How does protection from discrimination work? (1)
• Has there been a difference of treatment?
• Comparing like with like
• Difference of treatment
To rely on Article 14 an applicant has to show that she or he has been treated differently and less favourably than others who are in a similar or analogous situation. Conversely, an applicant may also demonstrate that he or she has been treated the same as someone whose situation is significantly different (see Zarb Adami v. Malta (20 June 2006), paras 71-84; Stec and Others v. The United Kingdom (12 April 2006), paras 50-67; Evans v. the United Kingdom (10 April 2007)paras 93-96; Zeman v. Austria (29 June 2006), paras 32-41; Mizzi v. Malta (12 January 2006), paras 126-136).. This was also the case in Thlimmenos v Greece (6 April 2000) in which the applicant was prevented from becoming a chartered accountant because he had a criminal record. However that record stemmed from his refusal, as a Jehova’s Witness, to participate in military service. The Court upheld his claim on the basis that a Jehovah’s Witness with a conviction related to conscientious objection should not be treated the same as those with ordinary criminal convictions.
Comparing like with like
In asserting a difference of treatment, the applicant must compare like with like. Where the comparator group is fundamentally different, a claim will not succeed. Clearly, in empirical terms, no 2 groups are alike and the evaluation will be very context specific, looking in particular at the substantive right that is engaged.
In Van der Mussele v Belgium (23 November 1983) for instance, the applicant argued before the Court that his article 4 rights (prohibition on slavery) in conjunction with article 14 were violated by the pro bono work he was required to undertake as a trainee lawyer. He argued that apprentice doctors and dentists did not have to undertake similar pro bono work. However, the Court held that there were fundamental differences between the various professions and so like was not being compared with like.
In Holy Monasteries v Greece (9 December 1994) the applicants sought to argue that they were being discriminated against in that the State appropriated large parts of the estates of monasteries belonging to the Greek Church but did not appropriate land from other monasteries. The Court, however, held that these situations were not analogous and that the close links between the monasteries and the Greek Church justified treating them differently from those subject to other authority.
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How does protection from discrimination work? (2)
Burden of proof
The burden of proof in article 14 cases is spilt. An applicant must first show that the complaint falls within the ambit of one of the substantive Convention rights and that he/she has been treated differently from a person in a comparable position with respect to that right.
The burden then shifts onto the State to prove that the difference in treatment was lawful.
In the Grand Chamber’s judgment in the case Nachova and Others v. Bulgaria (6 July 2005), paras 156-158, 146-147, 131-142, where the Court held that the state authorities had failed in their duty under Article 14 of the Convention taken together with Article 2 to take all possible steps to investigate whether or not discrimination may have played a role in the events and decided that there had been a violation of Article 14 of the Convention taken together with Article 2 in its procedural aspect. In Anguelova v. Bulgaria (13 June 2002), paras 163-168, the Court found that the applicant's complaints are based on serious arguments, but nevertheless it is unable to reach the conclusion that proof beyond reasonable doubt has been established about discrimination of Bulgarian Roma.
Bekos and Koutropoulos v. Greece, 13 December 2005 also dealt with violence against Roma. Although the Court did not found a violation of Article 14 regarding the violence itself it found a violation regarding its procedural aspect: the State had not taken all possible steps to investigate whether discrimination played a role in the events.
In Moldovan against Romania, 12 July 2005 the applicants ware attacked because of their Roma origin. A violation was found, the Court refers to discriminatory remarks made by the authorities throughout the whole case. The ethnicity of the applicants was decisive for the length of the proceedings and their outcome.
No violation was found in the case D.H. and others v. the Czech Republic of 7 February 2006 regarding Roma children, placed in special schools for children with learning disabilities.
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