Is there any room for vulnerability in Article 14 cases? The case law of the European Court of Human Rights
The right not to be discriminated in the enjoyment of rights and freedoms guaranteed by the European Convention of Human Rights (ECHR) provided for by Article 14 of the Convention has been subject to continuous and dynamic interpretation by the European Court of Human Rights (ECtHR). Mostly this is due to the fact that the prohibition of discrimination is not limited to certain categories but refers to a list of examples, ‘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.’ The Court has extended this list by ways of subsuming categories like age, sexual orientation or disability under the term ‘other status’. At the same time, the Court has further elaborated on what the concept of discrimination comprises reflecting also legal developments of the EU and relevant case law of the Court of Justice of the European Union. Also, the ECtHR has increasingly applied the concept of vulnerability in cases of discrimination, using it as an additional argument in cases of unequal treatment. The Court in such cases seeks to point at situations of disadvantage for whole groups in order to strengthen the case for a finding of discrimination. This practise however, according to our opinion, is not always helpful for the situation of those addressed as it leaves them diagnosed as helpless rather than as rights holders. In this blog entry, I will therefor give a short overview of selected discrimination cases, where vulnerability was applied and try to identify, which difference this made for the findings.
The European Convention of Human Rights (ECHR) in its Article 14 stipulates a general ban against discrimination on a wide range of grounds. The main characteristics of Article 14 are its non-exhaustive list of grounds, the general nature of its definition of discrimination and the restriction of its scope to the enjoyment of the rights and freedoms set forth in the ECHR. The European Court of Human Rights (ECtHR) has (and also had to) develop(ed) a quite comprehensive set of case law interpreting Article 14, adding categories like age, sexual orientation or disability by ways of subsuming them under the term ‘other status’ and elaborating further on the concept of discrimination. At the same time, it also has introduced the concept of vulnerability into its reasonings. The Court in such cases seeks to point at situations of disadvantage for whole groups in order to strengthen the case for a finding of discrimination. Does the Court need this concept for differentiation because of the very general definition of discrimination provided for by the wording of Article 14?
This could be argued against by the fact that the Court in its interpretations – according to Article 53 of the Convention – closely followed legal developments within the European Union and respective case law by the Court of Justice of the European Union (CJEU). And the EU anti-discrimination regime is characterised by a differentiated definition of discrimination – and even more importantly, its approach does not request an unequal treatment in the execution of any other right or freedom, but prohibits discrimination as such.
Even if the ECtHR cannot exceed its competencies by extending the applicability of Article 14, it still has – stimulated also by the case law of the CJEU – integrated the various definitions of discrimination into its own jurisprudence. This is especially valid for the definition of indirect discrimination. Indirect discrimination, resulting from a practice that even if in principle neutral does affect some groups of people – characterised by a certain ethnic affiliation, gender, age, health status, etc. – in a different way than others, has been applied as a legal concept in cases like D.H. & others and S.A.S. vs. France.
In other cases, the Court has also acknowledged structural aspects of discrimination. In Opuz v. Turkey the Court identified the general attitude of the police as hostile towards women and the judiciary as passive and found such structures as discriminatory. In elaborating its arguments, the Court referred to statistics and civil society reports, which demonstrated that violence against women and hesitance in reacting to it accordingly were inherent to the administrative and judicial system in the South of Turkey.
Still, in most of these cases, we find the argument of vulnerability entering the reasoning of the Court. It is either applicants or third-party intervenors, who bring forward a reference to vulnerability with the aim to convince the court of a maltreatment. But would this have been necessary? And is this really the best strategy?
Let’s look at the cases from a legal point of view: in the case D.H. and others statistics had shown an overrepresentation of Roma children in special education schools and evaluation tools applied, according to experts, were designed in a way that made it more difficult to be diagnosed as ready for ordinary school for Roma children. Based on this, the ECtHR came to the conclusion that despite being couched in neutral terms, the relevant statutory provisions . . . had considerably more impact in practise on Roma children than on non-Roma children and resulted in disproportionate numbers of placements of the former in special schools. And, consequently, to a finding of indirect discrimination. Also, the ban of the full-face veil in France has to be considered as a practise that has specific negative effects on the situation of Muslim women who, for religious reasons, wish to wear the full-face veil in public and as such would have to be qualified as indirect discrimination, if there is no objective and reasonable justification for the ban (S.A.S v. France).
Thus, we wonder where do the arguments that the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle (D.H. and others, §181) or that veiled women make up a vulnerable minority that requires particular attention (Human Rights Centre of Ghent University S.A.S v. France, § 97) fit in?
Vulnerability is an especially strong argument in the Opuz case. In this case it is argued that the particular vulnerability of women of low-income families living the south-east Turkey in a society characterized by structural discrimination limits their access to justice. But why do we need to label them as vulnerable? Why can’t we acknowledge that the structures within the system and attitudes of public administration and judiciary are discriminatory? Why can’t we name the problem and also allocate it, where it is, namely with the structures and the persons in charge and not with the persons affected by fundamental rights violations?
Cases of intersectional discrimination are another category of cases, where vulnerability is frequently applied. These include, for example, cases of forced sterilisations of Roma women (N.B. v. Slovakia, race/ethnic origin and sex) or the case of the abuse of a sex worker of Nigerian origin by the police on the basis of her race, gender and profession (B.S. v. Spain). Instead of addressing these cases as what they are, namely cases of intersectional discrimination, the Court refers to the specific vulnerability of women of a specific ethnicity/race/occupation as an argument for finding a violation of ECHR rights.
Neither Article 14 ECHR nor the concepts of discrimination developed at the level of the EU do include a reference to vulnerability. They also don’t refer to specific groups that should be protected in a different way than others, but instead work with categories like sex, gender, religion, etc. And in none of the cases in which the Court found discrimination would the consideration of the vulnerability of particular groups have been necessary to a finding of discrimination.
The only instances, where an identification of vulnerability might make a difference are cases where the Court put forward vulnerability as an argument for narrowing the margin of appreciation for states in selecting groups for differential treatment on grounds of their health status (Kiyutin v. Russia) or deciding on adequate reasonable accommodation measures for persons with disabilities (Çam v. Turkey). However, it is not clear whether not applying the concept would really have led to a different outcome.
As a preliminary result of our case law review, we think that the Court would not need to apply the concept of vulnerability in order to find discrimination in the cases reviewed. We also doubt that a reference to vulnerability that bears the risk of stigmatisation and a shift in perspective from rights holders to people in need is the best strategy to overcome discrimination. We will continue to further review the case law in order to come to final conclusion in this regard.
- ECRI General Policy Recommendation No. 3: Combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998)
- European Court of Human Rights (2022): Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention, https://www.echr.coe.int/Documents/Guide_Art_14_Art_1_Protocol_12_ENG.pdf (29.01.2023)
- B.S. v. Spain, ECtHR no. 47159/08 / Judgment, 24.07.2012
- Çam v. Turkey, ECtHR no. 51500/08, Judgment, 23 February 2016
- D.H. and others v. the Czech Republic, EctHR no. 57325/00, Grand Chamber, 13. November 2007
- Kiyutin v Russia, ECtHR No. 2700/10, 15 September 2011
- N.B. v. Slovakia, ECtHR no. 29518/10, Judgment, 12 June 2012
- Opuz v. Turkey, ECtHR, no. 33401/02, Judgment, 9 June 2009
- S.A.S. v. France, EctHR no. 43835/11, Judgment, 1. July 2014