Justifting Discrimination [ECHR]

Objective and Reasonable justification

Burden v UK  A difference in treatment is discriminatory if it does not have an objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if it there is not a reasonable relationship of proportionality between the means employed and the aims which are to be realised. The contracting states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

There must be a clear demonstrable connection between the legitimate purpose in question and the difference in treatment provided for.

In Gilow v UK a preference for those with a strong connection with Guernsey was a legitimate aim. In Darby v Sweden, a denial of an exemption from church tax for persons not registered as a Swedish citizen on the grounds of administrative inconvenience was not a legitimate aim.

Stec v UK  Where differentiation or discrimination is not based on the inherent characteristics of persons or the categories into which they fall, then the state has a wider margin of appreciation in relation to the legislative scheme.

Because of their direct knowledge of their society and its needs, the national parties are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and the court will generally respect the legislature’s policy choice unless it is manifestly without reasonable can foundation

Onus to Prove Legitimate

Generally, the onus is on the applicant to show there is discrimination and the onus is on the state to show that there is legitimate and proportionate.

In DH v Czech Republic, the state had sought to improve the education of children of Roma origin. There were special schools of persons with learning difficulties who had difficulty with the ordinary curriculum. Qualification for the school was based on tests and assessments by the principal teacher.

Statistically, a majority of pupils in the schools were of Roma origin and were many times more likely to be in a special school than an ordinary school. The court considered that the tests were culturally biased notwithstanding that there was no positive intention. It found indirect discrimination in that the measures although positively intended at some level, ended up impacting on members of the Roma community to a far greater extent than others. The discrimination was indirect and not intended as such.

According to the established case law, proof may follow from the coexistence of a sufficiently strong clear and concordant inferences are similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and in this connection the distribution of the burden of proof are intrinsically linked to the specificity of the fact the nature of the allegation made and the Convention right at stake.

The court considers that when it comes to assessing the impact of the measure or practice on an individual or a group statistic which appear on critical examination to be reliable and significant will be sufficient to constitute the primary phase of the evidence of the applicant that the applicant is required to produce. That does not however mean that indirect discrimination cannot be proved without statistics.

Not all differences in treatment – or failure to treat differently persons in relevantly different Discrimination test situations – constitute discrimination, but only those devoid of “an objective and reasonable justification” (Molla Sali v. Greece [GC], 2018, § 135; Fabris v. France [GC], 2013, § 56; D.H. and Others
v. the Czech Republic [GC], 2007, § 175; Hoogendijk v. the Netherlands (dec.), 2005).

When deciding cases of discrimination, the Court will apply the following test:

• Has there been a difference in treatment of persons in analogous or relevantly similar situations – or a failure to treat differently persons in relevantly different situations?
• If so, is such difference – or absence of difference – objectively justified? In particular,
• Does it pursue a legitimate aim?
• are the means employed reasonably proportionate to the aim pursued?

Difference in treatment

First of all, when bringing a complaint under Article 14, the applicant has to show that he or she has been treated differently from another person or group of persons placed in a relevantly similar situation, or equally to a group of persons placed in a relevantly different situation. The other person or group of persons to which the applicant is compared to is called the “comparator”.

In Carson and Others v. the United Kingdom [GC], 2010, the differential treatment consisted in the fact that, under British law governing the entitlement to index-linking of State pensions, pensions were only index-linked if the recipient was ordinarily resident in the United Kingdom or in a country having a reciprocal agreement with the United Kingdom on the uprating of pensions. Pensioners residing elsewhere continued to receive the basic State pension, which was, however, frozen at the rate payable on the date they left the United Kingdom. In Varnas v. Lithuania, 2013, a prisoner held in pre- trial detention had been denied conjugal visits from his wife, while convicted prisoners were allowed such visits. In Cusan and Fazzo v. Italy, 2014, the differential treatment consisted in the fact that Italian law allowed married couples to give their legitimate child only the husband’s surname but not the wife’s. In Fabris v. France [GC], 2013, for succession purposes, children born out of wedlock could claim a share in their deceased parent’s estate equal to only half the share of a legitimate child.

The parties to a case may sometimes disagree as to whether there has been a difference in treatment. For example, in E.B. v. France [GC], 2008, the Government argued that the reason for not allowing a homosexual woman to adopt had not been her sexual orientation but the fact that her child would lack a father figure. However, the Court found that the domestic law in principle allowed single women to adopt a child and that the domestic authorities had based their refusal on the applicant’s “lifestyle” (§ 88). In Karlheinz Schmidt v. Germany, 1994, the applicant complained that the region where he lived had treated men and women differently as only the former had to serve as firemen in the fire brigade and, in case of refusal, they had to pay a levy. However, the Court found that what was decisive in that case was that the obligation to perform such service had been only theoretical, as in practice nobody was actually obliged to serve in a fire brigade. Thus, it was the imposition of a financial burden only to men which constituted the real difference in treatment, and not the obligation to serve as firemen (§ 28). In Hoffmann v. Austria, 1993, the Court accepted that the decision of the Austrian courts to award custody of the child to her husband had been taken largely on the basis of the applicant’s religious beliefs.

Difference from Comparator

In order for an issue to arise under Article 14, there must be a difference in treatment of “persons in an analogous or relevantly similar situation” (Molla Sali v. Greece [GC], 2018, § 133; Fábián v. Hungary [GC], 2017, § 113; Khamtokhu and Aksenchik v. Russia [GC], 2017, § 64; X and Others v. Austria [GC], 2013, § 98; Konstantin Markin v. Russia [GC], 2012, § 125; Marckx v. Belgium, 1979, § 32; Burden v. the United Kingdom [GC], 2008, § 60; D.H. and Others v. the Czech Republic [GC], 2007, § 175; Zarb Adami v. Malta, 2006, § 71; Kafkaris v. Cyprus [GC], 2008, § 160). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (Fábiánv. Hungary [GC], 2017, § 113; Clift v. the United Kingdom, 2010, § 66; Demokrat Parti v. Turkey (dec.), 2021).

The Court has now clarified that the elements which characterise different situations, and determine their comparability, must be assessed in light of the subject-matter, objective of the impugned provision and the context in which the alleged discrimination is occurring (Fábián
v. Hungary [GC], 2017, § 121; Advisory opinion on the difference in treatment between landowner associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and those set up after that date, 2022). The assessment of the question of whether or not two persons or groups are in a comparable situation for the purposes of an analysis of differential treatment and discrimination is both specific and contextual; it can only be based on objective and verifiable elements, and the comparable situations must be considered as a whole, avoiding isolated or marginal aspects which would make the entire analysis artificial (ibid.).

The Court has, for instance, found that remand prisoners were in a comparable position to convicted prisoners as regards conjugal visits (Varnas v. Lithuania, 2013) and long-term visits (Chaldayev v. Russia, 2019; Vool and Toomik v. Estonia, 2022), but not as regards the continuance of social security benefits (P.C. v. Ireland, 2022). It has also held that men and women were in a comparable situation as regards parental leave (Konstantin Markin v. Russia [GC], 2012), prison sentencing policy (Khamtokhu and Aksenchik v. Russia [GC], 2017) and deferral of prison sentences (Alexandru Enache v. Romania, 2017).

In Yocheva and Ganeva v. Bulgaria, 2021, the Court held that the applicant, who had been refused a monthly allowance provided to families in which children had only one living parent, because her children had not been recognised by their father, was in a relevantly similar position both to fathers of children whose mothers had died and to widows whose children had been born in wedlock and single mothers whose children’s fathers had recognised them before dying. The difference intreatment in the applicants’ case, which emanated from the applicable law itself, was based on a very traditional, outdated and stereotypical understanding of a family, as necessarily having two legal parents.

Examples of Comparators

At the same time, the Court has held that

• pensioners living within a country were not in a comparable situation to those living abroad as regards index-linking of pensions (Carson and Others v. the United Kingdom [GC], 2010);
• cohabiting sisters were not in a comparable situation to spouses or civil partners as regards inheritance tax (Burden v. the United Kingdom [GC], 2008);
• pensioners employed within the civil service were not in a comparable situation to those employed within the private sector as regards their pension entitlement (Fábián v. Hungary [GC], 2017) or to those belonging to a different categories of pensioners within the public sector (Gellérthegyi and Others v. Hungary (dec.), 2018);
• taxpayers who had not challenged a social contribution before it was declared unconstitutional were not in a comparable situation to those who had taken this bold initiative as regard the retroactive reimbursement of said social contribution (Frantzeskakis and Others v. Greece (dec.), 2019);
• public and privately-owned kindergartens were not in a comparable position as regards the payment of subsidies (Špoljar and Dječji vrtić Pčelice v. Croatia (dec.), 2020, §§ 40-44);
• pensioners in receipt of disability pension were not in a situation comparable to old-age pensioners as regards the possibility of recalculating their pension (Milivojević v. Serbia (dec.), 2022);
• a person who had hit a police officer who was trying to arrest her was not in a situation comparable to another person who had hit a civilian (P.W. v. Austria, 2022);

The difference in treatment – or failure to treat differently – can result in any of the forms of discrimination described above such as direct or indirect discrimination, and discrimination by association, for example. It is important to note that, in cases of discrimination by association, the comparator is compared to a person other than the applicant (Guberina v. Croatia, 2016, § 78; Škorjanec v. Croatia, 2017, § 55; Weller v. Hungary, 2009, § 37).

For example, in Molla Sali v. Greece [GC], 2018, the Court dealt with the situation of a married Muslim woman who was the beneficiary of her Muslim husband’s will. However, the Court did not compare the applicant’s situation to that of a married non-Muslim female beneficiary of a non-Muslim husband’s will. Instead, it examined the difference in treatment suffered by the applicant, as a beneficiary of a will drawn up in accordance with the Civil Code by a testator of Muslim faith, as compared to a beneficiary of a will drawn up in accordance with the Civil Code by a non-Muslim testator (§ 134).

Finally, the source of the difference in treatment can be the domestic legal regime (Ēcis v. Latvia, 2019), as well as the vocabulary used by a national court to motivate its decision (Carvalho Pinto de Sousa Morais v. Portugal, 2017) or even a purely private action (Identoba and Others v. Georgia, 2015).

Lack of objective and reasonable justification

The competent national authorities are frequently confronted with different situations which therefore call for different legal solutions. Moreover, certain legal inequalities are solely aimed at correcting factual inequalities (the Belgian linguistic case, 1968, § 10 of “the Law” part).

Thus, Article 14 does not prohibit differences in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (G.M.B. and K.M. v. Switzerland (dec.), 2001; Zarb Adami v. Malta, 2006, § 73).

In the Court’s words, a difference in treatment will be discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Molla Sali v. Greece [GC], 2018, § 135; Fábián v. Hungary [GC], 2017, § 113; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, § 72; the Belgian linguistic case, 1968, § 10 of “the Law” part). Therefore, the Court will proceed to a so-called “proportionality test” divided in two steps. Firstly, it will examine the existence of a legitimate aim (Section 1 below) and, secondly, it will check the proportionality stricto sensu of the difference in treatment (Section 2 below).

Legitimate aim

In order to justify a difference in treatment, in the first place States have to base the measure at issue on a “legitimate aim” (Molla Sali v. Greece [GC], 2018, § 135; Fabris v. France [GC], 2013, § 56). Moreover, they have to show that there is a “link” between the legitimate aim pursued and the differential treatment alleged by the applicant. For example, the Court found that there was no link between the aim of preserving family unity and the bearing of a joint family name based on the husband’s name, resulting in a lack of justification of the obligation on married women to bear their husband’s surname (Ünal Tekeli v. Turkey, 2004, § 66).

The Court has identified a number of aims that can be considered acceptable for the application of Article 14, such as

• achieving the effective implementation of policy developing linguistic unity (the Belgian linguistic case, 1968);
• legal certainty of completed inheritance arrangements (Fabris v. France [GC], 2013);
• restoration of peace (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 45);
• protection of national security (Konstantin Markin v. Russia [GC], 2012, § 137);
• Providing a public service wholly committed to the promotion of equal opportunities and requiring all its employees to act in a way which does not discriminate against others (Eweida and Others v. the United Kingdom, 2013, § 105);
• maintenance of economic stability and restructuration of the debt in the context of a serious political, economic and social crisis (Mamatas and Others v. Greece, 2016, § 103);
• facilitation of rehabilitation of juvenile delinquents (Khamtokhu and Aksenchik v. Russia [GC], 2017, § 80);
• protection of women against gender-based violence, abuse and sexual harassment in the prison environment (Khamtokhu and Aksenchik v. Russia [GC], 2017, § 82); or
• Protection of the environment (Advisory opinion on the difference in treatment between landowner associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and those set up after that date, 2022).

Some aims relied on by Governments have not been considered legitimate by the Court. For instance, no legitimate aim was found in respect of a measure reserving the right to exemption from church tax only to persons formally registered as residents in the respondent State on the ground that the case for reduction could not be argued with the same force in regard of persons who were not resident as it could in regard to those who were, and that the procedure would be more complicated if the reduction was to apply to non-residents (Darby v. Sweden, 1990, § 33). Equally, references to traditions, general assumptions or prevailing social attitudes in a particular country were considered to be insufficient justification for a difference in treatment on grounds of sex (Ünal Tekeli v. Turkey, 2004, § 63; Konstantin Markin v. Russia [GC], 2012, § 127).

A special situation arises with the aim of supporting and encouraging traditional family. Indeed, if the Court in its earlier case-law considered this aim in itself legitimate or even praiseworthy (Marckx v. Belgium, 1979, § 40) and, in principle, a weighty and legitimate reason which might justify a difference in treatment (Karner v. Austria, 2003, § 40), this approach somewhat changed in more recent cases interpreting the Convention in present-day conditions. As a result, the Court considered the aim of protecting the family in the traditional sense as “rather abstract” (X and Others v. Austria [GC], 2013, § 139) and legitimate only in some circumstances (Taddeucci and McCall v. Italy, 2016, § 93). In Bayev and Others v. Russia, 2017, for example, the Court considered that there was no reason to consider the maintenance of family values as the foundation of society to be incompatible with the acknowledgement of the social acceptance of homosexuality, especially in view of the growing general tendency to include relationships between same-sex couples within the concept of “family life” (§ 67).

Finally, the aims indicated by the Governments to justify differential treatment may be considered legitimate only if certain safeguards are put in place, and it is the Court’s task to examine whether such safeguards exist at each stage of the implementation of the measures and whether they are effective. For example, the temporary placement of children in a separate class on the ground that they lacked adequate command of the language of instruction in school is not, as such, automatically contrary to Article 14 of the Convention. Indeed, in certain circumstances such placement may pursue the legitimate aim of adapting the education system to the specific needs of the children. However, when such a measure disproportionately or even exclusively affects members of a specific ethnic group, then appropriate safeguards have to be put in place (Oršuš and Others v. Croatia [GC], 2010, § 157).

Proportionality

After establishing a legitimate aim, the Court requires that the difference in treatment strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms of the individual (the Belgian linguistic case, 1968, § 10 of “the Law” part). Thus, the Court requires a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Molla Sali v. Greece [GC], 2018, § 135; Fabris v. France [GC], 2013, § 56; Mazurek v. France, 2000, §§ 46 and 48; Larkos v. Cyprus [GC], 1999, § 29).

As the Court’s role is not to substitute the competent national authorities in assessing whether and to what extent differences in otherwise similar situations justified differential treatment, States enjoy a certain margin of appreciation. The scope of that margin will vary according to the circumstances, the subject-matter and the background of the case (Molla Sali v. Greece [GC], 2018,
§ 136; Stummer v. Austria [GC], 2011, § 88; Burden v. the United Kingdom [GC], 2008, § 60; Carson and Others v. the United Kingdom [GC], 2010, § 61).

On the one hand, the Court has indicated some areas where the State’s margin of appreciation remains rather wide. For example, the Court has held that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is manifestly without reasonable foundation (Belli and Arquier-Martinez v. Switzerland, 2018, § 94; Mamatas and Others v. Greece, 2016, §§ 88-89; Stummer v. Austria [GC], 2011, § 89; Andrejeva v. Latvia [GC], 2009, § 83; Burden v. the United Kingdom [GC], 2008, § 60; Stec and Others v. the United Kingdom [GC], 2006, § 52; Carson and Others
v. the United Kingdom [GC], 2010, § 61). The same is true for matters related to general measures of social strategy (the Belgian linguistic case, 1968, § 10 of “the Law” part) and property (Chabauty v. France [GC], 2012, § 50).

On the other hand, the Court has also identified certain grounds of discrimination where such margin is reduced. Indeed the Court has held time and again that no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin was capable of being objectively justified in a modern democratic society built on the principles of pluralism and respect for different cultures (D.H. and Others v. the Czech Republic [GC], 2007, § 176; Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, §§ 43-44). Similarly, differences in treatment on the basis of gender or sexual orientation may only be justified by very weighty reasons (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, § 78; Konstantin Markin v. Russia [GC], 2012, § 127; Beeler v. Switzerland [GC], 2020,
§ 96; Schalk and Kopf v. Austria, 2010, § 97).

As with the other provisions of the Convention, one of the criteria used by the Court to define the State’s margin of appreciation in discrimination cases is the existence and the extent of a consensus among Contracting States on the issue at stake. Since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond to any emerging consensus as to the standards to be achieved (Weller v. Hungary, 2009, § 28; Stec and Others v. the United Kingdom [GC], 2006, §§ 63-64; Ünal Tekeli  v. Turkey, 2004, § 54; Stafford v. the United Kingdom [GC], 2002, § 68; Konstantin Markin v. Russia [GC], 2012, § 126).