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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. 61 62 63 64 65 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. 24
■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■ Article 1 of Protocol n°12 to the ECHR imposes direct obligations only on public authorities (whether they belong to the executive, the legislative or the judicial branches). However, the States may have to adopt measures in order to prohibit discrimination by private parties. A positive obligation may be imposed on State Parties to adopt measures in order to prohibit discrimination by private parties, in situations where the failure to adopt such measures would be clearly unreasonable and result in depriving persons from the enjoyment of rights set forth by law. The Explanatory Report to Protocol n°12 mentions « a failure to provide protection from discrimination in [relations between private persons] might be so clear-cut and grave that it might engage clearly the responsibility of the State and then Article 1 of the Protocol could come into play ». 66 Although certain positive obligations may thus be imposed on States to protect from discrimination in the relationships between private parties, States parties may not, under the pretext of protecting from discrimination, commit disproportionate interferences with the right to respect for private or family life, as guaranteed by Article 8 ECHR. Therefore, a tripartite division is required, between three kinds of legal relations : in the interactions between the public authorities and private individuals, the former are prohibited from discriminating against the latter ; in the interactions between private individuals occurring in the context of market relationships, the State authorities may be under an obligation to intervene in order to prevent the most flagrant cases of discrimination and offer remedies to the victims thereof ; finally, in the interactions between private individuals which concern the private sphere, in the original meaning of private and family life which restricts this notion to the sphere of intimacy, the public authorities shall be prohibited from intervening, even if their objective in doing so is to better protect from discriminatory acts. It is in the intermediate or semi-public sphere where the obligations of the State are the least clearly defined : there, discriminatory behaviour may be regulated in order to outlaw discrimination, but whether or not this is an obligation under Article 1 of Protocol n°12 ECHR may in certain cases be debated. 66 Explanatory Report, § 26. 25 thematic report PART I
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