5.11. Political or other opinion – Handbook on European non-discrimination law

Last Updated on August 11, 2019 by LawEuro

Handbook on European non-discrimination law – Contents

Under the ECHR, ‘political or other opinion’ is expressly listed as a protected ground. However, under EU law they do not feature among the grounds protected by the EU non-discrimination directives.

At a general level, in the case of Handyside v. United Kingdom, the ECtHR established that the right to freedom of expression will protect not only ‘“information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the state or any sector of the population’.[625] Political opinion has been given privileged status. The ECtHR has repeatedly emphasised that free elections and freedom of expression, particularly freedom of political debate, constitute “the foundation of any democratic system”.[626] Accordingly, the powers of states to put restrictions on political expression or debate on questions of public interest are very limited.[627]

Example: In Virabyan v. Armenia,[628] the applicant, a member of one of the main opposition parties, complained under Article 14 in conjunction with Article 3 of the ECHR that he had been subjected to ill treatment in custody on account of his political opinion. The ECtHR found that he had been subjected to a particularly cruel form of ill treatment in violation of Article 3. Examining the complaint under Article 14, the ECtHR noted that “political pluralism, which implies a peaceful co-existence of a diversity of political opinions and movements, is of particular importance for the survival of a democratic society based on the rule of law, and acts of violence committed by agents of the State which are intended to suppress, eliminate or discourage political dissent or to punish those who hold or voice a dissenting political opinion pose a special threat to the ideals and values of such a society.”[629] The ECtHR found, however, that the evidence in the case was insufficient to prove that the ill treatment had been motivated by his political opinion. In particular, it stated that the finding that the applicant’s arrest had been politically motivated was not sufficient to conclude that the ill treatment had also been inflicted for political motives. The ECtHR stressed that the state had an “additional duty to take all reasonable steps to unmask any political motive and to establish whether or not intolerance towards a dissenting political opinion may have played a role in the events”.[630] It found that the authorities had done almost nothing to verify a possible causal link between alleged political motives and the abuse suffered by the applicant. In conclusion, it ruled that the manner in which the authorities had investigated the case constituted a violation of Article 14 of the Convention taken in conjunction with Article 3 in its procedural limb.

Example: In Redfearn v. the United Kingdom,[631] the applicant had been dismissed on account of his political affiliation to a far right political party which promoted, among others, the view that only white people should be citizens of the United Kingdom and called for the removal of settled non- white populations from the country. The applicant worked as a bus driver for a private company providing transport services for local authorities. The majority of his passengers were of Asian origin. There had been no complaints about his work or his conduct at work. However, once he had been elected as a local councillor for the right-wing party, he was summarily dismissed on account of his employer’s concerns that the applicant might endanger its contract with a local council to transport vulnerable people of various ethnicities. The applicant complained that his dismissal, motivated solely on the grounds of his political involvement, violated his rights under Article 10 and 11 of the Convention.

The ECtHR did not examine whether the dismissal itself was justified. However, a violation of Article 11 was found on the basis that he had been unable to challenge the dismissal. The ECtHR noted that “in the absence of judicial safeguards, a legal system which allows dismissal from employment solely on account of the employee’s membership of a political party carries with it the potential for abuse”.[632] The ECtHR also emphasised that the applicant’s right to challenge his dismissal was still valid, notwithstanding the nature of his political beliefs stating: “Article 11 is applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.[633]

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625. ECtHR, Handyside v. the United Kingdom, No. 5493/72, 7 December 1976.

626. ECtHR, Oran v. Turkey, Nos. 28881/07 and 37920/07, 15 April 2014, para. 51.

627. ECtHR, Kurski v. Poland, No. 26115/10, 5 July 2016, para. 47.

628. ECtHR, Virabyan v. Armenia, No. 40094/05, 2 October 2012.

629. Ibid., para. 200.

630. Ibid., para. 218.

631. ECtHR, Redfearn v. the United Kingdom, No. 47335/06, 6 November 2012.

632. Ibid., para. 55.

633. Ibid., para. 56.

Contents

5. Protected grounds