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Article 14 of the European Convention on Human Rights
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Article 14 of the European Convention on Human Rights lists the prohibited grounds against which discrimination in illegal. The text states that
"The enjoyment of the rights and freedoms set forth in [the] 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."
Unlike the Universal Declaration of Human Rights, there is no general right to equal treatment, only in the areas covered by the Convention. However, the article covers an open-ended list of prohibited grounds for discrimination and has been expanded over time to include such grounds as sexual orientation and gender identity.[1][2] In the case law of the European Court of Human Rights, the interpretation of the article has expanded over time to include indirect discrimination.[3] Protocol 12 to the European Convention on Human Rights expands on Article 14 to include a freestanding prohibition of discrimination in "any right set forth by law". Introduced in 2000, it has been ratified by 20 of 47 Council of Europe states as of 2021[update].[4][5]
In early cases before the European Court of Human Rights the court assumed that for Article 14 to be relevant, a breach of one of the substantive Convention rights had to have occurred. If the court did find a substantive breach, it would not find it necessary to consider Article 14. In the Belgian Linguistic case in 1968, the Belgian government argued that Article 14 was not relevant unless there was a substantive breach. For the first time, the court rejected this argument. Following this case, the court considers that for Article 14 to be considered "it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols".[6]
The court focuses on substantive equality rather than formal equality, and therefore it considers affirmative action acceptable in certain circumstances.[7] According to the court's case law, any difference in treatment based on fixed status must be proportional to the justified aims pursued and the margin of appreciation has especially narrowed with regard to different treatment based exclusively on ethnic origin, gender, sexual orientation, or disability.[8] For example, in the 2013 case Vallianatos and Others v. Greece a registered partnership scheme that only recognized different-sex couples was ruled to be a violation of Article 14 because it discriminated against same-sex couples.[9]
References
[edit]- ^ "Salgueiro Da Silva Mouta v. Portugal". Human Rights Case Digest. 10 (10–12): 307–309. 1999. doi:10.1163/157181399400839020. ISSN 0965-934X.
- ^ Caron, David D.; Smith, Rhona K. M. (July 2003). "Goodwin v. United Kingdom. App. No. 28957/95 and I. v. United Kingdom. App. No. 25680/94". American Journal of International Law. 97 (3): 659–664. doi:10.2307/3109851. ISSN 0002-9300.
- ^ Cuenca, Encarna Carmona (2012). "The Prohibition on Discrimination: New Content (Art. 14 ECHR and Protocol 12)". Europe of Rights: A Compendium on the European Convention of Human Rights. BRILL. pp. 467–484. ISBN 9789004219915.
- ^ "Chart of signatures and ratifications of Treaty 177 (Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms)". Treaty Office of the Council of Europe. Retrieved 11 October 2021.
- ^ Fredman, Sandra (2016). "Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights". Human Rights Law Review. 16 (2): 273–301. doi:10.1093/hrlr/ngw001.
- ^ Fredman 2016, pp. 3–4.
- ^ Fredman 2016, pp. 8–10.
- ^ Fredman 2016, p. 6.
- ^ Fredman 2016, p. 23.
Further reading
[edit]- Arnardóttir, Oddný Mjöll (2014). "The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights". Human Rights Law Review. 14 (4): 647–670. doi:10.1093/hrlr/ngu025.
- Arnardóttir, Oddný Mjöll (2015). "Cross-fertilisation, Clarity and Consistency at an Overburdened European Court of Human Rights – the Case of the Discrimination Grounds under Article 14 ECHR". Nordic Journal of Human Rights. 33 (3): 220–242. doi:10.1080/18918131.2015.1081443. S2CID 146229668.
- Baker, Aaron (2006). "The Enjoyment of Rights and Freedoms: A New Conception of the 'Ambit' under Article 14 ECHR" (PDF). Modern Law Review. 69 (5): 714–737. doi:10.1111/j.1468-2230.2006.00607.x.
- Bell, Mark (2018). "Article 14 ECHR Prohibition of discrimination". International and European Labour Law. Nomos Verlagsgesellschaft mbH & Co. KG. pp. 461–466. ISBN 978-3-8487-2460-4.
- Dembour, Marie-Bénédicte (2009). "Still Silencing the Racism Suffered by Migrants . . . The Limits of Current Developments under Article 14 ECHR". European Journal of Migration and Law. 11 (3): 221–234. doi:10.1163/138836409X12469435402738. ISSN 1388-364X.
- Gerards, Janneke (2013). "The Discrimination Grounds of Article 14 of the European Convention on Human Rights". Human Rights Law Review. 13 (1): 99–124. doi:10.1093/hrlr/ngs044.
- Mačkić, Jasmina (2018). Proving Discriminatory Violence at the European Court of Human Rights. BRILL. ISBN 978-90-04-35985-7.
- O'Connell, Rory (2009). "Cinderella comes to the Ball: Art 14 and the right to non-discrimination in the ECHR". Legal Studies. 29 (2): 211–229. doi:10.1111/j.1748-121X.2009.00119.x. S2CID 145422827.
External links
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