The Equinet Equality Law Working Group has been working during the last year towards contributing to developing the European Court of Human Rights’ (ECtHR) jurisprudence, including increased analysis of Article 14 of the European Convention on Human Rights (ECHR) and issues that are at the cutting edge of equality law and theory. This blog post presents the results of this work.
The Equality Law Working Group is in practice Equinet’s permanent platform for legal staff of equality bodies to exchange experience, share expertise and work to improve the level of legal protection from discrimination across the EU. The working group focuses on the interpretation of complex legal problems and a comparative analysis of EU and national legislation and jurisprudence in the field of equality and anti-discrimination law.
The group has historically focused on aspects of EU discrimination law but in 2019 we took a deep dive into Article 14 of the European Convention on Human Rights. The definition of discrimination under Article 14 has evolved since the 1990s and offers a rich area of study. New cases have expanded our understanding of discrimination, the areas of life it touches, the range of characteristics which can be encompassed within “other status” and the parameters of justification. We considered how best to contribute to developing the ECtHR’s jurisprudence, including increased analysis of Article 14 of the European Convention on Human Rights and issues that are at the cutting edge of equality law and theory.
In pursuit of this aim, we worked together to produce two work outputs which we hope will be of interest to lawyers, academics as well as members of NGOs, Equality Bodies and National Human Rights Institutions.
The first output was the recent Equinet publication: Compendium: Article 14 cases from the European Court of Human Rights (“the Compendium”) which offers a detailed analysis of the Court’s recent case law on Article 14.
The Working Group completed a search of the HUDOC database for all cases where Article 14 was argued. This produced 98 results. The Court made a substantive finding in relation to the Article 14 argument in just over a third of those. Central to vindication of the rights of victims of discrimination is public declaration that discrimination has occurred. Overall, there was a violation of Article 14 in 73% of cases where substantive consideration was given to the Article 14 claim. This highlights the importance of giving prominence to an Article 14 argument at the earliest stage.
The Working Group analysed those 37 cases taking a thematic approach. The authors explored themes including: the scope of “other status”, the range of sectors Article 14 can reach, the legal definition of discrimination and associative discrimination applied by the Court, positive obligations, the influence of international instruments and a gender perspective and the approach of the Court to margin of appreciation and justification.
The discussion offers a snapshot of some of the emerging discrimination concerns of the time. Common themes included socio-economic rights of people living and working abroad, positive obligations to combat violence against women, failure to investigate racist motives in allegations of criminal offences perpetrated against Roma people and prisoners’ rights. The Court considered a sexual orientation discrimination case brought by a heterosexual couple for the first time. The Court rejected a claim of discrimination, which argued that a national ban on face coverings discriminated against Muslim women, on the grounds that the discrimination was justified as a proportionate response in pursuit of the aim of promoting ‘living together.’
The implications of, and for this decision, at a time of widespread and often compulsory use of face coverings in response to COVID-19 is discussed in a blog post on the Equinet website.
Alongside the research on Article 14 for the Compendium, the legal working group also continually monitored communicated cases from the Court over the course of 2019. The group aimed to contribute to Equinet’s expertise, for the first time, in the form of an intervention in a suitable case. Overall, 134 cases containing an Article 14 claim were communicated by the Court within the period from 1 January 2019 to 17 December 2019.
Some reflections on this experience are included in Chapter 15 of the Compendium. The group closely scrutinised, and ruled out, seven cases. This process highlighted the complexity of the task. Some barriers related to the format and timing of the Communication from the Court. There is a twelve-week time limit in which to seek permission to intervene and sometimes the Communications are not published on HUDOC until several weeks after the communication to the Member State. Sometimes there was limited information about the facts of the case contained within the communication.
Other barriers were internal and arose from the complexity of securing an agreement, or at least ensuring no veto from the Equinet members and the Executive Board within the twelve-week timeframe. It was also essential that the group considered how a submission from Equinet could be of assistance to the Court.
In spite of these obstacles, on the 11th of March a request to intervene was submitted to the ECtHR, and on 7th July 2020, the European Court of Human Rights granted permission for Equinet to intervene in the case of Toplak and Mrak v Slovenia. The case concerns the accessibility of polling stations to persons with disabilities in wheelchairs and raises complaints in terms of article 3 of protocol No.1 to the ECHR read alone and in conjunction with article 14, article 1 of protocol No.12 and article 13 as well as under article 1 of protocol No. 12 and article 13 of the Convention.
The relevance of this case was assessed on the basis that this is the first time that the Court will decide on the merits of a case regarding the structural problem of physical accessibility to polling stations regarding persons with disabilities, and the positive duties States have to ensure effective accessibility.
Equinet’s submission provides the Court with information about international human rights standards and trends regarding the right to vote for persons with disabilities as well as information about legislation, jurisprudence and practice at the national level in contracting states.
The submission emphasises that the right to vote is an essential right and not a privilege. Universal suffrage requires that all citizens have the same opportunities to participate in the political life of the country, as enshrined in international covenants but also in national law. However, in practice, the access of people with disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate, which translates into significantly lower participation of disabled people in the electoral process and further marginalises them. This impacts upon the representation of disabled people and undermines democratic legitimacy.
The outcome of the case is awaited and the group will then assess the impact of the submission.
The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.
For more information on the submission process and work of the Equality Law Working Group, read the full article on the website of the Equality and Human Rights Commission in Great Britain: here.
To access Equinet’s third-party intervention to the European Court of Human Rights, please refer to this page.
To access Equinet’s Compendium of Article 14 cases from the European Court of Human Rights, please refer to this page.