1. Prohibition of Discrimination – Selected Issues ___ Janneke Gerards
Advanced Course on the International Protection of Human Rights – Abo / Turku 2010
Current Issues Concerning the European Convention on Human Rights

2. Today Applicability of Article 14 ECHR
How does the ECHR decide non-discrimination cases?
Suspect grounds of discrimination
Indirect and substantive discrimination
Racial segregation
Case “Shaking hands”

3. Accessory character What does this mean? Article 14 ECHR
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
What does this mean?

4. According to the Court’s established case-law, Article 14 (art
According to the Court’s established case-law, Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter …
Abdulaziz, Cabales and Balkandali (1985), § 71

5. “Within the ambit”
Need to establish some connection with substantive Article
No violation required
Recent case-law:
[Article 14] applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide
Carson v UK (2008), § 70

6. Consequences accessory character
Widening of scope of the Convention – eg. E.B. v France (2008) – adoption
No clear distinction between “classic” and “social” fundamental rights
‘By granting child benefits, States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the benefits therefore come within the scope of that provision …. It follows that Article 14 – taken together with Article 8 – is applicable.’
Niedzwiecki v Germany, 2005, § 31
Still cases that fall outside scope:
Employment decisions regarding civil servants
Asylum and immigration policy
Access to certain social benefits (eg. compensation schemes)

7. Solution: Protocol No 12
Article 1 – General prohibition of discrimination
The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Entry into force: 1 April 2005
Ratified by (only) 19 Member States; 10 Member States have not signed the Protocol (including Denmark, France, Sweden, Switzerland, UK)
Uncertainty of consequences and role ECtHR – but: Sejdic and Finci v. Bosnia Herzegovina (2009)

8. How to apply Article 14? Comparability or disadvantage?
Situation applicant similar to situation of person he compares himself to?
Did the applicant suffer a disadvantage in comparison to someone else?
If no – no violation
If yes:
Justification?
Legitimate aim?
Reasonable relationship between aim and disadvantage?

9. “Very weighty reasons”
- “Very weighty reasons” test = narrow margin of appreciation
Applied if the discrimination is based on a “suspect” ground of discrimination

10. Suspect grounds? Immutability? History of discrimination?
Prejudice and unacceptable stereotyping?
Common ground?

11. Common ground argument
“… it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.”
Abdulaziz, Cabales and Balkandali (1985), § 78
Is this a good criterion?

12. 37.  It is true that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would be needed for such a difference in treatment to be regarded as compatible with the Convention ….
38.  However, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States …
39.  It is clear that at the material time, that is at the end of the 1980s, there was no common standard in this field, as the majority of the Contracting States did not provide for parental leave allowances to be paid to fathers. …
Petrovic v Austria (1998)

13. Other factor?
39. Discrimination on account of one's actual or perceived ethnicity is a form of racial discrimination … Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment.
Timishev v Russia (2005)

14. Historical discrimination & prejudice
42. … If a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. … The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs.
Alajos Kiss v. Hungary (2010)

15. Which grounds are “suspect”?
Gender / sex
Abdulaziz (1985)
Birth (lawful / unlawful; abortion)
Inze (1987)
Nationality (sometimes)
Gaygusuz (1996)
Sexual orientation
L&V (2003)
Race
Timishev (2005)
Mental disability
Alajos Kiss (2010)
Marital status?
Wessels-Bergervoet
Religion?
Hoffman

16. Effects of very weighty reasons test
Strict review of legitimacy of aims pursued
Strict review of objectivity and reasonableness of difference in treatment as instrument to achieve the aims pursued
General rule: very weighty reasons test = violation of Article 14

17. Direct & indirect discrimination
Direct discrimination: difference in treatment is obviously and directly based on protected ground
Indirect discrimination: difference in treatment is based on a “neutral” ground”, but has disproportionally detrimental effect for group characterised by a protected ground

18. Protected grounds? Article 14 – “open” list of grounds
… discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
Carson v UK (2008)
75.  The Court recalls that the list set out in Article 14 is illustrative and not exhaustive, as is shown by the words “any ground such as” …. It further recalls that the words “other status” … have been given a wide meaning so as to include, in certain circumstances, a distinction drawn on the basis of a place of residence. …
76.  The Court considers that, in the circumstances of the present case, ordinary residence, like domicile and nationality, is to be seen as an aspect of personal status and that the place of residence applied as a criterion for the differential treatment of citizens in the grant of State pensions is a ground falling within the scope of Article 14.

19. No need for “indirect” discrimination?
All cases of unequal treatment or discrimination can be brought before the Court
But: “very weighty reasons test” only applicable to certain grounds (sex, race, etc)
Moreover: Article 14 not always applicable (eg. Springett v. UK (2010))
Valuable to demonstrate that difference in treatment indirectly constitutes discrimination against women, people of different ethnic origin, etc.

20. D.H. v. Czech Republic (2007)
188. … [W]hen it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. …
189. Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory

21. Formal v. substantive discrimination
Formal discrimination: different treatment of similar cases
Substantive discrimination: equal treatment of different cases
Equal treatment is not always acceptable!
See Thlimmenos v Greece (1998)

22. Racial segregation in schools
D.H. and Others v. Czech Republic (2007) – de facto segregation (indirect discrimination or substantive discrimination) as a result of tests equally applied to school children
But still difficult to prove… see Orsus v. Croatia ( Chamber) vs. Orsus v. Croatia (2010, Grand Chamber)

23. Orsus v. Croatia (2008)
38. The Court does not in principle exclude that treatment based on prejudice against an ethnic minority may fall within the ambit of Article 3. In particular, the feelings of inferiority or humiliation triggered by discriminatory segregation based on race in the field of education could, in the exceptional circumstances of an individual pupil, amount to treatment contrary to the guarantees of Article 3 of the Convention.

24. Orsus v. Croatia (2008)
39. The placement of the individual applicants in Roma-only classes for a certain period during their education in elementary schools does not reveal any sign of intent to humiliate or debase them or any lack of respect for their human dignity. … [N]o evidence was presented showing that [the placement] had such an adverse affect on them as to constitute inhuman and degrading treatment.

25. Orsus v. Croatia (2008)
66. … while in its D.H. and Others judgment the Court found that the difference in treatment was based on race, which required the strictest scrutiny, in the present case the difference in treatment was based on adequacy of language skills. This ground … allows for a wider margin of appreciation.
68. … the States cannot be prohibited from setting up separate classes or different types of school for children with difficulties… Thus the Court considers that the initial placement of the applicants in separate classes was based on their lack of knowledge of the Croatian language and not their race or ethnic origin, and was justified for the purposes of Article 14 of the Convention.

26. Orsus v. Croatia (GC, 2010)
152. [The statistics confirm] that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory.
153. However, indirect discrimination may be proved without statistical evidence. In this connection the Court notes that the measure of placing the children in separate classes on the basis of their insufficient command of the Croatian language was applied only in respect of Roma children… Thus, the measure in question clearly represents a difference in treatment.

27. Case “shaking hands”

28. Vader Rijn College Public high school
Teacher refused to shake because of religious convictions
Teacher was dismissed

29. Conflicting views Equal Treatment Commission
shaking hands not necessary in a diverse and pluralist society
dismissal is disproportionate and violates right to non-discrimination based on religion
Central Appeals Council
shaking hands is a common expression of respect and politeness
important to learn this to pupils in a diverse and pluralist society
dismissal is reasonable and does not violate right to non-discrimination

30. How would the ECtHR decide this case?