How does protection from discrimination work?(3)
• Can the difference of treatment be justified?
• A distinction will be considered discriminatory if:
― it has no objective and reasonable justification;
― as such, it does not have a very good reason;
― it is disproportionate.
Justifications
Not all distinction or differential treatment is prohibited. The meaning of discrimination under article 14 is a difference in treatment which ‘has no reasonable and objective justification’.
Such justification will depend on two criteria:
- the aim and effect of the measure
- whether there’s a reasonable relationship of proportionality between the means employed to achieve the aim
In Darby v Sweden (23 October 1990) the Swedish government did not seek to justify a discriminatory tax policy because in reality it was based on administrative convenience. It therefore lacked an objective justification.
In Abdulaziz , Cabales and Balkandaliv UK (28 May 1985) the UK government’s justification for treating women differently from men was a concern about the effect of immigration on the domestic workforce at a time of high unemployment. The UK alleged that more male immigrants were likely to take up work in the UK than female immigrants and so would have a greater impact on employment statistics. The Court rejected this argument, noting the considerable proportion of wives who were ‘economically active’ and concluding that in any event, any difference that may exist was not sufficiently important to justify the difference of treatment in this case.
See also:
Sutherland v. the United Kingdom (no. 25186/94, Commission's report of 1 July 1997): the Commission, having regard to recent research according to which sexual orientation is usually established before puberty in both boys and girls and to the fact that the majority of member States of the Council of Europe have recognised equal ages of consent, explicitly stated that it was “opportune to reconsider its earlier case-law in the light of these modern developments” (Commission's report cited above, §§ 59-60). It reached the conclusion that in the absence of any objective and reasonable justification the maintenance of a higher age of consent for homosexual acts than for heterosexual ones violated Article 14 taken in conjunction with Article 8 (ibid., § 66).
How does protection from discrimination work? (4)
• Can the difference of treatment be justified?
• A distinction will be considered discriminatory if:
|
|
|
― it has no objective and reasonable justification;
― as such, it does not have a very good reason;
― it is disproportionate.
What was decisive regarding the question whether there was an objective and reasonable justification why young men in the 14 to 18 age bracket needed protection against sexual relationships with adult men, while young women in the same age bracket did not need such protection against relations with either adult men or women. In this connection the Court reiterated that the scope of the margin of appreciation left to the Contracting State would vary according to the circumstances, the subject matter and the background. In this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, for instance, Petrovic, § 38, and Fretté, § 40 of the report).
In this case the vast majority of experts who gave evidence in UK Parliament clearly expressed themselves in favour of an equal age of consent, finding in particular that sexual orientation was in most cases established before the age of puberty and that the theory that male adolescents were “recruited” into homosexuality had thus been disproved. Notwithstanding its knowledge of these changes in the scientific approach to the issue, Parliament decided in November 1996, to keep Article 209 on the statute book.
In most cases where a difference of treatment is being asserted the proportionality of the difference of treatment will in many instances be the deciding factor. The Court will look in particular at the relevance and sufficiency of the reasons put forward in support of the measure; whether a less restrictive alternative could have been employed; and at the actual effects on the individuals in question. Eg Gays in the armed forces cases – an absolute prohibition on gays in the armed forces was disproportionate since the legitimate aim of ensuring the integrity of the armed forces could have been achieved by a strict code regulating conduct in the armed forces.
Дата добавления: 2019-02-22; просмотров: 139; Мы поможем в написании вашей работы! |
Мы поможем в написании ваших работ!