Lecture 9 Flashcards
(17 cards)
legal framework on non-discrimination - ECHR
Article 14 ECHR
- this one has been there since the beginning
- this is an accessory right and always has to be invoked by another right
Protocol 12 ECHR
- remedies that it is an accessory for an extent.
- states can decide to ratify protocols, and now only 20 states have ratified it
➞ that’s why you still need both provisions
why do some states not ratify protocol 12 ECHR?
you can invoke article 12 when talking about any right
- so applicants can bring cases also saying they have been discriminated in economic and social rights
- states don’t like this
legal framework EU non-discrimination
Article 21 CFR
- very little case law on this provision alone
Secondary EU law
- racial equality directive 2000/43 - CHEZ case
- employment equality directive 2000/78 - Achbita case
- gender equality directive (recast) 2006/54
➞ limited material scope: you can only rely on these in certain contexts
the EC already protected the right to equal pay
Achbita case
this case was about indirect discrimination based on your religion
- they had a neutrality policy in place at her work
what is the test applied by the ECHtHR when it is confronted with a claim about article 14 ECHR?
➞ 2 questions
1. Applicability
- does the complaint fall ‘within the ambit’ of another article?
- does the complaint fall within a prohibited ground?
2. Compliance
- was the applicant treated differently from persons in analogous situations?
- was the difference in treatment objectively and reasonably justified?
does the complaint fall “within the ambit” of another article meaning? - non-discrimination
➞ sees on applicability (first question)
➞ because article 14 has an accessory character
- it has no independent existence, so you have to act within the scope of another article of the convention
- you only have to argue that it falls within the embit ➞ so even broader than the scope
does the complaint fall within a prohibited ground? - non-discrimination
➞ sees on applicability (2nd question)
prohibited grounds are found in article 14 ECHR
“or other status” ➞ so not only these grounds
the other grounds can be quite broad
Kiyutin v Russia case
was the applicant treated differently from persons in analogous situations? - non-discrimination
➞ sees on compliance (3rd question)
a. did the applicant suffer a difference in treatment?
b. is the treatment different if the applicant compares himself to a comparable situation? (that you compare yourself to)
was the difference in treatment objectively and reasonably justified? - non-discrimination
➞ sees on compliance (4th question)
you don’t see a list like in articles 8-11
justification:
i. legitimate aim?
ii. reasonable amount of proportionality between aim and means employed?
➞ margin of appreciation: but this is almost non existent when you discriminate on certain grounds
margin of appreciation with the justification on non-discrimination
States have this margin, but it is almost non existent when you discriminate on certain grounds
Kiyutin v Russia case explains this
Narrow margin (so very very good reasons required to justify)
➞ when there is a suspect ground, and this is when the applicant belongs to a vulnerable group which has suffered discrimination in the past
OR
➞ when there is (no) European consensus
suspect grounds (art 14) examples
- gender
- birth
- nationality
- sexual orientation
- race
- mental disability
- HIV/aids
- religion
not suspect
- marriage / marital status
- immigration states
- age
➞ so more margin of appreciation
when can you invoke protocol 12 ECHR?
- if a state has ratified the protocol
- because your complaint doesn’t fit within another right
➞ it’s easier to invoke this one because it is more straightforward
test applied when wanting to invoke protocol 12 ECHR
1. applicability
a. does the applicant’s complaint fall in one of the four categories of cases?
b. does the complaint fall within a prohibited ground?
2. Compliance
c. was the applicant treated differently from persons in analogous situations?
d. was the difference in treatment objectively and reasonably justified?
does the applicant’s complaint fall in one of the four categories of cases? - applicability (protocol 12 ECHR)
Moraru and Marin v Romania case
a. enjoying national law
b. when a public authority has an obligation
c. public authority exercising discretionary power
d. any other act or omission by a public authority
➞ so these are very broad
Moraru and Marin v Romania case
women were fired at the age of 60 en men at 65. these women said it was discrimination on based of sex and not age
- first point applicable (they enjoyed a right)
- second point applicable - public authority had an obligation
direct vs indirect discrimination
Direct = unequal treatment explicitly based on protected grounds
Indirect = unequal treatment based on non-protected ground, but disproportionally detrimental effect for group characterised by protected ground
➞ this is easier to justify
G4S Security case (Achbita)
rule + exception of the burden of proof
Rule
the applicant proves difference in treatment (beyond reasonable doubt)
Exception
sometimes it is impossible to prove something like this
- government needs to disprove arguable allegation of discrimination
DH and others v Czech Republic
➞ statistical evidence with indirect discrimination. than the government has to disprove
