Freedom from Discrimination

Question 1

What does the term ‘convention’ in Article 14 include?

Answer 1

First, Fourth, Sixth and Seventh protocol - they all individually provide that all the provisions of the Convention apply to them

Question 2

What are the 4 key questions when considering allegations of violations of Article 14?

Answer 2

1. Is the complaint within the ambit of one of the substantive provisions of the Convention?
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 person which is treated more favorably?
4. Is the difference in treatment reasonably and objectively justified?

Question 3

What are the issues of the positive obligations under Article 14?

Answer 3

Made complicated by the requirement of the allegation of discrimination to fall within the ambit of one of the substantive provisions of the Convention

Strasbourg court states where discrimination occurs by action or failure to ensure non-discrimination, justification of differential treatment must meet a legitimate aim and there must be reasonable relationship of proportionality between that aim and its realization

Question 4

What happened in the Thlimmenos v Greece case?

Answer 4

Applicant was convicted for refusal to serve in the armed forces because he was part of Jehovah’s Witness

Complained that conviction led to exclusion from his profession of choice and the law didn’t make a distinction between those convicted as a result of their religious belief and on other grounds

Court found a violation of Article 14 taken with Article 9

Question 5

What are the conceptual issues surrounding Article 14?

Answer 5

Whether a violation of Article 14 can only be established where there is a breach of another substantive right in the Convention

Problem of interpretation - what forms of differential treatment constitute ‘discrimination’

Question 6

What is the problem with claiming that Article 14 prohibits all inequalities?

Answer 6

Manifestly unreasonable results

Inequality might be designed to benefit the less privileged class- such as provision of additional educational facilities for children of poorer families

Question 7

What sort of objective criteria can be identified for Article 14?

Answer 7

Should be read not in light of the very general wording of the French version ‘sans distinction aucune’ and instead read in light of the more restrictive English version ‘without discrimination’

Question 8

What is the test to determine whether or not a given difference in treatment contravenes Article 14?

Answer 8

If the distinction has no objective and reasonable justification

Justification must be assessed in relation to the aim and effects of the measure under considerations

Article 14 is violated where there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised

Question 9

What case demonstrates the need for justification?

Answer 9

Grandrath v Federal Republic of Germany

Court stated that distinction cannot be made other than those which are either inherent in the nature of the right in question or are designed to remedy existing inequalities

Question 10

What are the two methods adopted for establishing violation of Article 14?

Answer 10

differential treatment is justified if it has an objective aim, derived from the public interest and if the measures of the distinction do not exceed a reasonable relation

differential treatment is justified only if, without regard to the purpose of the measures in question, the facts themselves require or permit differential treatment

Question 11

What case highlights the difference between these two theses?

Answer 11

In the Belgian Linguistic case, the Court, using the first thesis, found a violation of only one aspect whereas using the second other provisions might also have been inconsistent

Question 12

Are the grounds listed in Article 14 exhaustive?

Answer 12

No- discrimination based on ‘other status’ is also prohibited but what is explicitly meant by a personal characteristic is troublesome

Conflicting authority on the meaning and extent of it

Question 13

Does personal characteristic need to be defined?

Answer 13

No formal requirement to establish a personal characteristic

In Carson and others v United Kingdom- personal status is a better term to describe the grounds which fall under ‘other status’

Question 14

How has the application of Article 14 developed?

Answer 14

Went from focus on whether there had been a violation of the substantive provision of the Convention claimed to be within the ambit of Article 14 before considering whether there was discrimination. If a violation was found, tendency not to consider that provision in conjunction with Article 14- ‘reasons of procedural economy’ Partsch

Question 15

Which case signaled a change from the original application of Article 14?

Answer 15

Chassagnou and others v France: where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found on substantive Article, not always necessary for the Court to consider the case under Article 14 too

UNLESS there is a clear inequality of treatment in the enjoyment of the right in questions is a fundamental aspect of the case

Question 16

What are the criticisms of the Courts approach to failing to find a violation of Article 14 in cases involving race?

Answer 16

Judge Bonello notes that violations have been found in cases regarding the Roma community under Article 2 and 3 but yet the Court had failed to highlight that racial discrimination was a fundamental aspect of these cases

Result of not using Article 14 was concealing the systemic problem of discrimination in Europe

Question 17

What happened in the Nachova case?

Answer 17

GC found violations of both Article 2 when read alone and Article 14 when read in conjunction with Article 2.

Requires examination under both articles- implied that the background of many accounts of existence of prejudice and hostility in Bulgaria against Roma was a significant factor

Question 18

What did the dissenting judge in V.C v Slovakia say?

Answer 18

Failure to address Article 14 failed to recognize the structural problem in the State

Case concerned the sterilization of young Roma women - court found that there was no need to consider Article 14 despite evidence to suggest the practice was targeted at Roma women

Question 19

Does another Convention right need to be breach to result in a violation of Article 14?

Answer 19

There is no requirement - Kafkaris v Cyprus