The European Convention on Human Rights (ECHR) was the first modern human rights treaty drawing from the United Nations Universal Declaration of Human Rights. The ECHR set out a list of legally binding obligations on its member states to guarantee a list of human rights to everyone within the jurisdiction (not just citizens). There are forty-seven member states (both EU and non-EU countries). The European Court of Human Rights (ECtHR) hears cases brought against member states for breaches of the ECHR.
The ECHR prohibition on discrimination is guaranteed under Article 14 which reads:
“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.”
Article 14 guarantees equal treatment in the engagement of other rights set down in the ECHR. Discrimination is prohibited on the listed grounds or “other status” unless the discrimination can be justified. Article 14 is not freestanding and has been described as “parasitic” on the other ECHR rights. It has no independent existence.
Under Article 14 the ECHR is not competent to examine complaints of discrimination unless they fall within the ambit of the rights and freedoms protected by the ECHR. In Šilih v Slovenia an Article 14 application that failed to name the relevant substantive right was rejected.
A complainant must allege a violation of a substantive right, and in addition a violation of a substantive right in conjunction with Article 14. In Sommerfeld v Germany the applicant was denied by German law a right of further appeal against a court’s decision refusing access to his daughter. A father not having custody of a child born in wedlock would have been entitled to a further appeal. The applicant was excluded based on his status as the father of a child born out of wedlock. The court held that this difference in treatment provided for by German Law constituted discrimination and as such found a violation under Article 14 in conjunction with Article 8 of the ECHR. However, this was found not to be considered as a violation of the substantive right to respect for family life under Article 8.
It is not necessary to prove that an ECHR Article has been violated but one must establish that discrimination occurred within the ambit of an Article. The ECtHR stated that “there can be no room for its application (i.e. Article 14) unless the facts at issue fall within the ambit of one or more of the rights and freedoms”.
Occasionally when the ECtHR finds a violation of a substantive right, it will not consider the complaint of discrimination where it is of the view that it is essentially an examination of the same complaint. In Sommerfield the court declined to accept the Applicants complaint under Article 6 and Article 14.
In Dudgeon v UK the Applicant challenged laws criminalising homosexuality in Northern Ireland. The ECtHR found there to be a breach of Article 8, but did not address the Applicants claim that the imposition of these laws in Northern Ireland and not in the UK was a breach of Article 14. Northern Ireland is an integral part of the UK. However, the Article 14 issue may have been “too political” for the ECtHR to address.
Article 14 only applies with the ambit of other rights and this has the potential to limit Article 14. In addition, the ECtHR decides the various cases based on substantive rights even when non-discrimination is relevant and should also be considered. This has led to criticism from several academics. Article 14 is regarded as a “Cinderella provision” not having significant “bite”. Gerards’ writes that the “main explanation for the Articles subordinate role is found in its accessory character.”
Discrimination
Direct discrimination is the idea that “likes should be treated alike, or, at any rate, not treated dissimilarly on grounds of a protected characteristic.” Most of Article 14 discrimination case law involves Direct Discrimination.
In Carson and Others v UK the ECtHR held that in direct discrimination there must be “a difference in the treatment of persons in analogous, or relatively similar situations” which is “based on an identifiable characteristic”. The essence of direct discrimination is in favourable treatment in comparison to an individual in a similar situation (comparator).
The case of Luczak v Poland concerned a French farmer living and farming in Poland who was refused entry into a Polish social security scheme to support Polish farmers, it was not available to non-nationals. The ECtHR held that the Applicant was in a comparable situation to Polish farmers, he was a permanent resident who paid taxes and thus contributed to the social security system.
In Thlimmenos v Greece it was held that indirect discrimination occurs when a state “fails to treat differently persons whose situations are significantly different.” It is not the treatment but the effect of the treatment that will be felt differently by people with different characteristics. The Applicant in Thlimmenos v Greece was refused an appointment as a chartered accountant because of a criminal conviction, which implied a lack of honesty and reliability. He was a Jehovah Witness and refused to wear a military uniform. He was found guilty of unsubordination. The Applicant claimed a distinction should have been made between offences committed because of religious beliefs and other offences.
Historically, the ECtHR is reluctant to accept indirect discrimination cases but in recent times there appears to be a move to deal with the problems and challenges of indirect discrimination.
In D.H. and Others v Czech Republic the Czech Republic had a network of special schools for children with intellectual disabilities and learning difficulties. Statistical evidence showed most of the children in these schools were of Roma origin. The Applicants claimed their education suffered and they were excluded from mainstream education. They invoked Article 14 in conjunction with the right to education, the first protocol, Article 2. The ECtHR held that Article 14 may require efforts to correct inequality even if this required differential treatment. It is not necessary to prove intention to discriminate and the onus switched to the State to justify the discrimination and as such it was found that indirect discrimination was present.
Harassment and Instruction to Discriminate
The ECHR does not specifically prohibit harassment or instruction to discriminate. However, the ECHR has examined this issue in several cases. In Bączkowski and Others v Poland the Mayor of Warsaw made a homophobic statement stating he would refuse permission for a march to raise awareness about discrimination based on sexual orientation. Permission was refused by the relevant administrative body. The ECtHR held that the Mayors statements could have influenced the decision of the relevant authorities. The decision to refuse was based on the ground of sexual orientation, and was a breach of the Right to Free Assembly in conjunction with the Right to be Free from Discrimination.
General defence of objective justification
In certain circumstances the ECtHR will accept that differential treatment has been carried out and is acceptable. The general defence is available to direct and indirect discrimination. In Burden and Burden v UK it was held that:
“a difference in the treatment of persons in relatively similar situations…is discriminatory if it has no objective and reasonable justification; in other words, it if does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
The ECtHR is less likely to accept different treatment where it relates to the core of human dignity, such as discrimination based on race or ethnicity, home or family life. The court comes down hard on discrimination based on sex and race.
The ECtHR uses a doctrine of “the margin of appreciation” that allows a “degree of deference to national preferences” when considering if differential treatment is justified. In the absence of European consensus on the matter the ECtHR adopts a wider margin of appreciation to the State in question. Where the margin of appreciation is considered narrow the court applies more scrutiny.
Protected Grounds
Article 14 prohibits differential treatment which is based on certain grounds
“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.”
The reach of Article 14 is extremely broad, but not exhaustive. Discrimination is prohibited on “any ground such as…” implies that other grounds are no excluded and the expression “or other status” further expands the potential grounds for discrimination. The court “generates new rights and expands the scope of existing ones.” The list of grounds for discrimination is open-ended, almost any distinction within ‘the ambit’ of the ECHR can trigger a claim under Article 14. This broad approach by the courts gives the ECHR a contemporary meaning, making it a ‘living’ document.
There is extensive case law on breaches of the enumerated protected grounds..______
Protocol 12
The original ECHR has been altered and amended by the introduction of protocols. To strengthen protection against discrimination. Protocol 12 was inserted into the ECHR on April 1st, 2005. This states that:
“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.”
Protocol 12 expands the scope of Article 14 by guaranteeing equal treatment in the enjoyment of any right (including rights under national law). Under Protocol 12 the prohibition of discrimination becomes free standing.
In Sejdić and Finci v Bosnia and Herzegovina the ECtHR held that Protocol 12 introduced a general prohibition on discrimination. Discrimination under Protocol 12 is identical in meaning to discrimination under Article 14. Protocol 12 and Article 14 extend the reach of anti-discrimination by the ECtHR. Only 17 of the 47 member states have ratified Protocol 12 and this results in different levels of non-discrimination protection.
The ECHR and Irish Law
Ireland was one of the original signatories to the ECHR but it was not ratified or incorporated into Irish Law until 2003 when the European Convention on Human Rights Act 2003 (ECHR Act 2003) was introduced. Article 15.2.1 of the Constitution states that:
“the sole power for making laws for the State is hereby vested in the Oireachtas. No other legislative authority has power to make laws for the State.”
Article 29.6 of the Constitution expresses that:
“no international agreement shall be part of the domestic law of the State save as may be directed by the Oireachtas.”
These constitutional requirements mean that international law must be incorporated into domestic law by way of a Constitutional or legislative Act. Prior to its incorporation into Irish Law one could not get a remedy for a breach of ECHR discrimination in Irish Courts and as such would have to take their case to the ECtHR in Strasbourg. Irish Courts were required to give effect to constitutional and domestic legislation provisions even when there was an obvious breach of the Convention.
The ECHR Act 2003 requires Irish Courts to interpret the States obligations under the ECHR using the ECHR 2Act 2003. The ECHR is not incorporated directly into Irish Law, substantive ECHR rights are not directly incorporated into Irish Law. If here is a conflict between a Constitutional Interpretation of legislation and the corresponding ECHR based interpretation the Constitutional interpretation prevails. The Act requires the courts to interpret statutes in a manner compatible with the States obligation under the ECHR. Courts are required to have regard to ECHR provisions and decisions, but the ECtHR decisions are not treated as binding.
There is a requirement that every organ of the State shall perform to function in a manner compatible with the ECHR. Irish courts are not included in ‘organs of the State’, justice is administered under the Constitution. Protocol 12 is not incorporated under the ECHR Act 2003.
Conclusion
The ECHR is accepted as one of the most successful regional Human Rights treaties. It “transformed abstract human rights into a concrete legal framework.” The large body of case law developed by the ECtHR has resulted in it being effective in guaranteeing human rights. Article 14 is the no-discrimination article of the ECHR. A weakness of Article 14 is that it is not free-standing and it is restricted to the enjoyment of substantive rights and freedoms (the ambit requirement). Protocol 12 addresses this weakness, and transforms Article 14 into a free-standing prohibition on discrimination.
The ECtHR has taken a very broad and open approach to the grounds for discrimination. It is now addressing the problems and challenges of indirect discrimination. The courts interpret ‘other status’ very broadly and will consider any type of distinction as grounds for a claim. This openness by the Court has strengthened Article 14. Under Article 14 the ECtHR has handed down many judgements with many having far-reaching implications for individuals and States, for the rule of law and equality. Article 14 of the ECHR has served the rule of law, equality and non-discrimination very effectively. In any body of law there are unsatisfactory decisions and the ECtHR is no exception, but all in all Article 14 is a strong prohibition on discrimination.