This was the first case in which the European Court of Human Rights applied article 14 (non-discrimination) of the European Convention on Human Rights to disability. The court held that Switzerland had unlawfully discriminated against the applicant. The applicant had been turned down for military service due to disability, but was nevertheless taxed for not performing military service.
European Court of Human Rights (ECtHR), 2009. Full judgment on HUDOC.
A lorry driver was turned down for military service in Switzerland because of his diabetes. He was required to pay a military service exemption tax whose aim was to create equality between those who did and did not undertake military service. People with a major disability were exempt from the tax, but the claimant’s disability was not considered severe enough to take him out of the tax.
A Swiss Federal court noted that, although the applicant’s type of diabetes could not prevent him from carrying on a normal professional activity, the particular demands of military service meant that he had to be declared unfit for that purpose.
Conscientious objectors were allowed to do civilian service in place of military service. However, civilian service was not allowed for those turned down from military service on health/disability grounds.
Held by the European Court of Human Rights: the claim succeeded. There had been discrimination contravening the European Convention on Human Rights. There was a breach of Article 14 (the anti-discrimination provision) in conjunction with Article 8 (right to private and family life).
Article 14 (non-discrimination) in general
The list of grounds in Article 14 is not limited to the sex, race, colour etc as listed, It includes “or other status”. There is no doubt, said the court, that Article 14 includes a prohibition of discrimination based on disability.
Difference in treatment is not necessarily a breach of article 14. It must be shown that people in comparable situations are treated more favourably, and that the distinction is discriminatory. According the court’s decisions, a distinction is discriminatory under article 14 if it lacks objective and reasonable justification. It is not enough that different treatment in the exercise of a Convention right is for a legitimate aim. There is also a breach of article 14 if it is clearly established that there is not a reasonable relationship of proportionality between the means used and the intended aim. (The court also makes further comments on the test to be applied.)
Applying Article 14 in this case
The Court decided there was no reasonable justification for the distinction made by the Swiss authorities between, in particular, those unfit for service and not liable to the tax (people with major disabilities) and those who were unfit for service but were nevertheless obliged to pay the tax.
The court took various factors into account. Amongst the reasons given by the court was that to be seen as necessary in a democratic society the existence of a measure with less impact on the fundamental right but achieving the same aim must be excluded. Here the claimant was seen as unfit for military service because he had to inject with insulin four times a day. The court questioned 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.
Margin of appreciation
States have a certain “margin of appreciation”. (This means roughly the State’s ‘range of discretion’, or ‘room for manoeuvre’.) After commenting that – though not conclusive – this type of tax does not seem to exist elsewhere, at least in Europe, the court went on to say that requiring the claimant to pay the 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. “That being so, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced.”
Case fell within ambit of Article 8 (right to private and family life)
For there to be a breach of Article 14, the situation needs to fall “within the ambit” of another Convention article.
The court considered there to be no doubt that a tax which, as here, stemmed from incapacity to serve in the army due to an illness, and so from a state of fact outside the claimant’s control, fell within the ambit of Article 8. This was so even if the consequences of the measures were primarily monetary (‘family’ life included material interests).
The court had previously acknowledged several times that private life within Article 8 includes a person’s physical integrity.
Also the Convention had to be interpreted in the light of today’s conditions. This case concerned possible discrimination against someone with a physical disability, even if the disability was only considered minor by the Swiss courts.The court considered there to be a European and universal consensus on the necessity of protecting disabled people from discriminatory treatment. As evidence for this, the court cites in part the UN Convention which took effect in 2008.
This is the first ruling by the European Court of Human Rights to find a breach of Article 14 on the grounds of disability.
It is interesting that the court effectively uses a concept of “reasonable adjustments”. An argument against the Swiss government’s measures being justified was that the disabled person might have been given a less physically demanding role within the armed forces. Civilian service was another possibility.
The non-discrimination provision, Article 14, can only apply to a claim which is within the scope (or ‘ambit’) of another Convention right. The court’s reasoning may indicate that the importance of protecting disabled people from discrimination makes it more likely that disability discrimination will be viewed as falling within the ambit of a Convention right, so that Article 14 can apply. It seems furthermore that Article 8 (right to private and family life) may be a prime candidate. See Article 8 with 14.