Article 14 of the ECHR

The ECtHR’s approach to Article 14 (Freedom from Discrimination)

4 considerations:
1. Does the issue fall within the ambit of a Convention right?
2. Is there a distinction between the applicant and a similarly situated person?
3. Is it on a specified ground or any other status (personal characteristic)?
4. Is it justifiable?

1. Does the issue fall within the ambit of a Convention right?
Article 14 is sometimes described as ‘parasitic’ because it cannot be argued as a free-standing right. It can only be argued before the court if it is attached to a substantive right such as Article 3. Article 14 explicitly states that it only applies to the rights set out in the convention (Belgian Linguistics Case).

However, this does not mean that there has to be a violation of that substantive right. A state may operate a policy or measure that does not violate the substantive Convention right, but it may be carried out in a discriminatory way, In the Belgian Linguistics Case, the Court concluded that Article 14 could be raised if the applicants can show it is within the ambit of the substantive right.

Abdulaziz, Cabales and Balkandali v UK
UK immigration rules allowed the wives of men with a right to remain in the UK to also have leave to remain in the UK whilst the same was not true in regards to the husbands of women in the same position. The applicants argued that this violated their right to family life under Article 8 with Article 14.
The Court held that there was no violation of Article 8 alone. However, when a state puts rules in place it must do so in a non-discriminatory way. There was no justification for the different rules that applied to men and women. There was a violation based on sex of Article 14 taken with Article 8.

2. Is there a distinction between the applicant and a similarly situated persons?
Like direct discrimination, the applicant needs to demonstrate that there is a comparator; a difference of treatment compared to someone in an ‘analogous position’. The Court does not take a formalistic approach to finding a comparator and the issue is usually subsumed by arguments dealing with justification for differential treatment.
Burden v UK
The applicants were sisters living together. They argued that they suffered from discrimination because on death, their property could not be passed from one sister to the other without payment of inheritance tax. However, spouses and partners were exempt.
The Court held that siblings and partners were not analogous as the relationships were qualitatively different. Blood ties were different from choosing to be in a relationship. The choice allowed the state to confer special status on spouses and partners.

Is the discrimination on a specified ground or any other status?
Article 14 lists a number of prohibited grounds. However, the list is not exhaustive as it includes the open-ended term ‘other status’. The court has used the open-ended nature of this term to add to the characteristics accepted as grounds for protection from discrimination. Thus, the Court has expanded protection into areas the drafters of the Convention may not have contemplated, recognizing changing social attitudes and state consensus. This is a good example of the ‘living instrument principle’, e.g. the court has now found discrimination based on marital status – Rasmussen v Denmark, illegitimacy – Marckx v Belgium and migrant/asylum status – Hode and Abdi v UK.

Importance of grounds
The court has also said that the protected ground may influence its decision. This will affect the ability of the state to justify a difference in treatment. Very weighty reasons need to be given by the state before it can justify treating individuals differently based on certain grounds. In these cases the margin of appreciation given to the states is narrow. Particularly serious grounds are:

Sex – Abdulaziz, Cabales and Balkandali v UK
Nationality – Gaygusuz v Austria
Illegitimacy – Marckx v Belgium
Sexual orientation – Salgueiro da Silva Mouta v Portugal
Race – Nachova v Bulgaria

Is it justifiable?

Limitations of above approach to Article 14
Using direct discrimination to argue – problems
The need to link to substantive right – problems

Solutions that have potentially expanded protection
Indirect discrimination
Protocol 14 – removing the link to a substantive right BUT still limitations

Karon Monaghan ‘Constitutionalising Equality: New Horizions’ (2008)
Examines the concept of ‘constitutionalising’ an equality guarantee, examines the role of equality in the absence of a formal constitutional agreement and suggests ways in which legal equality can be achieved.

It is for the applicant to show that he or she has, within the ambit of a Convention right, been treated differently in a prohibited ground from people in a similar or analogous situation. Discuss. 2009

The applicant must establish that there has been less favourable treatment and that its basis was prohibited on a ground of discrimination. The state must prove that the difference in treatment is reasonable and justifiable. Discuss. 2010

Racial discrimination, even if it is indirect, can amount to degrading treatment. Discuss. 2011

The ECtHR is keen to reaffirm the principle that discrimination based on sexual orientation and gender identity is as serious as discrimination based on race, origin or colour. Discuss. 2013 SEP

Is there a free-standing guarantee of equal treatment without discrimination under the Convention?

What is the purpose of Protocol 12? Does it provide for self-standing right to freedom from discrimination? Has it been widely ratified by the MS?

Does Article 14 have only a negative obligation (states should avoid discrimination)? Or does Article 14 also encompass a positive obligation? Should states take action to secure equal treatment? See the position under Article 8 ECHR where the existence of positive obligations is already well established.