Equality Guarantee [ECHR]

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 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.”

The grounds of non-discrimination are not exhaustive. It can refer to other differences in status beyond those based on the above grounds. The difference will usually be a personal characteristic or status.  and essential to The applicant must establish a comparator who is treated more favourably. The difference in treatment must not be reasonably or objectively justifiable.

Early Elaboration

In the early Belgian Linguistic cases the court that

In spite of the very general wording … Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised… In addition, and in particular one would reach absurd results were one to give Article 14 interpretation as wide as that … which…seems to imply. One would in effect be led to judge as contrary to the Convention every one of the many legal and administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which on account of differences inherent in them call for different legal solutions. Moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation…. cannot consequently be accepted.

It is important then to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment concerning of course the exercise of one of the rights and freedoms set forth contravenes Article 14. On this question, the court following the principles which may be extracted from the legal practice of a large number of democratic states holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such justifications must be assessed in relation to the aim and effects of the matter under consideration, regarding how to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention ed must not only pursue a legitimate aim; Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aims are to be realised.

Nature of Article 14

Article 14 relates to the rights and freedoms in the Convention. It is not a stand-alone right. A violation may take place, only in conjunction with another Article.  In Chassagnou v France, the court wrote.

Where an Article 14 breach and a substantive breach of another Article, has been found, it is not generally necessary for the court to consider the case under Article 14 although the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case.

The distinctions/differentiation in treatment by states must be for a legitimate aim. It must be proportionate to the aim in question and its realisation/achievement.

States have positive obligations to prevent discrimination. There may be a breach by the state where persons in the same situation are treated differentEly without an objective and reasonable justification. Equally, it may occur in some cases, where parties are in different situations but are treated the same.

As with all rights, states have a considerable margin of appreciation in determining how to treat various situations and categories of persons.

In Thlimmenos v Greece a member of the Jehovah’s Witness was convicted for refusal to serve in the army. He was also excluded from his profession as an accountant. The exclusion was found to be unjustifiable as it did not take into account the fact that the conviction arose from conscientious objections.

Ancillary to other Rights

Article 14 of the Convention enshrines the right not to be discriminated against in “the enjoyment of the rights and freedoms set out in the Convention”.

Although Article 14 applies in respect of the enjoyment of rights and freedoms in the Convention, it is not necessary that breach is found of another right guaranteed by the Convention.

In Kafkaris v Cyprus the court reiterated that Article 14 of the Convention has no independent existence since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Conventions and Protocols. However, the application of Article 14 does not presuppose a breach of one or more such provisions consult to this extent is autonomous.

A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe the Article and read in conjunction with Article 14 for the reason that it is of a discriminatory nature…. Accordingly for Article 14 to become applicable it suffices that the case falls within the ambit of another substantive provision in the Conventional or Protocols

Substantive Provisions

However, the ancillary nature of Article 14 in no way means that the applicability of Article 14 is dependent on the existence of a violation of the substantive provision (see Section I.A.2 below). Furthermore, the material scope of application of Article 14 is not strictly limited to that of the substantive provision (see Section I.A.3 below). Consequently, the Court has found Article 14 applicable to many areas, such as

• employment (Sidabras and Džiautas v. Lithuania, 2004; Bigaeva v. Greece, 2009);
• membership of a trade union (Danilenkov and Others v. Russia, 2009; Zakharova and Others v. Russia, 2022; Hoppen and trade union of AB Amber Grid employees v. Lithuania*, 2023);
• social security (Andrejeva v. Latvia [GC], 2009; Gaygusuz v. Austria, 1996; Koua Poirrez v. France, 2003; Stummer v. Austria [GC], 2011);
• education (D.H. and Others v. the Czech Republic [GC], 2007; Oršuš and Others v. Croatia[GC], 2010; Ponomaryovi v. Bulgaria, 2011, Elmazova and Others v. North Macedonia, 2022);
• right to respect for home (Buckley v. the United Kingdom, 1996; Karner v. Austria, 2003);
• access to justice (Paraskeva Todorova v. Bulgaria, 2010; Moldovan and Others v. Romania (no. 2), 2005; Anakomba Yula v. Belgium, 2009);
• inheritance rights (Fabris v. France [GC], 2013);
• access to children (Sommerfeld v. Germany [GC], 2003);
• paternity (Rasmussen v. Denmark, 1984);
• freedom of expression, assembly and association (Bączkowski and Others v. Poland, 2007);
• right to an effective investigation (Nachova and Others v. Bulgaria [GC], 2005; Opuz v. Turkey, 2009; B.S. v. Spain, 2012);
• eligibility for release on parole (Khamtokhu and Aksenchik v. Russia [GC], 2017);
• eligibility for tax relief (Guberina v. Croatia, 2016).

Absence of a violation of the substantive provision

The application of Article 14 – read in conjunction with a substantive provision – does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention (Carson and Others v. the United Kingdom [GC], 2010, § 63; E.B. v. France [GC], 2008, § 47) and to this extent it is autonomous (Sidabras and Džiautas v. Lithuania, 2004, § 38; Beeler v. Switzerland [GC], 2020, § 48).

As a consequence, the Court recognised the applicability of Article 14 in cases where there had been no violation of the substantive right itself (Sommerfeld v. Germany [GC], 2003; Marckx v. Belgium, 1979; the Belgian linguistic case, 1968, § 4 of “the Law” part).

This relative autonomy of Article 14 as regards its applicability has led to some procedural consequences. In some cases the Court has dealt first with the alleged violation of the substantive Article and then separately with the alleged violation of Article 14 read in conjunction with the substantive Article (Marckx v. Belgium, 1979; Bączkowski and Others v. Poland, 2007; Aziz v. Cyprus, 2004; Nachova and Others v. Bulgaria [GC], 2005). In other cases the Court found a violation of a substantive Article read in conjunction with Article 14, and did not deem it necessary to examine the violation of the substantive Article taken alone (Molla Sali v. Greece [GC], 2018; Rangelov v. Germany, 2012; Andrejeva v. Latvia [GC], 2009; Barrow v. the United Kingdom, 2006; Sidabras and Džiautas
v. Lithuania, 2004; Rasmussen v. Poland, 2009).

In Emel Boyraz v. Turkey, 2014, the Court, as the master of the characterisation to be given in law to the facts of any case before it and having regard to the circumstances of the case, went even further and considered that the applicant’s complaint fell to be examined under Article 14 of the Convention, taken in conjunction with Article 8, although the applicant had not expressly relied on Article 8 (§ 33).

Conversely, 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 Dudgeon v. the United Kingdom, 1981, the Court stated that it was not generally necessary for the Court to also examine the case under Article 14, though the position was otherwise if a clear inequality of treatment in the enjoyment of the right in question was a fundamental aspect of the case (§ 67; see also Norris v. Ireland, 1988; Evans v. the United Kingdom [GC], 2007; V.C. v. Slovakia, 2011).

Ancillary to Additional Rights

For Article 14 to be applicable it is necessary, but also sufficient, for the facts of the case to fall within the wider ambit of one or more of the Convention Articles (Carson and Others v. the United Kingdom [GC], 2010, § 63; E.B. v. France [GC], 2008, § 47; Konstantin Markin v. Russia [GC], 2012, § 124; Sidabras and Džiautas v. Lithuania, 2004, § 38; Beeler v. Switzerland [GC], 2020, § 48). As such, the material scope of application of Article 14 – read in conjunction with a substantive provision – cannot be reduced solely to the material scope of application of the substantive provision.

As a consequence, the Court has established that the prohibition of discrimination applies to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide protection (Fábián v. Hungary [GC], 2017, § 112; Biao v. Denmark [GC], 2016, § 88; İzzettin Doğan and Others v. Turkey [GC], 2016, § 158; Carson and Others v. the United Kingdom [GC], 2010, § 63; E.B. v. France [GC], 2008, § 48; X and Others v. Austria [GC], 2013, § 135; Genovese v. Malta, 2011, § 32; Beeckman and Others v. Belgium (dec.), 2018, § 19).

The Court itself has provided a number of examples of this concept of “additional rights”, explaining that, for instance, Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason, while making them available to others in respect of the same type of actions (the Belgian linguistic case, 1968, § 9 of “the Law” part).

To this end, it is necessary that the legal interest to which the non-discrimination requirement applies falls within the ambit of the substantive Article (Zarb Adami v. Malta, 2006, § 49), is linked to the exercise of a right guaranteed by the substantive Article (Konstantin Markin v. Russia [GC], 2012, § 129), or does not fall completely outside the ambit of the substantive Article (Van der Mussele v. Belgium, 1983, § 43).

The Court has thus found Article 14, read in conjunction with a substantive right, applicable to a number of circumstances. For example, it recognised that rights such as the right for a single homosexual parent to adopt a child (E.B. v. France [GC], 2008, § 43), parental leave and parental allowances (Konstantin Markin v. Russia [GC], 2012, § 130) and denial of citizenship (Genovese v. Malta, 2011; Zeggai v. France, 2022) come within the scope of Article 8 in conjunction with Article 14. By the same token, the Court has found Article 14 in conjunction with Article 1 of Protocol No. 1 applicable to a variety of welfare benefits (Stummer v. Austria [GC], 2011, § 82; Stec and Others v. the United Kingdom [GC], 2006, § 53; Carson and Others v. the United Kingdom [GC], 2010, §§ 64- 65; Andrejeva v. Latvia [GC], 2009, § 77; Fábián v. Hungary [GC], 2017, § 117; P.C. v. Ireland, 2022, § 54; see also, a contrario, Dobrowolski and Others v. Poland (dec.), 2018, where the Court held that a prisoner did not have a legitimate expectation to receive more than a half of the statutory minimum wage for work performed in prison).

The Court has clarified the criteria by which to assess whether an identity check, allegedly based on physical or ethnic motives, falls within the ambit of Article 8, under its “private life” aspect, thus triggering the applicability of Article 14, and clarified the scope of the procedural obligations in this context. The Court considered that an arguable claim may notably exist where the person concerned submitted that he or she (or persons having the same characteristics) had been the only person(s) subjected to a check and where no other grounds for the check were apparent or where any explanations of the officers carrying out the check disclosed specific physical or ethnic motives. The Court further observed that the public nature of the check may have an effect on a person’s reputation (Muhammad v. Spain, 2022, § 50, Basu v. Germany, 2022, § 25).

Horizontal Effect

The Court pointed out the “horizontal effect” of Article 14, meaning that the principle of non- discrimination may also apply in purely private situations. Indeed, the Court has held that it could not remain passive where a national court’s interpretation of a legal act – be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice – appeared unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination enshrined in Article 14 and more broadly with the principles underlying the Convention.

In Pla and Puncernau v. Andorra, 2004, for example, the national jurisdiction had interpreted a person’s will and considered that the testator had not wished to include adopted children as beneficiaries of the estate. The Court considered that, in conjunction with Article 8, Article 14 did not merely compel State to abstain from any arbitrary interference with an individual’s private and family life. It held in this context that, in addition to this negative undertaking, there may be positive obligations inherent in an effective “respect” for private or family life (§ 59).

In other cases, the Court found that the Contracting States had not taken the necessary measures in order to prevent or punish discrimination between private parties. In Danilenkov and Others v. Russia, 2009, for example, the State failed to afford effective judicial protection against discrimination on the ground of trade-union membership to employees on strike who were fired by their employer.

In cases concerning discrimination through violence emanating either from State agents or private individuals, State authorities have been required to conduct an effective and adequate investigation by ascertaining whether there were discriminatory motives and whether feelings of hatred or prejudice based on an individual’s personal characteristic played a role in the events (Abdu v. Bulgaria, 2014, § 44; Milanović v. Serbia, 2010, § 90). The case of Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 2007, concerned a violent assault on the congregation of Jehovah’s Witnesses by a group purporting to support the Orthodox Church and the lack of an effective investigation. In Identoba and Others v. Georgia, 2015, the Court considered that the State had violated its obligations under the principle of non-discrimination due to the failure to protect demonstrators from homophobic violence and to launch an effective investigation.

Finally, the failure to enforce a judgment acknowledging gender discrimination against a working mother (García Mateos v. Spain, 2013), the refusal to award compensation to a serviceman for discrimination with respect to his right to parental leave (Hulea v. Romania, 2012) and the failure to enforce a judgment of the Court finding a violation of Article 14 (Sidabras and Others v. Lithuania, 2004) have also resulted in breaches of Article 14.

In Nachova v Bulgaria there were failings in the investigation of apparently racially motivated murders of members of the Roma community who were on the run from the police. The investigation was inadequate for the purposes of Article 2 right to life and there was a violation of Article 14.

Owing to the interplay between the two provisions issues such as those in the present case fall to be the examined under one of the two provisions only, with no separate issue arising under the other, may require examination under both Articles. This is a question to be decided in each case on its facts depending on the nature of the allegation made.

Feorchenko v Ukraine the facts were similar to those above and involved an attack on a Roma person which was not adequately investigated. There was a violation of Article 2 and Article 14. This is.