<\/span><\/h3>\nFollowing the case of Nachova and Others v. Bulgaria [GC], 2005, the Court has found violations of the procedural aspect of Articles 2 or 3 read in conjunction with Article 14 in a number of cases, due to the failure of the domestic authorities to carry out an effective investigation of the discriminatory motives at the origin of the ill-treatment or death of the victims of discriminatory violence (Bekos and Koutropoulos v. Greece, 2005; Turan Cakir v. Belgium, 2009; Abdu v. Bulgaria, 2014; Angelova and Iliev v. Bulgaria, 2007; Eremia v. the Republic of Moldova, 2013; Members of the Gldani Congregation of Jehovah\u2019s Witnesses and Others v. Georgia, 2007; Virabyan v. Armenia, 2012; B\u0103l\u015fan v. Romania, 2017; Talpis v. Italy, 2017; \u0160korjanec v. Croatia, 2017; Adzhigitova and Others
\nv. Russia, 2021).<\/p>\n
The authorities\u2019 duty to investigate the existence of a possible link between discriminatory attitudes and any act of violence is an aspect of their procedural obligations arising under Articles 2 and 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 (Nachova and Others v. Bulgaria [GC], 2005, \u00a7 161; Bekos and Koutropoulos v. Greece, 2005, \u00a7 70;<\/p>\n
Kreyndlin and Others v. Russia, 2023, \u00a7 59). Owing to the interplay between Article 14 and the substantive provisions, issues of discriminatory violence may fall to be examined under only one of the two provisions, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made.<\/p>\n
Where there is suspicion that discriminatory attitudes induced a violent act, it is particularly important that the official investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society\u2019s condemnation of discriminatory hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of discriminatory violence (Nachova and Others v. Bulgaria [GC], 2005, \u00a7 160).<\/p>\n
In this respect, when investigating violent incidents and, in particular, deaths at the hands of State agents or private individuals, State authorities have the additional duty to take all reasonable steps to unmask any discriminatory motive and to establish whether or not discriminatory hatred or prejudice may have played a role in the events (Ognyanova and Choban v. Bulgaria, 2006, \u00a7 145; Turan Cakir v. Belgium, 2009, \u00a7 77; Abdu v. Bulgaria, 2014, \u00a7 44; Angelova and Iliev v. Bulgaria, 2007, \u00a7 115; Eremia v. the Republic of Moldova, 2013, \u00a7 85; Members of the Gldani Congregation of Jehovah\u2019s Witnesses and Others v. Georgia, 2007, \u00a7 140; Virabyan v. Armenia, 2012, \u00a7 218; Kreyndlin and Others v. Russia, 2023, \u00a7 58).<\/p>\n
Failing to unmask discriminatory motives and treating violence and brutality induced by discrimination on an equal footing with cases that have no discriminatory overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (Nachova and Others v. Bulgaria [GC], 2005, \u00a7 160; Stoica v. Romania, 2008, \u00a7 119; Virabyan v. Armenia, 2012, \u00a7 218; \u0160e\u010di\u0107 v. Croatia, 2007, \u00a7 67).<\/p>\n
Admittedly, proving discriminatory motives may often be extremely difficult in practice. The respondent State\u2019s obligation to investigate possible discriminatory overtones to a violent act is an obligation to use best endeavours and not absolute (Nachova and Others v. Bulgaria [GC], 2005, \u00a7 160; Bekos and Koutropoulos v. Greece, 2005, \u00a7 69; Stoica v. Romania, 2008, \u00a7 119). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of discrimination through violence (Nachova and Others v. Bulgaria [GC], 2005, \u00a7 160; Bekos and Koutropoulos v. Greece, 2005, \u00a7 69; Ognyanova and Choban v. Bulgaria, 2006, \u00a7 145).<\/p>\n
In Makuchyan and Minasyan v. Azerbaijan and Hungary, 2020, the Court was called upon to examine whether the failure by Azerbaijan to enforce a prison sentence for a hate crime against two Armenians, which had been imposed abroad on an Azerbaijani military officer (the latter being, instead, glorified as a hero, promoted and awarded benefits upon his return to Azerbaijan), had been motivated by the ethnic origin of the victims. In the Court\u2019s view, the applicants had put forward sufficiently strong, clear and concordant inferences as to make a convincing prima facie case that the measures taken by the Azerbaijani authorities in respect of their officer, leading to his virtual impunity and, indeed, the glorification of his extremely cruel hate crime, had had a causal link to the Armenian ethnicity of his victims and had thus been racially motivated. For their part, the Azerbaijani Government had failed to disprove the applicants\u2019 arguable allegation of discrimination and the Court found a violation of Article 14 in conjunction with the procedural limb of Article 2 of the Convention.<\/p>\n
The Court considered that, once there was an arguable claim that an individual may have been targeted by a police identity check on account of racial characteristics and such acts fell into the ambit of Article 8, the duty of the authorities to investigate the existence of a possible link between racist attitudes and a State agent\u2019s act was 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,\u00a7 33).<\/p>\n
<\/span>Access to Justice<\/span><\/h3>\nUnder the Convention, the right of access to justice is guaranteed in the context of the right to a fair trial under Article 6 and by Article 13 (right to an effective remedy). The Court has dealt with cases relating to discrimination in access to justice under Article 14 in conjunction with Article 6 (S\u00e2mbata Bihor Greek Catholic Parish v. Romania, 2010; Mizzi v. Malta, 2006).<\/p>\n
In its case-law on the matter, the Court has found differences in treatment amounting to discrimination in access to justice when domestic courts based their decision on protected grounds under Article 14. The case of Schuler-Zgraggen v. Switzerland, 1993, concerned the refusal to grant invalidity benefits based on the mere assumption that women gave up work when they gave birth to a child. The domestic court thus inferred that the applicant would have given up work even if she had not had health problems. The Court considered the reasoning of the domestic court to create a difference in treatment on grounds of sex. In Paraskeva Todorova v. Bulgaria, 2010, the domestic court refused to suspend the prison sentence of an accused of Roma origin on the ground that she belonged to a minority group for whom a suspended sentence was not a conviction and that such a sentence would not fulfil the function of general and specific prevention (\u00a7 38). The Court found discrimination based on the applicant\u2019s ethnic origin.<\/p>\n
The case of Moldovan and Others v. Romania (no. 2), 2005, was brought by Roma villagers following the killing of fellow Roma and the destruction of their homes. The Court observed that the applicants\u2019 ethnicity appeared to have been decisive for the length and the result of the domestic proceedings \u2013 including repeated discriminatory remarks made by the authorities and their blank refusal to award non-pecuniary damages \u2013 and found a violation of Article 14 in conjunction with Article 6.<\/p>\n
In Anakomba Yula v. Belgium, 2009, the applicant was refused legal aid for the purpose of contesting paternity of her child within a one-year time-limit because she had been unlawfully residing in Belgium. The applicant, who had already taken steps to regularise her situation, could not reasonably have been expected to wait until she had renewed her permit thereby risking the lapse of the one-year time-limit prescribed by domestic law for contesting paternity. The Court found a violation of Article 14 taken together with Article 6 given the specific circumstances of the case.<\/p>\n
<\/span>Right to Respect for Home<\/span><\/h3>\nIn its case-law the Court found discrimination in relation to the right to respect for home in cases involving the destruction and damaging of people\u2019s houses based on their ethnicity (Burlya and Others v. Ukraine, 2018; Moldovan and Others v. Romania (no. 2), 2005). In both cases the authorities failed to protect or react in an appropriate way to the attacks on villages motivated by anti-Roma sentiment.<\/p>\n
In Paketova and Others v. Bulgaria, 2022, the applicants were expelled from their homes and prevented from subsequently returning to them, and the authorities refused protection to them in an environment of racially based hostility and intolerance.<\/p>\n
In Buckley v. the United Kingdom, 1996, the applicant was refused a planning permit which would have enabled her to live in a caravan on land she owned. She claimed that the national legislation on which the refusal had been based was discriminatory on the grounds of her Roma ethnic origin. Under Article 8, the Court interpreted the right to respect for home as including mobile homes such as caravans, even in a situation where they had been located illegally (\u00a7 60). However, the Court did not consider the national legislation to be discriminatory as it did not appear that the applicant was at any time penalised or subjected to any detrimental treatment for attempting to follow a traditional Gypsy lifestyle (\u00a7 88).<\/p>\n
The Court found that the right to succeed to a deceased partner\u2019s tenancy also related to the applicant\u2019s right to respect for \u201chome\u201d within the meaning of Article 8 (Karner v. Austria, 2003, \u00a7 33; Kozak v. Poland, 2010, \u00a7 84). In both cases the applicants were homosexuals who had been refused the right to succeed to a tenancy after the death of their companions and the Court found discrimination on the ground of their sexual orientation.<\/p>\n
<\/span>Property Issues<\/span><\/h3>\nThe case-law of the Court concerning discrimination amounting to a violation of Article 14 taken together with Article 1 of Protocol No. 1 (protection of property) is extensive and diverse. As already stated, some forms of social security such as benefit payments and pensions may fall within the ambit of Article 1 of Protocol No. 1 because they constitute \u201cpossessions\u201d within the meaning of that provision.24 A variety of other situations have also been examined by the Court.<\/p>\n
The Court examined, under Article 14 in conjunction with Article 1 of Protocol No. 1, cases related to inheritance rights of children (Mazurek v. France, 2000; Fabris v. France [GC], 2013) as well as of spouses (Molla Sali v. Greece [GC], 2018) and to the right to receive a survivor\u2019s pension (Aldeguer Tom\u00e1s v. Spain, 2016). In Aldeguer Tom\u00e1s v. Spain, 2016, the applicant complained that he had been discriminated against on the grounds of his sexual orientation in that, as the survivor of a de facto same-sex union, he had been denied a survivor\u2019s pension following the death of his partner. The Court established that Article 14 in conjunction with Article 1 of Protocol No. 1 and Article 8 was applicable but did not find that it had been breached.<\/p>\n
In Saumier v. France, 2017, the applicant claimed damages following her occupational illness which left her severely disabled. In order to determine the applicability of Article 14 in conjunction with Article 1 of Protocol No. 1, the Court established that the national legislation at stake amounted to rules of tort under which claims for compensation came into existence as soon as the damage occurred, that a claim of this nature \u201cconstituted an asset\u201d and therefore amounted to \u201ca possession\u201d within the meaning of the first sentence of Article 1 of Protocol No. 1 (\u00a7\u00a7 43-50). However, the Court held that there had been no difference in treatment between persons placed in similar or comparable situations in that case, including given the specificity of the employer-employee relationship which was a contractual relationship in which the employee was legally subordinate to the employer.<\/p>\n
In Anderlecht Christian Assembly of Jehovah\u2019s Witnesses and Others v. Belgium, 2022, the applicant associations were no longer eligible for a tax exemption for buildings used as their place of worship because they were non-recognised religions. While the Court considered that the use of the criterion of recognition of a religious faith (as the basis for distinguishing between claims for exemption from the property tax) fell within the State\u2019s margin of appreciation, it concluded that, in the present case, the rules on such recognition had been devoid of the minimum guarantees of fairness and objectivity.<\/p>\n
In its case-law the Court has also linked to Article 1 of Protocol No. 1:<\/p>\n
\n- eligibility for tax relief on the purchase of a suitable property for a disabled child (Guberina v. Croatia, 2016);<\/li>\n
- obligation of small landowners to become members of a hunting association, thus allowing hunting on their properties (Chassagnou and Others v. France [GC], 1999);<\/li>\n
- decrease in nominal value of bonds in view of rescheduling the national debt without the consent of private investors (Mamatas and Others v. Greece, 2016);<\/li>\n
- \u00a0exclusion of landlords of controlled property leased out as bans clubs from a law allowing for the termination of the protected leases (Bradshaw and Others v. Malta, 2018); or<\/li>\n
- alleged discrimination in provision of disability benefits to civilian as opposed to military beneficiaries (Popovi\u0107 and Others v. Serbia, 2020).<\/li>\n<\/ul>\n
<\/span>Deprivation of liberty<\/span><\/h3>\nIn its case-law the Court protects the right to be free from arbitrary deprivation of liberty based on discriminatory grounds under Article 14 taken together with Article 5 (right to liberty and security) (Aleksandr Aleksandrov v. Russia, 2018; Rangelov v. Germany, 2012; Clift v. the United Kingdom, 2010), and the right to be free from inhuman or degrading treatment or punishment based on discriminatory grounds during detention under Article 14 in conjunction with Article 3 (Martzaklis and Others v. Greece, 2015; X v. Turkey, 2012).<\/p>\n
In Aleksandr Aleksandrov v. Russia, 2018, the applicant was sentenced to a term of imprisonment by a court in Moscow which could have imposed a non-custodial sentence such as probation. However, the domestic court ordered his imprisonment on the sole ground that he had no permanent residence in Moscow. The applicant complained that he had been the victim of a breach of Article 14 taken in conjunction with Article 5 on the ground of his place of residence. The Court found that the difference in treatment had no legitimate aim or objective and reasonable justification and amounted to discrimination.<\/p>\n
The Court also found that there had been discrimination in breach of Article 14 in conjunction with Article 5 in a case concerning the refusal of relaxation of conditions of preventive detention due to the applicant\u2019s foreign nationality (Rangelov v. Germany, 2012) or the differences in procedural requirements for early release which depended on the length of the sentence (Clift v. the United Kingdom, 2010).<\/p>\n
In Khamtokhu and Aksenchik v. Russia [GC], 2017, the applicants were adult men serving life sentences. They complained that they had been treated less favourably than female, juvenile and senior offenders found guilty of the same crimes because the latter could not be given a life sentence. Despite the fact that, in principle, matters of appropriate sentencing fall outside the scope of Article 5, the Court found the national legislation exempting certain categories of offender from life imprisonment to fall within the scope of Article 5 for the purposes of the applicability of Article 14. In this particular case, however, the Court found that there had been no violation of Article 14 on grounds of age or sex. As regards the exemption of juvenile offenders from life imprisonment, the Court held that it was consonant with the approach common to the legal systems of all the Contracting States and with international standards and that its purpose was evidently to facilitate the rehabilitation of juvenile delinquents. As regards women, the Court held that there was a public interest to exempt female offenders from life imprisonment by way of a general rule due to the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood.<\/p>\n
The Court found the treatment of prisoners to amount to discrimination under Article 14 taken together with Article 3 in several cases. In Martzaklis and Others v. Greece, 2015, the applicants were HIV-positive prisoners who were held in poor physical and sanitary conditions without adequate treatment in a prison psychiatric wing. The Court held that the placement in isolation to prevent the spread of disease had not been necessary, because the prisoners were HIV-positive and had not developed AIDS, and found a violation of Article 3 in conjunction with Article 14 of the Convention. Conversely, in Dikaiou and Others v. Greece, the Court found no violation of Article 14 taken in conjunction with Article 3 of the Convention, where HIV postitive applicants had been put together in one cell within an ordinary prison wing. In X v. Turkey, 2012, the applicant was a homosexual prisoner who had been held in total isolation for more than eight months in order to protect him from fellow prisoners. The Court was not convinced that the need to take safety measures to protect the applicant\u2019s physical well-being was the primary reason for his total exclusion from prison life. The main reason for the measure was his homosexuality. As a result the Court found that the applicant had been discriminated against on grounds of his sexual orientation.<\/p>\n
The case-law of the Court also reveals the obligation for States to conduct appropriate and effective investigations in cases of alleged ill-treatment of persons in custody whether politically (Virabyan v. Armenia, 2012) or racially motivated (Bekos and Koutropoulos v. Greece, 2005).<\/p>\n
In some cases, however, the Court examined the situation under the substantive Article and did not deem it necessary to examine it separately under Article 14 of the Convention. The case of D.G.v. Ireland, 2002, for example, concerned the detention of a minor in a penal institution lacking appropriate facilities. The Court found a violation of Article 5 but, in so far as the applicant compared his situation to that of other minors, it considered that no separate issue arose under Article 14 of the Convention. In Stasi v. France, 2011, the applicant complained that he had been ill-treated in prison because of his homosexuality and that the authorities had not taken the necessary measures to protect him. The Court found that the authorities had taken all effective measures to protect him from physical harm during detention and that there had not been a breach of Article 3 without separately examining his complaint under Article<\/p>\n\n
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Private and family life The Court examined complaints under Article 14 in conjunction with Article 8 concerning discrimination in the enjoyment of the right to respect for private and family life in a variety of situations.14 The Court clarified that the right to respect for \u201cfamily life\u201d did not safeguard the mere desire to found […]<\/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\/23420"}],"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=23420"}],"version-history":[{"count":11,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23420\/revisions"}],"predecessor-version":[{"id":23511,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23420\/revisions\/23511"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23420"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23420"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23420"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}