Article 14 – Freedom from Discrimination
Development of Article 14 ECHR through the ECtHR.
Move from formal conception to substantive conception of equality.
This is to be desired.
What impact would Article 1 Protocol 12 have?
1. Introduction:
This essay will examine how the court has interpreted the component parts of Article
14, which has resulted in a broader and more substantive conception of equality.
The ECtHR has expanded the scope of Article 14 by affording a wide
interpretation to both the parasitic nature of the right, and the grounds on
which discrimination can be found and by developing the concept of
‘discrimination’ itself from a mere formal concept to include more
substantive conceptions such as indirect discrimination.
A formal conception of equality = taken to involve people being consistently and
equally treated the same at all times.
Substantive equality goes beyond this = not only recognising, but embracing
differences, reflecting the need for potential differential treatment in order to
correct structural and societal disadvantages that certain groups face.
In other words, the key distinction is that the substantive approach
recognises that even if things are being treated similarly at surface
level, pre-existing social patterns mean that an undue burden is
placed on one group rather than another.
Adopts the distinction drawn by Fredman.
This essay will endorse such substantive conception of equality on the basis that it is
more representative of the complex and often subtle ways in which discrimination
and inequalities manifest.
2. Parasitic Nature of the Right:
Article 14 states that “the enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination.”
The emphasised section points to the fact, which has been emphasised
repeatedly in the case law, that Article 14 has no independent existence and
has effect solely in relation to the rights and freedoms safeguarded by the
other substantive provisions of the Convention (Emel Boyraz v Turkey).
This parasitic or dependent nature of the right has the potential to limit the application
of Article 14.
Not only was it previously thought to require a breach of another substantive
provision of the ECHR, but also if such breach was found, the Court often
found it unnecessary to further consider the case under Article 14, such that
any issues of discrimination were left undiscussed.
This is particularly concerning when you consider the fact that the ECHR includes a
list of rights much shorter than found in the Universal Declaration of Human Rights
and omits many social and economic rights; after all, more human rights is better than
fewer.
The list of rights is therefore not exhaustive of the instances in which
discrimination can occur and in fact, instances of discrimination are often
experienced in relation to social and economic matters.
The most obvious example of this is the denial of employment
opportunities which is arguably one of the biggest instances of
gender discrimination against women.
There is a point to be made about whether we necessarily need to include
such economic rights within the Convention given that this is covered by EU
law.
, BUT – as just stated, one of the biggest cases of sex discrimination is
difference in treatment in the workplace and it seems illogical to
exclude this from the purview of the Convention.
If the European Convention on Human Rights cannot protect one of
the biggest forms of sex discrimination, it raises doubts as to the
effectiveness of the Convention in general.
This point is enhanced when you consider the fact that almost half of
the States which are signed up to the ECHR, are not part of the EU,
the UK included, and therefore would be without protection in this
key area.
3. Parasitic Nature Continued:
The Court in Belgian Linguistics remedied this issue, holding that breach was not a
precondition for the applicability of Article 14 and that it was sufficient if the facts of
the case fell within the “ambit” of another substantive provision of the Convention.
This paved the way for the Court in Emel Boyraz v Turkey, concerning a
woman who was dismissed from a security post on the basis of being a
woman, to find that, although recruitment to the civil service was not covered
by the Convention, the case nevertheless fell within the ambit of Article 8 as
“a measure as drastic as a dismissal from a post on the sole ground of sex has
adverse effects on a person’s identity, self-perception and self-respect, and as
a result, his or her private life.”
This case clearly exemplifies the Court’s willingness to go beyond
the formal list of rights set out in the Convention and accommodate
the many, varied, ways in which discrimination can occur.
4. Grounds of Discrimination:
A similar point can be made with regards to the grounds on which discrimination can
occur so as to bring the case within the scope of Article 14.
Article 14 states that rights shall be secured without discrimination on “any
ground such as” sex, race, colour, language, religion, and several others.
The Court in Salgueiro relied on the use of “such as” in the Article to state that the list
of grounds is “illustrative” and not exhaustive and as such discrimination can be
found on grounds not explicitly listed.
This development is clearly welcome.
In an area as sensitive and socially driven as discrimination, an
inability to change depending on the circumstances would surely
render Article 14 less effective in adequately protecting the right to
freedom from discrimination.
It is a common principle enunciated in the human rights
context that the Convention is a living instrument, and this is
all the more important in discrimination cases.
This is perhaps most clearly illustrated if we consider what
would happen if Article 14 did contain a closed list of
grounds and excluded sexual orientation.
The grounds explicitly listed are clearly “of their time”.
The Convention was drafted after the atrocities of WW2 and the
Holocaust, and so it is understandable and unquestionable that such
grounds such as race, religion, and political opinion are included, as
6 million people were killed on the basis of such discrimination.
At such time, sexual orientation was not a prominent feature
of society.
In modern society, however, these are not the only grounds upon which
discrimination can occur.
For instance, there is a greater awareness and expression, both
publicly and privately, of people’s sexual orientation, and it is
therefore greatly welcome that the Court in Salgueiro held that
Development of Article 14 ECHR through the ECtHR.
Move from formal conception to substantive conception of equality.
This is to be desired.
What impact would Article 1 Protocol 12 have?
1. Introduction:
This essay will examine how the court has interpreted the component parts of Article
14, which has resulted in a broader and more substantive conception of equality.
The ECtHR has expanded the scope of Article 14 by affording a wide
interpretation to both the parasitic nature of the right, and the grounds on
which discrimination can be found and by developing the concept of
‘discrimination’ itself from a mere formal concept to include more
substantive conceptions such as indirect discrimination.
A formal conception of equality = taken to involve people being consistently and
equally treated the same at all times.
Substantive equality goes beyond this = not only recognising, but embracing
differences, reflecting the need for potential differential treatment in order to
correct structural and societal disadvantages that certain groups face.
In other words, the key distinction is that the substantive approach
recognises that even if things are being treated similarly at surface
level, pre-existing social patterns mean that an undue burden is
placed on one group rather than another.
Adopts the distinction drawn by Fredman.
This essay will endorse such substantive conception of equality on the basis that it is
more representative of the complex and often subtle ways in which discrimination
and inequalities manifest.
2. Parasitic Nature of the Right:
Article 14 states that “the enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination.”
The emphasised section points to the fact, which has been emphasised
repeatedly in the case law, that Article 14 has no independent existence and
has effect solely in relation to the rights and freedoms safeguarded by the
other substantive provisions of the Convention (Emel Boyraz v Turkey).
This parasitic or dependent nature of the right has the potential to limit the application
of Article 14.
Not only was it previously thought to require a breach of another substantive
provision of the ECHR, but also if such breach was found, the Court often
found it unnecessary to further consider the case under Article 14, such that
any issues of discrimination were left undiscussed.
This is particularly concerning when you consider the fact that the ECHR includes a
list of rights much shorter than found in the Universal Declaration of Human Rights
and omits many social and economic rights; after all, more human rights is better than
fewer.
The list of rights is therefore not exhaustive of the instances in which
discrimination can occur and in fact, instances of discrimination are often
experienced in relation to social and economic matters.
The most obvious example of this is the denial of employment
opportunities which is arguably one of the biggest instances of
gender discrimination against women.
There is a point to be made about whether we necessarily need to include
such economic rights within the Convention given that this is covered by EU
law.
, BUT – as just stated, one of the biggest cases of sex discrimination is
difference in treatment in the workplace and it seems illogical to
exclude this from the purview of the Convention.
If the European Convention on Human Rights cannot protect one of
the biggest forms of sex discrimination, it raises doubts as to the
effectiveness of the Convention in general.
This point is enhanced when you consider the fact that almost half of
the States which are signed up to the ECHR, are not part of the EU,
the UK included, and therefore would be without protection in this
key area.
3. Parasitic Nature Continued:
The Court in Belgian Linguistics remedied this issue, holding that breach was not a
precondition for the applicability of Article 14 and that it was sufficient if the facts of
the case fell within the “ambit” of another substantive provision of the Convention.
This paved the way for the Court in Emel Boyraz v Turkey, concerning a
woman who was dismissed from a security post on the basis of being a
woman, to find that, although recruitment to the civil service was not covered
by the Convention, the case nevertheless fell within the ambit of Article 8 as
“a measure as drastic as a dismissal from a post on the sole ground of sex has
adverse effects on a person’s identity, self-perception and self-respect, and as
a result, his or her private life.”
This case clearly exemplifies the Court’s willingness to go beyond
the formal list of rights set out in the Convention and accommodate
the many, varied, ways in which discrimination can occur.
4. Grounds of Discrimination:
A similar point can be made with regards to the grounds on which discrimination can
occur so as to bring the case within the scope of Article 14.
Article 14 states that rights shall be secured without discrimination on “any
ground such as” sex, race, colour, language, religion, and several others.
The Court in Salgueiro relied on the use of “such as” in the Article to state that the list
of grounds is “illustrative” and not exhaustive and as such discrimination can be
found on grounds not explicitly listed.
This development is clearly welcome.
In an area as sensitive and socially driven as discrimination, an
inability to change depending on the circumstances would surely
render Article 14 less effective in adequately protecting the right to
freedom from discrimination.
It is a common principle enunciated in the human rights
context that the Convention is a living instrument, and this is
all the more important in discrimination cases.
This is perhaps most clearly illustrated if we consider what
would happen if Article 14 did contain a closed list of
grounds and excluded sexual orientation.
The grounds explicitly listed are clearly “of their time”.
The Convention was drafted after the atrocities of WW2 and the
Holocaust, and so it is understandable and unquestionable that such
grounds such as race, religion, and political opinion are included, as
6 million people were killed on the basis of such discrimination.
At such time, sexual orientation was not a prominent feature
of society.
In modern society, however, these are not the only grounds upon which
discrimination can occur.
For instance, there is a greater awareness and expression, both
publicly and privately, of people’s sexual orientation, and it is
therefore greatly welcome that the Court in Salgueiro held that
