<\/span><\/h3>\nFor Article 14 to be applicable it is necessary, but also sufficient, for the facts of the case to fall within the wider ambit of one or more of the Convention Articles (Carson and Others v. the United Kingdom [GC], 2010, \u00a7 63; E.B. v. France [GC], 2008, \u00a7 47; Konstantin Markin v. Russia [GC], 2012, \u00a7 124; Sidabras and D\u017eiautas v. Lithuania, 2004, \u00a7 38; Beeler v. Switzerland [GC], 2020, \u00a7 48). As such, the material scope of application of Article 14 \u2013 read in conjunction with a substantive provision \u2013 cannot be reduced solely to the material scope of application of the substantive provision.<\/p>\n
As a consequence, the Court has established that the prohibition of discrimination applies to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide protection (F\u00e1bi\u00e1n v. Hungary [GC], 2017, \u00a7 112; Biao v. Denmark [GC], 2016, \u00a7 88; \u0130zzettin Do\u011fan and Others v. Turkey [GC], 2016, \u00a7 158; Carson and Others v. the United Kingdom [GC], 2010, \u00a7 63; E.B. v. France [GC], 2008, \u00a7 48; X and Others v. Austria [GC], 2013, \u00a7 135; Genovese v. Malta, 2011, \u00a7 32; Beeckman and Others v. Belgium (dec.), 2018, \u00a7 19).<\/p>\n
The Court itself has provided a number of examples of this concept of \u201cadditional rights\u201d, explaining that, for instance, Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason, while making them available to others in respect of the same type of actions (the Belgian linguistic case, 1968, \u00a7 9 of \u201cthe Law\u201d part).<\/p>\n
To this end, it is necessary that the legal interest to which the non-discrimination requirement applies falls within the ambit of the substantive Article (Zarb Adami v. Malta, 2006, \u00a7 49), is linked to the exercise of a right guaranteed by the substantive Article (Konstantin Markin v. Russia [GC], 2012, \u00a7 129), or does not fall completely outside the ambit of the substantive Article (Van der Mussele v. Belgium, 1983, \u00a7 43).<\/p>\n
The Court has thus found Article 14, read in conjunction with a substantive right, applicable to a number of circumstances. For example, it recognised that rights such as the right for a single homosexual parent to adopt a child (E.B. v. France [GC], 2008, \u00a7 43), parental leave and parental allowances (Konstantin Markin v. Russia [GC], 2012, \u00a7 130) and denial of citizenship (Genovese v. Malta, 2011; Zeggai v. France, 2022) come within the scope of Article 8 in conjunction with Article 14. By the same token, the Court has found Article 14 in conjunction with Article 1 of Protocol No. 1 applicable to a variety of welfare benefits (Stummer v. Austria [GC], 2011, \u00a7 82; Stec and Others v. the United Kingdom [GC], 2006, \u00a7 53; Carson and Others v. the United Kingdom [GC], 2010, \u00a7\u00a7 64- 65; Andrejeva v. Latvia [GC], 2009, \u00a7 77; F\u00e1bi\u00e1n v. Hungary [GC], 2017, \u00a7 117; P.C. v. Ireland, 2022, \u00a7 54; see also, a contrario, Dobrowolski and Others v. Poland (dec.), 2018, where the Court held that a prisoner did not have a legitimate expectation to receive more than a half of the statutory minimum wage for work performed in prison).<\/p>\n
The Court has clarified the criteria by which to assess whether an identity check, allegedly based on physical or ethnic motives, falls within the ambit of Article 8, under its \u201cprivate life\u201d aspect, thus triggering the applicability of Article 14, and clarified the scope of the procedural obligations in this context. The Court considered that an arguable claim may notably exist where the person concerned submitted that he or she (or persons having the same characteristics) had been the only person(s)\u00a0subjected to a check and where no other grounds for the check were apparent or where any explanations of the officers carrying out the check disclosed specific physical or ethnic motives. The Court further observed that the public nature of the check may have an effect on a person\u2019s reputation (Muhammad v. Spain, 2022, \u00a7 50, Basu v. Germany, 2022, \u00a7 25).<\/p>\n
<\/span>Horizontal Effect<\/span><\/h3>\nThe Court pointed out the \u201chorizontal effect\u201d of Article 14, meaning that the principle of non- discrimination may also apply in purely private situations. Indeed, the Court has held that it could not remain passive where a national court\u2019s interpretation of a legal act \u2013 be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice \u2013 appeared unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination enshrined in Article 14 and more broadly with the principles underlying the Convention.<\/p>\n
In Pla and Puncernau v. Andorra, 2004, for example, the national jurisdiction had interpreted a person\u2019s will and considered that the testator had not wished to include adopted children as beneficiaries of the estate. The Court considered that, in conjunction with Article 8, Article 14 did not merely compel State to abstain from any arbitrary interference with an individual\u2019s private and family life. It held in this context that, in addition to this negative undertaking, there may be positive obligations inherent in an effective \u201crespect\u201d for private or family life (\u00a7 59).<\/p>\n
In other cases, the Court found that the Contracting States had not taken the necessary measures in order to prevent or punish discrimination between private parties. In Danilenkov and Others v. Russia, 2009, for example, the State failed to afford effective judicial protection against discrimination on the ground of trade-union membership to employees on strike who were fired by their employer.<\/p>\n
In cases concerning discrimination through violence emanating either from State agents or private individuals, State authorities have been required to conduct an effective and adequate investigation by ascertaining whether there were discriminatory motives and whether feelings of hatred or prejudice based on an individual\u2019s personal characteristic played a role in the events (Abdu v. Bulgaria, 2014, \u00a7 44; Milanovi\u0107 v. Serbia, 2010, \u00a7 90). The case of Members of the Gldani Congregation of Jehovah\u2019s Witnesses and Others v. Georgia, 2007, concerned a violent assault on the congregation of Jehovah\u2019s Witnesses by a group purporting to support the Orthodox Church and the lack of an effective investigation. In Identoba and Others v. Georgia, 2015, the Court considered that the State had violated its obligations under the principle of non-discrimination due to the failure to protect demonstrators from homophobic violence and to launch an effective investigation.<\/p>\n
Finally, the failure to enforce a judgment acknowledging gender discrimination against a working mother (Garc\u00eda Mateos v. Spain, 2013), the refusal to award compensation to a serviceman for discrimination with respect to his right to parental leave (Hulea v. Romania, 2012) and the failure to enforce a judgment of the Court finding a violation of Article 14 (Sidabras and Others v. Lithuania, 2004) have also resulted in breaches of Article 14.<\/p>\n
In Nachova v Bulgaria there were failings in the investigation of apparently racially motivated murders of members of the Roma community who were on the run from the police. The investigation was inadequate for the purposes of Article 2 right to life and there was a violation of Article 14.<\/p>\n
Owing to the interplay between the two provisions issues such as those in the present case fall to be the examined under one of the two provisions only, with no separate issue arising under the other, may require examination under both Articles. This is a question to be decided in each case on its facts depending on the nature of the allegation made.<\/p>\n
Feorchenko v Ukraine the facts were similar to those above and involved an attack on a Roma person which was not adequately investigated. There was a violation of Article 2 and Article 14. This is.<\/p>\n\n
\n <\/div>\n\n","protected":false},"excerpt":{"rendered":"
Non-Discrimination. 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.” […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[348],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23363"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23363"}],"version-history":[{"count":21,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23363\/revisions"}],"predecessor-version":[{"id":23518,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23363\/revisions\/23518"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23363"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23363"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23363"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}