Article 14 of the European Convention on Human Rights

Last updated

Article 14 of the European Convention on Human Rights lists the prohibited grounds against which discrimination in illegal. The text states that

Contents

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Unlike the Universal Declaration of Human Rights, there is no general right to equal treatment, only in the areas covered by the Convention. However, the article covers an open-ended list of prohibited grounds for discrimination and has been expanded over time to include such grounds as sexual orientation and gender identity. [1] [2] In the case law of the European Court of Human Rights, the interpretation of the article has expanded over time to include indirect discrimination. [3] Protocol 12 to the European Convention on Human Rights expands on Article 14 to include a freestanding prohibition of discrimination in "any right set forth by law". Introduced in 2000, it has been ratified by 20 of 47 Council of Europe states as of 2021. [4] [5]

In early cases before the European Court of Human Rights the court assumed that for Article 14 to be relevant, a breach of one of the substantive Convention rights had to have occurred. If the court did find a substantive breach, it would not find it necessary to consider Article 14. In the Belgian Linguistic case in 1968, the Belgian government argued that Article 14 was not relevant unless there was a substantive breach. For the first time, the court rejected this argument. Following this case, the court considers that for Article 14 to be considered "it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols". [6]

The court focuses on substantive equality rather than formal equality, and therefore it considers affirmative action acceptable in certain circumstances. [7] According to the court's case law, any difference in treatment based on fixed status must be proportional to the justified aims pursued and the margin of appreciation has especially narrowed with regard to different treatment based exclusively on ethnic origin, gender, sexual orientation, or disability. [8] For example, in the 2013 case Vallianatos and Others v. Greece a registered partnership scheme that only recognized different-sex couples was ruled to be a violation of Article 14 because it discriminated against same-sex couples. [9]

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.

<span class="mw-page-title-main">Human rights in the United Kingdom</span> Overview of the observance of human rights in the United Kingdom

Human rights in the United Kingdom concern the fundamental rights in law of every person in the United Kingdom. An integral part of the UK constitution, human rights derive from common law, from statutes such as Magna Carta, the Bill of Rights 1689 and the Human Rights Act 1998, from membership of the Council of Europe, and from international law.

<i>Eweida v United Kingdom</i>

Eweida v United Kingdom[2013] ECHR 37 is a UK labour law decision of the European Court of Human Rights, concerning the duty of the government of the United Kingdom to protect the religious rights of individuals under the European Convention on Human Rights. The European Court found that the British government had failed to protect the complainant's right to manifest her religion, in breach of Article 9 of the European Convention. For failing to protect her rights, the British government was found liable to pay non-pecuniary damages of €2,000, along with a costs award of €30,000.

The margin of appreciation is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.

Redfearn v Serco Ltd [2006] EWCA Civ 659 and Redfearn v United Kingdom [2012] ECHR 1878 is a UK labour law and European Court of Human Rights case. It held that UK law was deficient in not allowing a potential claim based on discrimination for one's political belief. Before the case was decided, the Equality Act 2010 provided a remedy to protect political beliefs, though it had not come into effect when this case was brought forth.

<i>R (Carson) v Secretary of State for Work and Pensions</i> and <i>R (Carson & Reynolds) v Secretary of State for Work and Pensions</i>

R (Carson) v Secretary of State for Work and Pensions and R v Secretary of State for Work and Pensions were a series of civil action court cases seeking judicial review of the British government's policies under the Human Rights Act 1998. They related to the right to property under Article 1 of the First Protocol and prohibition of discrimination under Article 14 of the convention. In Reynolds's case, there was also Article 8 of the European Convention on Human Rights (ECHR), the right to respect for "private and family life" to be considered, as well as Article 3 of the ECHR, the prohibition of torture, and "inhuman or degrading treatment or punishment".

Leyla Şahin v. Turkey was a 2004 European Court of Human Rights case brought against Turkey by a medical student challenging a Turkish law which bans wearing the Islamic headscarf at universities and other educational and state institutions. The Court upheld the Turkish law by 16 votes to 1.

The Belgian Linguistic case (1968) 1 EHRR 252 is a formative case on the right to education and the right to freedom from discrimination under the European Convention of Human Rights, Protocol 1, art 2. It related to "certain aspects of the laws on the use of languages in education in Belgium", was decided by the European Court of Human Rights in 1968.

<i>Lautsi v. Italy</i>

Lautsi v. Italy was a case brought before the European Court of Human Rights, which, on 18 March 2011, ruled that the requirement in Italian law that crucifixes be displayed in classrooms of schools does not violate the European Convention on Human Rights.

<i>Sejdić and Finci v. Bosnia and Herzegovina</i>

Sejdić and Finci v. Bosnia and Herzegovina was a case decided by the Grand Chamber of the European Court of Human Rights in December 2009, in the first judgment finding a violation of Article 14 of the European Convention on Human Rights taken in conjunction with Article 3 of Protocol No. 1 thereof, with regard to the arrangements of the Constitution of Bosnia and Herzegovina in respect of the House of Peoples of Bosnia and Herzegovina, and a violation of Article 1 of Protocol No. 12 with regard to the constitutional arrangements on the Presidency of Bosnia and Herzegovina.

Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms is an anti-discrimination treaty of the Council of Europe. It was adopted on November 4, 2000, in Rome and entered into force on April 1, 2005, after tenth ratification. As of 2023, it has been ratified by 20 States.

Christine Goodwin v. United Kingdom is a case decided by the European Court of Human Rights on 11 July 2002. The applicant, Christine Goodwin, a United Kingdom national born in 1937, was a transgender woman. She claimed that she had problems and faced sexual harassment at work during and following her gender-affirming surgery. She also alleged that the fact that she kept the same National Insurance number meant that her employer had been able to discover that she previously worked for them under another name and sex, with resulting in embarrassment and humiliation.

<span class="mw-page-title-main">Substantive equality</span> Concept of equality of outcome for groups

Substantive equality is a substantive law on human rights that is concerned with equality of outcome for disadvantaged and marginalized people and groups and generally all subgroups in society. Scholars define substantive equality as an output or outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination.

<i>R. (Adam, Limbuela and Tesema) v Secretary of State for the Home Department</i>

R. v Secretary of State for the Home Department was a case decided on 3 November 2005 by the UK House of Lords that determined whether or not a delay in initiating an application to seek asylum limited an individual from receiving access to state relief. Furthermore, the case questioned whether this denial of state relief constituted a breach of the European Convention on Human Rights 1950 ('ECHR').

<i>R (Carson) v Secretary of State for Work and Pensions & Another</i>

R (Carson) v Secretary of State for Work and Pensions & Another [2002] EWHC 978 (Admin) was heard in the Administration Court of the Queen's Bench Division in the High Court of Justice on 22 May 2002 before the Honourable Mr. Justice Burnton.

In the case of Hirsi Jamaa and Others v. Italy, before the European Court of Human Rights, the Grand Chamber of the Court found in February 2012 that by returning migrants to Libya, without examining their case, the state of Italy exposed the migrants to the risk of ill-treatment and amounted to a collective expulsion. The case concerned 24 migrants from Somalia end Eritrea that were travelling from Libya to Italy that were intercepted at sea by Italian authorities who sent them back to Libya.

<i>Sargsyan v. Azerbaijan</i>

Sargsyan v. Azerbaijan was an international human rights case regarding the rights of Armenian refugees displaced from former Soviet Azerbaijan because of the conflict in Nagorno-Karabakh. The judgment of the Grand Chamber of the European Court of Human Rights on the case originated in an application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by Minas Sargsyan on 11 August 2006. He was forced to flee his home in the village of Gulistan in Shahumyan region of former Soviet Azerbaijan, together with his family, because of the Azerbaijani bombardments of the village and was not allowed to return and unable to get any compensation from the Azerbaijani authorities. Even though the applicant died in 2009, as did his widow, Lena Sargsyan, in 2014, his children, Vladimir and Tsovinar Sargsyan, represented him in court to continue the proceedings.

Discrimination based on nationality is discriminating against a person based on their nationality, country of citizenship, or national origin. Although many countries' non-discrimination laws contain exceptions for nationality and immigration status, nationality is related to race and religion, so direct discrimination on the basis of nationality may be indirect discrimination on racial or religious grounds. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), currently signed by 88 countries, allows discrimination by nationality, citizenship or naturalization but prohibits discrimination "against any particular nationality".

References

  1. ↑ "Salgueiro Da Silva Mouta v. Portugal". Human Rights Case Digest. 10 (10–12): 307–309. 1999. doi:10.1163/157181399400839020. ISSN   0965-934X.
  2. ↑ Caron, David D.; Smith, Rhona K. M. (July 2003). "Goodwin v. United Kingdom. App. No. 28957/95 and I. v. United Kingdom. App. No. 25680/94". American Journal of International Law. 97 (3): 659–664. doi:10.2307/3109851. ISSN   0002-9300.
  3. ↑ Cuenca, Encarna Carmona (2012). "The Prohibition on Discrimination: New Content (Art. 14 ECHR and Protocol 12)". Europe of Rights: A Compendium on the European Convention of Human Rights. BRILL. pp. 467–484. ISBN   9789004219915.
  4. ↑ "Chart of signatures and ratifications of Treaty 177 (Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms)". Treaty Office of the Council of Europe. Retrieved 11 October 2021.
  5. ↑ Fredman, Sandra (2016). "Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights". Human Rights Law Review. 16 (2): 273–301. doi:10.1093/hrlr/ngw001.
  6. ↑ Fredman 2016, pp. 3–4.
  7. ↑ Fredman 2016, pp. 8–10.
  8. ↑ Fredman 2016, p. 6.
  9. ↑ Fredman 2016, p. 23.

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.