4.8. Criminal law matters – Handbook on European non-discrimination law

Last Updated on August 11, 2019 by LawEuro

Handbook on European non-discrimination law – Contents

Under the ECHR, the prohibition of discrimination can relate to criminal law matters across a variety of rights, including the right to a fair trial (Article 6), the right to liberty (Article 5), the prohibition on retroactive punishment (Article 7) and double jeopardy (Article 4 of Protocol No. 7), the right to life (Article 2) and the right to be free from inhuman or degrading treatment or punishment (Article 3). There is also important case law concerning violence against women and other vulnerable groups, such as Roma or LGBT people, where the ECtHR has emphasised the states’ obligation to investigate the discriminatory motives of violence. In a number of rulings, the ECtHR acknowledged that a lack of response to violence constituted a violation of Article 14.[420]

In addition to the previous topics already discussed elsewhere, the ECHR also protects the right to be free from arbitrary detention based on discriminatory grounds, and the right to be free from inhuman or degrading treatment or punishment based on discriminatory grounds during detention.[421]

Example: In Martzaklis and Others v. Greece,[422] HIV-positive prisoners detained in a prison hospital complained in particular about poor sanitary conditions and lack of appropriate medical treatment, detention in overcrowded and insufficiently heated rooms, food of poor nutritional value, and irregular and not individually prescribed medical treatment. The prison authorities justified their isolation as necessary for better monitoring and treatment of their conditions. The ECtHR held that the placement in isolation to prevent the spread of disease was not necessary, because the prisoners were HIV-positive and had not developed AIDS. They were exposed to physical and mental suffering going beyond the suffering inherent in detention. In conclusion, the ECtHR found that inadequate physical and sanitary conditions, irregularities in administration of appropriate treatment and lack of objective and reasonable justification for isolation of HIV-positive prisoners amounted to a violation of Article 3 in conjunction with Article 14 of the ECHR.

Example: In D.G. v. Ireland and Bouamar v. Belgium,[423] (discussed in Section 5.5), the applicants, who were minors, had been placed in detention by the national authorities. Here, the ECtHR considered that, although there had been violations of their right to liberty, there had been no discrimination because the differential treatment had been justified in the interests of protecting minors.

Example: In Stasi v. France,[424] 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. For example, the applicant claimed that he was forced to wear a pink star and that he was beaten and burned with cigarettes by other inmates. The ECtHR, noted that in response to each allegation the authorities took measures to protect him: the applicant had been segregated from the other inmates and had been seen by the building supervisor, a doctor and a psychiatrist. The ECtHR 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 14.

Article 14 of the ECHR may also be applicable where provisions of criminal law are found to be discriminatory[425] or where convictions based on those discriminatory provisions remain on a person’s criminal record.[426]

Under EU law, according to well-established case law of the CJEU,[427] even if the areas where criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, the national legislative provisions may not discriminate against persons to whom EU law gives the right to equal treatment. In the following case, the principle of non-discrimination was raised in proceedings relating to the execution of a European arrest warrant.[428]

Example: In João Pedro Lopes Da Silva Jorge,[429] a Portuguese national was sentenced in Portugal to five years’ imprisonment for drug trafficking. Subsequently, he married a French national with whom he was resident in France. He was also employed by a French company under an indefinite duration contract. Not wishing to be surrendered to the Portuguese authorities, he requested to be imprisoned in France. However, the French

provision allowing non-execution of the European arrest warrant was restricted solely to French nationals. The CJEU stated that Member States cannot limit the non-execution of arrest warrants solely to their own nationals, by automatically and absolutely excluding nationals of other Member States who are staying or resident in the territory of the Member State of execution, irrespective of their connections with that Member State. This would constituted discrimination on the grounds of nationality within the meaning of Article 18 of the TFEU.


420. See among others ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009 relating to violence against women; ECtHR, Boacă and Others v. Romania, No. 40355/11, 12 January 2016 relating to violence against Roma and ECtHR, M.C. and A.C. v. Romania, No. 12060/12, 12 April 2016 relating to violence against LGBT persons. For further discussion and examples, see Section 2.6 concerning hate crime.

421. See, Khamtokhu and Aksenchik v. Russia [GC], Nos. 60367/08 and 961/11, 24 January 2017.

422. ECtHR, Martzaklis and Others v. Greece, No. 20378/13, 9 July 2015.

423. ECtHR, D.G. v. Ireland, No. 39474/98, 16 May 2002; ECtHR, Bouamar v. Belgium, No. 9106/80, 29 February 1988.

424. ECtHR, Stasi v. France, No. 25001/07, 20 October 2011.

425. ECtHR, S.L. v. Austria, No. 45330/99, 9 January 2003.

426. ECtHR, E.B. and Others v. Austria, Nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07, 7 November 2013.

427. CJEU, Case 186/87, Ian William Cowan v. Trésor public, 2 February 1989.

428. Compare CJEU, C-182/15, Aleksei Petruhhin v. Latvijas Republikas Ģenerālprokuratūra [GC], 6 September 2016, concerning an extradition to a third state of an EU citizen exercising freedom of movement.

429. CJEU, C-42/11, Proceedings concerning the execution of a European arrest warrant issued against João Pedro Lopes Da Silva Jorge [GC], 5 September 2012.


4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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