When does protection from discrimination apply? (2)
Article 14, ECHR
“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.”
The prohibition of discrimination is central to the protection of human rights. It is closely entwined with the principle of equality which values every person as an individual who is free and equal in dignity and rights.
The prohibition on discrimination runs through all international human rights instruments and has inspired specialist treaties, eg International Convention on the Elimination of all forms of Racial Discrimination 1966 and the Convention on the Elimination of Discrimination Against Women 1979.
Under the ECHR, protection from discrimination has until now been provided solely by article 14. However, a new Protocol, Protocol 12, has entered into force on 1st April 2005 and will in practice replace article 14 for all states that have ratified it. The main part of this presentation is directed to article 14 since the basic concept of discrimination in Protocol 12 is meant to be interpreted in the same way as it has been under article 14. Later on changes that the new Protocol will introduce to the ECHR regime will be examined.
The Court’s case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (Zarb Adami v. Malta (20 June 2006), para.71).
When does protection from discrimination apply? (1)
• It is not a free standing right. It does not have independent status
• The ambit test
• Scope is limited to those rights embodied in the Convention and its protocols
• No need for a violation of another Convention right
• Not a free standing right
The first thing to note about article 14 is that, unlike article 26 ICCPR (UN equivalent of the ECHR), article 14 does not guarantee a freestanding right to protection from discrimination. It can only be invoked in relation to another Convention right. Because of this characteristic, it is often described as being a ‘parasitic’, ‘dependent’ or ‘accessory’ right under the ECHR.
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Article 14 therefore does not apply unless the facts at issue fall within the ambit of another Convention right (Rasmussen v Denmark (28 November 1984)). We can call this the ‘ambit test’. (see also McBride v. UK, decision 9 May 2006, incompatible ratione materiae)
No need for a violation of another Convention right
However, the dependence of Article 14 on another Convention right is qualified in 2 important ways. The first of these is that to fall within the ambit of a Convention right and therefore for Article 14 to apply, the facts in issue need only engage the substantive right, there need not be a breach of that right.
In Abdulaziz , Cabales & Balkandali v UK (28 May 1985), for instance, under UK legislation at the time, a man with permission to remain in the country could bring his wife into the jurisdiction, but a woman in a comparable position could not necessarily bring in her husband. The applicants alleged that this was a breach of their right to family life under article 8, and also a breach of article 14 since it discriminated unjustifiably between the non-national spouses of males and the non-national spouses of females. The Court held that there was no violation of the applicants’ Article 8 right to family life since it was legitimate to restrict the admission of non-national spouses to the UK. However, it was not legitimate to distinguish the non-national spouses of males and those of females and so a breach of article 14 was found.
So this case illustrates that Article 14 can be relied on, even when the substantive right is not violated, provided the substantive right is engaged by the facts in issue.
The limitations of article 14 are clearly illustrated by the case of Botta v Italy (24 February 1998), a case concerning discrimination against a disabled man who could not gain access to the beach. The Court held that Article 8 does not encompass a right to go to the beach and therefore on the facts not only was Article 8 not violated, but it was not engaged at all (social life rather than private life in which there was a wide MA). The claim was therefore outside the ambit of Article 8. As such, the applicant could not make a claim under article 14 in relation to the discrimination that he was clearly suffering.
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When does protection from discrimination apply? (2)
• Dependent nature of Article 14
• Scope is limited to those rights embodied in the Convention and its protocols
• No need for a violation of another Convention right
The dependent nature of article 14 is also qualified in a second important way. This is that issues of discrimination may arise in areas where States are not obliged under the Convention to provide protection, in other words where the State does more than is strictly required under the ECHR to ‘secure’ a Convention right in its domestic law. Article 14 will apply to all aspects of the right provided. So for example, in the Belgian Linguistics case, article 6 does not compel States to set up a system of appeal courts. And a State that does will exceed its obligations under article 6 ECHR. However, it would violate article 6, in conjunction with article 14, if it excluded certain parties from these remedies without legitimate reason. In such a case, the claim may fail on the basis of article 6 since the State had no obligation to provide the right sought by the Applicant, but it would succeed under article 14 if it has in fact been provided but on a discriminatory basis.
When an applicant asserts a violation of Article 14 and a violation of a substantive right the Court has often found it unnecessary to examine whether there is a violation of Article 14 if it finds a violation of the substantive right. Although, as was stated in Airey v Ireland (9 October 1979), where there is a clear inequality of treatment in the enjoyment of the right and this inequality is a fundamental aspect of the case, the Court will address the discrimination issue as well as the substantive right issue.
In relation to other matters the Court has only focussed on the discrimination elements of a case. For example, in a case involving adoption laws in France the Court held these discriminated against a homosexual applicant (Frett é v France (26 May 2002)). In cases involving sexual orientation the Court has on a number occasions preferred to decide this on the basis of discrimination rather than a breach of a substantive right (L & V v Austria (9 April 2003)).
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