Gender Pay Gap Information Act 2021 The purpose of Gender Pay Gap Information Act 2021 Act is to require regulations to be made that will oblige certain employers to publish information relating to the gender pay gap among their employees and, where there is a gap, the measures (if any) being taken to eliminate or reduce it. The Act provides that the Minister for Justice […]
2014 Act; New Commission The main purposes of this 2014 Act are to: provide for the establishment of the Irish Human Rights and Equality Commission; to provide for the dissolution of the Human Rights Commission and the Equality Authority and the transfer of their functions to the new Commission; strengthen and enhance the powers of the new Commission; introduce a positive duty on public bodies […]
Overview Article 51 sets out the scope of the Charter of Fundamental Rights of the European Union. It is addressed to EU institutions, bodies and officers when they are implementing EU law. With due regard to the principle of subsidiarity, it applies to EU member states only when they are implementing EU law.The Charter does not apply to areas which are expressly outside the scope […]
Article 1 – Human dignity Human dignity is inviolable. It must be respected and protected. Article 1 acknowledges that human dignity is the basis for human rights and is a core value of the European Union. The principle is found in philosophical writings about the nature of humanity and being a human being. Human dignity is an absolute right. States must both ensure it is […]
Article 6 – Right to liberty and security Everyone has the right to liberty and security of person. The guarantee of personal liberty reflects the European Convention on Human Rights. Personal liberty may be curtailed by imprisonment and by other state actions involving any element of detention. Regard must be had to the type, duration, effect and manner of implementation of the measures in question […]
Article 9 – Right to marry and right to find a family. The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Article 9 is equivalent to Article 12 of the European Convention on Human Rights. However, it is not in terms of men and women, representing the ever-evolving […]
Arts Sciences Religion & Beliefs Article 13 – Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected. The Article has no direct equivalent in the European Convention on Human Rights. The ECHR has indicated that those who create perform distribute or exhibit works of art, contribute to the exchange of ideas and opinions […]
Overview Title III comprises Articles 20 to 24 of the Charter and provides for equality before the law of various categories of persons. They prohibit discrimination on the grounds set out. These include sex, race, ethnic or social origin, religion or belief. They reaffirm the basic principle in an article about respect for human dignity. Title III requires measures to be taken at the level […]
Overview Title IV of the EU Charter of Fundamental Rights deals with social rights and principles. It is entitled “Solidarity”. Many of the rights and principles are based on the European Social Charter and related international instruments. Prior to the adoption of the Charter, there was debate about the scope of the social provisions. Some states were opposed to the principle of inclusion of social […]
Overview Title V of the Charter sets out rights which attach to EU citizenship. EU citizenship was introduced by the Maastricht Treaty and commenced on 1 November 1993. The rights of EU citizens are now provided for under Treaty of European Union TEU and the Treaty on the Functioning of the European Union, TF EU and the Citizens Directive. The concept of EU citizenship extended […]
Overview Title VI Justice provides a procedural guarantee regarding the enforcement of rights under EU law. It is similar to the guarantees in the European Convention on Human Rights. It provides for an important right to fair proceedings. The right is broader than the corresponding right under the European Convention on Human Rights. The title also provides for the right to legal aid and the […]
Right to Education Overview No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Early case law focused on primary education. Later case law has clarified that […]
Adoption Chbihi Loudoudi and Others v. Belgium concerned the procedure in Belgium for the adoption by the applicants of their Moroccan niece, who had been entrusted to their care by “kafala”1. The applicants complained in particular of the Belgian authorities’ refusal to recognise the kafala agreement and approve the adoption of their niece, to the detriment of the child’s best interests, and of the uncertain […]
Access to experimental treatment or drug Durisotto v. Italy concerned the refusal by the Italian courts to authorise the applicant’s daughter to undergo compassionate therapy (experimental treatment known as the “Stamina” method) to treat her degenerative cerebral illness. The therapy was undergoing clinical trials and, under a legislative decree, was subjected to restrictive access criteria. The Court declared the application inadmissible (manifestly ill-founded) under Article […]
Private and family life The Court examined complaints under Article 14 in conjunction with Article 8 concerning discrimination in the enjoyment of the right to respect for private and family life in a variety of situations.14 The Court clarified that the right to respect for “family life” did not safeguard the mere desire to found a family (E.B. v. France [GC], 2008, § 41); instead, […]
Direct and indirect discrimination Article 14 does not provide a definition of what constitutes direct discrimination. The expression “direct discrimination” describes a “difference in treatment of persons in analogous, or relevantly similar situations” and “based on an identifiable characteristic, or ‘status’” (Biao v. Denmark [GC], 2016, § 89; Carson and Others v. the United Kingdom [GC], 2010, § 61; D.H. and Others v. the Czech […]
Objective and Reasonable justification Burden v UK A difference in treatment is discriminatory if it does not have an objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if it there is not a reasonable relationship of proportionality between the means employed and the aims which are to be realised. The contracting states enjoy a margin of appreciation […]
Comparator As in other equality contexts, the comparator should be in a similar or analogous situation. In Van der Mussele v Belgium the person claimed to be comparators were found to be in a different position and could not be used are not comparators legitimate comparators for the purpose of the claim. In Burden v UK sisters living together sought to compare their status with […]
Other Status In Carson v UK, the court considered the grounds of discrimination having regard to the list of prohibited categories and the reference to ‘other status”. It has established in case law that only differences in treatment based on personal characteristics or status s by which persons or groups of persons are distinguishable from each other are capable of amounting to discrimination within the […]
Non-discrimination. Article 14 of the European Convention on Human Rights “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Protocol 12 “The enjoyment of the rights and freedoms set […]
Non-Discrimination. Article 14 of the European Convention on Human Rights “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Protocol 12 “The enjoyment of the rights and freedoms set […]
Overview When it comes to discrimination on grounds of sex, the Court has repeatedly stated that the advancement of gender equality is today a major goal in the member States of the Council of Europe (Konstantin Markin v. Russia [GC], 2012, § 127) and that, in principle, “very weighty reasons” had to be put forward before such a difference in treatment could be regarded compatible […]
Forced Interventions A measure which is a therapeutic necessity from the point of view of established principles of medicine cannot, in principle, be regarded as inhuman and degrading. The Court must, nevertheless, satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (Jalloh v. Germany ). Force-feeding that is aimed at […]
State Responsibility A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties. The Court has held that where the behaviour of a State agent is unlawful, the question of whether the impugned acts can be imputed to the State requires an assessment of the totality of the […]
The Standards of the investigation In S.M. v. Croatia, the Court summarised its case-law on the procedural obligation under the converging principles of Articles 2, 3 and 4 of the Convention. It noted, in particular, that whereas the general scope of the State’s positive obligations might differ between cases where the treatment contrary to the Convention has been inflicted through the involvement of State agents […]
Interpretation of Article 3 The Court’s approach to the interpretation of Article 3 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 3 of the Convention enshrines one of the most fundamental […]
Fairness & Participation Article 6.1 of the Convention “1. In the determination of … any criminal charge against him, everyone is entitled to a fair… hearing… by [a] tribunal …” Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial (Murtazaliyeva v. Russia [GC], 2018,.91). In general, this includes, inter alia, not only his or her […]
Right of Access to a Court Article 6.1 of the Convention “1. In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by [a] tribunal …” 10. The “right to a court” is no more absolute in criminal than in civil matters. It is subject to implied limitations (Deweer v. Belgium, 1980,.49; Kart v. Turkey [GC], 2009,.67). […]
The rights of the Defence (Article 6.3) Article 6.3 of the Convention “3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself […]
Access to Legal Assistance Legal assistance may be required prior to trial. In Ocalan v Turkey the accused was denied access to lawyers during a period of extensive questioning where he made admissions. He was thereafter permitted to consult lawyers for very limited periods within the hearing of prison guards. He was not given details of the case file until just before the hearing. It […]
Criminal Charge Article 6 § 1 of the Convention “1. In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by [a] tribunal …” The concept of a “criminal charge” has an “autonomous” meaning, independent of the categorisations employed by the national legal systems of the member States (Blokhin v. Russia [GC], 2016, § 179; Adolf v. […]
General principles A prominent place: the Court has always emphasised the prominent place held in a democratic society by the right to a fair trial (Stanev v. Bulgaria [GC], 2012, § 231; Airey v. Ireland, 1979, § 24). This guarantee “is one of the fundamental principles of any democratic society, within the meaning of the Convention” (Pretto and Others v. Italy, 1983, § 21). The […]
Public judgement The judgement in a civil and criminal matter should be pronounced in public. This implies that it be made available and not necessarily that it be made in open court or read out. Judgements may be redacted or withheld to the same extent that parties may be excluded from proceedings in cases such as child protection interests of juvenile’s private life or where […]
General It is a basic principle that the decision-maker cannot be biased or have the appearance of bias. It is not enough that the decision-maker’s decision might be overturned on appeal. The guarantee extends to bias and the appearance of bias. Most cases concern circumstances where a party might reasonably doubt the impartiality of the decision-maker. In civil law systems, the judge may be involved […]
Length of Proceedings Article 6 § 1 of the Convention “1. In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] tribunal …” In requiring cases to be heard within a “reasonable time”, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (H. v. France, […]
Access to Court Article 6.1 implies a right of access to a court or equivalent tribunal. This implies the right to commence and take proceedings; Golder v UK. The right of access to a court for the purposes of Article 6 was defined in Golder v. the United Kingdom, 1975, §§ 28-36 (see, as a recent authority, Grzęda v. Poland [GC], 2022, §§ 342-343). Referring […]
Art 2 Prot 7 Right of appeal in criminal matters 1 Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2 This right may be subject to exceptions in regard to […]