The Hunt for Race Discrimination in the European Court

A weak legal text combined with cautious court rulings have stunted the development of robust anti-discrimination jurisprudence in Europe. But growing intolerance of racism in Europe may yet change things.

The European Court of Human Rights in Strasbourg has been conservative in ruling on racial discrimination. The weak wording of the prohibition on discrimination in the European Convention on Human Rights (ECHR) - Article 14 - is partly to blame. But in addition, the Court has been inclined to search for common ground in national jurisdictions before taking "bold" new positions on the protections in the Convention. A growing concern in member states over discrimination generally, and racial discrimination in particular, must therefore be good news for the Court's approach to Article 14. An important development in this regard is the EU Race Equality Directive. The strengthening of national anti-discrimination legislation which the Directive demands, combined with the large number of Roma and other minorities in many accession countries who face state level discrimination, means that the Court will increasingly be confronted with race discrimination claims, which must bode well for future jurisprudence.

Obstacles to finding violations under Article 14

Despite the significance of the principle of equality in the field of human rights, Article 14 was not designed to be a free-standing right. According to the text of the Convention, discrimination is prohibited in relation to "The enjoyment of the rights and freedoms set forth in the Convention...". [1] As the Commission confirmed in X. v. F.R.G., "Article 14 is not directed at discrimination in general." [2] More precisely, as stated in the Belgian Linguistics case, Article 14 has "no independent existence", but when used in conjunction with another provision it may lead to a violation of the Convention even where the other provision alone has not been violated. [3] The Court further elaborated this position in Abudulaziz et al v. UK: "Although the application of Article 14 does not necessarily presuppose a breach of those [other Convention] provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter." [4]

Thus a violation of Article 14 can only be alleged in conjunction with a substantive right or freedom. However the Court has stifled the development of Article 14 in such cases in practise by usually refusing to consider the discrimination aspect of a claim if a violation of the substantive provision is found first. In the case of Airey the Court stated that if a violation of a substantive provision is found, further examination of Article 14 is "not generally required" unless "a clear inequality of treatment in the enjoyment of the rights in question is a fundamental aspect of the case." [5] Two years later, in the Dudgeon case, the Court went so far as to say that a further examination of Article 14 once a violation of a substantive provision is found serves "no useful legal purpose." [6] This unfortunate approach severely limits the development of Article 14. Regardless of whether violations of Article 14 are to be found, such an approach restricts the articulation of Court statements on legal issues surrounding discrimination, which could in turn be used to develop a stronger case law.

This position was stated by Judge Matscher, dissenting in Dudgeon, who commented that the "Court cannot escape this responsibility (of examining Article 14 claims) by employing formulas that are liable to limit excessively the scope of Article 14 to the point of depriving it of all practical value." [7] The Court's reluctance was also strongly criticized by Judge Pettiti in the Buckley case, who states: "In my view, the European Court had, in the Buckley case, an opportunity to produce, in the spirit of the European Convention, a critique of national law and practice with regard to Gypsies and travellers in the United Kingdom that would have been transposable to the rest of Europe, and thereby partly compensate for the injustices they suffer." [8]

If the Court does consider Article 14, it must decide whether there was dissimilar treatment of persons "placed in analogous situations" [9] and whether such treatment was justifiable. In Belgian Linguistics the Court stated that "the principle of equality of treatment is violated if the distinction has no objective and reasonable justification." Differential treatment must, therefore, have a "legitimate aim". Furthermore, there must be a "reasonable relationship of proportionality between the means employed and the aim sought to be realized." [10]

The Court's practice under the "legitimate aim" test has tended to undermine a robust reading of Article 14. Unless the applicant can demonstrate "invidious discrimination", the Court tends to grant states wide regulatory discretion in justifying "objective and reasonable" criteria for dissimilar treatment under the "margin of appreciation" doctrine. [11] If the Court does not consider the discrimination to be especially harsh, and if it finds no common ground among national jurisdictions on the issue, "it will be reasonably easy for a State to show that a difference of treatment pursues a legitimate aim." [12]

Positive developments in Article 14 jurisprudence

Despite these obstacles, some important developments have taken place in recent years. In particular, the Court has indicated its willingness to be more receptive to allegations of racial discrimination; a trend which will gather more momentum as other European anti-discrimination initiatives become realized and are strengthened.

In terms of heightened protection under Article 14, Van Dijk points out the nascent development of something known to American equal protection jurisprudence as "suspect classes". [13] Claims involving suspect classes receive a much higher degree of judicial scrutiny than "regular" discrimination cases and may be better positioned to overcome the barriers to finding a violation of Article 14. To date, Van Dijk identifies four categories of heightened scrutiny in the ECHR system, including discrimination based on; nationality, religion, birth (legitimate and illegitimate children) and sex. [14] This last category is particularly important for the way it was dealt with it in Abdulaziz. [15] Here the Court found a violation of Article 14 on the ground of sexual discrimination, and placed specific emphasis on "the advancement of the equality of the sexes as a major goal in the Member States of the Council of Europe." [16]

Although no majority of the Court has established racial discrimination as a suspect class, continued neutrality is likely to become increasingly untenable in the years to come. In the Chapman case, which concerned an English Gypsy family, the Court observed "that there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognizing the special needs of minorities". [17] However at the time of the judgment the Court went on to say that it was "not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation." [18]

The majority appears to indicate that, should such a "consensus" emerge, states may be held to higher standards under the Convention. But it is worth noting that a significant dissenting minority (seven of seventeen judges) unanimously took the next step. They concluded: "We cannot [...] agree with the majority's assertion that the consensus is not sufficiently concrete or with their conclusion that the complexity of the competing interests renders the Court's role a strictly supervisory one." [19]

The wider context

Other recent legal developments in Europe (The Framework Convention on the Protection of National Minorities, Protocol 12 of the ECHR, and especially the EU Race Equality Directive) combined with a heightened awareness and use of the Convention by minority groups, especially Roma, in Central and Eastern Europe suggest that the Court will, sooner rather than later, re-orient its jurisprudence with an eye to minorities, and racial discrimination. Moreover a heightened scrutiny of racial discrimination and the emergence of a European consensus on the matter will make it easier to hold states accountable for Article 14 violations by overcoming the extensive "margin of appreciation" that prevails.

A heightened awareness of minority issues will also, hopefully, guide the Court towards uncovering and recognizing less obvious forms of discrimination. Not infrequently, discrimination is found not in the law itself but in its effects. Indirect discrimination is especially evident in cases of racial discrimination, where the effect of a law (or laws) has a disparate impact on certain identifiable social groups. [20] Unfortunately the "objective and reasonable" aspect of the test for justification of dissimilar treatment easily obscures what is, in effect, discrimination. In Abdulaziz, the Court's examination of the relevant UK immigration law with regard to racial discrimination concluded that although the law was intentionally directed at Pakistani immigrants and as such had a disparate effect on them, this was not sufficient to call it racist. [21] The only bright side of this unfortunate conclusion is that the Court was at least willing to consider the possibility of racial discrimination in this context, even though it had already found no violation of Article 8.

As mentioned above, the mere invocation of Article 14 can lay the groundwork for its development. In Buckley, a powerful dissenting opinion by Judge Pettiti indicated what direction the Court may take in the future. In finding a violation of Article 14 based on a non-explicit form of discrimination he wrote: "The Strasbourg institutions' difficulty in identifying this type of problem is that the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly) result, firstly, in its being totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school and [...] in the instant case, mean the Buckley family are caught in a "vicious circle"." [22]

Also of significance for uncovering indirect discrimination under Article 14 is the Thlimmenos case. Here the Court proclaimed that "The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different." [23] Although this case concerned discrimination and freedom of conscience (Article 9), the ruling is especially salient for minority groups on whom general laws often have a disparate effect. A requirement of Contracting States to accommodate the special needs of minorities under substantive provisions of the Convention should make Article 14 a more effective tool in uncovering indirect discrimination. [24]

In conclusion, to quote Judge Pettiti again: "Throughout Europe, and in member States of the Council of Europe, the Gypsy minority have been subject to discrimination, and rejection and exclusion measures have been taken against them. There has been a refusal to recognise Gypsy culture and the Gypsy way of life. In Eastern Europe the return to the democracy has not helped. Can the European Convention provide a remedy for this situation? The answer must be yes, since the purpose of the Convention is to impose a positive obligation on the States to ensure that fundamental rights are guaranteed without discrimination." [25]

Endre Sebok is an SJD Candidate in the Central European University and has contributed to the legal advocacy work of the European Roma Rights Centre.

Footnotes

[1] The full text reads: "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.

[2] App No. 8410/78, X v. Federal Republic of Germany, at 216.

[3] Belgian Linguistic Case, 23 July 1968, para 9.

[4] Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, para. 71.

[5] Airey v. Ireland, October 1979, para.30.

[6] Dudgeon v. United Kingdom, 22 October 1981, para. 69.

[7] Ibid. Dissenting Opinion of Judge Matscher, Section II.

[8] Buckley v. United Kingdom, 25 September 1996, Dissenting Opinion of Judge Pettiti.

[9] Lithgow and others v. United Kingdom, 8 July 1986, para. 177.

[10] Belgian Linguistics, para. 10.

[11] Yourow, H.C., The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Martinus Nijhoff: The Hague, 1996, p160.

[12] Jacobs, F.G. and White, R.C.A., The European Convention on Human Rights, Clarendon Press: Oxford, 1996, p291.

[13] Van Dijk, P. and Van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights, Kluwer: The Hague, 1998, p728. Suspect classes were first suggested in the famous footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938). The Supreme Court was particularly concerned with "insular minorities",' i.e. African Americans.

[14] Ibid.

[15] Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985.

[16] Ibid., para. 78.

[17] Chapman v. United Kingdom, 18 January 2001, para. 93.

[18] Ibid., para. 94.

[19] Ibid. Joint dissenting opinion, para. 3.

[20] This is especially true for Roma. See for instance Zoon, I., On the Margins, Open Society Institute, 2001. Online here: http://www.soros.org/romaandpublicservices.html .

[21] Abdulaziz, para. 85.

[22] Buckley, Dissenting Opinion of Judge Pettiti.

[23] Thlimmenos v. Greece 6 March 2000, para. 44.

[24] In Chapman, although no violation of Article 14 was found, the Court did recognized "a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life" (para. 96). A case pending before the Court involving de facto racial discrimination and segregation of Roma children in Czech schools may advance the recognition of indirect discrimination under Article 14 and will hopefully further raise the Court's attention to the realities of racial discrimination. See, "Strasbourg Application by Roma Challenges Racial Segregation in Czech Schools" alleging a violation of Article 3, and Article 2 of Protocol 1 in conjunction with Article 14. Online here: http://www.errc.org/publications/letters/2000/cz_april_18_2000.shtml .

[25] Buckley, Dissenting Opinion of Judge Pettiti.