Last Updated on August 22, 2019 by LawEuro
Handbook on European non-discrimination law – Contents
Key point
- The principle of non-discrimination is enshrined in a number of Council of Europe treaties.
The Council of Europe is an intergovernmental organisation that originally came together after the Second World War to promote, among other things, the rule of law, democracy, human rights and social development (see Preamble and Article 1 of the Statute of the Council of Europe). In 1950, CoE member states adopted the Convention for the Protection of Human Rights and Fundamental Freedoms, calling on the ECHR to help achieve these aims. The ECHR was the first of the modern human rights treaties drawing from the United Nations Universal Declaration of Human Rights. It sets out a legally binding obligation for its members to guarantee a list of human rights to everyone within their jurisdiction, not just citizens. The implementation of the ECHR is reviewed by the ECtHR, which hears cases brought against member states. The Council of Europe currently has 47 members and any state wishing to join must accede to the ECHR.
The prohibition of discrimination is established in Article 14 of the ECHR, which guarantees equal treatment in the enjoyment of the other rights set out in the Convention. Protocol 12 (2000) to the ECHR, not yet ratified by all EU Member States,[6] expands the scope of the prohibition of discrimination to equal treatment in the enjoyment of any right, including rights under national law.
The ESC (revised)[7] is the CoE’s other main human rights treaty. Unlike the 1961 Charter,[8] it contains Article E, an explicit provision prohibiting discrimination. Its wording is very similar to that of Article 14 of the ECHR. It provides protection from discrimination through a horizontal clause covering grounds such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health association with a national minority, birth or ‘other status’.
The ECSR is responsible for monitoring the compliance with the ESC. It stressed that the “insertion of Article E into a separate Article in the Revised Charter indicates the heightened importance the drafters paid to the principle of non- discrimination with respect to the achievement of the various substantive rights contained therein.”[9] Accordingly, the revised ESC does not allow discrimination on any of the grounds listed in this article (which is a non-exhaustive list, similarly to Article 14 of the ECHR) in respect of any of the rights contained in the instrument.
Under the ESC, the additional protocol provides for a system of collective complaints. It entitles non-governmental organisations (NGOs) enjoying participatory status with the Council of Europe to lodge collective complaints against a state which has ratified it, for non-compliance with the ESC.
The principle of non-discrimination is a governing principle in a number of other Council of Europe instruments, even if these are not a primary focus of this handbook. [10] For example, protection against discrimination is also provided in the Framework Convention for the Protection of National Minorities,[11] the Convention on Action against Trafficking in Human Beings[12] and the Convention on Access to Official Documents.[13] The Protocol to the Convention on Cybercrime[14] also calls for protection against discrimination. Furthermore, the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) condemns all forms of discrimination against women.[15] In its preamble, the Istanbul Convention recognises that violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over and discrimination against women by men and prevented the full advancement of women.[16] The Convention on Human Rights and Biomedicine prohibits any form of discrimination against a person on the grounds of his or her genetic heritage.[17] In addition, the European Commission against Racism and Intolerance (ECRI), [18] a human rights body of the Council of Europe, monitors problems of racism, xenophobia, antisemitism, intolerance and racial discrimination.[19]
The principle of non-discrimination has been influential in shaping CoE standards and is seen as a fundamental right that needs to be protected.
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6. For the number of EU Member States that ratified Protocol 12, see Chart of signatures and ratifications of Treaty 177.
7. Council of Europe, European Social Charter (revised), CETS No. 163, 3 May 1996.
8. Council of Europe, European Social Charter, CETS No. 35, 18 October 1961.
9. ECSR, International Association Autism-Europe v. France, Complaint No. 13/2002, 4 November 2003.
10. The texts of all Council of Europe treaties are available at the Council of Europe Treaty Office webpage.
11. Council of Europe, Framework Convention for the Protection of National Minorities (FCNM), CETS No. 157, 1995. See Art. 4, 6 (2) and 9.
12. Council of Europe, Convention on Action against Trafficking in Human Beings, CETS No. 197, 2005. See Art. 2 (1).
13. Council of Europe, Convention on Access to Official Documents, CETS No. 205, 2009. See Art. 2 (1).
14. Council of Europe, Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, ETS 189. See Art. 3 (1).
15. Council of Europe, Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS No. 210, 2011. See Art. 4.
16. The European Commission proposed that the EU signs the Istanbul Convention; see Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, COM (2016) 109 final, Brussels, 4 March 2016.
17. Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, CETS No. 164, 1997. See Art. 11.
18. The first Summit of Heads of State and Government of the Council of Europe set up ECRI in 1993, composed of 47 independent experts.
19. See ECRI’s webpage.
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