#13575 - Discrimination Quick - European Human Rights Law

Article 14: Discrimination and Equality

Article 14:

‘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.’

1. Parasitic Nature

Important to remember that the Article is parasitic, in that it is restricted to discrimination with respect to the rights and freedoms set out elsewhere in the Convention, and is not a general proscription.

• In practice, the inability to deal with discrimination with regard to economic and social rights is significant – issues that are the ‘main staple’ for most discrimination lawyers (Livingston).

ECtHR have interpreted it in a way to prevent redundancy, not requiring the breach of another right, only that it falls ‘within the ambit’ of another right (Belgian Linguistics), thus ‘falling within the general scope of any Convention Article (EB v France).

• Parasitic nature means that, if a breach of another Article is found, the ECtHR rarely goes on to consider Article 14 (Dudgeon v UK).

2. Definition of discrimination

The balance in the ECHR seems to be moving away from a merely formal conception of equality, towards a consequentialist model. A balance is vital (e.g. Fredman’s four-dimensional model).

Belgian Linguistics: ‘treating differently, without an objective and reasonable justification, persons in relevantly similar situations.’

• ‘Article 14 does not forbid every difference in treatment and there may be perfectly legitimate reasons for different treatment (hence proportionality analysis).

In a more progressive model, the Court has acknowledged that same treatment might be discriminatory.

• Merely formal conceptions fail to address any ingrained inequality in society and does not guarantee any minimum level of treatment.

• Same treatment as discriminatory can be seen in Griggs v Duke Power (US), with a requirement of a High School diploma for work – no explicit discrimination, but disproportionately hindered the educationally disadvantaged African Americans.

• Fredman: unequal treatment might be necessary to achieve equality.

  • ‘Equality of results is primarily concerned with achieving a fairer distribution of benefits, while formal equality is based on the notion of procedural fairness stemming from consistent treatment.’

  • Fraser then distinguishes between equality as redistribution and recognition, the latter relating to inter-personal affirmation and very hard to achieve.

• Thlimmenos v Greece: ‘the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’

  • His argument was not that conviction was an unjustifiable reason for different treatment, but that he was discriminated against by being treated like any other person convicted of a felony, but his resulted from the exercise of a freedom.

Also developed indirect discrimination, which results from a rule or practice that, in itself, does not involve impermissible discrimination, but disproportionately and adversely affects members of a particular group.

• DH v Czech Republic: the provisions ‘has considerably more impact in practice on Roma children than on non-Roma children and resulted in statistically disproportionate members of placements of the former in special schools.’

  • Violation, because the authorities has failed to institute ‘safeguards… that would ensure that… the state took into account their special needs as members of a disadvantaged class.’

• The line can be difficult to draw between discriminatory treatment and the inevitable consequences of different groups having their lives regulated by the same rules.

  • As such, along with all positive obligations, demands are partially diluted – Abdulaziz rejected the contention of same treatment as racist, since ‘it is an effect not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others.’

3. Strict Scrutiny and ‘any other ground’

No amendment needed to add further grounds of discrimination, since the list is non-exhaustive with ‘any other ground’.

• While the court has emphasised that it ‘is not concerned with all difference of treatment but only with difference having as their basis or reason a personal characteristic by which persons or groups of persons are distinguishable from on another’, difficult to state the scope of ‘personal characteristic’.

  • Been interpreted rather widely – included discrimination based on residence in Carson v UK.

• Important to adapt to modern conditions (children in/out of wedlock recognised in Inze), but must not overstretch – equally, not useful to produce arbitrary distinctions.

Rather than imposing an arbitrary test, graduated approach in differing levels of scrutiny might be preferable.

• Certain grounds such as ethnic origin (DH), gender (Abdulaziz), sexual orientation (EB v France) and disability (Alajos Kiss) are noted as deserving ‘strict scrutiny’.

• However, it is argued that this should not be done automatically – such grounds speak for themselves in that there will rarely ever be good reasons to discriminate on such grounds, so will inherently be harder to justify.

  • Sejdic: ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society.’

• Such stricter scrutiny shall occur anyway and strict scrutiny can be shorthand for this, but labels may require normative force in themselves, which is not particularly useful.

  • E.g. US tiered system descends into debate as to which tier, rather than discussing the specific issues.

  • While some grounds are clear, others are merely fact specific and there is no normative discriminatory feature.

  • One suggestion is that certain grounds are inherent to the person, and the fact they cannot be changes makes discrimination particularly invidious – but, some inherent grounds have good reason for discrimination (age) and choice grounds may be particularly previous precisely because they are chosen.

However, if labels are used merely as...