Prohibition of discrimination

Question 1

What kind of prohibition is it?

Answer 1

Art. 14 is autonomous - Does not require a breach of a convention right

Art. 14 is not independent - Must be applied in relation to a convention right

Question 2

Structure

Answer 2

1. Is the complaint within the scope of a convention right? This includes other rights if the state extended the protection (ex. right to marry for homosexuals)
2. Is the alleged reason for discrimination listed in art. 14?
3. Can the applicant properly compare himself with someone else treated better?
4. Is the difference in treatment reasonably and objectively justified?

Question 3

Is the alleged reason for discrimination listed in art. 14?

Answer 3

1. List is not exhaustive
2. View A - Other status includes only personal characteristics (inherent)
3. View B - Other status includes any situation

• If state has ratified Protocol 12, turns to ‘Is the complaint within the scope of a right guaranteed by that MS?’

Question 4

Can the applicant properly compare himself with someone else better treated?

Answer 4

1. A is relevantly similar to another group but yet treated differently - Direct discrimination
2. Same requirement applies to two different groups but one group is unable to comply with the requirement - Indirect discrimination

Question 5

Is the difference in treatment reasonably and objectively justified?

Answer 5

1. Legitimate aim

2. Means are proportionate

Question 6

What is the hierarchy of protection?

Answer 6

1. Sex/gender
2. Race and ethnicity
3. Disability / Health issues
4. General measures of economic/social strategy (housing, taxation, social security…)

Question 7

Who has burden of proof?

Answer 7

1 to 3 is on the applicant

Only 4 is on the MS