How does protection from discrimination work? (5)
• 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.
• Margin of appreciation
However, in relation to whether difference of treatment is proportionate the Strasbourg Court has recognised that States do have a margin of appreciation. This is particularly in cases involving taxation and national security, but it will also depend on which characteristic the discrimination is based, and whether the Court can identify the emergence of a common European standard in that particular area.
An example of the margin of appreciation in practice is Stec and others v. UK, 12 April 2006 about the difference in pensionable age for men and women.
See also:
Burden and Burden v. UK, 12 December 2006: alleged discrimination against umarried cohabiting family members in the lights of their future liability for inheritance taxes; no violation was found.
Paulik v. Slovakia, 10 October 2006, about the impossibility to disclaim paternity, a violation was found as in domestic legislation there was no proportionality between the aims and the absolute means employed.
RM v UK (Decision 14 April 1994). The facts of the case concerned UK sentencing policy of people with Aids in comparison to those with other terminal conditions. Although the Court accepted there was discriminatory treatment they found that it was within the State’s margin of appreciation and was therefore lawful.
Frette v France (26 May 2002): The Court rejected As claim of discrimination which related to his request to adopt a child that was refused because of his sexual orientation, noting that States have a wide margin of appreciation in this realm.
Rainys and Gasparavićius v. Lithuania, 7 April 2005; the applicants had the status of ‘former KGB agent’ which precluded them from employment in the private sector. This measure was found to be disproportionate.
Issues arising out of the protection from discrimination (1)
• Grounds of discrimination
• Suspect groups
Grounds
Article 14 lists the grounds on which discrimination is prohibited, however, this is a non-exhaustive list and should therefore not be overly relied upon. The catch-all group of ‘other status’ means that categories of people or individuals not covered by the specified list of grounds still have the protection of Article 14, the notable examples being sexual orientation and disability.
|
|
|
Suspect groups
Certain categories of people are given extra protection by the Court where it is rarely if ever possible to justify treating them differently. Very weighty reasons indeed will need to be advanced by a State seeking to establish that a discriminatory measure that affects these categories is proportionate. These are called suspect groups and they include those discriminated against on the basis of their race, sex, sexual orientation, religion and the marital status of their parents (see Marckx v. Belgium (13 June 1979), paras 43, 48, 59, and 65; Mazurek v. France (1 February 2000), para.49; Van Raalte v. the Netherlands (21 February 1997), para.39; L. and V. v. Austria (9 January 2003), para.45, 47-54; Hoffmann v. Austria (23 June 1993), para.36; Palau-Martinez v. France (16 December 2003); Gaygusuz v. Austria (16 September 1996), para.42; Koua Poirrez v. France (30 September 2003), para.46; Nachova v. Bulgaria (26 February 2004), para.155).
The basis for these suspect groups can be discerned from the Court in the Abdulaziz ,Cabales and Balkandali v. UK case (28 May 1985) in relation to sex discrimination: ‘the advancement of the equality of the sexes is today a major goal in the member states of the Council of Europe…very weighty reasons indeed would have to be advanced before a difference in treatment on the grounds of sex could be considered compatible with the Convention.’
Issues arising out of the protection from discrimination (2)
• Indirect discrimination
• Positive discrimination
Indirect discrimination
So far, we have looked primarily at instances of ‘direct’ discrimination. That is discrimination that occurs when a person is treated less favourably than another in a comparable situation because of their racial or ethnic origin, religion or belief, disability, age or sexual orientation. An example of direct discrimination is a job advert, which says "no disabled people need apply."
|
|
|
However, the Convention also protects against ‘indirect’ discrimination, namely where a rule on its face is apparently neutral, although it has an adverse impact upon one particular group of people. This is clear from the Belgium Linguistic case in which the Court held that the existence of reasonable an objective justification has to be assessed in relation to the aims and effects of the measure in question.
Also, in Thlimmenos v Greece (6 April 2000) the application of a neutral rule which barred those with criminal convictions from becoming chartered accountants, had a disproportionate effect on the applicant, a Jehova’s Witness, whose conviction related to conscientious objection.
Positive discrimination
In relation to positive discrimination it has been accepted that the aim of redressing a pre-existing situation of inequality is a legitimate object of differential treatment, provided such measures could be reasonably and objectively justified. However, the Convention does not impose an obligation on States to engage in a policy of affirmative action.
In Lindsay v UK (Decision 11 November 1986) women who were sole breadwinners paid less tax than men in the same position. This policy was designed to encourage more married women to work and thereby overcome male prejudice toward them and advance equality of the sexes. These tax incentives were deemed lawful by the Court and did not discriminate against men.
As the Court stated in the Belgian Linguistics case: ‘certain legal inequalities tend only to correct factual inequalities’.
Дата добавления: 2019-02-22; просмотров: 155; Мы поможем в написании вашей работы! |
Мы поможем в написании ваших работ!