Article 14 of the European Convention: What is 'discrimination'?

This page gives a very broad outline of what is seen as 'discrimination' under Article 14 of the European Convention on Human Rights. It picks out particular points, without trying to cover the area fully. For Article 14 in general, see the main European Convention page.

Basic meaning of discrimination

"Discrimination" has its own meaning in Article 14 of the Convention, and thus in the Human Rights Act 1998. It means broadly "treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations" (quote from Kiyutin v Russia).

Justification

The justification must be objective and reasonable. In other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The State enjoys a "margin of appreciation" in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The margin of appreciation means basically the State's 'range of discretion'.The scope of this margin will vary according to the circumstances.

Higher threshold for disability

It seems to be more difficult to justify discrimination on grounds of disability. The State has a substantially narrower discretion and "very weighty reasons" may be required. How far this goes in the disability field is perhaps not yet clear. However, Kiyutin v Russia (2011) applied this approach to HIV positive status, and in that case the European Court of Human Rights listed those suffering different treatment on account of their "mental faculties" (in Alajos Kiss) or "disability" (in Glor) as among similar 'vulnerable groups' which the court had identified in the past. Follow the link to the case for the full quote.

Alajos Kiss v Hungary (2010) was not actually an Article 14 discrimination case. However, similar principles were applied in deciding whether it was justified to bar from voting mentally disabled people who were under partial guardianship.

In Glor v Switzerland (2009) dealing with a 'minor' disability, diabetes, the court commented that requiring the claimant to pay a military service exemption tax after refusing him the possibility of performing military (or civilian) service could be seen as inconsistent with the need to combat discrimination against disabled people and to promote their full participation and integration in society. Accordingly the State's margin of appreciation in setting a different legal treatment for disabled people was heavily reduced.

Justification and reasonable adjustments

In deciding whether different treatment is justified, it will be relevant whether the aim could have been achieved through other means. This can effectively mean that it is relevant whether "reasonable adjustments" could have been made. See below Glor.

Indirect discrimination

"Discrimination" within the Convention can include indirect discrimination.

A leading case on this is D.H. v Czech Republic (2007, Application no. 57325/00), which concerned Roma children being shunted into 'special' schools for those with learning difficulties. The EHCR confirmed that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group. Intent was not required. The court also talked about shifting the burden of proof: where the applicant established a rebuttable presumption that the effect of a measure or practice was discriminatory, the burden shifted to the State to show the difference in treatment is not discriminatory.

Treating difference appropriately, and reasonable adjustments

Tying in to an extent with indirect discrimination, there may effectively be an "obligation to make reasonable adjustments", as it would be called in the UK. Three examples:

Thlimmenos

In Thlimmenos v Greece (2001, Application no. 34369/97) the EHCR held that a State violates Article 14 if it fails to treat differently persons whose situations are significantly different, without objective and reasonable justification. In that case, the complainant was refused an appointment as a chartered accountant because of a felony. He had refused to wear a military uniform (and was therefore guilty of insubordination), but this was because he was a Jehovah's witness. He argued successfully that a distinction should have been made between offences committed exclusively because of a religious belief and other offences.

Glor

In Glor v Switzerland, a relevant factor in the European Court of Human Rights holding differential treatment not to be justified was that a measure might have ben adopted which had less impact on the fundamental right but achieved the same aim. In that case the claimant was seen as unfit for military service due to his diabetes. The court questionned why he could not be given a less physically demanding role within the armed forces, and pointed out that some States provided roles within the armed forces to those with a partial incapacity. Civilian service was another possibility.

In other words, in holding treatment to be unjustified, the court in Glor effectively considered reasonable adjustments that might have been made which would have enabled the claimant to do military or civilian service, and so not pay the military exemption tax he was objecting to.

Price v UK

There was held to be degrading treatment under Article 3 where there was serious lack of provision in a police cell and prison for a disabled person. See Scope of European Convention: Article 3.

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