1.3. Scope of the ECHR: Article 14 and Protocol No. 12

Handbook on European non-discrimination lawContents

Key points

  • Article 14 of the ECHR prohibits discrimination only in relation to the exercise of another right guaranteed by the Convention.
  • Under Protocol No. 12, the prohibition of discrimination became a free-standing right.

Article 14 guarantees equality in ‘the enjoyment of […] [the] rights and freedoms’ set out in the ECHR. The ECtHR will therefore not be competent to examine complaints of discrimination unless they fall within the ambit of one of the rights protected by the ECHR.

Whenever the ECtHR considers an alleged violation of Article 14, this is always done in conjunction with a substantive right. An applicant will often allege a violation of a substantive right, and in addition, a violation of a substantive right in conjunction with Article 14. That is, that the interference with their rights was, in addition to failing to meet the standards required in the substantive right, also discriminatory, in that those in a comparable situation did not face a similar disadvantage. As noted in Chapter 4, where the ECtHR finds a violation of the substantive right, it will not go on to consider the complaint of discrimination, where it considers that this will involve an examination of essentially the same complaint.

This section will first briefly set out the rights guaranteed by the ECHR and then explain how the ECtHR has interpreted the scope of the ECHR for the purposes of applying Article 14.

1.3.1. Rights covered by the ECHR

Since Article 14 is wholly dependent on discrimination based on one of the substantive rights guaranteed in the ECHR, it is necessary to gain an appreciation of the rights covered by this Convention. The ECHR contains a list of rights, predominantly characterised as ‘civil and political’; however, it also protects certain rights, which might be considered ‘economic and social’.

The substantive rights contained within the ECHR cover a number of areas: for example, the right to life, the right to respect for private and family life and freedom of thought, conscience and religion.

Wherever an issue of discrimination relates to one of the areas covered by an ECHR right, the ECtHR will consider complaints alleging a violation of Article 14.

This is an extremely significant distinction between EU law and the ECHR, in that the ECHR provides protection from discrimination over issues that EU non- discrimination law does not regulate. Although the EU Charter of Fundamental Rights obliges the EU not to interfere with human rights in the measures it takes (including a prohibition of discrimination), the Charter only applies to the Member States when they are applying EU law.

Since the introduction of the non-discrimination directives and the extension of protection to accessing goods and services and the welfare system, the difference in scope between the protection offered under the ECHR and the directives has diminished. Nonetheless, particular areas where the ECHR provides protection over and above EU law can be identified. These will be examined below.

1.3.2. Scope of ECHR rights

When applying Article 14, the ECtHR has adopted a wide interpretation of the scope of ECHR rights:

  • first, the ECtHR has made clear that it may examine claims under Article 14 taken in conjunction with a substantive right, even if there has been no violation of the substantive right of itself;[52]
  • second, it has held that it was possible for a complaint of discrimination to fall within the scope of a particular right, even if the issue in question did not relate to a specific entitlement granted by the ECHR. In such cases, it was sufficient that the facts of the case broadly relate to issues that are protected under the ECHR.[53]

Example: In Zarb Adami v. Malta,[54] the applicant complained of sex discrimination due to the disproportionately high number of men called for jury service. The ECtHR found that, although ‘normal civic obligations’ were not covered by the prohibition of ‘forced or compulsory labour’ under Article 4 (put otherwise, that the ECHR does not confer a right to be free from performing jury service), the facts of the case did fall within the scope of the right. ‘Normal civic obligations’ could become ‘abnormal’ where they were applied in a discriminatory manner.

Example: In Khamtokhu and Aksenchik v. Russia,[55] two men serving life sentences in Russia complained of discriminatory treatment between them and other convicts who were not eligible for a life sentence under national law, namely women of all ages and men who were under 18 years when committing the offence or over 65 years at the date of conviction. They alleged a violation of Article 14 in conjunction with Article 5. The ECtHR found that Article 5 of the Convention did not preclude the imposition of life imprisonment where such punishment was prescribed by national law. Nevertheless, the prohibition of discrimination enshrined by Article 14 extends beyond the enjoyment of the rights and freedoms guaranteed by states in accordance with the Convention and its Protocols. It also applies to additional rights voluntarily provided by the state, which fall within the general scope of the Convention. The ECtHR found that the difference in treatment between the applicants and juvenile offenders was justified by their mental and emotional immaturity, and their capacity for rehabilitation and reformation; the difference of treatment with the offenders aged over 65 years was justified by the fact that the eligibility for release on parole after 25 years would otherwise be illusory in their case. For the difference in treatment on account of sex, on the basis of the existing international instruments on the situation and needs of women and the statistics submitted by the government, the Court concluded that there was a public interest justifying the position under national law that women were ineligible for the life sentence. It further appeared difficult to criticise the Russian legislature for having established, in a way that reflected the evolution of society in that sphere, the exemption of certain groups of offenders from life imprisonment. Such an exemption represented, all things considered, social progress in penological matters. In the absence of common ground regarding the imposition of life imprisonment, the Russian authorities had not overstepped their margin of appreciation. There had thus been no violation of the Convention.

Example: The case of A.H. and Other v. Russia[56] concerns an allegedly discriminatory ban on the adoption of Russian children by US nationals. The ECtHR reiterated that the right to adopt was not guaranteed by the ECHR. However, where a state had gone beyond its obligations under Article 8 and created such a right in its domestic law, it could not, in applying that right, take discriminatory measures within the meaning of Article 14. The applicants’ right to apply for adoption, and to have their applications considered fairly, fell within the general scope of private life under Article 8.[57]

Example: In Pichkur v. Ukraine,[58] the payment of the applicant’s pension was terminated on the ground that he resided permanently abroad. He complained that the deprivation of his pension on the ground of his place of residence had been discriminatory. The ECtHR stressed that if a state had legislation in force providing for the payment of a welfare benefit as of right, that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for those satisfying its requirements. Consequently, although the said provision did not include the right to receive a social-security payment, if a state decided to create a benefits scheme, it had to do so in a manner which was compatible with Article 14.

Similarly, for the purpose of applying Article 14, the ECtHR has found in many other cases that any form of state benefit which becomes payable will fall under the scope of either Article 1 of Protocol No. 1[59] (because it is deemed to be property)[60] or Article 8 (because it affects the family or private life).[61]

1.3.3. Protocol No. 12 to the ECHR

Protocol No. 12 prohibits discrimination in relation to the ‘enjoyment of any right set forth by law’ and ‘by any public authority’ and is thus greater in scope than Article 14, which relates only to the rights guaranteed by the Convention. In the first case examined by the ECtHR under Protocol No. 12, Sejdić and Finci v. Bosnia and Herzegovina[62] (discussed in Section 5.6), the Court confirmed that Article 1

of Protocol No. 12 introduced a general prohibition of discrimination. It further confirmed that the notions of discrimination prohibited by both Article 14 and Article 1 of Protocol No. 12 were to be interpreted in the same manner.[63]

The commentary provided on the meaning of these terms in the Explanatory Report of Protocol No. 12 states that Article 1 of Protocol No. 12 relates to discrimination:

(i) in the enjoyment of any right specifically granted to an individual under national law;

(ii) in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;

(iii) by a public authority in the exercise of discretionary power (for example, granting certain subsidies);

(iv) by any other act or omission by a public authority (for example, the be- haviour of law enforcement officers when controlling a riot).[64]

Example: In Savez crkava “Riječ života” and Others v. Croatia,[65] the applicants (three Reformist churches) complained that, unlike other religious communities, they were denied certain privileges, such as the right to provide religious education in schools and nurseries or to have religious marriages recognised by the state, as the domestic authorities refused to conclude an agreement with them regulating their legal status. The applicant churches’ complaint in this respect therefore did not concern “rights specifically granted to them under national law”, as it was in the state’s discretion to grant such privileges. The ECtHR concluded that the criteria to grant privileged status were not applied on an equal basis to all religious communities. The Court held that this difference in treatment did not have an objective and reasonable justification and was in violation of Article 14 in conjunction with Article 9 of the ECHR. Relying on the Explanatory Report on Protocol No. 12, it considered that the applicants’ complaint fell within the third category specified by the “by a public authority in the exercise of discretionary power”. However, it was not necessary to examine the complaint under that Protocol as the ECtHR had already found a violation of Article 14.

The Explanatory Report of Protocol No. 12 further states that, while that Protocol principally protects individuals against discrimination from the state, it will also apply to those relationships between private persons, which should normally be regulated by the state. These may include, ‘for example, arbitrary denial of access to work, access to restaurants, or to services which private persons may make available to the public such as medical care or utilities such as water and electricity’.[66] Broadly speaking, Protocol No. 12 will prohibit discrimination outside purely personal contexts, where individuals exercise functions placing them in a position to decide on how publicly available goods and services are offered.

________________

52. See, for example, ECtHR, Sommerfeld v. Germany [GC], No. 31871/96, 8 July 2003.

53. See, for example, ECtHR, A.H. and Others v. Russia, No. 6033/13 and 15 other applications, 17 January 2017, para. 380f.

54. ECtHR, Zarb Adami v. Malta, No. 17209/02, 20 June 2006.

55. ECtHR, Khamtokhu and Aksenchik v. Russia [GC], Nos. 60367/08 and 961/11, 24 January 2017, para. 58.

56. ECtHR, A.H. and Others v. Russia, No. 6033/13 and 15 other applications, 17 January 2017.

57. Ibid., para. 385.

58. ECtHR, Pichkur v. Ukraine, No. 10441/06, 7 November 2013.

59. An explanation as to the scope of Art. 1 of Protocol No. 1 to the ECHR can be found in: A. Grgić,

Z. Mataga, M. Longar and A. Vilfan (2007), ‘The right to property under the ECHR’, Human Rights Handbook, No. 10.

60. For example, ECtHR, Stec and Others v. the United Kingdom [GC], Nos. 65731/01 and 65900/01, 12 April 2006 (pension payments and invalidity benefits); ECtHR, Andrejeva v. Latvia [GC],

No. 55707/00, 18 February 2009 (pension payments); ECtHR, Koua Poirrez v. France, No. 40892/98, 30 September 2003 (disability benefit); ECtHR, Gaygusuz v. Austria, No. 17371/90, 16 September 1996 (unemployment benefit).

61. For example, ECtHR, Weller v. Hungary, No. 44399/05, 31 March 2009 (a social security payment for the purposes of supporting families with children).

62. ECtHR, Sejdić and Finci v. Bosnia and Herzegovina [GC], Nos. 27996/06 and 34836/06, 22 December 2009.

63. Compare also: ECtHR, Pilav v. Bosnia and Herzegovina, No. 41939/07, 9 June 2016.

64. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177), Explanatory Report, para. 22.

65. ECtHR, Savez crkava “Riječ života” and Others v. Croatia, No. 7798/08, 9 December 2010.

66. Ibid., para. 28.

Contents

1. Introduction to European non-discrimination law: context, evolution and key principles

1.1. Context and background to European non-discrimination law

1.1.2. European Union: development of nondiscrimination law

1.1.3. European non-discrimination law and UN human rights treaties

1.2. Who receives protection under European non-discrimination law?

1.3. Scope of the ECHR: Article 14 and Protocol No. 12

1.4. Scope of EU non-discrimination law

Leave a Reply

Your email address will not be published.

*

code