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 meaning of Article 14. However, the list set out in Article 14 is illustrative and not exhaustive…. As is shown by the words “any ground such as” This has been given a wide meaning to include in certain circumstances a distinction drawn on the basis of the place of residence. Thus, in previous cases the court has examined under Article 14 the legitimacy of alleged discrimination based on inter-alia on domicile abroad and registration as a resident. It is true that regional differences of treatment resulting from the application of different legislation depending on the geographical location of an applicant have been held not to be explained in terms of personal characteristics…… However,. these cases are not comparable to the present case which involved a different application of the same pensions legislation to persons depending on their residence and presence abroad.
The other grounds go beyond innate personal characteristics to differences in situations loosely relating to personal circumstances. However, the core guarantee relates to differences based on personal characteristics rather than situations. And it will be easier to establish which of the article in such cases.
In Burghartz v Switzerland discrimination relating to changing name on marriage violated Article 8 in relation to family life as well as Article 14.
In some cases, the court considers whether there is a breach of the Convention of another substantive provision alone and also in conjunction with Article 14. In Baczkowski v Poland authorities’ refusal of consent to a gay rights march breached the guaranteed freedom of association. The refusal had overtones of discrimination because the mayor had said that propaganda about homosexuality was not tantamount to exercising one’s freedom of assembly.
In Cyprus v Aziz v, there was a deprivation of the right to vote in the context of distinction between Turkish and Greek Cypriot communities that had no reasonable legitimate justification.
The basis of discrimination may be one of the grounds listed or another status. Kjeldsen and others v Denmark confirmed that the difference may be based on a personal characteristic differentiating the person or group from others. The court has been willing to find a range of statuses to be subject to the provisions of Article 14. This includes such matters as
- disability and health status
- domicile and residence
- immigration status
- remand and convicted prisoners.
which have been held to be status for the purpose of the guarantee.
The words “other status” have generally been given a wide meaning (Carson and Others v. the United Kingdom [GC], 2010, § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (Kiyutin v. Russia, 2011, § 56; Clift v. the United Kingdom, 2010, § 56).
The Court has recognised that age constituted “other status” for the purposes of Article 14 of the Convention (Schwizgebel v. Switzerland, 2010, § 85; Carvalho Pinto de Sousa Morais v. Portugal, 2017, § 45). However, it has not, to date, suggested that discrimination on grounds of age should be equated with other grounds of discrimination (ibid.; British Gurkha Welfare Society and Others v. the United Kingdom, 2016, § 88).
The case of Schwizgebel v. Switzerland, 2010, concerned an unmarried woman debarred from adopting a second child as national legislation only authorised adoption by a single person up to a certain age. The Court found no violation of Article 14 in conjunction with Article 8 as the measure sought to pursue the legitimate aim of protecting the well-being and rights of that child. Similarly, setting an upper-age limit for eligibility for housing benefits for “young families” in Lithuania was found to be justified in order to encourage young people to have more children and thereby offset the decrease of the population caused by emigration and a low birth rate (Šaltinytė v. Lithuania, 2021).
The Court also examined complaints of alleged discrimination on grounds of age in cases dealing with a difference in treatment between minors and adults as regards detention (D.G. v. Ireland, 2002; Bouamar v. Belgium, 1988) and held that there had been no violation of Article 14 in conjunction with Article 5 as the difference in treatment stemmed from the protective nature of the regime applied to minors in each case. In the same vein the Court found the exemption of juvenile offenders from life imprisonment consonant with the international legal framework on the matter as well as proportionate to the aim of facilitating the rehabilitation of juvenile delinquents (Khamtokhu and Aksenchik v. Russia [GC], 2017, § 80).
In Carvalho Pinto de Sousa Morais v. Portugal, 2017, the applicant, who had undergone a gynaecological surgery and subsequently brought a civil action against a hospital for medical negligence, complained about the reduction in damages awarded on appeal. The Court held that both the applicant’s age and sex appeared to have been decisive factors in the appeal court’s decision, introducing a difference in treatment based on those grounds. In Deaconu v. Romania [Committee], 2019, the Court found a breach of Article 14 in conjunction with Article 1 of Protocol No. 1 for lack of reasonable justification for dismissing a claim for damages of younger siblings, whilst making an award to older ones, on the ground that due to their age they suffered less at the death of their younger sister in a car accident.
The question of discrimination on grounds of age was also put forward in two cases concerning the trial of minors for murder (T. v. the United Kingdom [GC], 1999; V. v. the United Kingdom [GC], 1999), but the Court did not deem necessary to examine these complaints under Article 14 as it had already found a violation of Article 6 § 1 in their cases.
The prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity (Identoba and Others v. Georgia, 2015, § 96). The Court has also recognised that gender identity and sexual orientation were two distinctive and intimate characteristics. Any confusion between the two would therefore constitute an attack on one’s reputation capable of attaining a sufficient level of seriousness for touching upon such an intimate characteristic of a person (Sousa Goucha v. Portugal, 2016, § 27).
The Court has dealt with a number of cases concerning gender identity issues, notably
- the right to undergo gender reassignment surgery (L. v. Lithuania, 2007);
- the right to have the preferred gender legally recognised (Christine Goodwin v. the United Kingdom [GC], 2002; I. v. the United Kingdom [GC], 2002; L. v. lithuania, 2007) and the legal requirements that must be satisfied to this end (Hämäläinen v. Finland [GC], 2014);
- the right to marry (Christine Goodwin v. the United Kingdom [GC], 2002; I. v. the United Kingdom [GC], 2002);
- fairness of court proceedings concerning claims for reimbursement of gender reassignment measures against a private health insurance company (Van Kück v. Germany, 2003);
- the right to have one’s gender legally recognised without changing civil status (Hämäläinen v. Finland [GC], 2014);
- liability for medical costs incurred in connection with a gender reassignment operation (Schlumpf v. Switzerland, 2009);
- Restriction of an applicant’s parental rights and deprivation of contact with her children on gender identity grounds (A.M. and Others v. Russia, 2021).
In Hämäläinen v. Finland [GC], 2014, the applicant, a transgender woman married to a cisgender woman, complained that, in order for her to have her female gender legally recognised, her marriage had to be transformed to a civil partnership since in Finland same-sex marriage had not been allowed at the material time. The Court found that the applicant could not claim to be in the same situation as cisgender persons who had obtained legal gender recognition automatically at birth and whose marriages, according to the applicant, did not run the risk of “forced” divorce in the way that hers did (§ 112).
Some gender identity cases were dealt with solely under the substantive Convention provision, without a separate examination under Article 14. In Y.Y. v. Turkey, 2015, the applicant applied for authorisation to undergo gender reassignment surgery, which was denied by the domestic court on the ground that the applicant was not permanently unable to procreate. The Court found that, in denying the applicant, for many years, the possibility of undergoing such an operation, the State had thus breached the applicant’s right to respect for his private life under Article 8 of the Convention.
The Court has repeatedly included sexual orientation among the “other grounds” protected under Article 14 (Salgueiro da Silva Mouta v. Portugal, 1999, § 28; Fretté v. France, 2002, § 32).
In 1999 the Court found for the first time a violation of Article 14 on grounds of sexual orientation in a case concerning parental rights (Salgueiro Da Silva Mouta v. Portugal, 1999; see also X v. Poland, 2021). Ever since, it has examined the issue of sexual orientation in a number of other contexts involving
- different age of consent under criminal law for homosexual relations (L. and v. v. Austria, 2003; S.L. v. Austria, 2003; B.B. v. the United Kingdom, 2004; Santos Couto v. Portugal, 2010);
- permission to adopt a child (X and Others v. Austria [GC], 2013; E.B. v. France [GC], 2008;
Gas and Dubois v. France, 2012);
- the right to succeed to the deceased partner’s tenancy (Karner v. Austria, 2003; Kozak v. Poland, 2010);
- social protection (P.B. and J.S. v. Austria, 2010; Mata Estevez v. Spain (dec.), 2001);
- conditions of detention (X v. Turkey, 2012);
- regulations on child maintenance (J.M. v. the United Kingdom, 2010);
- civil unions (Vallianatos and Others v. Greece [GC], 2013);
- marriage (Schalk and Kopf v. Austria, 2010; Chapin and Charpentier v. France, 2016);
- family reunification (Pajić v. Croatia, 2016; Taddeucci and McCall v. Italy, 2016);
- freedom of thought, conscience and religion (Eweida and Others v. the United Kingdom, 2013);
- freedom of assembly and association (Bączkowski and Others v. Poland, 2007; Alekseyev and Others v. Russia, 2018; Genderdoc-M v. Moldova, 2012; Zhdanov and Others v. Russia, 2019; Berkman v. Russia, 2020; Association ACCEPT and Others v. Romania, 2021);
- protection from homophobic speech or acts of violence and effectiveness of investigation (Identoba and Others v. Georgia, 2015; M.C. and A.C. v. Romania, 2016; Beizaras and Levickas v. Lithuania, 2020; Aghdgomelashvili and Japaridze v. Georgia, 2020; Sabalić v. Croatia, 2021; Association ACCEPT and Others v. Romania, 2021; Genderdoc-M and M.D. v. the Republic of Moldova, 2021; Oganezova v. Armenia, 2022).
The Court has stressed that discrimination based on sexual orientation was as serious as discrimination based on “race, origin or colour” (Vejdeland and Others v. Sweden, 2012, § 55). Where a difference in treatment was based on sexual orientation, the State’s margin of appreciation is narrow (Kozak v. Poland, 2010, § 92; Karner v. Austria, 2003, § 41). Moreover, differential treatment based solely on considerations of sexual orientation was unacceptable under the Convention (E.B. v. France [GC], 2008, §§ 93 and 96; Salgueiro da Silva Mouta v. Portugal, 1999, § 36; X and Others v. Austria [GC], 2013, § 99).
The most important number of cases examined by the Court in relation to discrimination on grounds of sexual orientation relates to the right to respect for private and family life. In that connection, the Court has interpreted Article 8 in light of the present-day conditions and recognised that the relationship of a cohabiting same-sex couple living in a stable de facto relationship fell within the notion of “family life” just as the relationship of a different-sex couple in the same situation would (Schalk and Kopf v. Austria, 2010, § 94). Furthermore, the Court has also found that the relationship between two women living together, and a child conceived by one of them but being brought up by both of them, constituted “family life” within the meaning of Article 8 of the Convention (X and Others v. Austria [GC], 2013, § 95; Gas and Dubois v. France, 2012, § 37).
As regards the right to marry, the impossibility of a same-sex marriage has been held not to violate Article 14 in conjunction with either Article 8 or Article 1211 (Schalk and Kopf v. Austria, 2010; Chapin and Charpentier v. France, 2016), whereas the exclusion of same-sex couples from a civil union was found to be in breach of Article 14 in conjunction with Article 8 (Vallianatos and Others v. Greece [GC], 2013). As regards adoptions, in E.B. v. France [GC], 2008, the Court found a breach of Article 14 due to the authorities’ refusal to grant approval for adoption based on the applicant’s lifestyle as a lesbian living with another woman. In X and Others v. Austria [GC], 2013, the impossibility of second- parent adoption for an unmarried same-sex couple was found to be discriminatory in comparison with unmarried different-sex couples, who were able to adopt in similar circumstances. On the other hand, in Gas and Dubois v. France, 2012, the refusal of simple adoption order in favour of the homosexual partner of the biological mother was found not to be discriminatory since different-sex couples in a civil partnership were also prohibited from obtaining a single adoption order. Finally, the refusal to grant residence permits to a foreign same-sex partner has been found to be in breach of Article 14 in conjunction with Article 8 (Pajić v. Croatia, 2016; Taddeucci and McCall v. Italy, 2016).
Outside the context of family life, the Court found a violation of Article 14 in conjunction with Article 10 in Bayev and Others v. Russia, 2017, concerning a legislative prohibition on the promotion of homosexuality among minors which embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority (§ 91). On the other hand, it did not find a violation of Article 14 read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 in Aldeguer Tomás v. Spain, 2016, in which the applicant was the surviving partner of a stable same-sex union but was not entitled to a survivor’s pension, his partner having died before the recognition of same-sex marriage.
In Beizaras and Levickas v. Lithuania, 2020, the applicants were a homosexual couple who received a number of serious threats and offensive comments after they published on Facebook a photograph of them kissing. The competent authorities refused to prosecute finding that the applicants’ behaviour had been “eccentric” and did not correspond to “traditional family values” in the country. The Court concluded that the applicants had suffered discrimination on the grounds of their sexual orientation, without good cause, given that the hateful comments by private individuals directed against them and the homosexual community in general had been instigated by a bigoted attitude towards that community. The same discriminatory state of mind was subsequently at the core of the authorities’ failure to discharge their positive obligation to investigate in an effective manner.
In Sabalić v. Croatia, 2021, the Court held that a conviction for a minor offence and a modest fine, without investigating hate motives, had not provided an adequate response by the authorities to a violent homophobic attack. In that case, the domestic authorities had themselves brought about the situation in which they, by unnecessarily instituting the ineffective minor offence proceedings, had undermined the possibility to put properly into practice the relevant provisions and requirements of the domestic criminal law. Both the failure to investigate hate motives behind a violent attack and the failure to take into consideration such motives in determining the punishment for violent hate crimes had amounted to “fundamental defects” in the minor-offence proceedings under Article 4 § 2 of Protocol No. 7. By instituting the ineffective minor offences proceedings and, as a result, erroneously discontinuing the later criminal proceedings on formal grounds, the domestic authorities had, in the circumstances, failed to discharge adequately and effectively their procedural obligation under the Convention concerning a violent attack against the applicant motivated by her sexual orientation. In Stoyanova v. Bulgaria, 2022, the applicant’s son was attacked and killed by three men who thought he looked homosexual. Although the domestic courts had established homophobic motives underlying the murder, this did not constitute a statutory aggravating factor nor did it have a measurable effect on the sentencing of the perpetrators, in breach of the State’s duty to ensure that deadly attacks motivated by hostility towards victims’ actual or presumed sexual orientation do not remain without an appropriate response.
In some cases, the Court has examined sexual orientation issues under the substantive provision alone, for example
- prohibition under criminal law of homosexual relations between adults (Dudgeon v. the United Kingdom, 1981; Norris v. Ireland, 1988; Modinos v. Cyprus, 1993; A.D.T. v. the United Kingdom, 2000);
- discharge of homosexuals from the armed forces (Lustig-Prean and Beckett v. the United Kingdom, 1999; Smith and Grady v. the United Kingdom, 1999; Perkins and R. v. the United Kingdom, 2002; Beck and Others v. the United Kingdom, 2002);
- refusal to register same-sex marriages contracted abroad (Orlandi and Others v. Italy, 2017);
- positive obligation to enact a legal framework providing for the recognition and protection of same-sex partnerships (Oliari and Others v. Italy, 2015);
- conditions of detention (Stasi v. France, 2011).
Health and disability
The Court has confirmed that the scope of Article 14 of the Convention and Article 1 of Protocol No. 12 included discrimination based on disability, medical conditions or genetic features (Glor v. Switzerland, 2009, § 80; G.N. and Others v. Italy, 2009, § 126; Kiyutin v. Russia, 2011, § 57). In cases concerning disability, the States’ margin of appreciation in establishing different legal treatment for people with disabilities is considerably reduced (Glor v. Switzerland, 2009, § 84).
Referring in particular to Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, and to the United Nations Convention on the Rights of Persons with Disabilities, (UNCRPD) adopted on 13 December 2006, the Court has considered that there was a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (Glor v. Switzerland, 2009, § 54). This included an obligation for the States to ensure “reasonable accommodation” to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination (Enver Şahin v. Turkey, 2018, §§ 67-69; Çam v. Turkey, 2016, §§ 65-67; G.L. v. Italy, 2020, §§ 60-66).
As regards access to public buildings by physically disabled persons, the Court clarified that the test to be applied was limited to examining whether the State had made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, which, at the same time, did not impose a “disproportionate or undue burden” on the State (Arnar Helgi Lárusson v. Iceland, 2022, § 59). Where the respondent State and municipality had already taken considerable measures to assess and address accessibility needs in public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question, the Court found that there had been no discrimination against a wheelchair-bound applicant, who had been unable to access two local public buildings housing arts and cultural centres (ibid; compare with Botta v. Italy (dec.), Zehnalová and Zehnal v. the Czech Republic (dec.), and Glaisenv. Switzerland (dec.), where Article 8 was found inapplicable).
As regards housing, in Guberina v. Croatia, 2016, the applicant requested tax exemption on the purchase of a new property adapted to the needs of his severely disabled child. The authorities did not take into consideration his son’s particular needs and found that he did not satisfy the conditions for tax exemption on account of already being in possession of a suitable place to live. The Court stressed that, by ratifying the UNCRPD, Croatia was obliged to respect such principles as reasonable accommodation, accessibility and non-discrimination against persons with disabilities and that, by ignoring the specific needs of the applicant’s family related to his child’s disability, there had been a violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention. The Court recognised for the first time that discriminatory treatment of the applicant on account of the disability of his child was disability-based discrimination covered by Article 14. In J.D. and A. v. the United Kingdom, 2019, the applicant’s housing benefit had been reduced and she was forced to move out of a house especially adapted to the needs of her disabled daughter. The Court found that, while it would be disruptive and undesirable for her to move, the effect of the measure was proportionate in her case as she could move to smaller, appropriately adapted accommodation and given the availability of a discretionary housing benefit (§ 101).
In the area of education, in Enver Şahin v. Turkey, 2018, concerning a failure to conduct a concrete individual assessment of a disabled student’s needs regarding access to university premises, the Court found a violation of Article 14 in conjunction with Article 2 of Protocol No. 1 on the right to education. In G.L. v. Italy, 2020, a child suffering from non-verbal autism was not able to receive, in the first two years of primary school, the specialised assistance to which she was entitled under the relevant legislation. Stressing the importance of primary schooling and and the States’ obligation to be particularly attentive to their choices in the area of educational needs of persons with disabilities, the Court found that the applicant had been unable to continue to attend primary school in conditions equivalent to those enjoyed by non-disabled pupils due to her disability.
In family matter, in Cînţa v. Romania, 2020, the domestic authorities failed to properly assess the impact that the applicant’s mental illness might have had on his parenting skills or the child’s safety. The Court stressed that mental illness might be a relevant factor to be taken into account when assessing the capacity of parents to care for their child. However, relying on mental illness as the decisive element, or even as one element among others, might amount to discrimination when, in the specific circumstances of the case, the mental illness did not have a bearing on the parents’ ability to take care of the child. In R.P. and Others v. the United Kingdom, 2012, § 89, concerning the appointment of an Official Solicitor to represent a mother with learning disabilities in child-care proceedings, the Court found that the measure the applicant had been subject to did not constitute unjustified discrimination. In fact, the Court accepted that it was necessary for the Contracting State to take measures to protect litigants in the applicant’s situation and that the Official Solicitor scheme was within the State’s margin of appreciation. Consequently, although the applicant was treated differently from someone with legal capacity, her situation was significantly different from such a person and the difference in treatment was objectively and reasonably justified (§ 89).
In Negovanović and Others v. Serbia, 2022, the denial to blind chess players, of financial awards which were granted to sighted players as a form of national sporting recognition for winning similar international accolades, was found to be discriminatory on the basis of their disability.
In the election context, in the case of Strøbye and Rosenlind v. Denmark, 2021, the Court examined the issue of disenfranchisement of persons divested of their legal capacity. Given that the mentally disabled had not been in general subject to disenfranchisement under Danish law, that therehad been an individualised judicial evaluation and that the measure affected a very small number of people, the Court found that there had been no breach of Article 3 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention (see also Caamaño Valle v. Spain, 2021). In Toplak and Mrak v. Slovenia, 2021, the Court found no breach of the State’s 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.
As regards discrimination against people with infectious diseases, the Court has considered that a distinction made on account of an individual’s health status, including such conditions as HIV infection, should also be covered – either as a disability or a form thereof – by the term “other status” in the text of Article 14 of the Convention (Kiyutin v. Russia, 2011, § 57). The Court has held that people living with HIV were a vulnerable group, due to the prejudice and stigmatisation by the society. Consequently, the States should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status (Kiyutin v. Russia, 2011, § 64; I.B. v. Greece, 2013, § 81).
As with other protected grounds under the Convention, it is not uncommon for cases to be dealt with solely under the substantive right, rather than under Article 14.
For example, in Pretty v. the United Kingdom, 2002, the applicant suffered from a degenerative disease and the Court examined a refusal of her wish to obtain an assurance from the government that her husband would not be prosecuted for assisting her to die. The Court found that the refusal to distinguish between those who are and those who are not physically capable of committing suicide was justified because introducing exceptions to the law would in practice allow for abuse and undermine the protection of the right to life protected by Article 2 (§ 89).
Parental and marital status
In Weller v. Hungary, 2009, the Court found discrimination on grounds of parental status amounting to a violation of Article 14. In that case the first applicant was a father who was denied the award of a benefit to which only mothers, adoptive parents and guardians were entitled. Equally, the Court has considered marital status to be a personal characteristic included in the term “other status”. In Şerife Yiğit v. Turkey [GC], 2010, for example, the Court stated that the absence of a marriage tie between two parents is one of the aspects of personal “status” which may be a source of discrimination prohibited by Article 14 (§ 79).
In Petrov v. Bulgaria, 2008, the Court found a violation of Article 14 in conjunction with Article 8 as the applicant prisoner had been barred from making telephone calls to his partner because they were not married.
The case of Burden v. the United Kingdom [GC], 2008, concerned two cohabiting sisters who complained that they were ineligible for exemption from inheritance tax that surviving spouses or civil partners enjoyed. The Court held that the absence of such a legally binding agreement between the applicants rendered their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple (§ 65). In Korosidou v. Greece, 2011, the Court examined the case of an applicant who was refused a survivor’s pension as a widow on the ground that she had not been married to her deceased partner and did not find discrimination. Nor did the Court find discriminatory the inability of a woman to automatically inherit her unmarried late partner’s property in view of the adequate opportunities domestic law provided her with to do so (Makarčeva
v. Lithuania (dec.), 2021).
The case of Muñoz Díaz v. Spain, 2009, concerned an applicant whose marriage concluded according to Roma rites was not considered valid for purposes of establishing entitlement to a survivor’s pension by the State. The Court observed that the Spanish authorities had recognised the applicant as her partner’s “spouse”. The woman in question and her family had been issued with a family record book, had been granted large-family status and had been in receipt of health-care assistance. The Court therefore took the view that the applicant’s good faith as to the validity of her marriage had given her a legitimate expectation of being entitled to a survivor’s pension and acknowledged a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No.1.
On the other hand, in Şerife Yiğit v. Turkey [GC], 2010, the applicant had married in a purely religious ceremony and was refused to be recognised as the heir of her deceased partner. However, the Court noted that the applicant was aware of her situation and knew that she needed to regularise her relationship in accordance with the Civil Code in order to be entitled to benefits on her partner’s death. Therefore, the Court considered that there was an objective and reasonable justification for the difference in question and did not find a violation of Article 14.
The Court established that although immigration status was a status conferred by law, rather than one inherent to the individual, this fact did not preclude it from amounting to “other status” for the purposes of Article 14 (Hode and Abdi v. the United Kingdom, 2012, § 47; Bah v. the United Kingdom, 2011, § 46). Indeed, a wide range of legal and other effects flowed from a person’s immigration status (ibid.).
The case of Hode and Abdi v. the United Kingdom, 2012, concerned a person recognised as a refugee and granted a limited leave who could not be joined by his post-flight spouse. The Court reiterated that the argument in favour of refugee status amounting to “other status” was even stronger, as, unlike immigration status, refugee status did not entail an element of choice (§ 47). Consequently, the Court found a violation of Article 14 taken together with Article 8.
In Bah v. the United Kingdom, 2011, the Court examined the case of a person unintentionally homeless with a minor child, who was not granted priority assistance by the social services because her son was subject to immigration control. The applicant had entered the United Kingdom as an asylum-seeker but had not been granted refugee status. The Court noted that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States (§ 47). Given the element of choice involved in immigration status, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality (§ 47). The Court concluded that the differential treatment to which the applicant was subjected was reasonably and objectively justified (§ 52).
In M.T. and Others v. Sweden, 2022, § 111, the Court considered that persons with “subsidiary protection status”, and persons with “refugee status” were in an analogous or relevantly similar situation in respect of the right to family reunification. The second applicant received subsidiary protection in Sweden. His mother and younger brother were denied resident permits, in application of a law which instituted termporary restrictions for granting residence permits in Sweden, to family members of persons who had been granted subsidiary protection status. The Court was satisfied that the differential treatment of the applicants vis-à-vis persons with refugee status had been reasonably and objectively justified (§ 117).
The Court also found discrimination on ground of immigration status in several other cases. In Ponomaryovi v. Bulgaria, 2011, the Court found the requirement on aliens without permanent residence to pay secondary-school fees discriminatory by reason of their nationality and immigration status (§ 49). It amounted to a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1 on the right to education. In Anakomba Yula v. Belgium, 2009, where an unlawfully resident alien had been refused legal aid for contesting the paternity of her child, the Court found a violation of Article 14 in conjunction with Article 6 (access to court).
Status related to employment
In the field of employment, the Court found, for example, that holding of high office can be regarded as “other status” for the purposes of Article 14 (Valkov and Others v. Bulgaria, 2011, § 115). In that case the Court refused the applicants’ contention that capping of their pensions amounted to discrimination in comparison to certain high-ranking officials whose pensions were exempted from the cap.
The Court also found that the notion of “other status” had been given a sufficiently wide meaning so as to include, in certain circumstances, military rank. The case of Engel and Others v. the Netherlands, 1976, concerned conscript soldiers on whom various penalties had been imposed by their respective commanding officers for offences against military discipline. The Court established that a distinction based on rank might run counter to Article 14 (§ 72). However, it recognised that the competent national authorities enjoyed a considerable margin of appreciation in this domain, and did not find a violation of Article 14. In Beeckman and Others v. Belgium (dec.), 2018, the Court interpreted police rank to also fall within the notion of “other status”.
The collaboration of applicants with secret services has also been considered as “other status” for the purposes of Article 14 of the Convention (Sidabras and Džiautas v. Lithuania, 2004; Žičkus v. Lithuania, 2009; Naidin v. Romania, 2014). In Žičkus v. Lithuania, 2009, the applicant was banned from finding employment in the private sector on the grounds that he had been a former KGB officer. In Naidin v. Romania, 2014, a former collaborator of the political police had been banned from public- service employment.
The case of Graziani-Weiss v. Austria, 2011, concerned an obligation for practicing lawyers and notaries to act as unpaid guardians to mentally ill persons if appointed to do so, whereas other legally trained persons had not been under such an obligation. The Court held that there had been a difference in treatment between the two groups but that, for the purposes of guardianship in cases where legal representation was necessary, the two groups were not in a relevantly similar situation (§ 65).
Further examples of “other status”
The Court established that being a prisoner12 was an aspect of personal status for the purposes of Article 14 in Stummer v. Austria [GC], 2011 (§ 90), where the authorities refused to take work performed in prison into account in calculating the applicant’s pension rights. The Court also acknowledged an unjustified difference in legal regimes for detainees on remand and convicted prisoners (Laduna v. Slovakia, 2011; Chaldayev v. Russia, 2019; Vool and Toomik v. Estonia, 2022) as regards visiting rights and access to television.
In Clift v. the United Kingdom, 2010, the Court considered differences in procedural requirements for early release which depended on the length of the sentence. In that case the applicant alleged a difference in treatment based on his position as a prisoner serving a determinate sentence of more than fifteen years. While sentence length bore some relationship to the perceived gravity of the offence, a number of other factors could also be relevant, including the sentencing judge’s assessment of the risk the prisoner posed to the public. Where an early-release scheme applied differently to prisoners depending on the length of their sentences, there was a risk that, unless objectively justified, it would run counter to the need to ensure protection from arbitrary detention under Article 5. Accordingly, the Court concluded that the applicant enjoyed “other status” for the purposes of Article 14.
In Granos Organicos Nacionales S.A. v. Germany, 2012, the Court found a difference in treatment between natural and legal persons and between domestic and foreign legal entities, due to the refusal to attribute legal aid to a foreign company wishing to institute civil proceedings in German courts, although in this particular case the Court held that such difference had been motivated by relevant reasons.
In Moraru v. Romania, 2022, the Court considered that an individual’s size constituted a genetic feature which represented a personal characteristic falling within the list of “other status” (§ 42). The applicant complained that the decisions of the national authorities not to allow her to participate in the admission process for studying military medicine had constituted a discriminatory restriction of her right to education on the grounds of anthropometric attributes, notably height and weight (§ 27)13.
The Court has found further differences in treatment as falling within the scope of “other status”, although not related to “personal” characteristics.
For example, the Court found that membership of an organisation could constitute “other status” for the purpose of Article 14 of the Convention (Danilenkov and Others v. Russia, 2009; Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2), 2007). In Danilenkov and Others v. Russia, 2009, the State had failed to afford effective judicial protection against discrimination on the ground of trade-union membership. The case of Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2) (2007) concerned the statutory obligation for Freemasons to declare their membership when applying for regional authority posts.
Equally, “other status” can include the place of residence (Carson and Others v. the United Kingdom [GC], 2010; Aleksandr Aleksandrov v. Russia, 2018; Baralija v. Bosnia and Herzegovina, 2019). The case of Carson and Others v. the United Kingdom [GC], 2010, concerned the absence of right to index-linking for pensioners resident in overseas countries which had no reciprocal arrangements with the State. In Aleksandr Aleksandrov v. Russia, 2018, the applicant was refused a non-custodial sentence on the ground that his permanent place of residence had been outside of the region where the offence had been committed and the sentence pronounced. The Court did not find that the difference in treatment had pursued a legitimate aim or had an objective and reasonable justification.
In Pinkas and Others v. Bosnia and Herzegovina, 2022, the Court found that a difference in treatment between judicial clerks and judges which belonged to the same legal regime with regard to work-related allowances constituted “indirect discrimination” based on “other status” for which no objective and reasonable justification had been put forward by the respondent Government.
In Özgürlük ve Dayanışma Partisi (ÖDP) v. Turkey, 2012, the Court acknowledged the existence of a difference in treatment between political parties on the ground of insufficient popular support. The case concerned the refusal of financial aid to a political party based on the fact that it had not received the statutory minimum number of votes required to be eligible for aid and did not result in finding a breach of Article 14.
The Court also considered that conflicting decisions by the Supreme Court could amount to discrimination under Article 14 (Beian v. Romania (no. 1), 2007). A difference in treatment on grounds of different points in time when pension claims were liquidated could also amount to discrimination if not justified (Maggio and Others v. Italy, 2011).
Not falling within “other status”
Certain differences in treatment not linked to a personal status have been considered as not falling within the notion of “other status”.
In Gerger v. Turkey [GC], 1999, for example, the Court held that differences in treatmentbetween prisoners in relation to parole did not confer on them “other status” as the distinction had not been made between different groups of people, such as in Clift v. the United Kingdom, 2010, but rather between different types of offences, according to their gravity.
Other examples of differences in treatment not falling within the notion of “other status” for the purpose of Article 14 include
- having or not having acquired the right to a welfare benefit (Springett and Others v. the United Kingdom (dec.), 2010);
- duration and nature of an employment contract (Peterka v. the Czech Republic (dec.), 2010);
- holding fishing rights in different areas (Alatulkkila and Others v. Finland, 2005);
- being sent on different military missions (De Jong, Baljet and Van den Brink v. the Netherlands, 1984);
- different legal status with respect to restitution of taxes (National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 1997);
- distinction between smaller and larger unions (National union of Belgian police v. Belgium, 1975; Swedish Engine Drivers’ Union v. Sweden, 1976);
- difference between commercial advertising and advertisements forwarding certain ideals (VgT Verein gegen Tierfabriken v. Switzerland, 2001).