The Prohibition of Discrimination under European Human ... - cridho

■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■
1. The substantive content of the requirement of non-discrimination
under the ECHR
Article 14 of the European Convention on Human Rights provides that :
The enjoyment of the rights and freedoms set forth in this 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.
The guarantee against discrimination afforded by Article 14 ECHR in the enjoyment of the rights and freedoms of
the Convention, and which Article 1 of Protocol n°12 to the ECHR now shall extend beyond the scope of the
Convention in those States bound by that Protocol (see hereunder, section 2), 8 presents three characteristics :
these clauses contain a non-exhaustive list of prohibited grounds of discrimination (1.1.) ; the case-law on Article
14 ECHR recognizes to a limited extent a distinction between « suspect » and « non-suspect » grounds of
differentiation (1.2.) ; and they prohibit both direct and indirect discrimination, both in the sense of disparate
impact discrimination and in imposing that the specific situations of certain individuals be accommodated (1.3.). A
last paragraph in this section will briefly comment upon the regime of positive action under these antidiscrimination
clauses (1.4.).
1.1. A non-exhaustive list of prohibited grounds of discrimination
Both Article 1 of Protocol n°12 to the ECHR and Article 14 ECHR prohibit discrimination in the enjoyment of the
rights and freedoms set forth in the Convention « 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 ». This list is not exhaustive. 9 Thus, Article 14 ECHR has been applied for instance in order to protect
individuals from discrimination based on their sexual orientation10 or birth out of wedlock; 11 indeed, any criterion
of differentiation may be potentially examined under Article 14 ECHR, whether or not it has traditionally been
listed among the prohibited forms of discrimination in the international law of human rights.
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See further, inter alia, J. Gerards,“The Application of Article 14 ECHR by the European Court of Human Rights”, in J. Niessen and Isabelle Chopin
(eds.), The Development of Legal Instruments to Combat Racism in a Diverse Europe, Martinus Nijhoff Publ., Leiden/Boston, 2004, pp. 3-60.
Eur. Ct. HR, Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 30-31, § 72.The Explanatory Report to Protocol n°12
to the ECHR states in § 20 that “expressly including certain additional non-discrimination grounds (for example, physical or mental disability,
sexual orientation or age) [appeared to the drafters of the Protocol as] unnecessary from a legal point of view since the list of nondiscrimination
grounds in not exhaustive, and because inclusion of any particular additional ground might give rise to unwarranted a
contrario interpretations as regards discrimination based on grounds not so included”.
See, e.g., Eur. Ct. HR (4th sect.), Salgueiro da Silva Mouta v. Portugal (Appl. N° 33290/96), judgment of 21 December 1999, ECHR 1999-IX, § 28
See, e.g., Eur. Ct. HR, Marckx v. Belgium, judgment of 13 June 1979, Series A n°31; Eur. Ct. HR, Inze v. Austria, judgment of 28 October 1987, Series A
n° 126, § 41; Eur. Ct. HR (3d sect.), Mazurek v. France (Appl. N° 34406/97), judgment of 1 February 2000,
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thematic report
PART I