<\/span><\/h3>\nThe Court has confirmed that the scope of Article 14 of the Convention and Article 1 of Protocol No. 12 included discrimination based on disability, medical conditions or genetic features (Glor v. Switzerland, 2009, \u00a7 80; G.N. and Others v. Italy, 2009, \u00a7 126; Kiyutin v. Russia, 2011, \u00a7 57). In cases concerning disability, the States\u2019 margin of appreciation in establishing different legal treatment for people with disabilities is considerably reduced (Glor v. Switzerland, 2009, \u00a7 84).<\/p>\n
Referring in particular to Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, and to the United Nations Convention on the Rights of Persons with Disabilities, (UNCRPD) adopted on 13 December 2006, the Court has considered that there was a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (Glor v. Switzerland, 2009, \u00a7 54). This included an obligation for the States to ensure \u201creasonable accommodation\u201d to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination (Enver \u015eahin v. Turkey, 2018, \u00a7\u00a7 67-69; \u00c7am v. Turkey, 2016, \u00a7\u00a7 65-67; G.L. v. Italy, 2020, \u00a7\u00a7 60-66).<\/p>\n
As regards access to public buildings by physically disabled persons, the Court clarified that the test to be applied was limited to examining whether the State had made \u201cnecessary and appropriate modifications and adjustments\u201d to accommodate and facilitate persons with disabilities, which, at the same time, did not impose a \u201cdisproportionate or undue burden\u201d on the State (Arnar Helgi L\u00e1russon v. Iceland, 2022, \u00a7 59). Where the respondent State and municipality had already taken considerable measures to assess and address accessibility needs in public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question, the Court found that there had been no discrimination against a wheelchair-bound applicant, who had been unable to access two local public buildings housing arts and cultural centres (ibid; compare with Botta v. Italy (dec.), Zehnalov\u00e1 and Zehnal v. the Czech Republic (dec.), and Glaisenv. Switzerland (dec.), where Article 8 was found inapplicable).<\/p>\n
As regards housing, in Guberina v. Croatia, 2016, the applicant requested tax exemption on the purchase of a new property adapted to the needs of his severely disabled child. The authorities did not take into consideration his son\u2019s particular needs and found that he did not satisfy the conditions for tax exemption on account of already being in possession of a suitable place to live. The Court stressed that, by ratifying the UNCRPD, Croatia was obliged to respect such principles as reasonable accommodation, accessibility and non-discrimination against persons with disabilities and that, by ignoring the specific needs of the applicant\u2019s family related to his child\u2019s disability, there had been a violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention. The Court recognised for the first time that discriminatory treatment of the applicant on account of the disability of his child was disability-based discrimination covered by Article 14. In J.D. and A. v. the United Kingdom, 2019, the applicant\u2019s housing benefit had been reduced and she was forced to move out of a house especially adapted to the needs of her disabled daughter. The Court found that, while it would be disruptive and undesirable for her to move, the effect of the measure was proportionate in her case as she could move to smaller, appropriately adapted accommodation and given the availability of a discretionary housing benefit (\u00a7 101).<\/p>\n
In the area of education, in Enver \u015eahin v. Turkey, 2018, concerning a failure to conduct a concrete individual assessment of a disabled student\u2019s needs regarding access to university premises, the Court found a violation of Article 14 in conjunction with Article 2 of Protocol No. 1 on the right to education. In G.L. v. Italy, 2020, a child suffering from non-verbal autism was not able to receive, in the first two years of primary school, the specialised assistance to which she was entitled under the relevant legislation. Stressing the importance of primary schooling and and the States\u2019 obligation to be particularly attentive to their choices in the area of educational needs of persons with disabilities, the Court found that the applicant had been unable to continue to attend primary school in conditions equivalent to those enjoyed by non-disabled pupils due to her disability.<\/p>\n
In family matter, in C\u00een\u0163a v. Romania, 2020, the domestic authorities failed to properly assess the impact that the applicant\u2019s mental illness might have had on his parenting skills or the child\u2019s safety. The Court stressed that mental illness might be a relevant factor to be taken into account when assessing the capacity of parents to care for their child. However, relying on mental illness as the decisive element, or even as one element among others, might amount to discrimination when, in the specific circumstances of the case, the mental illness did not have a bearing on the parents\u2019 ability to take care of the child. In R.P. and Others v. the United Kingdom, 2012, \u00a7 89, concerning the appointment of an Official Solicitor to represent a mother with learning disabilities in child-care proceedings, the Court found that the measure the applicant had been subject to did not constitute unjustified discrimination. In fact, the Court accepted that it was necessary for the Contracting State to take measures to protect litigants in the applicant\u2019s situation and that the Official Solicitor scheme was within the State\u2019s margin of appreciation. Consequently, although the applicant was treated differently from someone with legal capacity, her situation was significantly different from such a person and the difference in treatment was objectively and reasonably justified (\u00a7 89).<\/p>\n
In Negovanovi\u0107 and Others v. Serbia, 2022, the denial to blind chess players, of financial awards which were granted to sighted players as a form of national sporting recognition for winning similar international accolades, was found to be discriminatory on the basis of their disability.<\/p>\n
In the election context, in the case of Str\u00f8bye and Rosenlind v. Denmark, 2021, the Court examined the issue of disenfranchisement of persons divested of their legal capacity. Given that the mentally disabled had not been in general subject to disenfranchisement under Danish law, that therehad been an individualised judicial evaluation and that the measure affected a very small number of people, the Court found that there had been no breach of Article 3 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention (see also Caama\u00f1o Valle v. Spain, 2021). In Toplak and Mrak v. Slovenia, 2021, the Court found no breach of the State\u2019s positive obligations to take appropriate measures to enable the applicants, suffering from muscle dystrophy and using a wheelchair, to exercise their right to vote on an equal basis with others.<\/p>\n
As regards discrimination against people with infectious diseases, the Court has considered that a distinction made on account of an individual\u2019s health status, including such conditions as HIV infection, should also be covered \u2013 either as a disability or a form thereof \u2013 by the term \u201cother status\u201d in the text of Article 14 of the Convention (Kiyutin v. Russia, 2011, \u00a7 57). The Court has held that people living with HIV were a vulnerable group, due to the prejudice and stigmatisation by the society. Consequently, the States should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status (Kiyutin v. Russia, 2011, \u00a7 64; I.B. v. Greece, 2013, \u00a7 81).<\/p>\n
As with other protected grounds under the Convention, it is not uncommon for cases to be dealt with solely under the substantive right, rather than under Article 14.<\/p>\n
For example, in Pretty v. the United Kingdom, 2002, the applicant suffered from a degenerative disease and the Court examined a refusal of her wish to obtain an assurance from the government that her husband would not be prosecuted for assisting her to die. The Court found that the refusal to distinguish between those who are and those who are not physically capable of committing suicide was justified because introducing exceptions to the law would in practice allow for abuse and undermine the protection of the right to life protected by Article 2 (\u00a7 89).<\/p>\n
<\/span>Parental and marital status<\/span><\/h3>\nIn Weller v. Hungary, 2009, the Court found discrimination on grounds of parental status amounting to a violation of Article 14. In that case the first applicant was a father who was denied the award of a benefit to which only mothers, adoptive parents and guardians were entitled.\u00a0Equally, the Court has considered marital status to be a personal characteristic included in the term \u201cother status\u201d. In \u015eerife Yi\u011fit v. Turkey [GC], 2010, for example, the Court stated that the absence of a marriage tie between two parents is one of the aspects of personal \u201cstatus\u201d which may be a source of discrimination prohibited by Article 14 (\u00a7 79).<\/p>\n
In Petrov v. Bulgaria, 2008, the Court found a violation of Article 14 in conjunction with Article 8 as the applicant prisoner had been barred from making telephone calls to his partner because they were not married.<\/p>\n
The case of Burden v. the United Kingdom [GC], 2008, concerned two cohabiting sisters who complained that they were ineligible for exemption from inheritance tax that surviving spouses or civil partners enjoyed. The Court held that the absence of such a legally binding agreement between the applicants rendered their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple (\u00a7 65). In Korosidou v. Greece, 2011, the Court examined the case of an applicant who was refused a survivor\u2019s pension as a widow on the ground that she had not been married to her deceased partner and did not find discrimination. Nor did the Court find discriminatory the inability of a woman to automatically inherit her unmarried late partner\u2019s property in view of the adequate opportunities domestic law provided her with to do so (Makar\u010deva
\nv. Lithuania (dec.), 2021).<\/p>\n
The case of Mu\u00f1oz D\u00edaz v. Spain, 2009, concerned an applicant whose marriage concluded according to Roma rites was not considered valid for purposes of establishing entitlement to a survivor\u2019s pension by the State. The Court observed that the Spanish authorities had recognised the applicant as her partner\u2019s \u201cspouse\u201d. The woman in question and her family had been issued with a family record book, had been granted large-family status and had been in receipt of health-care assistance. The Court therefore took the view that the applicant\u2019s good faith as to the validity of her marriage had given her a legitimate expectation of being entitled to a survivor\u2019s pension and acknowledged a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No.1.<\/p>\n
On the other hand, in \u015eerife Yi\u011fit v. Turkey [GC], 2010, the applicant had married in a purely religious ceremony and was refused to be recognised as the heir of her deceased partner. However, the Court noted that the applicant was aware of her situation and knew that she needed to regularise her relationship in accordance with the Civil Code in order to be entitled to benefits on her partner\u2019s death. Therefore, the Court considered that there was an objective and reasonable justification for the difference in question and did not find a violation of Article 14.<\/p>\n
<\/span>Immigration status<\/span><\/h3>\nThe Court established that although immigration status was a status conferred by law, rather than one inherent to the individual, this fact did not preclude it from amounting to \u201cother status\u201d for the purposes of Article 14 (Hode and Abdi v. the United Kingdom, 2012, \u00a7 47; Bah v. the United Kingdom, 2011, \u00a7 46). Indeed, a wide range of legal and other effects flowed from a person\u2019s immigration status (ibid.).<\/p>\n
The case of Hode and Abdi v. the United Kingdom, 2012, concerned a person recognised as a refugee and granted a limited leave who could not be joined by his post-flight spouse. The Court reiterated that the argument in favour of refugee status amounting to \u201cother status\u201d was even stronger, as, unlike immigration status, refugee status did not entail an element of choice (\u00a7 47). Consequently, the Court found a violation of Article 14 taken together with Article 8.<\/p>\n
In Bah v. the United Kingdom, 2011, the Court examined the case of a person unintentionally homeless with a minor child, who was not granted priority assistance by the social services because her son was subject to immigration control. The applicant had entered the United Kingdom as an asylum-seeker but had not been granted refugee status. The Court noted that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States (\u00a7 47). Given the element of choice involved in immigration status, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality (\u00a7 47). The Court concluded that the differential treatment to which the applicant was subjected was reasonably and objectively justified (\u00a7 52).<\/p>\n
In M.T. and Others v. Sweden, 2022, \u00a7 111, the Court considered that persons with \u201csubsidiary protection status\u201d, and persons with \u201crefugee status\u201d were in an analogous or relevantly similar situation in respect of the right to family reunification. The second applicant received subsidiary protection in Sweden. His mother and younger brother were denied resident permits, in application of a law which instituted termporary restrictions for granting residence permits in Sweden, to family members of persons who had been granted subsidiary protection status. The Court was satisfied that the differential treatment of the applicants vis-\u00e0-vis persons with refugee status had been reasonably and objectively justified (\u00a7 117).<\/p>\n
The Court also found discrimination on ground of immigration status in several other cases. In Ponomaryovi v. Bulgaria, 2011, the Court found the requirement on aliens without permanent residence to pay secondary-school fees discriminatory by reason of their nationality and immigration status (\u00a7 49). It amounted to a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1 on the right to education. In Anakomba Yula v. Belgium, 2009, where an unlawfully resident alien had been refused legal aid for contesting the paternity of her child, the Court found a violation of Article 14 in conjunction with Article 6 (access to court).<\/p>\n
<\/span>Status related to employment<\/span><\/h3>\nIn the field of employment, the Court found, for example, that holding of high office can be regarded as \u201cother status\u201d for the purposes of Article 14 (Valkov and Others v. Bulgaria, 2011, \u00a7 115). In that case the Court refused the applicants\u2019 contention that capping of their pensions amounted to discrimination in comparison to certain high-ranking officials whose pensions were exempted from the cap.<\/p>\n
The Court also found that the notion of \u201cother status\u201d had been given a sufficiently wide meaning so as to include, in certain circumstances, military rank. The case of Engel and Others v. the Netherlands, 1976, concerned conscript soldiers on whom various penalties had been imposed by their respective commanding officers for offences against military discipline. The Court established that a distinction based on rank might run counter to Article 14 (\u00a7 72). However, it recognised that the competent national authorities enjoyed a considerable margin of appreciation in this domain, and did not find a violation of Article 14. In Beeckman and Others v. Belgium (dec.), 2018, the Court interpreted police rank to also fall within the notion of \u201cother status\u201d.<\/p>\n
The collaboration of applicants with secret services has also been considered as \u201cother status\u201d for the purposes of Article 14 of the Convention (Sidabras and D\u017eiautas v. Lithuania, 2004; \u017di\u010dkus v. Lithuania, 2009; Naidin v. Romania, 2014). In \u017di\u010dkus v. Lithuania, 2009, the applicant was banned from finding employment in the private sector on the grounds that he had been a former KGB officer. In Naidin v. Romania, 2014, a former collaborator of the political police had been banned from public- service employment.<\/p>\n
The case of Graziani-Weiss v. Austria, 2011, concerned an obligation for practicing lawyers and notaries to act as unpaid guardians to mentally ill persons if appointed to do so, whereas other legally trained persons had not been under such an obligation. The Court held that there had been a difference in treatment between the two groups but that, for the purposes of guardianship in cases where legal representation was necessary, the two groups were not in a relevantly similar situation (\u00a7 65).<\/p>\n
<\/span>Further examples of \u201cother status\u201d<\/span><\/h3>\nThe Court established that being a prisoner12 was an aspect of personal status for the purposes of Article 14 in Stummer v. Austria [GC], 2011 (\u00a7 90), where the authorities refused to take work performed in prison into account in calculating the applicant\u2019s pension rights. The Court also acknowledged an unjustified difference in legal regimes for detainees on remand and convicted prisoners (Laduna v. Slovakia, 2011; Chaldayev v. Russia, 2019; Vool and Toomik v. Estonia, 2022) as regards visiting rights and access to television.<\/p>\n
In Clift v. the United Kingdom, 2010, the Court considered differences in procedural requirements for early release which depended on the length of the sentence. In that case the applicant alleged a difference in treatment based on his position as a prisoner serving a determinate sentence of more than fifteen years. While sentence length bore some relationship to the perceived gravity of the offence, a number of other factors could also be relevant, including the sentencing judge\u2019s assessment of the risk the prisoner posed to the public. Where an early-release scheme applied differently to prisoners depending on the length of their sentences, there was a risk that, unless objectively justified, it would run counter to the need to ensure protection from arbitrary detention under Article 5. Accordingly, the Court concluded that the applicant enjoyed \u201cother status\u201d for the purposes of Article 14.<\/p>\n
In Granos Organicos Nacionales S.A. v. Germany, 2012, the Court found a difference in treatment between natural and legal persons and between domestic and foreign legal entities, due to the refusal to attribute legal aid to a foreign company wishing to institute civil proceedings in German courts, although in this particular case the Court held that such difference had been motivated by relevant reasons.<\/p>\n
In Moraru v. Romania, 2022, the Court considered that an individual\u2019s size constituted a genetic feature which represented a personal characteristic falling within the list of \u201cother status\u201d (\u00a7 42). The applicant complained that the decisions of the national authorities not to allow her to participate in the admission process for studying military medicine had constituted a discriminatory restriction of her right to education on the grounds of anthropometric attributes, notably height and weight (\u00a7 27)13.<\/p>\n
The Court has found further differences in treatment as falling within the scope of \u201cother status\u201d, although not related to \u201cpersonal\u201d characteristics.<\/p>\n
For example, the Court found that membership of an organisation could constitute \u201cother status\u201d for the purpose of Article 14 of the Convention (Danilenkov and Others v. Russia, 2009; Grande Oriente d\u2019Italia di Palazzo Giustiniani v. Italy (no. 2), 2007). In Danilenkov and Others v. Russia, 2009, the State had failed to afford effective judicial protection against discrimination on the ground of trade-union membership. The case of Grande Oriente d\u2019Italia di Palazzo Giustiniani v. Italy (no. 2) (2007) concerned the statutory obligation for Freemasons to declare their membership when applying for regional authority posts.<\/p>\n
Equally, \u201cother status\u201d can include the place of residence (Carson and Others v. the United Kingdom [GC], 2010; Aleksandr Aleksandrov v. Russia, 2018; Baralija v. Bosnia and Herzegovina, 2019). The case of Carson and Others v. the United Kingdom [GC], 2010, concerned the absence of right to index-linking for pensioners resident in overseas countries which had no reciprocal arrangements with the State. In Aleksandr Aleksandrov v. Russia, 2018, the applicant was refused a non-custodial sentence on the ground that his permanent place of residence had been outside of the region where the offence had been committed and the sentence pronounced. The Court did not find that the difference in treatment had pursued a legitimate aim or had an objective and reasonable justification.<\/p>\n
In Pinkas and Others v. Bosnia and Herzegovina, 2022, the Court found that a difference in treatment between judicial clerks and judges which belonged to the same legal regime with regard to work-related allowances constituted \u201cindirect discrimination\u201d based on \u201cother status\u201d for which no objective and reasonable justification had been put forward by the respondent Government.<\/p>\n
In \u00d6zg\u00fcrl\u00fck ve Dayan\u0131\u015fma Partisi (\u00d6DP) v. Turkey, 2012, the Court acknowledged the existence of a difference in treatment between political parties on the ground of insufficient popular support. The case concerned the refusal of financial aid to a political party based on the fact that it had not received the statutory minimum number of votes required to be eligible for aid and did not result in finding a breach of Article 14.<\/p>\n
The Court also considered that conflicting decisions by the Supreme Court could amount to discrimination under Article 14 (Beian v. Romania (no. 1), 2007). A difference in treatment on grounds of different points in time when pension claims were liquidated could also amount to discrimination if not justified (Maggio and Others v. Italy, 2011).<\/p>\n
<\/span>Not falling within \u201cother status\u201d<\/span><\/h3>\nCertain differences in treatment not linked to a personal status have been considered as not falling within the notion of \u201cother status\u201d.<\/p>\n
In Gerger v. Turkey [GC], 1999, for example, the Court held that differences in treatmentbetween prisoners in relation to parole did not confer on them \u201cother status\u201d as the distinction had not been made between different groups of people, such as in Clift v. the United Kingdom, 2010, but rather between different types of offences, according to their gravity.<\/p>\n
Other examples of differences in treatment not falling within the notion of \u201cother status\u201d for the purpose of Article 14 include<\/p>\n
\n- having or not having acquired the right to a welfare benefit (Springett and Others v. the United Kingdom (dec.), 2010);<\/li>\n
- duration and nature of an employment contract (Peterka v. the Czech Republic (dec.), 2010);<\/li>\n
- holding fishing rights in different areas (Alatulkkila and Others v. Finland, 2005);<\/li>\n
- being sent on different military missions (De Jong, Baljet and Van den Brink v. the Netherlands, 1984);<\/li>\n
- different legal status with respect to restitution of taxes (National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 1997);<\/li>\n
- distinction between smaller and larger unions (National union of Belgian police v. Belgium, 1975; Swedish Engine Drivers\u2019 Union v. Sweden, 1976);<\/li>\n
- difference between commercial advertising and advertisements forwarding certain ideals (VgT Verein gegen Tierfabriken v. Switzerland, 2001).<\/li>\n<\/ul>\n\n
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