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

thematic report
■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■
in which case it will generally be analyzed, rather than under the non-discrimination clause of Article 14 ECHR, as
an interference with rights such as the right to choose one’s sexual orientation or lifestyle (Article 8 ECHR), 61 to
exercise one’s religion (Article 9 ECHR), 62 to express one’s opinions (Article 10 ECHR), 63 to join or to refuse to join an
association (Article 11 ECHR), 64 to marry or to refuse to enter into a marital relationship (Article 12 ECHR) –,
discrimination in employment and occupation will in principle not fall under the scope of application of Article 14
ECHR. It is in order to expand the protection from discrimination in the system of the European Convention on
Human Rights that Protocol n°12 additional to the ECHR was drafted and opened for signature on 4 November
2000.
3. Protocol n°12 to the ECHR (2000)
Article 1 of Protocol n°12 to the European Convention on Human Rights contains a general prohibition of
discrimination :
1. The enjoyment of any right set forth by law 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.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in
paragraph 1.
Although Article 1 of Protocol n°12 to the ECHR concerns only the « enjoyment of any right set forth by law », the
protection from discrimination thus afforded by the Protocol goes beyond that afforded by Article 14 ECHR. 65
Social security matters being covered under Article 1 of Additional Protocol n°1 to the ECHR since Gaygusuz, the
areas concerned shall be, in particular, access to public places, access to goods, provision of services, access to
nationality, and in certain cases access to employment. Where the discrimination is based on other grounds than
on the exercise of rights protected under the ECHR, the European Court of Human Rights might rely on Protocol
n°12 in order to extend its jurisdiction to those situations which, presently, are not covered under Article 14 ECHR.
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Eur. Ct. HR (3d section), Smith and Grady v. the United Kingdom (Appl. N° 33985/96 and 33986/96), judgment of 27 September 1999
(homosexuals discharged from the British Army, after investigations had revealed their homosexuality); Eur. Ct. HR (3d section), Lustig-Prean
and Beckett v. the United Kingdom (Appl. N° 31417/96 and 32377/96), judgment of 27 September 1999 (same).
See, e.g., Eur. Ct. HR, Kalaç v.Turkey (Appl. N° 20704/92), judgment of 1 July 1997, Rep. 1997-IV, p. 1209 (judge advocate in the Turkish air force
forced to retire for what the Turkish authorities considered to constitute breaches of discipline and scandalous conduct: the applicant had
adopted « unlawful fundamentalist opinions », in becoming a member of the Muslim fundamentalist Süleyman sect); Dahlab v. Switzerland
(Appl. no. 42393/98, ECHR 2001-V (dismissal of a schoolteacher converted to Islam and wishing to wear a headscarf ).
Eur. Ct. HR, Vogt v. Germany, judgment of 20 November 1995 (dismissal of the applicant from her post as a schoolteacher in the public
educational system for having persistently refused to dissociate herself from the German Communist Party, as she considered that
membership of that party was not incompatible with the duty of loyalty to the German Constitution imposed on all public servants : the
Court considered that this constituted a violation of the freedoms of expression and association protected by the Convention, respectively in
Articles 10 and 11).
Ibid.
See generally J. Schokkenbroek,“A New European Standard Against Discrimination: Negotiating Protocol n° 12 to the European Convention
on 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. 61-79.
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