Article 14 of the European Convention on Human Rights provides: “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.”
This broad and inclusive definition appears deceptively straightforward, as does the initial guidance from the European Court of Human Rights that: “Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations” (see Fredin v Sweden (No 1), No 12033/86, 18 February 1991; DH v Czech Republic, No 57325/00, 13 November 2007, §175).
In accordance with the “living instrument” doctrine, the definition of “discrimination” has evolved since the 1990s. New cases have expanded our understanding of discrimination, the areas of life it touches, the range of characteristics which can be encompassed within “other status” and the parameters of justification. Studying these trends offers a snapshot of the emerging forms of discrimination of our time. However, the benefit of this body of case law is not purely academic. This avenue offers a remedy to citizens of member states who have experienced discrimination which complements those available under the Equality Directives: Recast Directive (2006/54/EC), the Goods and Services Directive (2004/113/EC), the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC).
This rich area of study provided a focus for the Equinet (European Network of Equality Bodies) Working Group on Equality Law in 2019-20. This work culminated in two outputs.
The first was the recent publication of Compendium: Article 14 cases from the European Court of Human Rights (“the Compendium”), which offers a detailed analysis of the court’s recent case law on article 14. This will be of interest to lawyers and academics, as well as members of NGOs, equality bodies and national human rights Institutions.
The second was Equinet’s third party intervention in the case of Toplak and Mrak v Slovenia, Nos 34591/19 and 42545/19, a case concerning accessibility of polling stations.
This article briefly outlines the approach of the working group to these two substantial pieces of work and provides an overview of the conclusions of the Compendium and the intervention.
The working group completed a search of the HUDOC database for all cases where article 14 was argued. This produced 98 results. The court made a substantive finding in relation to the article 14 argument in just over a third of those. The working group then analysed those 37 cases, taking a thematic approach. The themes explored included: the scope of “other status”, the range of sectors article 14 can reach, the legal definition of discrimination applied by the court, positive obligations, the influence of international instruments and gender perspective, and the approach of the court to margin of appreciation and justification.The conclusions are set out in the Compendium, which also offers comparison to discrimination under the Equality Directives where appropriate, electronic links to the cases discussed and an appendix with a brief summary of each case.
Summary of key findings
Central to vindication of the rights of victims of discrimination is public declaration that discrimination has occurred. Overall, there was a violation of article 14 in 73% of cases where substantive consideration was given to the article 14 claim. This highlights the importance of giving prominence to an article 14 argument at the earliest stage.
The Convention offers an expansive scope. Although primarily concerned with civil and political rights in public and administrative law, the court has emphasised that it cannot remain passive where a national court's interpretation of a public, private or administrative legal act appears unreasonable, arbitrary or blatantly discriminatory (Bogdan v Romania, No 66299/12, 29 January 2019, §24).
The Convention provides a remedy for those discriminated against on the grounds of specified characteristics (sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth), or “other status”, the most flexible and therefore frequently argued characteristic within the cases studied.
Within the cases analysed, “other status” ranged from the broader characteristics such as disability, to the very specific such as particular types of property ownership. The second most frequently argued characteristic was sex, often with a focus on systemic failings in measures to combat violence against women. Sex was closely followed by race, and six of the seven race discrimination cases concerned discrimination against Roma people, frequently arising from failure to investigate properly a potential racist motive in criminal allegations or ill treatment by law enforcement authorities.
The analysis indicated that whilst the concept of discrimination by association is not expressly narrated within the text of the Convention, it has evolved in relation to four protected characteristics: disability, religion, sexual orientation and race.
Definitions of discrimination
The court does not adopt the tight definitions of direct and indirect forms of discrimination within the Equality Directives. The Compendium closely analyses the court's approach to defining discrimination and identifies three strands.
The first, and most frequently applied, strand is a form of direct discrimination: “treating differently, without an objective and reasonable justification, persons in relevantly similar situations” – referring to cases such as Willis v United Kingdom, No 36042/97, 11 June 2002. The court has historically not insisted on a strict requirement to find a real or hypothetical comparator. However, in Carvalho Pinto de Sousa Morais v Portugal, No 17484/15, 25 July 2017, evidence of an actual comparator – two older men who had been treated more favourably in the context of healthcare – assisted the applicant to establish discrimination.
The second strand can be understood as a form of indirect discrimination whereby: “States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” (Thlimmenos v Greece, No 34369/97, 6 April 2000).
This approach was applied in just two of the 37 cases, one of which concerned a disabled student seeking reasonable adjustments: Sahin v Turkey, No 23065/12, 30 January 2018.
Finally, the court has also utilised a slightly nuanced, but closely related, formulation of indirect discrimination, whereby: “a general policy or measure has disproportionately prejudicial effects on a particular group… this may be considered discriminatory notwithstanding that it is not specifically aimed or directed at that group”. An example of this was in Belcacemi and Oussar v Belgium, No 37798/13, 11 July 2017, concerning a national ban on face coverings.
Unlike the position under the Equality Directives, justification is arguable in relation to both direct and indirect forms of discrimination under the Convention. The following aims were accepted by the court as being legitimate within the cases analysed: the protection and organisation of the country's economic and social system; the need to assure the minimum condition of life in society; the need to live together; and the need to secure legal certainty.
The cases analysed provided examples of “suspect grounds”, where the court applies a stricter justification test. This means that the member state will have to put forward “very weighty or convincing reasons” to justify differences in treatment for some grounds of discrimination. Historically the court has applied this suspect status to race or ethnicity, nationality, birth, sexual orientation, disability, religion and sex. The court has historically stated that age discrimination is not a suspect ground (British Gurkha Welfare Society v United Kingdom, No 44818/11, 15 September 2016, §81). However, in Deaconu v Romania, No 66299/12, the court applied the “very weighty reasons” approach to age discrimination without analysis of that historical approach, perhaps opening the door for age discrimination cases.
Margin of appreciation
The margin of appreciation afforded to member states is narrower in areas where there is common ground between member states. The cases studied provided numerous examples to demonstrate the influence of international law instruments and the wider practice of the UN committees and special rapporteurs in this assessment. In Bălșan v Romania, No 49645/49, 23 May 2017, the court was explicit about the importance of having regard to the specialised legal instruments and decisions of international legal bodies on the question of violence against women.
A broader margin of appreciation is at times afforded in cases involving general fiscal, economic or social measures, economic or social strategy or in the field of social security and pensions. However, more recent case law has emphasised that: “in the context of article 14 in conjunction with article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality” (JD and A v United Kingdom, No 32949/17).
Alongside the research on article 14 for the Compendium, the legal working group also continually monitored communicated cases from the court over the course of 2019. The group aimed to contribute Equinet's expertise, for the first time, in the form of an intervention in a suitable case. Overall, 134 cases containing an article 14 claim were communicated by the court within the period from 1 January to 17 December 2019.
Some reflections on this experience are included at chapter 15 of the Compendium. The group closely scrutinised, and ruled out, seven cases. This process highlighted the complexity of the task. Some barriers related to the format and timing of the communication from the court. There is a 12 week time limit in which to seek permission to intervene, and sometimes the communications are not published on HUDOC until several weeks after communication to the member state. Sometimes there was limited information about the facts of the case contained within the communication.
Other barriers were internal and arose from the complexity of securing agreement, or at least ensuring no veto, of the Equinet members and the executive board within the 12 week timeframe. It was also essential that the group considered how a submission from Equinet could be of assistance to the court.
In spite of these obstacles, on 7 July 2020 the European Court of Human Rights granted permission for Equinet to intervene in Toplak and Mrak v Slovenia. The case concerns accessibility of polling stations to disabled people, and raises complaints in terms of article 3 of Protocol No 1 to the ECHR, read alone and in conjunction with article 14; article 14; article 1 of Protocol No 12; and article 13; as well as under article 1 of Protocol No 12 and article 13 of the Convention. Equinet’s submission provides the court with information about international human rights standards and trends regarding the right to vote for persons with disabilities, as well as information about legislation and practice at national level in contracting states.
Summary of key propositions
The submission emphasises that the right to vote is an essential right and not a privilege. Universal suffrage requires that all citizens have the same opportunities to participate in the political life of the country, as enshrined in international covenants but also in national law. Full autonomous accessibility at every stage of the voting process to polling stations by disabled people should be the norm.
Accessibility is an unconditional requirement and cannot be diluted by reference to “disproportionate burden”. However, in practice, the access of people with disabilities to their rights on an equal basis with people without disabilities frequently remains wishful thinking and proves inadequate, which translates into significantly lower participation of disabled people in the electoral process and further marginalises them. This impacts on the representation of disabled people and undermines democratic legitimacy.
The discussion of the 37 cases within the Compendium offers a snapshot of some of the emerging discrimination concerns of the time. Common themes included socio-economic rights of people living and working abroad, positive obligations to combat violence against women, failure to investigate racist motives in allegations of criminal offences perpetrated against Roma people, and prisoners' rights. The court considered a sexual orientation discrimination case brought by a heterosexual couple for the first time.
The court rejected a claim of discrimination which argued that a national ban on face coverings discriminated against Muslim women, on the grounds that the discrimination was justified as a proportionate response in pursuit of the aim of promoting “living together”. The implications of and for this decision at a time of widespread and often compulsory use of face coverings in response to COVID-19 are discussed in a blog on the Equinet website.
Equinet has built on the expertise developed during the study period and has submitted its first intervention to the European Court of Human Rights in Toplak and Mrak v Slovenia. A decision on the case is awaited and the legal working group will then assess the impact of the submission. In the meantime it continues to monitor communicated cases for potential future intervention.