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

thematic report
■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■
have seen, in certain cases, discrimination on grounds of race can also constitute degrading treatment within the
meaning of Article 3 of the Convention41 .A fortiori, the need to combat racial discrimination is one of the
legitimate aims which the States Parties to the Convention may want to pursue, even if this leads to certain
restrictions on the rights and freedoms enumerated by the Convention, such as the right to non-discrimination.
This is not to say that affirmative action could be upheld only on the basis that it is combating discrimination, as a
remedial or backward-looking measure. The Court views a “democratic society” as one based on the values of
diversity and tolerance. This would seem to imply that it would allow forms of positive action which are not
premised on pre-existing discrimination they seek to respond to or compensate for, but are justified by the aim of
organizing diversity. It is however likely that it would consider positive action as a disproportionate restriction of
the right to formal equality where it would not correspond to the criteria set forth in the relevant international
human rights treaties42 , in particular where the measure would not be temporary but would risk leading, instead,
to the creation and maintenance of separate rights.
2. The Scope of Application of Article 14 ECHR
Article 14 of the European Convention on Human Rights does not create an independent protection from
discrimination. It may only be invoked in combination with another substantive provision of the European
Convention on Human Rights or of one of its additional Protocols : it is only when discrimination is found to exist
in the enjoyment of the rights and freedoms set forth in the Convention that it will come into play. This is not to say
that Article 14 ECHR has no autonomous function to fulfil in the system of the Convention. On the contrary, it
supplements all the other substantive provisions by adding the requirement that they be applied and
implemented without discrimination. In the case “relating to certain aspects of the laws on the use of languages in
education in Belgium” v. Belgium (the « Belgian Linguistics Case »), the Court famously noted that, although the right
to obtain from the public authorities the creation of a particular kind of educational establishment could not be
inferred from Article 2 of Protocol No. 1,
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... nevertheless, a State which had set up such an establishment could not, in laying down entrance
requirements, take discriminatory measures within the meaning of Article 14. [Thus, similarly,] Article 6 of the
Convention does not compel States to institute a system of appeal courts. A State which does set up such
courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in
conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason
while making them available to others in respect of the same type of actions. In such cases there would be a
violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read in conjunction with
Article 14. It is as though the latter formed an integral part of each of the Articles laying down rights and
freedoms. No distinctions should be made in this respect according to the nature of these rights and freedoms
and of their correlative obligations, and for instance as to whether the respect due to the right concerned
implies positive action or mere abstention. 43
European Commission of Human Rights, case of East African Asians (Patel et al.), decision of 10 October 1970, Ann. Conv., vol. 13, p. 995; Eur. Ct.
H.R., Abdulaziz, Cabales and Balkandali v. United Kingdom, judgment of 29 May 1985, Series A n°94, p. 42, §§ 90-91; Eur. Ct. H.R., Smith and Grady
v. United Kingdom, judgment of 27 September 1999, § 121.
See for a summary of the position adopted by the relevant international instruments Sub-Commission on the Promotion and Protection of
Human Rights (53d session), United National Commission on Human Rights, Prevention of Discrimination,“The concept and practice of
affirmative action”, final report submitted by Mr Marc Bossuyt, Special Rapporteur, in accordance with the Sub-Commission Resolution 1998/5,
E/CN.4/Sub.2/2002/21 (21 June 2002).
Eur. Ct. HR, judgment of 23 July 1968, Series A no. 6, pp. 33-34, § 9.
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