Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Prohibition of discrimination (Article 14) 
Article 14 taken in conjunction with Article 8
The judgment in Biao v. Denmark related to a restriction on family reunification, which indirectly discriminated against persons such as the applicant on the grounds of ethnic origin and nationality.
The first applicant, who was born in Togo, lived much of his formative years in Ghana before entering Denmark in 1993 and acquiring Danish nationality in 2002. He then married the second applicant in Ghana. A residence permit, to allow the second applicant to join him in Denmark, was refused since the applicants’ aggregate ties to Denmark were not stronger than their attachment to any other country, Ghana in their case (“the attachment requirement”).
They complained under Article 8 alone, and in conjunction with Article 14, that a legislative amendment which provided an exception to the attachment requirement for those who had been Danish nationals for twenty-eight years (“the twenty-eight-year rule”), resulted in a discriminatory difference in treatment against those, such as the first applicant, who had acquired Danish nationality later in life. The Grand Chamber found a violation of Article 14 in conjunction with Article 8 and that no separate issue arose under Article 8 of the Convention alone.
(i) The case is noteworthy for the finding that a domestic immigration measure, regulating family reunification, had an indirect discriminatory impact in breach of Article 14 on grounds of ethnicity and nationality.
In particular, the question was whether the twenty-eight-year rule, creating as it did an exception to the attachment requirement, had disproportionately prejudicial effects on persons such as the first applicant who had acquired Danish nationality later in life and was of ethnic origin other than Danish, compared to Danish-born nationals of Danish ethnic origin, so as to amount to indirect discrimination on the basis of ethnic origin or nationality in violation of Article 14. In finding a violation, the Grand Chamber
– confirmed that, while Article 8 does not impose general family-reunification obligations (Jeunesse, cited above), an immigration-control measure compatible with Article 8 could amount to discrimination and a breach of Article 14 (see, for example, Abdulaziz, Cabales and Balkandali v. the United Kingdom);
– confirmed that the Court will look behind the text and aim of a measure and examine whether it has disproportionately prejudicial effects on a particular group and will find it discriminatory if it has no “objective and reasonable justification”, even if the policy or measure was not aimed at that group and even if there was no discriminatory intent (see, for example, Hugh Jordan v. the United Kingdom, and D.H. and Others v. the Czech Republic);
– identified that the relevant comparator in the applicants’ case was “Danish nationals of Danish ethnic origin” and reiterated that no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin was capable of being justified in a contemporary society and that a difference of treatment based on nationality was only allowed for “compelling or very weighty reasons”; and
– concluded that the Government had failed to show that there were such “compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the twenty-eight-year rule”.
(ii) It is not clear whether this judgment has any impact on the Court’s finding in 1985 in Abdulaziz, Cabales and Balkandali. While the Grand Chamber did note that the majority of the Danish Supreme Court had relied on Abdulaziz, Cabales and Balkandali, it clarified that the Supreme Court had assessed this case as a difference of treatment based on length of citizenship whereas this Court assessed it as an indirect discrimination based on nationality and ethnic origin, so that the Grand Chamber’s proportionality test was stricter than that applied by the Supreme Court. Hence the Grand Chamber appears to have distinguished the Abdulaziz, Cabales and Balkandali case from the present one.
(iii) It is also worth noting that the Court gathered information on, and took into account, other international trends and views. In assessing justification for the twenty-eight-year rule, the Grand Chamber referred to Article 5 § 2 of the European Convention on Nationality of the Council of Europe (ETS No. 166), a declaration of intent to eliminate discrimination between those who are nationals at birth and other nationals (including naturalised). The Court considered it demonstrated a trend towards a European standard which was relevant for the present case. The relevant EU provisions and case-law on family reunification also indicated that no distinction should be made between those who acquired citizenship by birth or otherwise. Moreover, the Grand Chamber judgment reflects the fact that various independent bodies had specifically condemned the twenty-eight-year rule: the European Commission against Racism and Intolerance (Council of Europe), the Committee on the Elimination of Racial Discrimination (United Nations) and the Commissioner for Human Rights (Council of Europe). The Court’s own comparative law survey (covering twenty-nine member States) on the basic requirements for family reunification of nationals with third-country nationals indicated that none of those States distinguished between different groups of their own nationals in laying down conditions for family reunification.
The Di Trizio v. Switzerland judgment concerned social allowances and their relevance for family and private life.
Before giving birth to twins, the applicant had been forced to give up her full-time job on account of back problems and was thereby entitled to an invalidity allowance. Following the birth, she informed the relevant authorities that she wished to go back to work on a part-time basis for financial reasons. The applicant expected that the amount of invalidity allowance she received would be reduced by 50%. However, she did not receive an allowance at all. In their assessment the authorities relied on the applicant’s declaration that she only wanted to work part-time. The special method used to assess the applicant’s entitlement, which was only applied in cases of individuals engaged in part-time work, resulted in a decision to refuse the applicant any allowance since she did not satisfy the minimum 40% level of disability.
In the Convention proceedings, the applicant complained that the special method of assessment applied to her case by the domestic authorities discriminated against her in the enjoyment of her right to respect for her private and family life. She maintained that, even if the same method of calculation was applied to both men and women, it operated to the disadvantage of women since it overlooked the fact that in the vast majority of cases women, rather than men, often worked part-time after the birth of children. In other words, the method was based on the view that the male member of a couple went out to work while the female member looked after the house and children.
The judgment is of interest in that the Court had first to decide whether the facts of the case fell within the ambit of family and private life (Switzerland not having ratified Protocol No. 1). It concluded that they did.
As to family life, it noted that the application of the method of calculation criticised by the applicant was capable of having an impact on the manner in which she and her husband organised their family and working life and divided up their time within the family.
As to private life, the Court observed that Article 8 guaranteed the right to personal autonomy and development. Given that the method used to calculate entitlement to an invalidity allowance placed individuals wishing to work part-time at a disadvantage, it could not be excluded that its application restricted such individuals in their choice of the means to reconcile their private life with work, household duties and bringing up children.
Article 14 of the Convention was therefore applicable.
As to the merits, the Court found for the applicant: the method of calculation indirectly discriminated against women since it was almost exclusively women who were affected by it (in 97% of cases) and the Government had failed to adduce any reasonable justification for the difference in treatment. It observed that the applicant would likely have obtained an allowance had she declared to the authorities that it was her intention to work full-time or not to work at all.
The Pajić v. Croatia judgment concerned the recognition of a homosexual couple in an immigration context.
The applicant, a national of Bosnia and Herzegovina, was in a stable same-sex relationship with a woman living in Croatia. They travelled regularly to see each other. After two years the applicant lodged a request with the Croatian authorities for a residence permit with a view to family reunification. She stated that she had lived in Croatia for a number of years and had been in a relationship with her Croatian partner, with whom she wanted to establish a household and start a business. In a decision that was upheld by the Croatian courts, the immigration authorities refused her request on the ground that the Aliens Act expressly restricted the right to a temporary residence permit to heterosexual couples and made no mention of same-sex couples.
In the Convention proceedings, the applicant complained of discrimination on the basis of her sexual orientation. The Court found a violation of Article 14 read in conjunction with Article 8. The judgment is of interest for the following reasons.
(i) It extends the Vallianatos and Others v. Greece case-law on non-cohabiting same-sex couples living in the same country to couples of different nationalities who are prevented from cohabiting on a permanent basis by immigration restrictions. In principle, the fact of not cohabiting does not deprive same-sex couples living in different countries of the stability required to bring them within the scope of “family life” within the meaning of Article 8. The case thus fell within the notion of “family life” as well as “private life” as the couple had been in a stable relationship for several years and met up regularly.
(ii) It confirms that member States must show that differences in treatment under the immigration rules based solely on sexual orientation – such as a rule providing that only different-sex couples and not same-sex couples may apply for a residence permit with a view to family reunification – must be shown to be justified in accordance with the Court’s case-law. This applied even though the member States enjoy a wide margin of appreciation on matters relating to immigration.
The judgment in Aldeguer Tomás v. Spain raised the question whether same-sex and different-sex couples were in an analogous situation as regards the differing legislative choices previously made in their regard.
Spain introduced divorce legislation in 1981, allowing a person or both persons in a different-sex union to remarry where one or both had previously been legally married to a third person. The legislation also entitled the surviving partner of a different-sex couple to obtain a survivor’s pension where the other partner had died before the entry into force of the 1981 law.
Spain recognised same-sex marriage in 2005. However, no provision was made for the retroactive payment of a survivor’s pension in a situation where one member of the same-sex couple had died before the entry into force of the 2005 law.
The applicant was the surviving partner of a stable same-sex union who was not entitled to a survivor’s pension. He complained under Article 14 read in conjunction with Article 8 that heterosexual unmarried couples were treated more favourably on account of the operation of the retroactive survivor’s pension clause provided for in the 1981 divorce law.
The Court found against the applicant. Its reasons for doing so are noteworthy.
The Court accepted that the applicant’s relationship with his late partner fell within the notions of “private life” and “family life”, thus confirming earlier case-law on this point (Schalk and Kopf v. Austria, and Vallianatos and Others, cited above).
However, the central question was whether the applicant had been treated less favourably in the enjoyment of his rights under Article 8 and Article 1 of Protocol No. 1 by reason of the fact that the domestic authorities had not extended to him the same advantage given to the surviving partner of a heterosexual couple on the introduction of the divorce law. The answer to that question depended on whether the applicant’s situation was comparable “to the situation that had arisen in Spain a quarter of a century earlier, of a surviving partner of a different-sex cohabiting couple, in which one or both partners were unable to remarry because they were still married to another person whom they were prevented from divorcing under the legislation in force at the material time” (paragraph 85 of the judgment). The Court replied in the negative: same-sex couples were unable to marry before 2005 since the institution of marriage was restricted to different-sex couples; different-sex couples in which one or both partners were legally married to a third party could not remarry before 1981 on account of the absence of divorce legislation. The legal impediments confronting the applicant and the comparator relied on by him were therefore fundamentally different. For that reason there had been no discrimination. The Court also noted that Spain could not be faulted for not having legislated for the recognition of the right to a survivor’s pension for same-sex couples at an earlier stage, for example before the death of the applicant’s partner. The timing for the introduction of such laws fell within the State’s margin of appreciation (see Schalk and Kopf, cited above, §§ 105 and 108, and, more recently, Oliari and Others v. Italy).
The Taddeucci and McCall v. Italy judgment concerned the application of the same restriction to unmarried homosexual and heterosexual couples and an alleged failure to treat the former differently.
The applicants, a same-sex couple, complained that they were prevented from living together in Italy as a family because the Italian authorities had refused as from 2004 to grant the second applicant, a New Zealand national, a residence authorisation for family purposes. The first applicant was an Italian national and the couple had lived together there for ten months prior to the refusal. The refusal was based on the fact that the applicants were not married, which, at the material time, was a precondition for the grant of authorisation irrespective of whether or not the couple was in a same-sex or a different-sex union. The applicants eventually left Italy in 2009 to live in the Netherlands, where they married in 2010.
The applicants maintained in the Convention proceedings that they had been discriminated against in the enjoyment of their right to respect for their family life since they were treated on a par with unmarried different-sex couples.
The Court found for the applicants. The judgment is noteworthy for the following reasons.
The applicants had been in a stable same-sex relationship since 1999 and had been living together in Italy for ten months. In line with its established case-law (Schalk and Kopf, cited above, and X and Others v. Austria), the Court had no difficulty in accepting that the applicants enjoyed family life within the meaning of Article 8, with the consequence that they could challenge under Article 14 the impact which the refusal to grant the second applicant a residence permit had had on the enjoyment of their Article 8 right.
The central issue for the Court was the determination of the comparator given that the applicants’ situation was on the face of it similar to that of an unmarried heterosexual couple, one of whom was a non-EU national. Italian law at the time treated both situations alike since the grant of a residence permit for family purposes was dependent on the foreign-national partner being a “family member”, which in turn required him or her to be married to the Italian-national partner.
Interestingly, the Court found that the applicants were in fact in a different situation to that of an unmarried heterosexual couple in the sense that under domestic law it was impossible for the second applicant to become the spouse of the first applicant on account of the prohibition on same-sex marriage and the absence of any form of legal recognition of their union. Unmarried heterosexual couples, on the other hand, were not faced with these obstacles since the foreign-national partner could qualify as a family member through marriage to the Italian-national partner. The manner in which the Court analysed the issue reflects the principle first laid down in the judgment in Thlimmenos v. Greece, namely, “[t]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.
It is of further interest that the Court declined to examine whether Italy had been obliged at the time of the first refusal to grant the second applicant a residence permit (2004) or by the date of the couple’s departure from Italy (2009) to have legislated for the legal recognition of same-sex couples. It did not pronounce on whether the failure to do so could be justified with reference to the State’s margin of appreciation during this period. It confined its inquiry to establishing whether there was reasonable and objective justification for limiting the notion of family members to heterosexual spouses. It was important for the Court that an unmarried heterosexual couple had the possibility to regularise their situation through marriage and thus fulfil the family-member condition for the grant of a residence permit to the foreign-national partner. Same-sex couples had no such possibility under domestic law at the material time and it was precisely this factor which distinguished the applicants’ situation from that of an unmarried heterosexual couple and required the authorities to treat them differently from heterosexual couples who had not regularised their situation. For the Court, there was no reasonable and objective justification for not treating the applicants differently.
Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1
The judgment in Guberina v. Croatia related to a failure to take account of the needs of a disabled child when determining a father’s eligibility for tax relief on the purchase of property adapted to those needs.
The applicant is the father of a severely disabled child who required constant attention. He sold the family’s third-floor flat in a building without a lift, and purchased a house so as to provide the child with facilities which were better suited to his and the family’s needs. The applicant sought tax relief on the purchase of the house under the relevant legislation but his request was refused on the ground that the flat he had sold met the needs of the family, since it was sufficiently large and equipped with the necessary infrastructure such as electricity and heating. No consideration was given to the plight of the child and the absence of a lift in the building.
The applicant essentially complained in the Convention proceedings that the manner of application of the tax legislation to his situation amounted to discrimination, having regard to his child’s disability. The Court found a breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. The judgment is noteworthy for the following reasons.
In the first place, the Court held that the applicant could complain of discriminatory treatment on account of his child’s disability. In its view, Article 14 also covered situations in which an individual is treated less favourably on the basis of another’s status within the meaning of the case-law under that provision. As the father of a disabled child for whom he provided care, the applicant could rely on Article 14.
Secondly, the Court considered that the authorities had treated the applicant like any other person who purchased property and sought tax relief on the ground that their previous property failed to meet basic infrastructure requirements of the type mentioned above. For the Court, the essential question was to determine whether there was objective and reasonable justification for not treating the applicant’s situation differently, having regard to the factual inequality between his situation and that of other claimants of tax relief on purchased property (see in this connection, Thlimmenos, cited above). In its view, even if the relevant tax legislation did not on the face of it appear to allow the decision-maker to find a solution for the applicant’s situation, it was noteworthy that other provisions of domestic law did address the problems facing disabled persons in having access to buildings. The availability of a lift was seen in domestic law as a basic requirement in this connection. Furthermore, the Court observed that the authorities had not taken into account Croatia’s relevant obligations under the UN Convention on the Rights of Persons with Disabilities. The failure to have regard to these wider disability-based considerations and obligations had resulted in the application of an overly restrictive and mechanical approach to the interpretation of the tax legislation as regards the meaning of basic infrastructure requirements. It is of interest that the Court was not prepared to accept by way of objective and reasonable justification for the failure to take account of the applicant’s specific situation the Government’s plea that the tax law was intended to assist financially disadvantaged purchasers of property. Its response was that this argument had never been invoked by the authorities as a reason for rejecting the applicant’s claim for tax relief and for that reason it could not speculate on its relevance.
Finally, the judgment can be viewed as a significant contribution to the Court’s existing case-law on disability and is illustrative of the Court’s readiness to have regard to a State’s obligations under other international instruments when deciding on compliance with Convention obligations in the area of discrimination.
Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1
The case of Çam v. Turkey concerned a visually impaired child who was denied access to music studies.
The applicant was refused admission to the music section of a Turkish academy. She had satisfied the academy that she had the technical ability to pursue her education in her chosen instrument. However, she was refused a place because she was unable to produce a medical certificate drawn up in compliance with the necessary administrative requirements and confirming to the academy’s satisfaction her physical ability to follow its courses.
In the Convention proceedings, the applicant alleged that, because of her disability, she had been discriminated against in her right to education, contrary to Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1.
The Court agreed with the applicant that she was refused access to the academy solely on account of her visual disability. It was persuaded that the academy was not in a position to provide education to disabled persons regardless of the nature of their particular disability. The academy’s insistence on a medical certificate compliant with its own internal regulations could not disguise this fact.
The judgment is noteworthy for the following reasons.
In the first place, the Court ruled that the right guaranteed by Article 2 of Protocol No. 1 was engaged on the facts of the case even though the primary focus of the education provided by the academy was on the development of the applicant’s musical talent.
Secondly, in finding that Article 14 had been breached, the Court drew on the provisions of the UN Convention on the Rights of Persons with Disabilities (which Turkey had ratified) and, in particular, the provisions of its Article 2 on the requirement of “reasonable accommodation”, meaning the adoption of “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.
Significantly, the Court reasoned, with reference to the particular vulnerability of disabled children such as the applicant, that discrimination based on an individual’s disability also arises when the authorities refuse to examine the possibility of introducing measures which could bring about a “reasonable accommodation”.
In finding that there had been a breach of the Convention, the Court noted that the academy had neither sought to identify how the applicant’s visual impairment could have impeded her ability to follow music lessons nor examined the sort of measures which could be taken in order to accommodate her disability.
The judgment reflects the importance which the Court attaches to international-law developments when it comes to issues submitted to its consideration and its willingness to interpret the scope of Convention rights in the light of such developments.
Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1
The issue in Partei Die Friesen v. Germany was alleged discrimination against a political party representing the interests of a minority group.
The applicant was a political party. It claimed to represent the interests of the Frisian minority in Germany and was particularly active in the Land of Lower Saxony. It failed to attain the 5% threshold for the 2008 parliamentary elections in Lower Saxony, obtaining only 0.3% of the votes cast. In the Convention proceedings, the applicant party argued that the imposition of the 5% threshold requirement amounted to an interference with its right to participate in elections without being discriminated against, as guaranteed by Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1.
The Court found that these provisions had not been violated. The judgment may be seen as a noteworthy contribution to the case-law on the scope of a Contracting Party’s obligations with regard to the protection of minorities in the electoral sphere and the role of the margin of appreciation in this connection.
The Court observed that the forming of an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights (see Gorzelik and Others v. Poland). The applicant party was formed to represent the interests of a national minority. The Court accepted its argument that the number of Frisians in Lower Saxony was not high enough to reach the statutory electoral threshold for obtaining a mandate.
Should it be treated differently on that account to other special-interest parties representing the interests of a small part of the population? On that point, the Court had regard to the Council of Europe’s Framework Convention for the Protection of National Minorities, Article 15 of which emphasised the participation of national minorities in public affairs. It observed, however, that the possibility of exemption from minimum electoral threshold requirements was presented as one of many options to attain this aim, and no clear and binding obligation could be derived from that Convention to exempt national minorities from electoral thresholds. States Parties to the Framework Convention enjoyed a wide margin of appreciation as regards the implementation of its Article 15. Accordingly, even if certain of the Länder in Germany exempted national minorities from the threshold requirement, and even if the Convention were to be interpreted in the light of the Framework Convention, it could not be concluded that the Convention required different treatment in favour of minority parties in this context.
253. See also under Article 9 above, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, ECHR 2016.
254. Biao v. Denmark [GC], no. 38590/10, ECHR 2016.
255. Jeunesse v. the Netherlands [GC], no. 12738/10, § 107, 3 October 2014.
256. Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, §§ 70-80, Series A no. 94.
257. Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001.
258. D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175 and 184-85, ECHR 2007-IV.
259. Di Trizio v. Switzerland, no. 7186/09, 2 February 2016.
260. Pajić v. Croatia, no. 68453/13, 23 February 2016.
261. Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013 (extracts).
262. Aldeguer Tomás v. Spain, no. 35214/09, 14 June 2016.
263. Schalk and Kopf v. Austria, no. 30141/04, § 94, ECHR 2010.
264. Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 73, ECHR 2013 (extracts).
265. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 163, 21 July 2015.
266. Taddeucci and McCall v. Italy, no. 51362/09, 30 June 2016.
267. Schalk and Kopf v. Austria, no. 30141/04, § 94, ECHR 2010.
268. X and Others v. Austria [GC], no. 19010/07, § 95, ECHR 2013.
269. Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV.
270. See also under Article 14 taken in conjunction with Article 8 above, Aldeguer Tomás v. Spain, no. 35214/09, 14 June 2016.
271. Guberina v. Croatia, no. 23682/13, ECHR 2016.
272. Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV.
273. Çam v. Turkey, no. 51500/08, 23 February 2016.
274. Partei Die Friesen v. Germany, no. 65480/10, 28 January 2016.
275. Gorzelik and Others v. Poland [GC], no. 44158/98, § 93, ECHR 2004-I.