Equality Topics [ECHR]

Table of Contents

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, it presupposed the existence of one (Marckx v. Belgium, 1979, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father (Nylund v. Finland (dec.), 1999), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, § 62), or the relationship that arises from a lawful and genuine adoption (Pini and Others v. Romania, 2004, § 148).

In this context the Court examined several cases concerning access to children under Article 14 in conjunction with Article 8:

the refusal to grant a father access to a child born out of wedlock (Sommerfeld v. Germany[GC], 2003);
deprivation of custody on the sole ground of the mother’s religious convictions (Hoffmann v. Austria, 1993);
the impossibility of second-parent adoption in same-sex couples (X and Others v. Austria[GC], 2013);
the difference in treatment between male and female military personnel regarding rights to parental leave (Konstantin Markin v. Russia [GC], 2012);

In this connection, see also the Guide on Article 8 of the Convention (right to respect for private and family life).

the difference in treatment between a father and a mother as regards the time-limits related to the possibility of instituting proceedings to contest paternity (Rasmussen v. Denmark, 1984);
impossibility of a father of a child born out of wedlock to exercise parental authority without the mother’s consent despite DNA evidence of paternity (Paparrigopoulos v. Greece, 2022)
legislation permitting deferral of prison sentence for mothers, but not fathers, of young children (Alexandru Enache v. Romania, 2017); or
family reunification (Biao v. Denmark [GC], 2016)
restriction on contact rights based on the father’s mental disorder (Cînţa v. Romania, 2020
failure to assist a widow in being reunited with her children kidnapped by the paternal grandfather against the background of regional gender stereotypes and patrilineal practices (Tapayeva and Others v. Russia, 2021)

Although the Court stated that Article 8 does not guarantee the right to found a family or the right to adopt (E.B. v. France [GC], 2008, § 41), it could nonetheless examine cases concerning, for example, the right to establish and develop relationships with other human beings or the decisions to have and not to have a child under the notion of “private life” within the meaning of Article 8 of the Convention (ibid., § 43). As a result, the Court examined respect for Article 14 in cases involving:

a refusal to grant approval for the purposes of adoption, on the ground of the applicant’s lifestyle as a lesbian living with another woman (E.B. v. France [GC], 2008);
a refusal of simple adoption order in favour of the homosexual partner of the biological mother (Gas and Dubois v. France, 2012);
the impossibility of second-parent adoption in a same-sex couple (X and Others v. Austria[GC], 2013); or
the ban on adoption of children by specific nationals (A.H. and Others v. Russia, 2017);
the obligation to resort to adoption in order to recognise the filiation between the biological mother and her child born through surrogacy (D. v. France, 2020) .

The Court has also found a violation of Article 14 in cases concerned with the entering into a civil union or marriage. The case of Muñoz Díaz v. Spain, 2009, concerned the refusal to recognise the validity of a Roma marriage for the purposes of establishing entitlement to a survivor’s pension. The Court found discrimination given the applicant’s good faith as to the validity of the marriage. In Şerife Yiğit v. Turkey [GC], 2010, on the contrary, the applicant who had married in a purely religious ceremony was aware of her situation and the Court found no discrimination.

In Vallianatos and Others v. Greece [GC], 2013, the Court found discriminatory the introduction of a “civil union” restricted to different-sex couples, thereby excluding same-sex couples from its scope. The case of Ratzenböck and Seydl v. Austria, 2017, concerned a different-sex couple who was denied access for a registered partnership, created and reserved exclusively for same-sex couples. The Court observed the context of the creation of such a civil partnership and the fact that the applicants had access to marriage and did not find the situation to amount to discrimination. Similar questions were sometimes examined by the Court under Article 8 alone such as in Oliari and Others v. Italy, 2015, concerning a lack of legal recognition of same-sex partnerships.

Political Rights

The prohibition of discrimination in relation to political rights is directly related to the promotion of democracy, as one of the main goals of the Council of Europe. The Court has found a violation of Article 14 in conjunction with Article 10 guaranteeing freedom of expression,17 or with Article 11 protecting freedom of peaceful assembly and association,18 or with Article 3 of Protocol No. 1 concerning the right to free elections.19

In Bayev and Others v. Russia, 2017, the applicants were fined for having staged a protest against laws banning the promotion of homosexuality among minors. The Court established that the national legislation created an unjustified difference in treatment between heterosexual majority and homosexual minority reinforcing stigma and prejudice and encouraging homophobia (§ 83) and found a violation of Article 14 in conjunction with Article 10.

As regards Article 14 in conjunction with Article 11, the Court found violations in cases concerning

the obligation for Freemasons to declare their membership when applying for regional authority posts (Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2), 2007);
the refusal to grant permission to protest or hold public assemblies based on discriminatory criteria (Bączkowski and Others v. Poland, 2007; Genderdoc-M v. Moldova, 2012; Alekseyev and Others v. Russia, 2018);
the State’s failure to protect demonstrators from homophobic violence and to launch effective investigation (Identoba and Others v. Georgia, 2015) or to ensure that a LGBTI event disrupted by counter-demonstrators proceeded peacefully (Berkman v. Russia, 2020);
the refusal to register associations set up to promote and protect LGBTI rights (Zhdanov and Others v. Russia, 2019); and
the obligation of small landowners to become members of a hunting association (Chassagnou and Others v. France [GC], 1999).

In Danilenkov and Others v. Russia, 2009, the Court found that the State had failed to fulfil its positive obligation to afford effective and clear judicial protection against discrimination on the ground of trade-union membership in a case involving a seaport company using various techniques to encourage employees to abandon their union membership, including their reassignment to special work teams with limited opportunities, unlawful dismissals, wage reductions, disciplinary sanctions and refusals to reinstate the trade-union members following court judgments. In Zakharova and Others v. Russia, 2022, such a positive obligation was found to have been violated on account of the courts’ failure to review the various measures taken by the employer – including reduction of working hours, salaries and dismissal – of leading members of a trade union. In Hoppen and trade union of AB Amber Grid employees v. Lithuania*, 2023, the applicant complained that he had been dismissed from his job because of his trade union activities. The Cout found that the legal framework and judicial review had provided adequate safeguards.

In this context, the Court also examined allegations of discrimination of political parties as regards access to public funding. In Demokrat Parti v. Turkey (dec.), 2021, it found that the applicant party had not been treated differently than any other political party in a similar or analogous position. It also held that the applicant party had not been treated differently in comparison to another party, which had obtained a higher number of votes at the legislative elections.

In some cases the Court found violations of Article 10 or Article 11 and did not find it necessary to examine whether or not there had been a violation Article 14. This was the case, for instance, in Lashmankin and Others v. Russia, 2017, which concerned the arbitrary and discriminatory power of authorities to propose changes in location, time or manner of conduct of a public event which could constitute interference with the participants’ right to freedom of assembly.

Finally, the Court found violations of Article 14 in conjunction with Article 3 of Protocol No. 1 and/or Article 1 of Protocol No. 12 in several cases related to the ability to stand for elections (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, which concerned the inability of a Roma and a Jew to stand for parliamentary elections; Zornić v. Bosnia and Herzegovina, 2014, which concerned the ineligibility to stand for election without declaration of affiliation to one of the constitutionally defined “constituent peoples”; Baralija v. Bosnia and Herzegovina, 2019, which concerned the impossibility to vote or stand in local elections due to the applicant’s place of residence; Danis and Association of Ethnic Turks v. Romania, 2015, and Cegolea v. Romania, 2020, concerning the additional eligibility requirement applicable solely to candidates of national minority organisations not already represented in Parliament) and related to the right to vote (Aziz v. Cyprus, 2004, concerning the impossibility for Turkish Cypriots to vote in parliamentary elections; Selygenenko and Others v. Ukraine, 2021, concerning the discriminatory refusal to allow internally displaced persons to vote in local elections at their place of actual residence). However, the Court reiterated the States’ wide margin of appreciation in organising their electoral systems, including the establishment of an electoral threshold for political parties aspiring to representation in parliament, and concluded to the absence of a violation of Article 14 in conjunction with Article 3 of Protocol No. 1 in a case concerning the exclusion of a political party from by-election for failing to reach the electoral threshold at the previous general election (Cernea v. Romania, 2018).

In Toplak and Mrak v. Slovenia, 2021, the Court examined the State’s compliance with positive obligations to take appropriate measures to enable the applicants, suffering from muscle dystrophy and using a wheelchair, to exercise their right to vote on an equal basis with others. Acknowledging that a general and complete adaptation of polling stations in order to fully accommodate wheelchair users would no doubt facilitate their participation in the voting process, the Court reiterated the States’ margin of appreciation in this area in light of limited resources. Given that both applicants voted in the 2015 referendum, that a ramp had been installed at the polling station at the request of the first applicant and that, at the request of the second applicant, a visit to the polling station for his electoral area was arranged a few days beforehand, the Court found that any problems they may have faced did not produce a particularly prejudicial impact on them so as to amount to discrimination. As regards the 2019 European Parliament election, the lack of voting machines was not found to be discriminatory for the first applicant, who was able to be assisted by a person of his own choice under legal duty to respect secrecy.

In Bakirdzi and E.C. v. Hungary, 2022, the applicants are Hungarian nationals belonging to the Greek and Armenian national minority respectively and were registered as national minority voters for the 2014 parliamentary elections. The case concerned a statutory scheme with a preferential threshold for minority representatives, introduced as a response to the constitutional concern of ensuring the political representation of national minorities in Hungary (§ 53). The Court noted that because national minority candidates could only be endorsed by members of the same national minority, they were placed in a significantly different situation compared to all other candidates who could obtain votes from the total eligible electorate (§ 55). As a consequence of being registered as national minority voters, the applicants could only vote for their respective national minority lists as a whole or abstain from voting for the national minority list altogether. Thus, they had neither the choice between different party lists nor any influence on the order in which candidates were elected from the national minority lists (§ 61). The Court found that the applicants had been substantially limited in their electoral choice, with the obvious likelihood that their electoral preferences would be revealed (§ 72)

Employment

Although the Convention does not guarantee the right to employment, Article 8 has been interpreted as covering the sphere of employment under certain circumstances.

In Sidabras and Džiautas v. Lithuania, 2004, the imposition of employment restrictions in the civil service and in various spheres of the private sector on former members of the KGB affected their ability to develop relationships with the outside world to a very significant degree and has created serious difficulties for them in terms of earning their living, with obvious repercussions on the enjoyment of their private lives (§ 48). In Bigaeva v. Greece, 2009, the Court found discriminatory the imposition of nationality requirement on an aspirant lawyer at the final stage of the admission procedure after completion of the compulsory training. The case of I.B. v. Greece, 2013, concerned the dismissal from work of an employee suffering from HIV infection, resulting from pressure by other employees. The Court found a violation due to the domestic court’s failure to weigh up the rights of the two parties in a manner consistent with the Convention.

Protection against discrimination in the realm of employment has also been guaranteed by the Court in relation to the freedom to join or not to join a trade union under Article 11 (Danilenkov and Others v. Russia, 2009), protection against dismissal because of trade union activities (Hoppen and trade union of AB Amber Grid employees v. Lithuania*, 2023) and in conjunction with the freedom of religion under Article 9 (Eweida and Others v. the United Kingdom, 2013, concerning disciplinary measures against employees for refusing to perform duties they considered incompatible with their religious beliefs).
18. In a different context, in Acar and Others v. Turkey (dec.), 2017, employment-related claims of workers which had been accrued more than one year prior to the opening of the insolvency proceedings were not granted priority in the ensuing bankruptcy proceedings concerning their employer. In declaring the applicants’ discrimination complaint inadmissible, the Court found that Tukey’s insolvency legislation complied with relevant international standards and that the applicants had had a window of opportunity to enforce their claims individually by starting regular enforcement proceedings against the debtor before it was declared insolvent.

In some cases, however, the Court found a violation of the substantive Article and did not find it necessary to examine whether or not there had been a violation of Article 14. This was the case, for instance, in Redfearn v. the United Kingdom, 2012, where the applicant had been dismissed from work on account of his political affiliation to a far-right political party and could not access a claim for unfair dismissal, the latter being restricted to people employed for more than a year. The Court considered that it was incumbent on the respondent State to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation and found a violation of Article 11 of the Convention (§ 57).

Social Rights

There is no right to social security under the Convention, though it is clear from the Court’s case- law that some forms of social security such as benefit payments and pensions may fall within the ambit of Article 1 of Protocol No. 1 because they can be deemed as “possessions” within the meaning of that provision (Stec and Others v. the United Kingdom [GC], 2006; Luczak v. Poland, 2007; Andrejeva v. Latvia [GC], 2009; Koua Poirrez v. France, 2003; Gaygusuz v. Austria, 1996; Pichkur v. Ukraine, 2013;P.C. v. Ireland, 2022), or within the ambit of Article 8, particularly when social benefits help the family unity (Weller v. Hungary, 2009; Bah v. the United Kingdom, 2011; Gouri v. France (dec.), 2017; Belli and Arquier-Martinez v. Switzerland, 2018; Petrovic v. Austria, 1998; Okpisz v. Germany, 2005; Beeler
v. Switzerland [GC], 2022).

As a result, the protection against discrimination has been found to cover a variety of social benefits such as

pension payments (Pichkur v. Ukraine, 2013; Andrejeva v. Latvia [GC], 2009) or survivor’s pension payment (Aldeguer Tomás v. Spain, 2016; Willis v. the United Kingdom, 2002, Beeler v. Switzerland [GC], 2022);
unemployment benefits (Gaygusuz v. Austria, 1996);
disability benefits (Koua Poirrez v. France, 2003; Belli and Arquier-Martinez v. Switzerland, 2018; Popović and Others v. Serbia, 2020);
housing benefits (Vrountou v. Cyprus, 2015; Šaltinytė v. Lithuania, 2021);
parental leave allowance (Petrovic v. Austria, 1998);
child benefits (Okpisz v. Germany, 2005);
insurance cover (P.B. and J.S. v. Austria, 2010); or
social security payment for the purposes of supporting families with children (Weller v. Hungary, 2009).

In Pichkur v. Ukraine, 2013, for example, the applicant complained that his pension payments were terminated on the ground that he had been permanently resident abroad. In this context the Court stated that the rise of population mobility, higher levels of international cooperation and integration, as well as developments in the area of banking services and information technologies no longer justify largely technically motivated restrictions in respect of beneficiaries of social security payments living abroad (§ 53). The absence of justification for the difference in treatment by the authorities resulted in a breach of Article 14 in conjunction with Article 1 of Protocol No. 1. In Willis v. the United Kingdom, 2002, the Court found the unavailability of widows’ allowances to male widower discriminatory on grounds of sex. Following this judgment the Court applied the same solution to a number of other cases: Runkee and White v. the United Kingdom, 2007; Cross v. the United Kingdom, 2007; Blackgrove v. the United Kingdom, 2009; etc.

In Beeler v. Switzerland [GC], 2022, §§ 68-82 the Court clarified, for the purposes of the applicability of Article 14, the relevant criteria to be applied to circumscribe what falls within the “ambit” of Article 8, under its “family life” aspect, in the sphere of social welfare benefits. The widower pension in issue sought to promote “family life” by enabling a surviving parent to look after children without having to engage in an occupation, and the receipt of the pension had necessarily affected the way in which the applicant’s family life had been organised throughout the relevant period.

The Court also found the possibility of affiliation with a specific social security scheme to be protected against discrimination. In Luczak v. Poland, 2007, the applicant complained against his inability to be affiliated to the farmers’ social-security scheme on account of his nationality. The Court concluded that the Government had failed to present any convincing explanation of how the need to protect the underdeveloped and economically inefficient agricultural sector in Poland was served by refusing the applicant’s admission to the farmers’ scheme during the period in question (§§ 51 and 59).

In Popović and Others v. Serbia, 2020, the applicants, who were civilian beneficiaries of disability benefits, maintained that they were awarded a lower amount of the same benefit than those classified as military beneficiaries, despite having exactly the same paraplegic disability. The Court held that the relevant difference in treatment between the two groups had been a consequence of their distinct positions and the corresponding undertakings on the part of the respondent State to provide them with benefits to a greater or lesser extent. That included a moral debt that States might feel obliged to honour in response to the service provided by their war veterans.

However, the margin of appreciation accorded to States in the area of social rights is relatively wide. The Court has emphasised that, because of their direct knowledge of their society and its needs, States were in principle better placed than the international judge to appreciate what was in the public interest on social or economic grounds. It has also recognised that it would generally respect the legislature’s policy choice in this area unless it was manifestly without reasonable foundation (Luczak v. Poland, 2007, § 48).21 In L.F. v. the United Kingdom (dec.), 2022, the applicant was excluded from from social housing owned by a charity catering for the Orthodox Jewish Community because she was not a member of that community. The Court noted that the interference was not the loss of the applicant’s only home (she already had temporary social housing) and that the impact of the charity’s allocation policy, agreed by the local authorities, in the social housing market had been minuscule. It thereby fell within the States’ wide margin of appreciation in this area.

The case of Stummer v. Austria [GC], 2011, concerned the refusal to take work performed in prison by the applicant into account in the calculation of his pension rights. The Court considered that, in a context of changing standards, a Contracting State could not be reproached for giving priority to the insurance scheme it considered most relevant for the reintegration of prisoners upon their release. In Andrle v. the Czech Republic, 2011, the Court found that the lowering of the pensionable age for women who had raised children – which did not exist for men – was a measure taken to rectify the inequality in question and that the timing and the extent of the measures aimed at equalising the pensionable age had not been manifestly unreasonable. In Beeckman and Others v. Belgium (dec.), 2018, the change in salary scales to which the applicant police officers had been attached, done in the framework of a reorganisation of the police force, was found to fall within the State’s large margin of appreciation in the matter.

However, the Court may decide not to examine a case under Article 14 when it has already found a separate breach of the substantive Article of the Convention. For example, in Kjartan Ásmundsson v. Iceland, 2004, which concerned the termination of a disability pension, the Court found a violation of Article 1 of Protocol No. 1 (protection of property) and did not deem necessary to examine the case under Article 14 taken together with Article 1 of Protocol No. 1.

Immigration

The Court has repeatedly stressed that the Convention does not guarantee the right of an alien to enter or to settle in a particular country (Pajić v. Croatia, 2016, § 79; Novruk and Others v. Russia, 2016, § 83; Ibrogimov v. Russia, 2018, § 18). However, in cases concerning family reunification or the maintenance of the link between adult children and their parents, the Court considered the facts of the case to fall “within the ambit” of one or more provisions of the Convention or its Protocols.
30. Even if Article 8 does not impose general family reunification obligations (Jeunesse v. the Netherlands [GC], 2014, § 107), an immigration control measure otherwise compatible with Article 8 could amount to discrimination and a breach of Article 14 (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, § 71; Biao v. Denmark [GC], 2016, § 118).

In Pajić v. Croatia, 2016, the Court found that the relevant domestic law excluding the possibility of obtaining family reunification for same-sex couples while allowing it for unmarried different-sex couples amounted to discrimination. In Taddeucci and McCall v. Italy, 2016, the State did not treat unmarried couples differently according to their sexual orientation, but limited the concept of “family member” to heterosexual couples, given that only the latter could get married and acquire the status of “spouse” in view of family reunification. In Biao v. Denmark [GC], 2016, the refusal to grant family reunion was based on existing ties with another country and the Court found that the domestic immigration measure had had an indirect discriminatory impact in breach of Article 14 on grounds of ethnic origin and nationality.

Nevertheless, the Court recognised that case-law on these matters is rather sparse (Biao v. Denmark [GC], 2016, § 118). In Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, the applicants were lawfully and permanently settled in the United Kingdom whereas their respective husbands were refused permission to remain or join them. The Court found the difference in treatment between men settled in the United Kingdom and women so settled to obtain family reunification to be discriminatory on grounds of sex (§§ 74-83). In parallel, one of the applicants claimed that she had been discriminated on grounds of birth due to the requirement that the wife or fiancée of the intending entrant to be born or have a parent born in the United Kingdom.

However, the Court found the difference in treatment to be justified by the aim of protecting those whose link with a country stemmed from birth (§§ 87-89). In Hode and Abdi v. the United Kingdom, 2012, concerning the inability of immigrants with limited leave to remain as refugees to be joined by post- flight spouses, the Court accepted that offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention (§ 53), but went on to find a violation in that particular case.

The Court also found that an applicant could not rely on the existence of “family life” in relation to adults who did not belong to his or her core family and who had not been shown to be or to have been dependent on him or her. However, the link between adult children and their parents falls under the head of “private life” within the meaning of Article 8 of the Convention (Novruk and Others v. Russia, 2016, §§ 88-89) and accordingly Article 14 in conjunction with Article 8 could apply in such cases. In Novruk and Others v. Russia, 2016, the Court found discriminatory the difference in treatment of HIV-positive aliens regarding their application for residence permit and permanent ban on re-entering Russia on ground of their health status.

Right to Education

Article 2 of Protocol No. 1 to the Convention contains a freestanding right to education.22 Accordingly, the Court considers complaints of discrimination in the context of education as falling within the ambit of Article 14 (Ponomaryovi v. Bulgaria, 2011, §§ 48-49).

The Court found violations of Article 14 read in conjunction with Article 2 of Protocol No. 1 in a number of cases concerning the right to education of Roma pupils. These cases concerned the disproportionate number of Roma children placed in special schools for children with mental disabilities (D.H. and Others v. the Czech Republic [GC], 2007; Horváth and Kiss v. Hungary, 2013), in Roma-only classes (Oršuš and Others v. Croatia [GC], 2010, Elmazova and Others v. North Macedonia, 2022), or in Roma-only schools (Lavida and Others v. Greece, 2013); as well as their inability to access school before being assigned to special classrooms in an annex to the main primary school buildings (Sampanis and Others v. Greece, 2008). In all of these cases the Court found that the differential treatment, albeit unintentional, which Roma pupils were subject to, had constituted a form of indirect discrimination (D.H. and Others v. the Czech Republic [GC], 2007; Sampanis and Others v. Greece, 2008; Horváth and Kiss v. Hungary, 2013; Lavida and Others v. Greece, 2013; Oršuš and Others v. Croatia [GC], 2010). In X and Others v. Albania, 2022, the respondent State was required under Article 46 to take desegregation measures in an elementary school attended almost exclusively by Roma and Egyptian children.

The Court has also examined cases of discrimination in relation to the provision of reasonable accommodation for persons with disabilities (Enver Şahin v. Turkey, 2018; Çam v. Turkey, 2016). In G.L.v. Italy, 2020, where a primary school disabled pupil was unable to receive the specialised assistance to which she was entitled under the relevant legislation, the Court stressed that reasonable accommodation measures were intended to correct de facto inequalities. The case of Çam v. Turkey, 2016, concerned a blind person who was refused enrolment in a music academy despite having successfully passed the competitive entrance examination. In Enver Şahin v. Turkey, 2018, the applicant had an accident which left him disabled and the university failed to conduct a concrete individual assessment of his needs regarding access to the university premises.

In both cases the Court held that Artcomparableicle 14 must be read in light of the Convention on the Rights of Persons with Disabilities (CRPD) with respect to the “reasonable accommodation” – understood as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case (Enver Şahin v. Turkey, 2018, § 60; Çam v. Turkey, 2016, § 65). It was not the Court’s task to define the principle of “reasonable accommodation” to be implemented in the educational sphere (Enver Şahin v. Turkey, 2018, § 61; Çam v. Turkey, 2016, § 66). However, the Court took the view that it was important for States to be particularly careful in making their choices in this sphere, having regard to the impact of the latter on children with disabilities, whose particular vulnerability could not be overlooked (Enver Şahin v. Turkey, 2018, § 67; Çam v. Turkey, 2016, § 67).

In Ponomaryovi v. Bulgaria, 2011, the applicants, who were living in Bulgaria as foreigners without permanent residence, had been required to pay fees to pursue secondary education. The Court found the situation to amount to discrimination on the ground of their immigration status given that aliens with a permanent residence permit had been entitled to primary and secondary education free of charge.

In Moraru v. Romania, 2022, the applicant, a woman, was not allowed for a number of years to sit the entrance examination to study military medicine because her height (150 cm) and weight (44 kg) were below the thresholds set by the Order of the Ministry of National Defence at that time. The Court considered that the applicant had been treated differently from other female candidates whose anthropometric features fell within the limits set by law (§ 44). It also found that the national authorities did not show that there was necessarily a link between the criteria selected by the legislature (including the minimum size of candidates) and the justification given for those restrictions (that is the need to determine each candidate’s strength). Moreover, the domestic courts had failed to to engage adequately with the case-law of the CJEU (§§ 53-55).23

Discrimination through violence

The guarantees of Article 14 also apply when the applicant is a victim of violence directly caused by the State authorities or by a private individual because of their belonging to a particular group.

Violence of Others; Substantive

The Court has examined cases of violence based on the victim’s

gender (Opuz v. Turkey, 2009; Eremia v. the Republic of Moldova, 2013; Halime Kılıçv. Turkey, 2016; Tkhelidze v. Georgia, 2021);
race and ethnic origin (Nachova and Others v. Bulgaria [GC], 2005; Moldovan and Others v. Romania (no. 2), 2005; Škorjanec v. Croatia, 2017; Makuchyan and Minasyan v. Azerbaijan and Hungary, 2020; Adzhigitova and Others v. Russia, 2021);
religion (Milanović v. Serbia, 2010; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 2007);
political opinion (Virabyan v. Armenia, 2012); and
sexual orientation (Identoba and Others v. Georgia, 2015; M.C. and A.C. v. Romania, 2016).

In those cases the Court has found violations of Article 14 taken in conjunction with Article 2 (Nachova and Others v. Bulgaria [GC], 2005; Angelova and Iliev v. Bulgaria, 2007), Article 3 (Eremia v. the Republic of Moldova, 2013; B.S. v. Spain, 2012; Abdu v. Bulgaria, 2014), Article 6 and Article 8 (Moldovan and Others v. Romania (no. 2), 2005) of the Convention.

The Court has examined cases of violence caused by discriminatory attitudes under both the substantive and procedural limbs of the relevant Articles.

When presented with a complaint of a violation of Article 14 because of alleged violence perpetrated by a State official, the Court’s task under the substantive limb of Articles 2 or 3 is to establish whether or not discriminatory attitudes towards the group to which the victim belongs, or allegedly belongs, was a causal factor in the impugned conduct of the authorities (Stoica v. Romania, 2008, § 118; Antayev and Others v. Russia, 2014, § 123).

Although the Court has repeatedly found violations of Articles 2 or 3 in their procedural aspect in cases where the applicants had alleged that discriminatory motivations were behind the attacks they suffered by State agents, it has found a breach of the substantive aspect of these Articles in far fewer cases (Stoica v. Romania, 2008; Antayev and Others v. Russia, 2014).

In Stoica v. Romania, 2008, a case concerning racially motivated ill-treatment of a Roma minor by a police officer during an incident with the police, the Court found for the first time a breach of the substantive aspect of Article 3 taken in conjunction with Article 14. Being satisfied that a prima facie case of racially biased ill-treatment had been made by the applicants, the Court shifted the burden of proof to the Government. As neither the prosecutor in charge of the criminal investigation nor the Government could explain in any other way the incidents or put forward any arguments showing that the incidents were racially neutral, the Court found a violation of Article 14 read in conjunction with the substantive aspect of Article 3.

A similar reasoning was followed in Antayev and Others v. Russia, 2014, concerning the ill-treatment of Chechen suspects on the grounds of their ethnic origin. In Lingurar v. Romania [Committee], 2019, the manner in which the authorities conducted and justified a police raid showed that the police had exercised their powers in a discriminatory manner, expecting the applicants to be aggressive criminals due to their Roma ethnic origin. Consequently, the Court found a violation of Article 14 in conjunction with Article 3 of the Convention under its substantive limb due to ethnic profiling.

In Aghdgomelashvili and Japaridze v. Georgia, 2020, the police conducted a search of the premises of a LGBTI NGO. Upon discovering the nature of the NGO, the police officers became aggressive by resorting to hate speech, uttering insults and threats. In addition, the applicants and some of their collagues were strip-searched without any apparent reason or official record. Finding a violation of both the substantive and procedural aspects of Article 14 in conjunction with Article 3, the Court concluded that the wholly inappropriate conduct of the police officers during the search had been motivated by homophobic and/or transphobic hatred and must necessarily have aroused in the applicants feelings of fear, anguish and insecurity which were not compatible with respect for their human dignity.

Violence of Others Procedural aspect

Following the case of Nachova and Others v. Bulgaria [GC], 2005, the Court has found violations of the procedural aspect of Articles 2 or 3 read in conjunction with Article 14 in a number of cases, due to the failure of the domestic authorities to carry out an effective investigation of the discriminatory motives at the origin of the ill-treatment or death of the victims of discriminatory violence (Bekos and Koutropoulos v. Greece, 2005; Turan Cakir v. Belgium, 2009; Abdu v. Bulgaria, 2014; Angelova and Iliev v. Bulgaria, 2007; Eremia v. the Republic of Moldova, 2013; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 2007; Virabyan v. Armenia, 2012; Bălşan v. Romania, 2017; Talpis v. Italy, 2017; Škorjanec v. Croatia, 2017; Adzhigitova and Others
v. Russia, 2021).

The authorities’ duty to investigate the existence of a possible link between discriminatory attitudes and any act of violence is an aspect of their procedural obligations arising under Articles 2 and 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 (Nachova and Others v. Bulgaria [GC], 2005, § 161; Bekos and Koutropoulos v. Greece, 2005, § 70;

Kreyndlin and Others v. Russia, 2023, § 59). Owing to the interplay between Article 14 and the substantive provisions, issues of discriminatory violence may fall to be examined under only one of the two provisions, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made.

Where there is suspicion that discriminatory attitudes induced a violent act, it is particularly important that the official investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of discriminatory hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of discriminatory violence (Nachova and Others v. Bulgaria [GC], 2005, § 160).

In this respect, when investigating violent incidents and, in particular, deaths at the hands of State agents or private individuals, State authorities have the additional duty to take all reasonable steps to unmask any discriminatory motive and to establish whether or not discriminatory hatred or prejudice may have played a role in the events (Ognyanova and Choban v. Bulgaria, 2006, § 145; Turan Cakir v. Belgium, 2009, § 77; Abdu v. Bulgaria, 2014, § 44; Angelova and Iliev v. Bulgaria, 2007, § 115; Eremia v. the Republic of Moldova, 2013, § 85; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 2007, § 140; Virabyan v. Armenia, 2012, § 218; Kreyndlin and Others v. Russia, 2023, § 58).

Failing to unmask discriminatory motives and treating violence and brutality induced by discrimination on an equal footing with cases that have no discriminatory overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (Nachova and Others v. Bulgaria [GC], 2005, § 160; Stoica v. Romania, 2008, § 119; Virabyan v. Armenia, 2012, § 218; Šečić v. Croatia, 2007, § 67).

Admittedly, proving discriminatory motives may often be extremely difficult in practice. The respondent State’s obligation to investigate possible discriminatory overtones to a violent act is an obligation to use best endeavours and not absolute (Nachova and Others v. Bulgaria [GC], 2005, § 160; Bekos and Koutropoulos v. Greece, 2005, § 69; Stoica v. Romania, 2008, § 119). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of discrimination through violence (Nachova and Others v. Bulgaria [GC], 2005, § 160; Bekos and Koutropoulos v. Greece, 2005, § 69; Ognyanova and Choban v. Bulgaria, 2006, § 145).

In Makuchyan and Minasyan v. Azerbaijan and Hungary, 2020, the Court was called upon to examine whether the failure by Azerbaijan to enforce a prison sentence for a hate crime against two Armenians, which had been imposed abroad on an Azerbaijani military officer (the latter being, instead, glorified as a hero, promoted and awarded benefits upon his return to Azerbaijan), had been motivated by the ethnic origin of the victims. In the Court’s view, the applicants had put forward sufficiently strong, clear and concordant inferences as to make a convincing prima facie case that the measures taken by the Azerbaijani authorities in respect of their officer, leading to his virtual impunity and, indeed, the glorification of his extremely cruel hate crime, had had a causal link to the Armenian ethnicity of his victims and had thus been racially motivated. For their part, the Azerbaijani Government had failed to disprove the applicants’ arguable allegation of discrimination and the Court found a violation of Article 14 in conjunction with the procedural limb of Article 2 of the Convention.

The Court considered that, once there was an arguable claim that an individual may have been targeted by a police identity check on account of racial characteristics and such acts fell into the ambit of Article 8, the duty of the authorities to investigate the existence of a possible link between racist attitudes and a State agent’s act was to be considered as implicit in their responsibilities under Article 14 examined in conjunction with Article 8 (Muhammad v. Spain, 2022, 68; Basu v. Germany, 2022,§ 33).

Access to Justice

Under the Convention, the right of access to justice is guaranteed in the context of the right to a fair trial under Article 6 and by Article 13 (right to an effective remedy). The Court has dealt with cases relating to discrimination in access to justice under Article 14 in conjunction with Article 6 (Sâmbata Bihor Greek Catholic Parish v. Romania, 2010; Mizzi v. Malta, 2006).

In its case-law on the matter, the Court has found differences in treatment amounting to discrimination in access to justice when domestic courts based their decision on protected grounds under Article 14. The case of Schuler-Zgraggen v. Switzerland, 1993, concerned the refusal to grant invalidity benefits based on the mere assumption that women gave up work when they gave birth to a child. The domestic court thus inferred that the applicant would have given up work even if she had not had health problems. The Court considered the reasoning of the domestic court to create a difference in treatment on grounds of sex. In Paraskeva Todorova v. Bulgaria, 2010, the domestic court refused to suspend the prison sentence of an accused of Roma origin on the ground that she belonged to a minority group for whom a suspended sentence was not a conviction and that such a sentence would not fulfil the function of general and specific prevention (§ 38). The Court found discrimination based on the applicant’s ethnic origin.

The case of Moldovan and Others v. Romania (no. 2), 2005, was brought by Roma villagers following the killing of fellow Roma and the destruction of their homes. The Court observed that the applicants’ ethnicity appeared to have been decisive for the length and the result of the domestic proceedings – including repeated discriminatory remarks made by the authorities and their blank refusal to award non-pecuniary damages – and found a violation of Article 14 in conjunction with Article 6.

In Anakomba Yula v. Belgium, 2009, the applicant was refused legal aid for the purpose of contesting paternity of her child within a one-year time-limit because she had been unlawfully residing in Belgium. The applicant, who had already taken steps to regularise her situation, could not reasonably have been expected to wait until she had renewed her permit thereby risking the lapse of the one-year time-limit prescribed by domestic law for contesting paternity. The Court found a violation of Article 14 taken together with Article 6 given the specific circumstances of the case.

Right to Respect for Home

In its case-law the Court found discrimination in relation to the right to respect for home in cases involving the destruction and damaging of people’s houses based on their ethnicity (Burlya and Others v. Ukraine, 2018; Moldovan and Others v. Romania (no. 2), 2005). In both cases the authorities failed to protect or react in an appropriate way to the attacks on villages motivated by anti-Roma sentiment.

In Paketova and Others v. Bulgaria, 2022, the applicants were expelled from their homes and prevented from subsequently returning to them, and the authorities refused protection to them in an environment of racially based hostility and intolerance.

In Buckley v. the United Kingdom, 1996, the applicant was refused a planning permit which would have enabled her to live in a caravan on land she owned. She claimed that the national legislation on which the refusal had been based was discriminatory on the grounds of her Roma ethnic origin. Under Article 8, the Court interpreted the right to respect for home as including mobile homes such as caravans, even in a situation where they had been located illegally (§ 60). However, the Court did not consider the national legislation to be discriminatory as it did not appear that the applicant was at any time penalised or subjected to any detrimental treatment for attempting to follow a traditional Gypsy lifestyle (§ 88).

The Court found that the right to succeed to a deceased partner’s tenancy also related to the applicant’s right to respect for “home” within the meaning of Article 8 (Karner v. Austria, 2003, § 33; Kozak v. Poland, 2010, § 84). In both cases the applicants were homosexuals who had been refused the right to succeed to a tenancy after the death of their companions and the Court found discrimination on the ground of their sexual orientation.

Property Issues

The case-law of the Court concerning discrimination amounting to a violation of Article 14 taken together with Article 1 of Protocol No. 1 (protection of property) is extensive and diverse. As already stated, some forms of social security such as benefit payments and pensions may fall within the ambit of Article 1 of Protocol No. 1 because they constitute “possessions” within the meaning of that provision.24 A variety of other situations have also been examined by the Court.

The Court examined, under Article 14 in conjunction with Article 1 of Protocol No. 1, cases related to inheritance rights of children (Mazurek v. France, 2000; Fabris v. France [GC], 2013) as well as of spouses (Molla Sali v. Greece [GC], 2018) and to the right to receive a survivor’s pension (Aldeguer Tomás v. Spain, 2016). In Aldeguer Tomás v. Spain, 2016, the applicant complained that he had been discriminated against on the grounds of his sexual orientation in that, as the survivor of a de facto same-sex union, he had been denied a survivor’s pension following the death of his partner. The Court established that Article 14 in conjunction with Article 1 of Protocol No. 1 and Article 8 was applicable but did not find that it had been breached.

In Saumier v. France, 2017, the applicant claimed damages following her occupational illness which left her severely disabled. In order to determine the applicability of Article 14 in conjunction with Article 1 of Protocol No. 1, the Court established that the national legislation at stake amounted to rules of tort under which claims for compensation came into existence as soon as the damage occurred, that a claim of this nature “constituted an asset” and therefore amounted to “a possession” within the meaning of the first sentence of Article 1 of Protocol No. 1 (§§ 43-50). However, the Court held that there had been no difference in treatment between persons placed in similar or comparable situations in that case, including given the specificity of the employer-employee relationship which was a contractual relationship in which the employee was legally subordinate to the employer.

In Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v. Belgium, 2022, the applicant associations were no longer eligible for a tax exemption for buildings used as their place of worship because they were non-recognised religions. While the Court considered that the use of the criterion of recognition of a religious faith (as the basis for distinguishing between claims for exemption from the property tax) fell within the State’s margin of appreciation, it concluded that, in the present case, the rules on such recognition had been devoid of the minimum guarantees of fairness and objectivity.

In its case-law the Court has also linked to Article 1 of Protocol No. 1:

eligibility for tax relief on the purchase of a suitable property for a disabled child (Guberina v. Croatia, 2016);
obligation of small landowners to become members of a hunting association, thus allowing hunting on their properties (Chassagnou and Others v. France [GC], 1999);
decrease in nominal value of bonds in view of rescheduling the national debt without the consent of private investors (Mamatas and Others v. Greece, 2016);
exclusion of landlords of controlled property leased out as bans clubs from a law allowing for the termination of the protected leases (Bradshaw and Others v. Malta, 2018); or
alleged discrimination in provision of disability benefits to civilian as opposed to military beneficiaries (Popović and Others v. Serbia, 2020).

Deprivation of liberty

In its case-law the Court protects the right to be free from arbitrary deprivation of liberty based on discriminatory grounds under Article 14 taken together with Article 5 (right to liberty and security) (Aleksandr Aleksandrov v. Russia, 2018; Rangelov v. Germany, 2012; Clift v. the United Kingdom, 2010), and the right to be free from inhuman or degrading treatment or punishment based on discriminatory grounds during detention under Article 14 in conjunction with Article 3 (Martzaklis and Others v. Greece, 2015; X v. Turkey, 2012).

In Aleksandr Aleksandrov v. Russia, 2018, the applicant was sentenced to a term of imprisonment by a court in Moscow which could have imposed a non-custodial sentence such as probation. However, the domestic court ordered his imprisonment on the sole ground that he had no permanent residence in Moscow. The applicant complained that he had been the victim of a breach of Article 14 taken in conjunction with Article 5 on the ground of his place of residence. The Court found that the difference in treatment had no legitimate aim or objective and reasonable justification and amounted to discrimination.

The Court also found that there had been discrimination in breach of Article 14 in conjunction with Article 5 in a case concerning the refusal of relaxation of conditions of preventive detention due to the applicant’s foreign nationality (Rangelov v. Germany, 2012) or the differences in procedural requirements for early release which depended on the length of the sentence (Clift v. the United Kingdom, 2010).

In Khamtokhu and Aksenchik v. Russia [GC], 2017, the applicants were adult men serving life sentences. They complained that they had been treated less favourably than female, juvenile and senior offenders found guilty of the same crimes because the latter could not be given a life sentence. Despite the fact that, in principle, matters of appropriate sentencing fall outside the scope of Article 5, the Court found the national legislation exempting certain categories of offender from life imprisonment to fall within the scope of Article 5 for the purposes of the applicability of Article 14. In this particular case, however, the Court found that there had been no violation of Article 14 on grounds of age or sex. As regards the exemption of juvenile offenders from life imprisonment, the Court held that it was consonant with the approach common to the legal systems of all the Contracting States and with international standards and that its purpose was evidently to facilitate the rehabilitation of juvenile delinquents. As regards women, the Court held that there was a public interest to exempt female offenders from life imprisonment by way of a general rule due to the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood.

The Court found the treatment of prisoners to amount to discrimination under Article 14 taken together with Article 3 in several cases. In Martzaklis and Others v. Greece, 2015, the applicants were HIV-positive prisoners who were held in poor physical and sanitary conditions without adequate treatment in a prison psychiatric wing. The Court held that the placement in isolation to prevent the spread of disease had not been necessary, because the prisoners were HIV-positive and had not developed AIDS, and found a violation of Article 3 in conjunction with Article 14 of the Convention. Conversely, in Dikaiou and Others v. Greece, the Court found no violation of Article 14 taken in conjunction with Article 3 of the Convention, where HIV postitive applicants had been put together in one cell within an ordinary prison wing. In X v. Turkey, 2012, the applicant was a homosexual prisoner who had been held in total isolation for more than eight months in order to protect him from fellow prisoners. The Court was not convinced that the need to take safety measures to protect the applicant’s physical well-being was the primary reason for his total exclusion from prison life. The main reason for the measure was his homosexuality. As a result the Court found that the applicant had been discriminated against on grounds of his sexual orientation.

The case-law of the Court also reveals the obligation for States to conduct appropriate and effective investigations in cases of alleged ill-treatment of persons in custody whether politically (Virabyan v. Armenia, 2012) or racially motivated (Bekos and Koutropoulos v. Greece, 2005).

In some cases, however, the Court examined the situation under the substantive Article and did not deem it necessary to examine it separately under Article 14 of the Convention. The case of D.G.v. Ireland, 2002, for example, concerned the detention of a minor in a penal institution lacking appropriate facilities. The Court found a violation of Article 5 but, in so far as the applicant compared his situation to that of other minors, it considered that no separate issue arose under Article 14 of the Convention. In Stasi v. France, 2011, the applicant complained that he had been ill-treated in prison because of his homosexuality and that the authorities had not taken the necessary measures to protect him. The Court found that the authorities had taken all effective measures to protect him from physical harm during detention and that there had not been a breach of Article 3 without separately examining his complaint under Article