Direct and indirect discrimination
Article 14 does not provide a definition of what constitutes direct discrimination. The expression “direct discrimination” describes a “difference in treatment of persons in analogous, or relevantly similar situations” and “based on an identifiable characteristic, or ‘status’” (Biao v. Denmark [GC], 2016, § 89; Carson and Others v. the United Kingdom [GC], 2010, § 61; D.H. and Others v. the Czech Republic [GC], 2007, § 175; Burden v. the United Kingdom [GC], 2008, § 60) protected by Article 14 of the Convention (Varnas v. Lithuania, 2013, § 106; Hoogendijk v. the Netherlands (dec.), 2005). That provision thus requires that persons in a similar situation be treated in an equal manner (ibid.).
For example, in Alexandru Enache v. Romania, 2017, sentenced female offenders who had a small child were able to obtain deferral of the starting date for the service of their prison sentence until the child’s first birthday. The applicant complained that, as a man, he was excluded from such a possibility and thus directly discriminated against on the bassis of his sex. In Ēcis v. Latvia, 2019, a blanket ban on prison leave for male prisoners in closed prisons was found to be in breach of Article 14 in conjunction with Article 8 on grounds of sex.
Harassment and instruction to discriminate can be seen as particular manifestations of direct discrimination. The Court has found violations of Article 14 in cases of harassment and instruction to discriminate, for instance, in conjunction with Article 11 concerning the right of peaceful assembly (Bączkowski and Others v. Poland, 2007). In that case the mayor of Warsaw had made public announcements of a homophobic nature, stating that he would refuse permission to hold a march to raise awareness about sexual orientation discrimination.
When the decision came before the relevant administrative body, permission was refused based on other reasons, such as the need to prevent clashes between demonstrators. The Court found that the mayor’s statements could have influenced the decision of the relevant authorities and that the decision had been based on the ground of sexual orientation and thus constituted a violation of Article 14 of the Convention in conjunction with Article
The case of Oganezova v. Armenia, 2022, concerned an aggressive homophobic campaign and harassment of a well-known member of the LGBT community in Armenia, culminating in an arson attack on a bar she co-owned. In the following weeks, she and her staff were intimidated and harassed by groups of people gathered outside the bar and the property was vandalised.
Parliamentarians and high-ranking politicians made intolerant statements, publicly endorsing the actions of the perpetrators of the arson attack. The applicant was also subjected to death threats and abuse, including online hate speech, leading her to permanently leave Armenia and request asylum in Sweden. The Court found that the authorities had failed to protect the applicant from harassment as well as to carry out an effective investigation into the incidents.
Indirect discrimination may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, has a particular discriminatory effect on a particular group (Biao v. Denmark [GC], 2016, § 103; D.H. and Others v. the Czech Republic [GC], 2007,
§ 184; Sampanis and Others v. Greece, 2008, § 67). Although the policy or measure at stake may not be specifically aimed or directed at a particular group, it might nevertheless discriminate against that group in an indirect way (Hugh Jordan v. the United Kingdom, 2001, § 154; Hoogendijk v. the Netherlands (dec.), 2005).
Indirect discrimination does not necessarily require a discriminatory intent (Biao v. Denmark [GC], 2016, § 103; D.H. and Others v. the Czech Republic [GC], 2007, § 184). Moreover, indirect discrimination may arise from a neutral rule (Hoogendijk v. the Netherlands (dec.), 2005), from a de facto situation (Zarb Adami v. Malta, 2006, § 76) or from a policy (Tapayeva and Others v. Russia, 2021, § 112).
In D.H. and Others v. the Czech Republic [GC], 2007, the issue was whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage. The “general policy or measure” that the Court found to be discriminatory was the tests used to evaluate the children’s intellectual capacities in order to decide whether to place them in normal or in “special” schools for children with learning disabilities.
The test has been designed having in mind the mainstream Czech population and the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. This led to indirect discrimination of Roma children who were more likely to perform poorly and were subsequently placed in “special schools” in a disproportionately high number in comparison to children of Czech ethnic origin (§§ 200-201).
In Biao v. Denmark [GC], 2016, the applicants, a naturalised Danish citizen of Togolese origin living in Denmark and his Ghanaian wife, complained that their request for family reunification in Denmark had been rejected for non-compliance with statutory requirements. According to Danish law, the permit would be granted if they could demonstrate that their aggregate ties to Denmark were stronger than their attachment to any other country or if they had held Danish citizenship for at least twenty-eight years.
The Court held that the relevant rule constituted a difference in treatment between Danish citizens of Danish origin and those of non-Danish origin. Referring to the European Convention on Nationality and a certain trend towards a European standard, the Court noted that there were no other countries which distinguished between nationals from birth and other nationals, including naturalised persons when it came to the determination of the conditions for granting family reunification. Such a rule thus had a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.
Another example of indirect discrimination is the case of Zarb Adami v. Malta, 2006. Maltese law in force at the relevant time made no distinction between sexes, both men and women being equally eligible for jury service. The discrimination at issue was based on a well-established practice, characterised by a number of factors, such as the manner in which the lists of jurors were compiled and the criteria for exemption from jury service. As a result, only a negligible percentage of women were called to serve as jurors (§ 75).
In Opuz v. Turkey, 2009, a case involving violence against women, Turkish law in force at the time of the facts did not make explicit distinction between men and women in the enjoyment of rights and freedoms or in access to justice. Thus, the discrimination in that case was not based on the legislation per se but rather resulted from the general attitude of the local authorities, such as the manner in which women were treated at police stations when they reported incidents of domestic violence and judicial passivity in providing effective protection to victims (§ 192).
In S.A.S. v. France [GC], 2014, the Court acknowledged that, by prohibiting everyone from wearing clothing designed to conceal the face in public places, French law had specific negative effects on the situation of Muslim women who, for religious reasons, wished to wear the full-face veil in public (§ 161).
Discrimination by Association
The Court has confirmed that Article 14 also covers discrimination by association, that is, situations where the protected ground in question relates to another person somehow connected to the applicant (Molla Sali v. Greece [GC], 2018; Guberina v. Croatia, 2016, § 78; Škorjanec v. Croatia, 2017, § 55; Weller v. Hungary, 2009, § 37).
In Guberina v. Croatia, 2016, the domestic authorities failed to take account of the needs of a child with disabilities when determining his father’s eligibility for tax relief on the purchase of suitably adapted property. The Court found that the discriminatory treatment of the father on account of the disability of his child was a form of disability-based discrimination. In Škorjanec v. Croatia, 2017, the applicant and her partner of Roma origin were assaulted by two individuals who uttered anti-Roma insults. The Court stressed that the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence, which was part of the responsibility incumbent on States under Article 3 taken in conjunction with Article 14, also concerned acts of violence based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possessed a particular status or protected characteristic.
In Molla Sali v. Greece [GC], 2018, the first application by the Grand Chamber of the principle of discrimination by association, the Court confirmed that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics (§ 134). In that case, in which Sharia law had been applied to an inheritance dispute contrary to the will of the testator, the Court focused on the difference of treatment given the Muslim faith of the testator, and not of the applicant, who was his wife.
According to the Court’s established case-law, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct such inequality through different treatment may in itself give rise to a breach of Article 14 (Taddeucci and McCall v. Italy, 2016, § 81; Kurić and Others
v. Slovenia [GC], 2012, § 388; Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 44; Muñoz Díaz
v. Spain, 2009, § 48; D.H. and Others v. the Czech Republic [GC], 2007, § 175; Stec and Others v. the United Kingdom [GC], 2006, § 51; Thlimmenos v. Greece [GC], 2000, § 44; the Belgian linguistic case, 1968, § 10 of “the Law” part).
For example, the Convention organs have found that measures resulting in a difference in treatment between men and women were justified in order to compensate women for existing inequalities. In Andrle v. the Czech Republic, 2011, the applicant complained that, unlike for women, there was no lowering of pensionable age for men who had raised children. The Court found that this measure was objectively and reasonably justified so as to compensate women for the inequalities (such as generally lower salaries and pensions) and the hardship generated by the expectation that they would work on a full-time basis and take care of children and the household.
It further held that the timing and the extent of the measures taken to rectify the inequality in question had not been manifestly unreasonable and that, consequently, there had been no violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. In the Commission decision in Lindsay v. the United Kingdom, 1986, tax provisions resulting in extra taxation advantages accruing when a wife was the breadwinner of a family were held to fall within the margin of appreciation accorded to the national authorities as such difference in treatment had an objective and reasonable justification in the aim of providing positive discrimination in favour of married women who work.
Article 14 may be triggered where States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (Abdu v. Bulgaria, 2014; Eweida and Others v. the United Kingdom, 2013, § 87; Pretty v. the United Kingdom, 2002, § 88; Thlimmenos
v. Greece [GC], 2000, § 44). Thus, alongside the negative obligation incumbent on member States not to discriminate, the Court has also found that, in certain circumstances, Article 14 may imply “positive obligations” on States to prevent, stop or punish discrimination (Pla and Puncernau v. Andorra, 2004,
§ 62). Such positive obligations incumbent on the member States can include so-called “positive measures” (Horváth and Kiss v. Hungary, 2013, § 104), or “reverse discrimination”, “positive action” or “affirmative action” that a State could or should adopt to correct “factual inequalities”.
For example, in Thlimmenos v. Greece [GC], 2000, national law barred those with a criminal conviction from joining the profession of chartered accountants. The applicant had thus been denied appointment as a chartered accountant because he had been criminally convicted for refusing to wear military uniform during his national service, as a result of his religious beliefs. The Court found that the State had violated the applicant’s right under Article 14 read in conjunction with Article 9, as it should have distinguished between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences.
Investigating Violent Incidents
In Abdu v. Bulgaria, 2014, the Court reiterated that, when investigating violent incidents triggered by suspected racist attitudes, treating racially motivated violence and brutality on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights. A failure to make a distinction in the way in which situations which are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (§ 44). In Horváth and Kiss v. Hungary, 2013, a case concerning the systemic placement of Roma children in special schools in Hungary, the Court concluded that, in the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies called for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum.
Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services (§ 104). In Elmazova and Others v. North Macedonia, 2022, the Court, even in the absence of any discriminatory intent on the part of the State, did not accept as justification for the segregation of Roma pupils in schools, the fact that the measures envisaged by the authorities to tackle the issue had failed to materialised because of the opposition shown by the parents of non-Roma children (§§ 77- 78). In Çam v. Turkey, 2016, a music academy refused to enrol a student on the grounds of her visual impairment. The Court found a violation of Article 14 taken in conjunction with Article 2 of Protocol No. 1, noting that discrimination based on disability also covered the refusal to provide reasonable accommodation (for example, adaptation of teaching methods in order to make them accessible to blind students). In Selygenenko and Others v. Ukraine, 2021, the domestic authorities were found not to have undertaken sufficient measures to ensure the right to vote in local elections to internally displaced persons from Crimea and Donetsk, resulting in their discrimination.
Other Forms of Discrimination
The Court has also examined situations of discrimination that took place on the basis of several grounds operating separately or interacting with each other at the same time. Both Article 14 of the Convention and Article 1 of Protocol No. 12 prohibit discrimination on a large number of grounds, making a claim on more than one ground theoretically possible. Furthermore, the non-exhaustive list of grounds of discrimination contained in Article 14 allows the Court to extend and include grounds not expressly mentioned therein.
For instance, in N.B. v. Slovakia, 2012, a case concerning forced sterilisation of a Roma woman at a public hospital, the applicant expressly complained that she was discriminated against on more than one ground (race/ethnic origin and sex). The Court stated that the practice of sterilisation of women without their prior informed consent affected vulnerable individuals from various ethnic groups (§ 96). The Court found violations of Articles 3 and 8 of the Convention but did not find it necessary to examine separately the complaint under Article 14.
In B.S. v. Spain, 2012, a female sex worker of Nigerian origin and legally resident in Spain alleged that the Spanish police abused her physically and verbally on the basis of her race, gender and profession. The Court considered that the decisions made by the domestic courts failed to take account of the applicant’s particular vulnerability inherent in her position as an African woman working as a prostitute (§ 62) and found a violation of Article 14 in conjunction with Article 3.
Another example is the case of S.A.S. v. France [GC], 2014, concerning a ban on the full covering of the face in public places. Here, the Court acknowledged that the ban had specific negative effects on the situation of Muslim women who, for religious reasons, wished to wear the full-face veil in public, but considered this measure to have an objective and reasonable justification (§ 161). Consequently, it found no violation of Article 14 in conjunction with Article 9. In Yocheva and Ganeva
v. Bulgaria, 2021, the Court held that an applicant (single mother) had been discriminated against on the basis of both sex and family status when the authorities denied her a family allowance (normally granted when the father has died) when her children had not been recognised by their father.
The case of Carvalho Pinto de Sousa Morais v. Portugal (2017) concerned a decision to reduce the amount of non-pecuniary damage initially awarded to a female victim of medical negligence, which resulted in her inability to have sexual relations. In order to justify this reduction, the Supreme Administrative Court had relied on the fact that the applicant was already 50 years old and had two children at the time of the surgery. It considered that at this age sexuality was not as important as in younger years and that its significance diminished with age. It also stated that the applicant probably only needed to take care of her husband, considering the age of her children.
The Strasbourg Court further found significant that, in two previous sets of medical malpractice proceedings brought by two male patients (respectively 55 and 59 years old), the domestic court considered that the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a “tremendous shock” and “strong mental shock” without considering the age of the applicants as being relevant. As the Court noted, the question in issue here was not considerations of age or sex as such, but rather the assumption that sexuality was not as important for a fifty-year-old woman and mother of two children as for someone of a younger age.
That assumption reflected a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignored its physical and psychological relevance for the self-fulfillment of women as people. Apart from being, in a way, judgmental, it omitted to take into consideration other dimensions of women’s sexuality in the specific case of the applicant. In other words, the Supreme Administrative Court made a general assumption without attempting to look at its validity in the specific case of the applicant herself (§ 52). Finding a breach of Article 14 in conjunction with Article 8, the Court concluded that the applicant’s age and sex appear to have been decisive factors in the final decision, introducing a difference of treatment based on those grounds.