As in other equality contexts, the comparator should be in a similar or analogous situation.
In Van der Mussele v Belgium the person claimed to be comparators were found to be in a different position and could not be used are not comparators legitimate comparators for the purpose of the claim.
In Burden v UK sisters living together sought to compare their status with that civil partner. The European court did not accept that they were proper comparators because the relationship was different being founded on the decision to marry or enter a civil partnership.
DH v Czech Republic confirmed that the guarantee encompasses indirect discrimination. This applies where the same requirements apply to both categories but significant numbers of persons in one category can meet the requirement relative to those in the other category.
Burden of Proof
When examining the cases before it in terms of evidence, the Court usually applies the principle affirmanti incumbit probatio, that is to say, that the applicant has to prove his or her allegation.
The Court applies the standard of proof “beyond reasonable doubt” as a normal standard for all rights set forth by the Convention. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of 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 facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (Nachova and Others v. Bulgaria [GC], 2005, § 147; Timishev v. Russia, 2005, § 39; D.H. and Others v. the Czech Republic [GC], 2007, § 178; Muhammad v. Spain, 2022, § 94).
In discrimination cases, the Court has established that, once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (Timishev v. Russia, 2005, § 57).
For example, in Timishev v. Russia, 2005, the applicant alleged that he was prevented from passing a checkpoint into a particular region because of his Chechen ethnic origin. The Court found this to be corroborated by official documents, which noted the existence of a policy to restrict the movement of ethnic Chechens. The State’s explanation was found unconvincing because of inconsistencies in its assertion that the victim left voluntarily after being refused priority in the queue. Accordingly, the Court accepted that the applicant had been discriminated against on the basis of his ethnicity.
The exception: reversal of the burden of proof
The Court has also recognised that Convention proceedings do not lend themselves in all cases to a rigorous application of the principle affirmanti incumbit probatio. For instance, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (Salman v. Turkey [GC], 2000, § 100; Anguelova v. Bulgaria, § 111; Makuchyan and Minasyan v. Azerbaijan and Hungary, 2020). The Court has also shifted the burden of proof in other cases where it would be extremely difficult in practice for the applicant to prove discrimination (Cînţa v. Romania, 2020).
In discrimination cases the Court has not excluded that in certain situations the respondent Government may be required to disprove an arguable allegation of discrimination and – if they fail to do so – the Court may find a violation of Article 14 of the Convention on that basis.
In order to rebut a presumption of discrimination, the State may either prove that the applicant is not actually in a similar or comparable situation to their “comparator”, that the differential treatment is not based on the protected ground, but on other objective differences, or that the difference in treatment was justified (Khamtokhu and Aksenchik v. Russia [GC], 2017, § 65; Chassagnou and Others v. France [GC], 1999, §§ 91-92; Timishev v. Russia, 2005, § 57; Biao v. Denmark [GC], 2016, § 114; D.H. and Others v. the Czech Republic [GC], 2007, § 177).
Such an approach has been mainly used in cases of alleged indirect discrimination, where the applicants may have difficulty in proving discriminatory treatment. In such cases statistical data can play an important role in helping the applicant to give rise to a presumption of discrimination. Where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of a group in comparison to another group, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination (Hoogendijk v. the Netherlands (dec.), 2005; D.H. and Others v. the Czech Republic, 2007, § 180; Di Trizio v. Switzerland, 2016, § 86).
Statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence (D.H. and Others v. the Czech Republic [GC], 2007, § 188). Reliable national or international reports can also be used to that effect.
A specific set of circumstances needs to be proven in domestic violence cases, where the applicant has to show that such violence affects mainly women and that the authorities’ actions were not a simple failure or delay in dealing with domestic violence, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the applicant as a woman (Eremia v. the Republic of Moldova, 2013, § 89). For example, in Talpis v. Italy, 2017, the Court considered that the applicant had demonstrated the existence of prima facie discrimination through the conclusions of the Special Rapporteur on violence against women, its causes and consequences and of the National Statistics Institute.
In Opuz v. Turkey, 2009, there were no statistics presented to the Court showing that victims of domestic violence were predominantly women, and indeed it was noted that Amnesty International stated that there were no reliable data to this effect. Rather, the Court was prepared to accept the assessment of Amnesty International, a reputable international NGO and the UN Committee on the Elimination of Discrimination Against Women that violence against women was a significant problem in Turkey.
On the other hand, in Y and Others v. Bulgaria, 2022, the Court held that no concrete evidence had been presented to suggest that the domestic authorities had remained generally complacent in domestic violence cases. It was established that the Bulgarian authorities did not collect or keep comprehensive statistics about the manner in which the law-enforcement authorities handled domestic-violence cases, which was a serious omission already criticized by a number of international actors in the field. In the absence of comprehensive statistics, it was however open to the applicants to attempt to substantiate their assertion with other kinds of prima facie evidence, such as for instance specialised reports.
However, the three international reports they submitted urged the Bulgarian authorities to combat any discrimination against women, but they did not in terms state that the police or other authorities were consistently downplaying or unwilling to deal with domestic violence cases, or cite concrete field data on the point. Not having, in addition, established any proof of anti-female bias by the State officials dealing specifically with the victim’s case, or problems with the existing legal framework for the protection of women from domestic violence in Bulgaria, the Court found no violation of Article 14 in the case.
Reversal of Burden
In cases of alleged discrimination through violence, the Court has clarified that the alleged failure of the authorities to carry out an effective investigation into the supposedly discriminatory motive for a violent act should not, in itself, shift the burden of proof to the Government with regard to the alleged violation of Article 14 of the Convention taken in conjunction with the substantive aspect of Article 2 or Article 3 (ibid.). The contrary would amount to requiring the respondent Government to prove the absence of a particular subjective attitude on the part of the person concerned (Nachova and Others v. Bulgaria [GC], 2005, § 157; Bekos and Koutropoulos v. Greece, 2005, § 65).
The case of Nachova and Others v. Bulgaria [GC], 2005, concerned the shooting of two Roma fugitives by military police during an attempted arrest. Ultimately, the Court concluded that it had not been established that racist attitudes played a role in the fugitives’ deaths (see also Adam v. Slovakia, 2016). However,on the violation of Article 14 taken together with the procedural aspect of Article 2, the Court concluded that the authorities had failed in their duty to take all possible steps to investigate whether or not discrimination may have played a role in the events.
In Makuchyan and Minasyan v. Azerbaijan and Hungary, 2020, in view of the special features of the case – the promotion of a sentenced murderer of an Armenian soldier, the award of several benefits without any legal basis, his glorification as a hero by a number of high-ranking Azerbaijani officials, as well as the creation of a special page on the website of the President – in the Court’s view, the applicants had put forward sufficiently strong, clear and concordant inferences as to make a convincing prima facie case that the impugned measures had been motivated by the ethnic origin of the victims. Given the difficulty for the applicants to prove such bias beyond a reasonable doubt, the Court, in the particular circumstances of the case, reversed the burden of proof so that it became incumbent on Azerbaijan to disprove the arguable allegation of discrimination, which it had failed to do.
In Basu v. Germany, 2022, the Court considered that, once there is an arguable claim that an individual may have been targeted by a police identity check on account of racial characteristics and such acts fall within the ambit of Article 8, the duty of the authorities to investigate the existence of a possible link between racist attitudes and the act of a State agent is to be considered as implicit in their responsibilities under Article 14 examined in conjunction with Article 8 (Muhammad v. Spain, 2022, 68, Basu v. Germany, 2022, § 35).
The Court has also applied this rule in the context of alleged anti-union discrimination, finding that, once the applicants had demonstrated a prima facie case of discrimination, the burden of proof was to be shifted to the respondent, and the employer, usually having control over relevant evidence, had to demonstrate the existence of legitimate grounds for the applicants’ dismissal (Hoppen and trade union of AB Amber Grid employees v. Lithuania*, 2023, § 230).
In other discrimination cases, the practices or beliefs of others belonging to the same protected category may constitute sufficient proof. In Oršuš and Others v. Croatia [GC], 2010, concerning the placement of Roma children in Roma-only classes owing to their allegedly poor command of the Croatian language, the Court found that, unlike the case of D.H. and Others v. the Czech Republic [GC], 2007, the statistics alone did not give rise to a presumption of discrimination. However, the fact that the measure of placing children in separate classes on the basis of their insufficient language skills had only applied to Roma students gave rise to a presumption of differential treatment.
Rounds of Discrimination
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.
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.