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40 Cards in this Set
- Front
- Back
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what does equality mean? |
Equality before the law (formal equality): equal application of existing laws to all persons subject to them
Equal protection of the law (substantive equality): obligation of state to ensure equality |
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what are the different kinds of discrimination |
. Direct discrimination:
. Indirect discrimination |
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what is direct discrimination? |
Difficulty of proving that a given action or omission has been motivated by discriminatory motives
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what is indirect discrimination? |
results from the effect of a rule or a measure that is neutral at face value or without intent to discriminate, but which has an exclusive or disproportionate effect on a certain category of persons
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what was the case Thlimmenos v. Greece, ECHR, 2000-IV about? |
T got a criminal conviction for not having done the military service. He refused because of his religious beliefs. He then exhausted his sentence and studied to be an accountant. Pre requirement for enrolment at university was a clean criminal record.
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what did the court say in the case Thlimmenos v. Greece, ECHR, 2000-IV? |
he was prevented to study. In Strasbourg the court agreed with him, it was an indirect discrimination
the court ruled the case basing it on a ground of religious belief, because T refused to do the military service on the basis that he was a Geova witness |
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what texts deal on discrimination in the convention? |
- Art 14. Prohibition in discriminating the enjoyment of the rights under the convention. You should relate the use of this art with one of the articles of the convention.
- Protocol n 12, almost says the same. The difference : relates to every right not only those protected by the convention also social economic rights |
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wat is the difference between distinguish and discriminate? |
proportionate relevant objectives
You can only have discrimination if you compare an individual to someone else. And the comparison must be addressed to some specific aspects that can be sexual orientation, gender, religion |
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Equality and non-discrimination in the CCPR
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- Art. 2, § 1, CCPR: no “independent existence”.
- Art. 26 CPPR: general scope of application. |
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Equality and non-discrimination in the ECHR
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- Art. 14 ECHR: no “independent existence”. But it is sufficient that the facts of the case fall “within the ambit” of one or more Articles of the ECHR.
- Protocol No. 12 to ECHR: general scope of application. |
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what are the obligations of the state? |
1. Negative obligation: prohibition of discrimination
2. Positive obligation: protection against discrimination |
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what are the negative obligations of the state? |
a. Prohibition applicable both to granting advantages and to imposing restrictions
b. Constitutive elements of a discrimination |
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what are the constitutive elements of a discriminations? |
With respect to a difference in treatment
With respect to a failure to take differences into account |
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what are the constitutive elements of a discrimination with respect to a difference in treatment? |
. A difference in treatment, based on a personal characteristic by which persons or groups of persons are distinguishable from each other
. A difference intreatment between persons in relevantly similar situations . Absence of an objective and reasonable justification |
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what are the cases relating to a difference intreatment between persons in relevantly similar situations |
- E.Ct.H.R., 29 April 2008, Burden v. United Kingdom.
- E.Ct.H.R., 16 March 2010, Carson v. United Kingdom. |
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what is the absence of an objective and reasonable justification? |
Legitimate aim; proportionality
- Margin of appreciation - Some grounds for differentiation are highly suspicious: in principle unacceptable or acceptable only for “very weighty reasons” |
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cases relating to the absence of an objective and reasonable justification? |
E.Ct.H.R., 22 January 2008, E.B. v. France.
- E.Ct.H.R., 22 December 2009, Sejdić and Finci v. Bosnia and Herzegovina - E.Ct.H.R., 4 October 2012, Chabauty v. France, § 50. |
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what are the constitutive elements of a discrimination with respect to a failure to take differences into account? |
An equal treatment of persons in relevantly different situations Absence of an objective and reasonable justification |
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what is the positive obligation to protect against discrimination? |
a. Obligation to take positive measures, in order to ensure equality and to eliminate existing inequalities
b. Protection against discrimination by private individuals and entities |
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Obligation to take positive measures, in order to ensure equality and to eliminate existing inequalities?
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In general
- Special measures of a temporary nature, aimed at eliminating existing structural discriminations (affirmative action, positive discrimination) |
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what are these general obligations? |
f |
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can the special measures of a temporary natur aimed a the eliminating exisitng structural discrimination be lawful? |
Can be lawful, if and as long as these measures meet requirement for justification of a differential treatment (see above)
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what are some cases against discrimination by private individuals and entities? |
- E.Ct.H.R., 13 July 2004, Pla and Puncernau v. Andorra, ECHR, 2004-VIII.
- E.Ct.H.R., 30 July 2009, Danilenkov v. Russia. |
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what are some example of vulnerable groups being protected? |
Protection of people characterised by so-called race or ethnicity
Elimination of discrimination of women C. Protection of minorities – minority privilege |
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what is a minority? |
No officially accepted definition
- A minority is characterized by a number of objective and subjective characteristics - Only certain minorities seem to deserve special protection: “ethnic, religious or linguistic minorities” (Art. 27 CCPR) or “national minorities” |
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what is the defintion of Prof. F. Capotorti |
three conditions
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what is the first condition of defintion by prof. F. Caportorti? |
- First condition: They have to be a minority in terms of numbers of course, but not so obvious, sometimes there can be a minority ruling over a majority, how would you define it then?
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what is the second condition of defintion by prof. F. Caportori? |
- Second condition: the minority is in a disempowered position, at least in theory. Democratic function of the state is a factor for determining it. The minority has no chances to rule democratically.
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what is the third condition of definition by prof. F. Caportori? |
Third condition: there should be co-nationals, so can immigrants fall under the same category?
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Is there a mention of minorities either in the conventions or the protocols attached to them
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Probably many states would have no problem with such harmonization, countries like Germany or the Netherlands.
If you are from Spain though you could feel more uncomfortable because of the Catalunia, Basque region or Galizia situation for example, or France would have issues with Corsica and other regions. The impact of a supranational definition of minorities would be unimaginable. Can we consider the francophone population in Belgium a minority? |
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Can we consider the francophone population in Belgium a minority?
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Well they are less but we can’t say they are disempowered.
The Belgian system for example is linked and arranged in a way that has to do with territorial sovereignty. Bringing them together makes it very difficult. It is a bit outrageous to justify the unprotection on a linguistic basis.
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what would be the consequences of implementing this convention? |
Not clear what the implications would be. They could be very extensive but perhaps too far reaching.
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Should we be afraid of the convention?
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Perhaps in 10 years it would have acquired a completely new dimension and much stricter connotation;
maybe we should take advantage of it now that we can still shape it in a way that can suit every country. |
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what are the rights of persons belonging to a minority
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a. Minority rights as aspects of classical fundamental rights
b. Prohibition of discrimination on the basis of belonging to a given minority |
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what are the minority rights as aspects of classical fundamental rights? |
E.Ct.H.R., 13 November 2007, D.H. v. Czech Republic, ECHR, 2007-XII.
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what was the D.H. v. Czech Republic case about? |
In Czech Republic Roman (which means ROM in Italian) children where sent to special schools, where pupils with intellectual weaker skills were taught.
Enrolment to these schools was established through “objective tests” was the argument of the Czech Republic. One of the arguments put by the applicant was that those objective tests were not so objectively neutral |
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Did the court find a case of discrimination? |
The tests did not assess culture, but the court could not find a violation on the principle of non-discrimination because there was no strong national consent.
Precisely because they are excluded in society there is no way of enforcing the voice of these minorities if not via the court |
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what happened when the case went to the grand chamber? |
the court found a violation and the violation based on a shift of the burden of proof,
by insisting that: the state provided information in a way to say that there was no discrimination at all, but it was actually on them to show that this is the case by proving it it was not for the applicant to prove that that procedure was discriminatory. We should find a balance where both parties cooperate; the victim has to find convincing material and the defendant authority to provide us with strong indications that there is no sign of discrimination |
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how could statistics be used in this case? |
Statistics are usually a pretty good argument. The statistics were appalling showing the percentage of roman children attending those special schools.
It was a system that arguably isolated and abandoned those children. The consequences of this have really far reaching implications in terms of the development in society. |
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Does anti-discrimination law apply to horizontal relations
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Consult Parl. Ass., recommendation 1766 (2006) of 4 October 2006 on Ratification of the Framework Convention for the Protection of National Minorities by the member states of the Council of Europe.
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