. They must also be able to choose among various persons. They should be able to have a preference for one person, even for one group of persons, and then look for another person or another group of persons. A state should not come in and oblige an individual to get rid of that preference, and to treat everyone in the same way.

It’s of course not treating everyone in the same way: it would be an obligation to treat everyone without discriminating them. So you can still make a difference between persons or group of persons, but there must be a reasonable justification for that.

Under EU law: obligation to make sure that there is also such an obligation under certain conditions and obligation nondiscrimination in purely private relations between individuals.

Question 31

What is the protection of vulnerable groups?

Answer 31

Persons who are vulnerable, deserve human rights protection and perhaps even a special human rights protection. But this has a special link with equality and non-discrimination: there may be discrimination, not only because equal groups are treated differently, but also because different groups are treated equally. Or in other words, there may be sometimes an obligation for the state to treat different groups differently, to provide for a special protection for groups that are particularly vulnerable.

Question 32

Protection of people characterized by so-called race or ethnicity

Answer 32

They may be particularly vulnerable in a certain context: women, national mintorities.

First: they must be able to enjoy human rights like anyone else. problem is, mostly persons belonging to these vulnerable groups do not effectively enjoy the fundamental rights.

Example: C vs. Bulgaria:

• Rape of a young girl, she complained about having been raped but the Bulgarian authorities had a very limited view of what constituted rape because for them, that had to involve violence.
• And so, although in general the legislation offered sufficient protection to victims against ill treatment, in practice, because of the way this legislation was interpreted and applied by the authorities, this young lady could not get the protection that was guaranteed to her by domestic law and by the European convention on human rights, and therefore the court found a violation. The rights of these persons, as guaranteed by national law, by the European convention, must be effectively guaranteed.

Question 33

What are the positive measures with regard to the protection of vulnerable groups?

Answer 33

More may be needed for the persons in the group to effectively enjoy fundamental rights: there have been specific specific treaties protecting the rights of specifically designated groups, that for some historical reasons have been very much discriminated.

• International Convention on the elimination of all forms of racial discrimination
• Convention on the elimination of all forms of discrimination against women
• Framework convention for the protection of national minorities

What characterizes all of these conventions, is that, apart from repeating a number of fundamental rights that you find already in general in other conventions, there are also specific provisions in these conventions that provide for specific positive measures to be taken by the domestic authorities. Then there’s no discussion anymore, it’s not left anymore to the interpretation of the European court. It is written down, black and white, what the positive measures are that are expected from the competent authorities. Of course, they are written in a very general way and a lot of implementation will be needed by the specific authorities to make these treaties effective.

Question 34

What are the positive measures that followed from the Opuz case?

Answer 34

Opuz vs. Turkey: victim of domestic abuse: The whole complaint is whether the domestic authorities did enough to protect the mother and the daughter against the domestic violence of the two men that were around at the house.

Turkish authorities did not do enough and they did not did not really take effective action to prevent further violence. Then it escalated until a person was killed. It is already a problem under articles two and three of the European convention, but then the court went further, and said this is a case about violence, specifically directed against women, as it is usually the case when we are speaking about violence in a domestic context.

Court went further: because of the effects of this passivity of the domestic authorities, considers that there is also a problem under article 14 of the European convention on human rights. Now, in this case it was about domestic violence and insufficient measures taken by the state.

Question 35

What is the Istanbul convention?

Answer 35

• Opuz case , was the start for action taken by the member states of the Council of Europe to adopt a specific convention for the prevention and the fight against violence against women and domestic violence (more generally the so-called Istanbul convention, because it was adopted in Istanbul in 2011).
• It is a convention that has not been ratified by all the member states of the Council of Europe, not because they are against protection of women against domestic violence, but because there are certain provisions in that convention that according to certain groups in societies, reflect a certain view and the position of women in family etc., which they cannot support, views that are too liberal.

Question 36

What are some other cases about discrimination?

Answer 36

1. Nahova case for racial discrimination
2. Brooks versus the Netherlands: discrimination between men and women;
3. Stack versus the United Kingdom is also about discrimination between men and women;
4. Katie versus Hungary about domestic violence.