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.”
“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.
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 differently 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.
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.
In Stec v UK discrimination in relation to industrial injury benefit in the context between men and women breached Article 14. Women retired at age 60 and the benefit was reduced for women, but not for men who retired at 65 years. The injury benefit was a possession within the meaning of Article 1 Protocol 1, even though the state was not obliged to provide it and accordingly fell within the scope of Article 14. Having provided a benefit, it was subject to Article 14’s provisions on discrimination.
In Haas v Neverland an illegitimate child had not been recognised and did not inherit his father’s death intestate. As there was no family life within Article 8, Article 14 equality did not arise.
In Sidabras & Dzautas v Lithuanian KGB officers had been dismissed from applying for jobs in the private sector. The restrictions which might have been justified on national security basis in the public sector could not be justified in the private sector. The court looked at the equality of treatment between persons who had been employed in the KGB and those who had not. The minority judges rejected this as a status as it was not an element of one’s personality in the same way as other protected statuses.
Race and colour
Ethnicity and race are related and overlapping concepts (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 43; Timishev v. Russia, 2005, § 56). Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies on the basis of morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked in particular by common nationality, tribal affiliation, religion, shared language, or cultural and traditional origins and backgrounds (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 43; Timishev v. Russia, 2005, § 55).
Discrimination on account of a person’s actual or perceived ethnic origin is a form of racial discrimination (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 43; Timishev v. Russia, 2005, § 55). Racial discrimination, as racial violence, is particularly egregious and, in view of its perilous consequences, requires special vigilance and a vigorous reaction from the authorities. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 43; Nachova and Others [GC], 2005, § 145; Timishev v. Russia, 2005, § 56; Soare and Others v. Romania, 2011, § 201; Stoica v. Romania, 2008, § 117).
In this context, where a difference in treatment is based on race or ethnicity, the notion of objective and reasonable justification must be interpreted as strictly as possible (D.H. and Others v. the Czech Republic [GC], 2007, § 196; Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009, § 44). No difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary 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, § 44; Timishev v. Russia, 2005, § 58).
The Court has dealt with a number of cases of racist violence committed by the police (Nachova and Others v. Bulgaria [GC], 2005; B.S. v. Spain, 2012; Stoica v. Romania, 2008; Bekos and Koutropoulos v. Greece, 2005; Turan Cakir v. Belgium, 2009; Adzhigitova and Others v. Russia, 2021) or by private individuals (Abdu v. Bulgaria, 2014; Moldovan and Others v. Romania (no. 2), 2005; Šečić v. Croatia, 2007; Makhashevy v. Russia, 2012; Fedorchenko and Lozenko v. Ukraine, 2012).4
In this respect the Convention organs have also accepted that discrimination based on race could, in certain circumstances, of itself amount to “degrading treatment” within the meaning of Article 3 (East African Asians v. the United Kingdom, 1973, Commission’s report; Abdu v. Bulgaria, 2014, § 23).
Where there is suspicion that racial attitudes induced a violent act, it is particularly important that the official investigation is pursued with vigour and impartiality. Moreover, when investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were any racist motives and to establish whether feelings of hatred or prejudice based on a person’s ethnic origin played a role in the events. This must be done having regard to the need to continuously reassert society’s condemnation of racism and ethnic hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (Nachova and Others v. Bulgaria [GC], 2005, § 160; Abdu v. Bulgaria, 2014, § 29). The obligation on the authorities to seek out a possible link between racist attitudes and a given act of violence is thus not only an aspect of the procedural obligations flowing from Articles 2 and 3 of the Convention, but also part of the responsibility incumbent on States under Article 14 of the Convention taken in conjunction with Articles 2 and 3 (Nachova and Others v. Bulgaria [GC], 2005, § 160; Abdu v. Bulgaria, 2014, § 31; Menson and Others v. the United Kingdom (dec.), 2003).
The Court further specified the scope of the duty to investigate a racially motivated act of violence in Škorjanec v. Croatia, 2017, where the applicant was attacked because of her partner’s Roma ethnicity. Article 14 in conjunction with Article 3 thus concerns not only acts of violence based on a victim’s actual or perceived personal status or characteristics but also acts of violence based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic.
The Court found a violation of Article 14 in conjunction with Article 8 in Burlya and Others v. Ukraine, 2018, concerning the failure of the police to protect Roma residents from a pre-planned attack on their homes by an anti-Roma mob. Although some of the applicants had been absent from the village at the time of the events and no physical violence was involved, the Court notably took into account the facts that no investigation had ever been conducted and no person had been held responsible for the attack.
In Paketova and Others v. Bulgaria, 2022, the Court found a violation of Article 8 taken together with Article 14 because the applicants were forced to leave their homes amid recurrent anti-Roma marches in their village which they could legitimately have feared, even if it was not established that the protestors actually came in close proximity to the applicants, and because of the officials’ repeated public display of opposition to the return of Roma to their homes, which opposition represented a real obstacle to the applicants’ peaceful return.
The Court has also found violations of Article 14 read in conjunction with Article 2 of Protocol No. 1 in a number of cases concerning the right to education of Roma pupils (D.H. and Others v. the Czech Republic [GC], 2007; Horváth and Kiss v. Hungary, 2013; Oršuš and Others v. Croatia [GC], 2010; Lavida and Others v. Greece, 2013; Sampanis and Others v. Greece, 2008; Elmazova and Others v. North Macedonia, 2022).
Moreover, with regard in particular to discrimination against Roma people, the Court has repeatedly stressed that, as a result of their turbulent history and constant uprooting, the Roma have become a specific type of disadvantaged and vulnerable minority (D.H. and Others v. the Czech Republic [GC], 2007, § 182). Therefore, special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (ibid., § 181).
In Terna v. Italy, 2021, the applicant’s granddaughter was taken into public care because she had lived in a criminal environment and the applicant had been unable to care for her. Although the child’s guardian had asked the court to suspend the applicant’s contacts with her granddaughter altogether on account of a risk that the child would be abducted by fellow members of the Roma community, that proposal was rejected by the court. The Court found a breach of Article 8 in that, due to a systemic problem in Italy, no visits ever took place between the applicant and her graddaughter. However, despite available data showing that a large number of Roma children were taken into care in Italy, in the present case the domestic courts had not used arguments concerning the child’s ethnic origin and instead their action was based on the particular child’s best interests. Moreover, although the guardian’s considerations had reflected prejudice and could not be dismissed as unfortunate remarks, they were in themselves insufficient to conclude that the domestic court decisions had been motivated by the child’s ethnic origin.
Other areas in which the Court found violations of its non-discrimination provisions on the grounds of racial/ethnic discrimination concerned the requirement to affiliate oneself with one of the three “constituent people” of Bosnia and Herzegovina in order to be eligible to stand for elections to the highest political offices in that country (Sejdić and Finci v. Bosnia and Herzegovina [GC], 2009), the right to liberty of movement of Chechen people in Russia, which was found to be restricted solely on the ground of the applicant’s ethnic origin (Timishev v. Russia, 2005), family reunification rules which had a disproportionately prejudicial effect on persons of different ethnic origin (Biao v. Denmark [GC], 2016).
The Court found that the applicants’ voting rights had been breached by the shortcomings in the national minority voting system affecting secrecy of vote, voters’ free political choice and making it impossible for a national minority candidate to win a seat in Parliament (Bakirdzi and E.C. v. Hungary, 2022)6.
The cases of Budinova and Chaprazov v. Bulgaria and Behar and Gutman v. Bulgaria concerned the failure of the State to discharge its positive obligation to protect individuals from hate speech by a politician, against Roma in the former case and against Jews in the latter case. The Court clarified when such expressions fall within the ambit of “private life” and criticised the Bulgarian authorities for not assessing the tenor of the politician’s statements in an adequate manner. By, in effect, ascribing considerable weight to his freedom of expression in relation to the impugned statements, and by downplaying their effect on the applicants’ right to respect for private life as ethnic Jews and ethnic Roma, respectively, living in Bulgaria, the domestic courts had failed to carry out the requisite balancing exercise in line with the Court’s case-law and therefore to comply with their positive obligation to adequately respond to discrimination on account of the applicants’ ethnic origin and to secure respect for their “private life”.
In Muhammad v. Spain, 2022, the applicant and his friend, both Pakistani nationals of the same ethnicity, were requested to identify themselves on a public street allegedly on the sole grounds of their race. In Basu v. Germany, 2022, the police carried out an identity check of the applicant, a German national of Indian origin, and of his daughter, on a train, allegedly because of his dark skin colour.
However, the Court may decide not to examine a case under Article 14 when it has already found a separate breach of the substantive Article of the Convention. For example, in V.C. v. Slovakia, 2011, which concerned the sterilisation of a Roma woman without her informed consent, the Court found a violation of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life) and did not find it necessary to examine separately the applicant’s complaint under Article 14.
The leading case in which the Court addressed discrimination on grounds of language is the Belgian linguistic case, 1968, concerning the teaching of languages in the Belgian educational system. The State refused to establish or subsidise, in the Dutch unilingual region, primary school education in which French was employed as the language of instruction. For the Court, the difference in treatment was justified as, the two regions being predominantly unilingual, it would not have been feasible to make teaching available in both languages. Furthermore, families were not prevented from making use of private education in French in Dutch-speaking regions.
In its subsequent case-law the Convention organs found that the Convention did not guarantee linguistic freedom as such, and particularly the right to use the language of one’s choice in an individual’s relations with public institutions and to receive a reply in this language (Igors Dmitrijevs
v. Latvia, 2006, § 85; Pahor v. Italy, 1994, Commission decision; Association “Andecha Astur” v. Spain, 1997, Commission decision; Fryske Nasjonale Partij and Others v. the Netherlands, 1985, Commission decision; Isop v. Austria, 1962, Commission decision).
The case of Macalin Moxamed Sed Dahir v. Switzerland (dec.) (2015) concerned a Somali national, living and married in Switzerland, whose request for permission to change her name was refused. Her request stemmed from the fact that, when the applicant’s maiden name was pronounced according to the rules of “Western” pronunciation, it took on a humiliating meaning in Somali. The applicant claimed to have been a victim of discrimination on grounds of language amounting to a violation of Article 14 taken together with Article 8. The Court considered the complaint manifestly ill- founded because the language in which the offensive meaning was heard was Somali and the applicant’s situation was not therefore comparable to that of persons whose names took on humiliating meaning in the widely spoken national languages.
In Paun Jovanović v. Serbia, 2023, the applicant was denied the right to use Ijekavian, one of the two variants of the Serbian language in equal official use domestically, while acting on behalf of his client in court proceedings. The Court observed that the applicant had been treated differently than any other lawyer, who had used Ekavian, the other official variant of the Serbian language, and who, unlike the applicant, had not been asked by the court to use “the official language in the proceedings” (§ 83). The Court concluded that there could not have been an objective and reasonable justification for such treatment (§ 91)7.
Along with the protection against discrimination on the grounds of religion provided by Article 14, the Convention contains a substantive provision expressly providing for the right to freedom of thought, conscience and religion enshrined in Article 9 of the Convention.8 These notions protect “atheists, agnostics, sceptics and the unconcerned”, thus protecting those who choose to hold or not to hold religious beliefs and to practise or not to practise a particular religion (S.A.S. v. France [GC], 2014, § 124; İzzettin Doğan and Others v. Turkey [GC], 2016, § 103). Religion and belief are essentially personal and subjective, and need not necessarily relate to a faith arranged around institutions (Moscow Branch of the Salvation Army v. Russia, 2006, §§ 57-58; Metropolitan Church of Bessarabia and Others v. Moldova, 2001, § 114; Hasan and Chaush v. Bulgaria [GC], 2000, §§ 62 and 78). Newer religions, such as Scientology, as well as non-traditional religious associations, have also been found to qualify for protection (Church of Scientology Moscow v. Russia, 2007; Ancient Baltic religious association “Romuva” v. Lithuania, 2021).
On several occasions the Court has held that, in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State had a duty to remain neutral and impartial (Members of the Gldani Congregation of Jehovah’s Witnesses and Others
v. Georgia, 2007, § 131; Manoussakis and Others v. Greece, 1996, § 47; Metropolitan Church of Bessarabia and Others v. Moldova, 2001, § 123). That duty was incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed (İzzettin Doğan and Others v. Turkey [GC], 2016, § 68; S.A.S. v. France [GC], 2014, § 55; Eweida and Others v. the United Kingdom, 2013, § 81).
Religious communities were autonomous in the sense that States were not required to create a particular legal framework in order to grant them a special status entailing specific privileges, but a State which has created such a status had to ensure that religious groups had a fair opportunity to apply for this status and that the criteria established were applied in a non-discriminatory manner (İzzettin Doğan and Others v. Turkey [GC], 2016, § 164). With regard to discrimination on grounds of religion, the Court has held that differential treatment based essentially on religion alone was not acceptable (Hoffmann v. Austria, 1993, § 36).
The Court has found that the difference in treatment on grounds of religion had not been sufficiently justified, thus giving rise to a breach of Article 14, in cases concerning, for example,
- violence based on the victims’ faith (Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 2007; Milanović v. Serbia, 2010);
- the inability of certain churches to provide religious education in schools and to conclude officially recognised religious marriages (Savez crkava “Riječ života” and Others v. Croatia, 2010);
- the refusal to grant parental rights in view of a parent’s religious convictions (Hoffmann v. Austria, 1993; Vojnity v. Hungary, 2013);
- the prohibition for employees of a private company to wear religious symbols although they did not cause any health or safety concerns (Eweida and Others v. the United Kingdom, 2013; see, a contrario, Ebrahimian v. France, 2015, which was examined only from the standpoint of Article 9);
- the requirement of obtaining a certificate of approval for immigrants wishing to marry other than in the Church of England (O’Donoghue and Others v. the United Kingdom, 2010);
- the inconsistent application of qualifying periods for eligibility to register as a religious society (Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 2008);
- the failure to provide a pupil excused from religious instruction with ethics classes and associated marks (Grzelak v. Poland, 2010);
- the failure to recognse services connected with the Alevi faith as a religious public service (İzzettin Doğan and Others v. Turkey [GC], 2016)
- the denial of State recognition to a pagan religious association which met the eligibility criteria, on grounds incompatible with the State’s duty of neutrality and impartiality (Ancient Baltic religious association “Romuva” v. Lithuania, 2021);
- the refusal of a tax exemption for buildings used for the public practice of a non-recognised religion (Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v. Belgium, 2022).
The Court found discrimination by association on grounds of religion in the case of Molla Sali v. Greece [GC], 2018, concerning 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 non-Muslim testator. The Court also established a positive obligation for States to treat differently persons convicted of offences committed due to their religious beliefs (Thlimmenos v. Greece [GC], 2000).
In some cases other competing rights or freedoms had in the Court’s view prevailed over freedom of religion, leading it to conclude that the difference in treatment on grounds of religion had been justified. In S.A.S. v. France [GC], 2014, concerning the ban on the full covering of the face in public places, the Court found that, while it might be considered that the ban at issue had specific negative effects on the situation of Muslim women who, for religious reasons, wished to wear the full- face veil in public, this measure had an objective and reasonable justification, namely, pursuing the aims of public safety and of respect for the minimum set of values of an open and democratic society (§§ 160-162; see also Köse and Others v. Turkey (dec.), 2006).
In Eweida and Others v. the United Kingdom, 2013, concerning, among other things, the right for a registrar of marriages and a counsellor to refuse to officiate same-sex marriages and to provide counselling to same-sex couples respectively, the Court found that their dismissal on the ground that they refused to provide the service they had been hired for did not violate their Convention rights. In this respect the Court stressed that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief, although not determinative of the question whether or not there had been an interference with Article 9 rights, nevertheless needed to be weighed in the balance when assessing whether a fair balance had been struck (§ 109).
In Palau-Martinez v. France, 2003, the Court found a violation of Article 8 in conjunction with Article 14 on account of the fact that the residence rights of his child had been determined on the basis of the applicants’ religious beliefs. More recently, in T.C. v. Italy, 2022, a revocable and reviewable order prohibiting the applicant, who was a Jehovah’s Witness, from actively involving his young child, brought up in Catholicism, in his religious practice was found not to have breached his rights under Article 14 taken in conjunction with Article 8 read in light of Article 9 of the Convention.
The case of Cha’are Shalom Ve Tsedek v. France [GC] (2000) concerned the refusal by the State to permit an Orthodox Jewish association to carry out ritual slaughters in accordance with its strict requirements. The applicant association claimed that the State’s refusal had been discriminatory given that it had granted such an approval to another association. The Court found that such a refusal had pursued a legitimate aim, and there had been a reasonable relationship of proportionality between the means employed and the aim sought to be realised. It did therefore not violate the applicant association’s rights under Article 14. In Alujer Fernández and Caballero García v. Spain (dec.), 2001, the applicants were members of the Baptist Evangelical Church in Valencia and complained about their inability to allocate a proportion of their income tax directly to their Church, without a prior agreement with the Spanish State. The Court declared their complaint inadmissible as the obligation imposed on Churches to reach an agreement with the State in order to be eligible to receive part of the revenue from income tax did not appear to be unfounded or disproportionate in light of the wide margin of appreciation enjoyed by States in this field.
Political or other Opinion
As early as 1976 the Court established that the right to freedom of expression protects not only “information” or “ideas” that were favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the State or any sector of the population (Handyside v. the United Kingdom, 1976, § 49).9 Political opinion has been given privileged status. The Court has repeatedly emphasised that free elections and freedom of expression, in particular freedom of political debate, constitute the foundation of any democratic system (Oran v. Turkey, 2014, § 51). Accordingly, the powers of States to put restrictions on political expression or debate on questions of public interest are very limited (Kurski v. Poland, 2016, § 47).
The Court has rarely dealt with cases of discrimination on the grounds of a person’s political or other opinion. The case of Georgian Labour Party v. Georgia (2008) concerned the introduction of a new system of voter registration shortly before the election in a post-revolutionary context. The Court found that the applicant political party failed to show that either the challenged electoral mechanisms or the disenfranchisement of voters from a certain territory had been exclusively aimed at the applicant party and had not affected the other candidates standing for that election. The case of Adalı v. Turkey (2005) concerned the murder of a journalist, known for strong criticism of the policies and practices of the Turkish Government and the authorities of the “Turkish Republic of Northern Cyprus”, and alleged repeated acts of intimidation against his wife which she claimed had been discriminatory. The Court did not find sufficient evidence to find the existence of discrimination on grounds of political or other opinion.
In Virabyan v. Armenia, 2012, concerning the applicant’s ill-treatment by State agents allegedly motivated by his political convictions, the Court considered that the authorities’ obligation to use all available means to combat racism and racist violence also applied in cases where the treatment contrary to Article 3 of the Convention was alleged to have been inflicted for political motives. It reiterated that political pluralism, which implied a peaceful co-existence of a diversity of political opinions and movements, was of particular importance for the survival of a democratic society based on the rule of law. Acts of violence committed by agents of the State intended to suppress, eliminate or discourage political dissent or to punish those who hold or voice a dissenting political opinion posed a special threat to the ideals and values of such society (§§ 199-200).
National or Social Origin
According to a recurring formula used by the Court, very weighty reasons have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention (Gaygusuz v. Austria, 1996, § 42; Koua Poirrez v. France, 2003,
§ 46; Andrejeva v. Latvia [GC], 2009, § 87). For example, in Andrejeva v. Latvia [GC], 2009, the Court found a violation of Article 14 read in conjunction with Article 1 of Protocol No. 1 due to the refusal to take the applicant’s years of service acquired in the former Soviet Union (on today’s Latvian territory and while she was resident in Latvia) into account when calculating her entitlement to a retirement pension because she did not have Latvian citizenship.
More recently, in Savickis and Others v. Latvia [GC], 2022, the Court accepted that, in the context of a difference in treatment based on nationality, there may be certain situations where the element of personal choice linked with the legal status in question may be of significance, especially in so far as privileges, entitlements and financial benefits were at stake. In that case, the Court was called upon to examine whether the exclusion of employment periods of permanently resident non-citizens accrued in other states of the former Soviet Union in state pension had been discriminatory. In doing so, the Grand Chamber held that, unlike in Andrejeva, the margin of appreciation had been a wide one. In the specific context of the restoration of Latvia’s independence after unlawful occupation and annexation, the Court accepted that very weighty reasons had been put forward to justify the difference in treatment between the applicants and Latvian citizens in the circumstances.
Other cases regarding alleged discrimination on grounds of nationality concerned, for example,
- he authorities’ refusal to grant emergency assistance to an unemployed man because he did not have Austrian nationality (Gaygusuz v. Austria, 1996);
- the consequences of family’s loss of nationality on the applicant’s status as a mother of a large family and her related pension entitlement (Zeïbek v. Greece, 2009);
- an unlawfully resident alien who was refused legal aid for contesting paternity of her child (Anakomba Yula v. Belgium, 2009);
- the refusal to award the applicant a disability allowance on the ground that he was not a French national and that there was no reciprocal agreement between France and his country of nationality in respect of this benefit (Koua Poirrez v. France, 2003);
- the refusal of social therapy or relaxations in the conditions of preventive detention due to the applicant’s foreign nationality (Rangelov v. Germany, 2012);
- the prolonged failure of the Slovenian authorities to regularise the applicants’ residence status as citizens of other former Yugoslav republics following their unlawful “erasure” from the register of permanent residents (Kurić and Others v. Slovenia [GC], 2012);
- the requirement on aliens without permanent residence to pay secondary-school fees (Ponomaryovi v. Bulgaria, 2011);
- the refusal to grant family reunion to naturalised nationals as opposed to nationals born in the country (Biao v. Denmark [GC], 2016);
- the blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from a specific foreign State (A.H. and Others v. Russia, 2017).
In Biao v. Denmark [GC], 2016, the Court found that national law contributed to the creation of a pattern that was hampering the integration of aliens newly arrived in the country and that general biased assumptions or prevailing social prejudice in a particular country did not provide sufficient justification for a difference in treatment in cases of discrimination against naturalised nationals (§ 126).
Association with a (national) minority
In its case-law the Court has not defined “national minority” or found discrimination on the sole ground of “association with a national minority”. However, it has touched upon the exercise of rights of different minorities in a number of cases.
The question of “minority groups” has been raised in some cases dealing with discrimination based on ethnicity. In Paraskeva Todorova v. Bulgaria, 2010, for example, the applicant of Roma origin was refused a suspended sentence by the domestic court which referred to the existence of a widespread sentiment of impunity in society, highlighting in particular the extent of this phenomenon in the case of minority groups, for whom a suspended sentence is not a conviction. The Court considered that such a decision taken together with the applicant’s ethnic affiliation was likely to reveal an exemplary sentence for the Roma community by condemning a person belonging to the same minority group (§§ 38-40) and found a violation of Article 14.
The Court has also stressed the necessity to protect a “sexual minority” under Article 14. The case of Bayev and Others v. Russia, 2017, concerned a legal ban on public statements concerning the identity, rights and social status of sexual minorities. The Government claimed that the legislation in question had to be understood in a context in which the majority of Russians disapprove of homosexuality and resent any display of same-sex relations. The Court considered that, while it was true that popular sentiment might play an important role in the Court’s assessment when it comes to the justification on the grounds of morals, the legislation in question represented a pre-disposed bias against a homosexual minority and it would be incompatible with the underlying values of theConvention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority (§ 70).
In Molla Sali v. Greece [GC], 2018, the Court also recognised the “right to free self-identification” as an important right in the field of protection of minorities (§ 157). In that case the applicant complained about the application of Islamic law in proceedings concerning her husband’s succession despite the fact that her husband had drawn up a will in accordance with the Greek Civil Code. The Government submitted that the settled case-law of the Court of Cassation pursued the aim of protecting the Thrace Muslim minority. The Court doubted whether the impugned measure regarding the applicant’s inheritance rights had been suited to achieve that aim. It held that refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounted not only to discriminatory treatment but also to a breach of their right to free self-identification, which was of cardinal importance in the field of protection of minorities. This right applied in its positive aspect to people who wished to be treated as members of a minority but also concerned in its negative aspect, the right to choose not to be treated as a member of a particular minority. In this second aspect, the choice was completely free, provided it is informed, and must be respected both by the other members of the minority in question and by the State itself. No bilateral or multilateral treaty or other instrument required anyone to submit against his or her wishes to a special regime in terms of protection of minorities. Consequently, the Court concluded that the measure in question was not proportionate to the aim pursued.
The Court examined discrimination on the grounds of property in two leading cases: Chassagnou and Others v. France [GC], 1999, and Chabauty v. France [GC], 2012. The case of Chassagnou and Others v. France [GC], 1999, concerned the compulsory inclusion of the applicants’ lands in the hunting grounds of the local hunters’ associations and the obligation to join this association although they disapproved of its objectives. The Court found a violation of Article 14 in conjunction with Article 1 of Protocol No. 1 and with Article 11 of the Convention because the distinction drawn between small and large landowners as regards their freedom to use their property for a purpose other than hunting had had no pertinent justification.
On the other hand, in Chabauty v. France [GC], 2012, the Court considered that the inability of small landholders, in contrast to large landholders, to have land removed from the control of approved hunters’ association other than on ethical grounds did not constitute a violation of Article 14.
When it comes to the personal characteristic of “birth status”, the Court considers that very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention (Fabris v. France [GC], 2013, § 59; Wolter and Sarfert v. Germany, 2017, § 58; Inze v. Austria, 1987, § 41), including when the difference in treatment affects the parents of children born within or out of wedlock (Sahin v. Germany [GC], 2003; Sommerfeld v. Germany [GC], 2003).
As early as 1979 the Court held that restrictions on children’s inheritance rights on grounds of birth were incompatible with the Convention (Marckx v. Belgium, 1979, § 59). It has constantly reiterated this fundamental principle ever since, establishing the prohibition of discrimination on grounds of a child’s birth “outside marriage” as a standard of protection of European public order (Fabris v. France [GC], 2013, § 57).
Nowadays, it is common ground among member States of the Council of Europe that children born within and children born outside marriage have to be treated equally. This has led to a uniform approach by the national legislatures on the subject and to social and legal developments definitively endorsing the objective of achieving equality between children (Fabris v. France [GC], 2013, § 58).
The distinction that had existed in many member States between children “born out of wedlock” (“illegitimate”) and children “born within marriage” (“legitimate”) for inheritance purposes raised several issues under Article 8 of the Convention taken alone (Johnston and Others v. Ireland, 1986) and under Article 14 taken in conjunction with Article 8 of the Convention (Brauer v. Germany, 2009; Vermeire v. Belgium, 1991) or Article 1 of Protocol No. 1 (Inze v. Austria, 1987; Mazurek v. France, 2000; Merger and Cros v. France, 2004; Fabris v. France [GC], 2013). The Court extended its case-law to include voluntary dispositions by upholding the prohibition of discrimination where testamentary dispositions were concerned (Pla and Puncernau v. Andorra, 2004).
In a case concerning the refusal to grant Maltese citizenship to a child born out of wedlock whose mother had not been Maltese, the Court explained that, although the right to citizenship was not as such a Convention right and its denial in the applicant’s case did not give rise to a violation of Article 8, its impact on the applicant’s social identity had been such as to bring it within the general scope and ambit of Article 14 of the Convention (Genovese v. Malta, 2011). It went on to find a breach of that Article.
However, in cases where the liquidation of the deceased’s estate occurred long before filiation of a child born out of wedlock had been established, the Court found that the applicants in such cases did not have a sufficient proprietary interest in respect of their deceased parent’s estate to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 and that, a fortiori, Article 14 was not applicable either (Alboize-Barthes and Alboize-Montezume v. France (dec.), 2008; Wysowska v. Poland (dec.), 2018, § 51).
In Zeggai v. France, 2022, § 55, the Court acknowledged that the date of birth also pertained to an individual’s “birth” status. The applicant was treated differently than his younger siblings with regard to the avenues available to them for obtaining French nationality, based on whether they had been born before or after Alger’s independence.