#3631 - Article 14 - European Human Rights Law

Article 14 essay plan

Protocol 7, Art 5

Protocol 12, Art 1

McColgan (2000) – ECHR approach to equality is “less than satisfactory” because:

• ECtHR often chooses to decide cases on the basis of other Articles even where non-discrimination is central to the case

• Only applies within the spheres in which convention rights are enjoyed = “parasitic”

• Comparator issues

Baker (2006) – “overemphasising the contingent nature of Art 14 obscures its autonomous significance and contributes to an overly restrictive understanding of its scope and application”.

Until recently was a formal equality model

O’Connell (2009) – Art 14 often described as Cinderella provision...developed and now may live up to its potential as a powerful non-discrimination principle. Developments have pointed to a more substantive conception of equality which offers protection to disadvantaged and vulnerable groups. The Cinderella provision of the Convention has definitely gone to the Ball. More importantly, Convention equality law is now focused on the rationale behind formal distinctions, but has potential to tackle discrimination, disadvantage and oppression.

Been a shift to a more substantive model of discrimination law

Livingstone (1997) – notwithstanding its parasitic nature, the invocation of Art 14 may often expand the scope of other Convnetion rights and so render a greater range of state conduct open to human rights scrutiny”.

IMPROVEMENTS

1) Ambit

ORIGINALLY: Abdulaziz – when the court finds a breach of the substantive article invoked it will usually conclude that it is not necessary to reach a decision on the Art 14 claim. Where it does not find that other article infringed it may yet go on to find that there has been a breach of Art 14 taken in conjunction.

Partsch (1993) – reasons of “procedural economy”

Thlimmenos v Greece – for Art 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols.

ECtHR found that a provision forbidding a person with a serious criminal conviction from receiving an appointment as a chartered accountant violated the applicant’s Art 14 rights b failing to distinguish between convictions based on the exercise of religious freedom and other convictions. Although the C alleged violations of Art 9 alone and of Art 14 taken together with Art 9, the ECtHR addressed Art 14 first. It did so in a way that treated Art 9 as the informing article, exploring the nature and intended effects of Art 14 before any mention of the scope of Art 9.

It is neither necessary nor appropriate to tie the boundaries of the ambit – the area those facts must enter – to the protective boundaries of the substantive right invoked along with Art 14.

The ambit question turns on whether the state measure produced unequal effects within the area of enjoyment of the rights and freedoms of the convention which the state was bound to secure without discrimination. (Baker 2006)

= ambit is the area in which a person is enjoying a right set out in the Convention

Belgian Linguistic case – stressed that Art 14 is an autonomous provision which can be violated even where the substantive Article relied upon to invoke Art 14 has not been violated.

Now extends to the social security and employment sphere

Baker (2006) – “the ambit is the area in which a person can be said to be enjoying” another Convention right”

2) Indirect discrimination

Thlimmenos v Greece

Zarb Adami – law governing juries allowed for men and women to serve, but administrative practices meant that in practice far more men than women served on juries. The court found that this situation was one of unjustified sex discrimination.

3) Approval of positive action

DH case – invoked Art 14 in conjunction with the right to education in Art 2 of Protocol 1. Grand Chamber ruled that Art 14 may require efforts to correct factual inequality, even if this required differential treatment, and grand chamber strongly condemned racial discrimination. Held that it was not necessary to prove any intention to discriminate and that once a discriminatory effect was shown the burden then switched to the state to justify it under the proportionality test.

Education of Roman children- indirect discrimination that sent to special schools. Roman child 27x more likely to be in a special school.

O’Connell (2009) describes this case as a “major breakthrough for a more substantive model of equality” – it recognises that Art 14 covers problems of indirect discrimination, rules that it is not necessary to demonstrate a prejudiced motivation, and it provides that where the applicant can demonstrate a discriminatory situation, the burden switches to the state to provide a justification for it.

Sandland (2008) – court extended not merely the extent but also the type of protection that it is prepared to provide to Roma: not as individuals but as a class; didn't examine individual classes.

Hobcraft (2008) – did it go too far in criticising a country’s entire education system and assessing overall social context, as the dissenting opinions argued?

Stec – the difference in pensionable ages in the UK was intended to respond to the economically disadvantaged position of women. Such affirmative action measures are permissible so long as they were justified by the need to respond to a factual inequality. Once the factual inequality is diminished the justification for the measure would disappear.

Angelova – to investigate allegations of prejudiced motivations in criminal acts

Secic – even where alleged perpetrator is a non state actor.

DH case – “in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article”

REMAINING ISSUES

1) Meaning of discrimination

Fredman – issues of comparator

Burden and Burden v UK – ECtHR decided not to focus on comparator question but instead focused on the issue of justification

BUT the question of whether a comparator is in an analogous position is one which Strasbourg treats as being closely related to the question of justification though it has not been supplanted by the justification test. It therefore continues to be an issue which could trouble the development of a substantive equality jurisprudence under Art 14.

Comparator requirements and a willingness to look at any type of distinction might distract a court from looking at central questions in substantive equality inquiries.

Subbings v UK – dismissed claim on basis that the comparators and C’s were not analogously situated. 3yr limitation...