Workshop on Positive Obligations and Discrimination in the Case Law of the European Court of Human Rights

Lund University, 4-5 June 2026

Conveners: Vladislava Stoyanova – Lund University & Karin de Vries – Utrecht University

Aim and scientific relevance of the workshop

This workshop aims to explore the potential and limitations of the European Court of Human
Rights’ case law on positive obligations and the prohibition of discrimination.

Positive obligations in ECtHR case law on discrimination

Article 14, together with Article 1 of the Twelfth Protocol to the European Convention on
Human Rights (ECHR), prohibits discrimination and requires States Parties to secure the
enjoyment of rights regardless of grounds such as sex, race and religion. This means that States may not act in a discriminatory manner, for example by denying the right to freedom of religion to cultural minorities or engaging in racial profiling. However the scope of States’ obligations to counter discrimination is not limited to such negative obligations. From the case law of the European Court of Human Rights (ECtHR) it is clear that States must also act in a positive manner to ensure that the prohibition of discrimination is respected. The ECtHR has ruled, for example, that States have a duty to effectively investigate allegations of discriminatory violence or harassment committed by state agents or private actors (eg Nachova and others/Bulgaria, ECtHR (GC) 6 July 2005, appl nos 43577/98 and 43579/98, para 160; Beizaras and Levickas/Lithuania, ECtHR 14 January 2020, appl no 41288/15, para 129); to maintain an institutional framework capable of effectively deterring domestic and gender-based violence (Vieru/the Republic of Moldova, ECtHR 19 November 2024, appl no 17106/18, para 134); to adopt safeguards against perpetuation of segregation in schools (Horváth and Kiss/Hungary, ECtHR 29 January 2013, appl no 11146/11, para 119) and to provide reasonable accommodation to pupils with disabilities (G.I./Italy, ECtHR 10 September 2020, appl no 59751/15, para 57). Over the past 20 years, ECtHR case law has generated an increasing number of positive obligations to prevent and combat discrimination, across a range of different issues and discrimination grounds.

The potential of positive obligations to combat discrimination

From the perspective of non-discrimination law, positive obligations offer various opportunities for addressing discriminatory practices. Positive obligations can serve to hold States accountable for ensuring effective protection against discrimination by private actors. Existing ECtHR case law identifies positive obligations for State Parties to combat hate speech and hate crime by non-state agents, including acts motivated by racism, religious intolerance and homophobia. Thus, State Parties have the obligation to prevent hatred-motivated violence (Identoba and others v. Georgia, ECtHR 12 May 2015, appl no 73235/12, para 63) and, where violent acts were committed, to do everything that can reasonably expected to uncover possible discriminatory motives (eg Abdu v. Bulgaria, ECtHR 11 March 2014, appl no 26827/08, para 44; Škorjanec v. Croatia, ECtHR 28 March 2017, appl no 25536/14, para 53). Positive obligations may also be invoked to push State Parties to combat discriminatory differences in treatment by private actors, such as employers and landlords.

The potential of positive obligations is, however, not limited to ensuring State accountability
for discrimination occurring in private relationships. Such obligations can also provide a means to address structural discrimination, extending beyond intentional or readily identifiable discriminatory acts whether by private or state actors. According to the definition provided by the European Commission against Racism and Intolerance (ECRI), the concept of structural discrimination refers to ‘rules, norms, routines, patterns of attitudes and behaviour in institutions and other societal structures that, consciously or unconsciously, present obstacles to groups or individuals in accessing the same rights and opportunities as others and that contribute to less favourable outcomes for them than for the majority of the population’ (ECRI General Policy Recommendation No. 2 (2017)). Put differently, structural discrimination results from measures and practices in which the interests of minorities and disadvantaged groups are insufficiently taken into account, resulting in socio-economic inequality, misrecognition and/or a lack of representation for the groups concerned.

Scholars of discrimination law broadly agree that structural discrimination cannot be effectively tackled by a system that sees discrimination only as a matter of individual acts, motivated by personal prejudice, and that focuses on administering justice to perpetrators of such acts. Instead, what are needed are measures to actively transform systems that produce disadvantage for protected groups, to combat stereotypes and to ensure adequate representation across public and private institutions. Examples of such measures include statutory equality duties; gender quotas; training of law enforcement agents to avoid reliance on racial stereotypes and legislative impact assessments to identify potential discriminatory effects of proposed legislation. Moreover, combating structural discrimination requires the gathering of equality data to bring to light discriminatory effects of apparently neutral policies and practices, and to measure the effectiveness of anti-discrimination policies (cf J. Van Caeneghem, Legal Aspects of Ethnic Data Collection and Positive Action. The Roma Minority in Europe, Springer 2019).

Limitations of positive obligations doctrine

Tackling (structural) discrimination thus requires positive State action, rather than mere compliance with the negative obligation not to discriminate. It is for this reason that the concept of positive obligations, as developed by the ECtHR, is of potentially great importance for the field of non-discrimination law. However, the Court’s positive obligations doctrine is not without its own pitfalls and complexities. As Stoyanova has shown, the standards used by the European Court of Human Rights to reason about breach of positive obligations have been quite flexible and uncertain. An argument that a State Party to the ECHR should be found responsible for omissions, demands engagement with complicated questions, such as the causation between the omission and the harm and the possibility by the State to foresee the harm. In the absence of foreseeability, it is not justifiable to find the State responsible under the Convention (V. Stoyanova, Positive Obligations under the European Convention on Human Rights: Within and Beyond Boundaries, Oxford University Press 2023). This arguably limits the ability of the ECtHR to formulate effective remedies against discrimination on the basis of the Convention (cp, with regard to racial profiling, K. de Vries, ‘Is it time for a European Convention against Racial Profiling?’, Netherlands Quarterly of Human Rights [2024] 42:3, 225-232).

Aim of the workshop

While legal scholars have analysed both the Court’s approach to positive obligations and its
efforts to address discrimination, the intersection between these two fields has thus far received little attention. The proposed workshop aims to fill this gap by asking: how does the Court’s doctrine on positive obligations play out in the specific field of discrimination law, and how is protection against discrimination under the ECHR influenced by the development of positive obligations? How the ECtHR apply positive obligations doctrine to bolster protection against (structural) discrimination, without overstepping the boundaries of its judicial role?

Questions/topics to be addressed include, but are not limited to:

1. Which (types of) positive obligations have been recognised by the ECtHR in relation to the prohibition of discrimination (Articles 14 and 1 Twelfth Protocol ECHR)? (How) does the scope and/or nature of these obligations differ depending on the type of discrimination at stake (eg hate speech/hate crime, direct/indirect discrimination, by public or private actors), the context in which discrimination occurs (employment, education, policing, immigration, etc..) and/or across discrimination grounds and can these differences be justified?
2. How do the elements of knowledge, causation and reasonableness play a role in ECtHR case law on discrimination? How does the formulation of a discrimination argument, as opposed to arguments about breach of substantive provisions, affect the role of these three elements (knowledge, causation and reasonableness)? More specifically when it comes to causation, how does the Court perceive and argue in favour of any links between state omissions and harm?
3. Which remedies are prescribed (or should be/could be prescribed) by the ECtHR in order to address breaches of positive obligations in the field of discrimination law? Which forms of State action are required (or should be/could be required) to execute the Court’s judgments? What role does causation (understood as a link between remedial actions and prevention of harm) have in the context of remedies? Is this role the same as in the determination of breach?
4. How does the conceptualisation of positive obligations to prevent or remedy discrimination, as established by the ECtHR, relate to and serve different theories of justice (distributive v. corrective or individual v. constitutional)? How does the conceptualisation of positive obligations to prevent or remedy discrimination, as established by the ECtHR, relate to notions of structural (or systemic or institutional) discrimination?
5. What are the potential and limitations of ECtHR case law on positive obligations to address specific forms of (structural) discrimination, such as segregation in education, domestic and gender-based violence, hate speech/hate crime, racial profiling or discrimination resulting from the use of technology or automated decision-making?
6. How do positive obligations to prevent or remedy discrimination, as established by the ECtHR, relate to concepts from equality/discrimination law including positive action, equality duties or reasonable accommodation?
7. Can the conceptualisation of positive obligations to prevent or remedy discrimination, as developed by the ECtHR, be compared with concepts and reasoning emerging from other jurisdictions? Can comparative parallels be drawn from the case law of other regional human rights courts (the IACtHR or AfCHPR) or from national doctrines and developments, to inform and evaluate the case law of the ECtHR? Can such comparative frameworks offer explanatory force for better understanding the ECtHR’s discrimination reasoning?

Instructions

Interested scholars should submit the following:

(1) proposal of at least 1 500 words outlining the planned article for the workshop

(2) one page bio containing information how the scholar’s background is relevant to the workshop.

Submission Guidelines

Proposals should be submitted to both Conveners by email (vladislava.stoyanova@jur.lu.se ; k.m.devries@uu.nl) by 8 November 2025.

Selected participants will be notified by 18 November 2025.

Draft papers will be due by 12 April 2026. Published articles and those in the process of
publication are not eligible.

Funding will be available for travel and accommodation.

Additional Information

For inquiries, please contact Vladislava Stoyanova (vladislava.stoyanova@jur.lu.se ) and
Karin de Vries ( k.m.devries@uu.nl)

We look forward to your contributions!

Hosted by Lund University as part of the project The Borders Within: the Multifaceted Legal
Landscape of Migrant Integration in Europe – Lund University & Utrecht University |
Research platform Equality Legal Studies (EQUALS)

Convened by Dr. Vladislava Stoyanova (Associate Professor in Public International Law) &
Prof. dr. Karin de Vries (Professor of fundamental rights law)

Output

We envisage publication of the papers presented during the workshop in a special issue with
the German Law Journal.