5.12. ‘Other status’ – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under the ECHR, the term ‘other status’ is broadly defined by the ECtHR as “differences based on an identifiable, objective, or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another.”[634] Moreover, the interpretation of this notion “has not been limited to characteristics which are personal in the sense that they are innate or inherent”.[635]

As can be seen from the previously described protected grounds, the ECtHR has developed several grounds under the ‘other status’ category, many of which coincide with those developed under EU law, such as sexual orientation, age and disability.

In addition to disability, age and sexual orientation, the ECtHR has also recognised that the following characteristics are protected grounds under ‘other status’: fatherhood;[636] marital status;[637] membership of an organisation;[638] military rank;[639] parenthood of a child born out of wedlock;[640] place of residence;[641] health or any medical condition;[642] former KGB officer status;[643] retirees employed in certain categories of the public sector;[644] detainees pending trial.[645]

Example: In Varnas v. Lithuania,[646] the applicant had been refused permission to receive conjugal visits from his wife during his pre-trial detention because, as the relevant authorities stated, “detainees who had not been convicted had no right to conjugal visits”. Accordingly, the difference in treatment was based on the fact that the applicant was a detainee pending trial and not a convicted prisoner. The ECtHR found that the authorities had failed to provide any reasonable and objective justification for the difference in treatment and had thus acted in a discriminatory manner. In particular, the security consideration could not serve as a justification. The applicant’s wife was neither a witness nor a co-accused in the criminal cases against him, so there was no risk of obstructing the process of collecting evidence. The ECtHR stressed that the authorities had relied on the legal norms, without explaining why those prohibitions had been necessary and justified in his specific situation. The ECtHR also considered that the particularly long period of the applicant’s pre-trial detention (two years at the moment when the applicant had first asked for a conjugal visit) had reduced his family life to a degree that could not be justified by the inherent limitations involved in detention.

Under the ESC, the list of the grounds of prohibited discrimination specified in Article E of the ESC (revised) is also not exhaustive.

Example: In Associazione Nazionale Giudici di Pace v. Italy,[647] the ECSR examined differences in legal status between different categories of judges (tenured and lay judges). The claimant organisation alleged that persons performing the duties of a Justice of the Peace were discriminated against in matters of social security in comparison with tenured judges and other types of lay judges. Justices of the Peace, as members of the judiciary, exercised in practice the same duties as tenured judges. Moreover, both categories were treated equally for tax purposes and the same recruitment procedure was applied in regard to both categories. The main difference was that Justices of the Peace were denied the legal status of civil servants and workers, and provisions on remuneration, social security, pension and leave applied only to tenured judges. This resulted in a situation whereby some Justices of the Peace suspended or reduced their professional activity, and thereby were not entitled to social security protection, whereas the others enjoyed social security coverage stemming from other sources (under a pension scheme, an employment contract, or a self-employed professional activity). The ECSR found that the duties assigned to both groups and the tasks performed were similar, and confirmed that Justices of the Peace were in a comparable situation to tenured judged.

The government put forward several arguments to justify the differential treatment. They referred particularly to the selection procedure, the fixed term in office, part-time work, honorary service or remuneration by compensation. The ECSR found that these arguments concerned mere modalities of a work organisation and did not constitute an objective and reasonable justification of the differential treatment. In conclusion, it found a violation of Article E read in conjunction with Article 12 (1) of the Charter in respect of Justices of the Peace who were precluded from social security coverage.

Under EU non-discrimination directives, only discrimination based on the specified ground is prohibited. Consequently, differences in treatment between persons in comparable situations which are not based on one of the protected grounds will not constitute discrimination.[648]

Example: In Petya Milkova v. Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol,[649] the complaint about discrimination concerned national legislation conferring on employees with certain disabilities specific advance protection in the event of dismissal, without conferring such protection on civil servants with the same disabilities. The CJEU stressed a difference of treatment on grounds of disability can only be established if the national legislation uses a criterion that is not inseparably linked to disability. In this case, the difference in treatment was based on the employment relationship itself, and as such did not fall within the general framework laid down by the Employment Equality Directive.

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634. ECtHR, Novruk and Others v. Russia, Nos. 31039/11 and others, 15 March 2016, para. 90.

635. ECtHR, Biao v. Denmark [GC], No. 38590/10, 24 May 2016, para. 89.

636. ECtHR, Weller v. Hungary, No. 44399/05, 31 March 2009.

637. ECtHR, Petrov v. Bulgaria, No. 15197/02, 22 May 2008.

638. ECtHR, Danilenkov and Others v. Russia, No. 67336/01, 30 July 2009 (trade union); ECtHR, Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (No. 2), No. 26740/02, 31 May 2007 (freemasons).

639. ECtHR, Engel and Others v. the Netherlands, Nos. 5100/71 and others, 8 June 1976.

640. ECtHR, Sommerfeld v. Germany [GC], No. 31871/96, 8 July 2003; ECtHR, Sahin v. Germany [GC] No. 30943/96, 8 July 2003.

641. ECtHR, Carson and Others v. the United Kingdom [GC], No. 42184/05, 16 March 2010; ECtHR, Pichkur v. Ukraine, No. 10441/06, 7 November 2013.

642. ECtHR, Novruk and Others v. Russia, No. 31039/11 and others, 15 March 2016.

643. ECtHR, Sidabras and Others v. Lithuania, No. 50421/08 and 56213/08, 23 June 2015.

644. ECtHR, Fábián v. Hungary, No. 78117/13, 15 December 2015. The case has been referred to the Grand Chamber.

645. ECtHR, Varnas v. Lithuania, No. 42615/06, 9 July 2013.

646. Ibid.

647. ECSR, Associazione Nazionale Giudici di Pace v. Italy, Complaint No. 102/2013, 5 July 2016.

648. CJEU, C-13/05, Sonia Chacón Navas v. Eurest Colectividades SA [GC], 11 July 2006.

649. CJEU, C-406/15, Petya Milkova v. Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol, 9 March 2017.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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