Original scientific paper
Prohibition of Discrimination in the Case Law of the European Court of Human Rights
Jasna Omejec
; Faculty of law, University of Zagreb, Zagreb, Croatia
Abstract
Equality is a comparative concept: an individual can ascertain whether they have ‘equality’ only by comparing their conditions with the conditions of others. There are two broad conceptual approaches to equality. Formal or ‘juridical’ equality refers to a basic idea: that individuals in like situations should be treated alike. Formal equality focuses on equal treatment based on the appearance of similarity regardless of the broader context. Laws or practices that tend to grant different treatment to individuals in similar situations may result in direct discrimination. Structural factors can ensure that regardless of equal treatment or prohibition of direct discrimination, certain groups fall behind the rest of society. Therefore, applied on its own and if differences are not taken into account as well as similarities, consistency of treatment is inadequate to ensure the broader aims of equality. ‘Substantive equality’ refers to the notion that individuals in different situations should be treated differently. It encompasses two distinct ideas – equality of results and equality of opportunity. Under international discrimination law, a State may also be required (or permitted) to take measures to ensure the ‘ factual equality’ or substantive equality of protected groups. Positive action or affirmative measures (also known as ‘special measures’) are proactive measures taken by a government or private institution to remedy the effects of past and present discrimination by providing reverse preferences favouring members of classes previously disadvantaged. Such preferential treatment runs counter to the strictly formal notion of equality. Many international instruments explicitly permit positive action without imposing an obligation on States to take such measures. There are also a number of types of conduct that are prohibited by international discrimination law. Direct discrimination is based on the idea of formal equality. It may be defined as less favourable or detrimental treatment of an individual or group of individuals on the basis of a prohibited characteristic or ground such as race, sex, or disability. Indirect discrimination occurs when a practice, rule, requirement or condition is neutral on its face but impacts disproportionately upon particular groups, unless that practice, rule, requirement or condition is justified. Prohibitions of indirect discrimination require a State to take account of relevant differences between groups. Article 14 is the central provision of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: Convention) concerning equality ("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."). It has been interpreted as an open-ended prohibition of discrimination because of the use of the words "other status". The European Court of Human Rights (hereinafter: the Court) in its case-law reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. Therefore, Article 14 provides an ‘accessory right’ to equality in the enjoyment of the substantive rights and freedoms guaranteed by the Convention. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall "within the ambit" of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. According to the Court's settled case-law, discrimination means treating persons in similar situations differently without an objective and reasonable justification. "No objective and reasonable justification" means that the distinction in issue does not pursue a "legitimate aim" or that there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised". 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. The scope of this margin will vary according to the circumstances, the subject matter and its background. Thus, Article 14 does not prohibit a member State from treating groups differently in order to correct "factual inequalities" between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article. Similarly, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation". In more general terms, the Court has held that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention. Lastly, as to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified. The above legal opinions of the Court concerning prohibition of discrimination indicate the basic approach that the domestic courts should take in applying the Croatian Anti-Discrimination Act which entered into force on 1 January 2009.
Keywords
European Court of Human Rights; Article 14 of the European Convention; difference in treatment; discriminatory grounds; discrimination test
Hrčak ID:
42919
URI
Publication date:
26.10.2009.
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