Equality as Integral
Reframing Article 14 ECHR
Duarte Agostinho, the ‘biggest-yet climate case’ before the Grand Chamber of the European Court of Human Rights (ECtHR) has, among other things, framed climate change as an issue of inequality. Six Portuguese children and young people have argued that because of their age, the material interferences with their rights to life (under Article 2) and private and family life (under Article 8) are greater than those faced by older generations, amounting to discrimination under Article 14 of the European Convention on Human Rights (ECHR). Article 14, which enshrines the prohibition of discrimination in the enjoyment of rights and freedoms set forth in the ECHR, is often described as an ‘accessory’ right because it can only be invoked in conjunction with one of the other rights protected in the ECHR. This is of course true. The persistent framing of Article 14 as accessory has, however, produced a ‘harmful inertia’ at the Court whereby it often considers that ‘it is not necessary to examine separately whether there has been a violation of Article 14’ taken in conjunction with another Convention right. Setting aside the substantive question of whether Article 14 is actually violated in Duarte, there is a need to reconsider the Court’s approach to deciding whether or not an Article 14 claim should be examined in the first place.
At the outset, a self-standing guarantee of non-discrimination has been introduced under Article 1 of Protocol No. 12 to the ECHR. However, it has so far been ratified by 20 states only, which severely limits its potential. As it stands, Article 14 remains the locus of ECHR discrimination law. Without undercutting efforts to fully develop Protocol No. 12, this blogpost draws from an overlooked doctrinal pattern to argue that Article 14 itself can be reconceptualised as ‘integral’ to the Convention.
‘Not necessary to examine separately’
In the last five years, the Grand Chamber considered that it was not necessary to examine the Article 14 complaint (that was raised in conjunction with another Convention right) in four out of nine cases when it was actually raised. More recently, individual judges at the Court have been critical of the majority’s ‘summary disposal’ of Article 14 claims (for example, the dissenting opinion of Judge Pavli in Fedotova and others v. Russia, para. 3). But despite these dissents, there remains a reluctance to engage with the prohibition of discrimination.
At first glance, this reluctance may stem from the ordinary wording of Article 14 ECHR, which, as is well-established, does not guarantee the right to equality or non-discrimination as such. Instead, it requires that ‘the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination’. However, simply because Article 14 ECHR must be read in conjunction with another right or freedom does not in itself imply that Article 14 need not be examined.
‘Clear inequality of treatment’ as a ‘fundamental aspect of the case’
Although the text does not demand such an interpretation, the ECtHR has regrettably interpreted the conjunctive reading of Article 14 in this manner. Such an interpretation can be traced to the landmark judgment in Airey v. Ireland, according to which when the Court has found a violation of a substantive Convention right (for example, the right to private life), it ‘is not generally required’ to examine the complaint under Article 14 taken in conjunction with that substantive right. There is thus a presumption against examining Article 14 complaints in such situations, which may be rebutted only when ‘a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case’ (at para. 30). Individual judges have noted sharp critiques of this vague standard. In Airey itself, Judge Evrigenis observed in dissent that the value of non-discrimination should be investigated irrespective of whether another Convention right has or has not been violated. He went on to note subsequently in Dudgeon v. the United Kingdom that such a restrictive interpretation of Article 14 ‘deprives this fundamental provision in great part of its substance and function’. There, he was joined by Judge Matscher who further critiqued this formula for excessively limiting the scope of Article 14 ‘to the point of depriving it of all practical value’. Despite sustained critiques, however, the standard seems to continue to guide the Court’s decision whether or not to examine Article 14 complaints, although it is not always stated explicitly in the Court’s reasoning.
This standard runs alongside the Court recalling and reiterating that Article 14 is ‘an accessory right’ that ‘has no independent existence’, discursive framings that signal to its audiences that the prohibition of discrimination holds less value in European human rights adjudication. It comes as little surprise then that Article 14 is regularly described, and accepted, as ‘ancillary’ in the Court’s own guide on Article 14 and as ‘subordinate’, ‘parasitic’, and ‘second-class’ in academic circles (here, here, and here).
Article 14 as an ‘integral part’ of all Convention rights
There is a principled basis for interpreting the conjunctive reading of Article 14 so that equality is no longer parasitic to but an integral part of all Convention rights and freedoms. Such an interpretation is anchored in existing jurisprudence, specifically when the Court was trying to shift away from early case law on Article 14. Early jurisprudence insisted on a breach of a Convention right as a precondition to consider examining Article 14 in the first place. In Belgian Linguistics, the Court found that a breach was not necessary so long as the discrimination at issue ‘falls within the ambit of’ another Convention right. In justifying this move, the Court reasoned as follows:
Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.
In such cases there would be a violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read in conjunction with Article 14. It is as though the latter formed an integral part of each of the Articles laying down rights and freedoms.
Instead of viewing Article 14 has parasitic, this rereading of Article 14 embeds equality as forming an ‘integral part’ of each of the Convention rights and freedoms. More recently, Judge Paulo Pinto de Alberquerque emphasised in Khamtokhu and Aksenchik v. Russia that:
[T]he pursuit of equality in the application of the rights protected pervades the Convention to such an extent that the Court has considered that “[i]t is as though Article 14 formed an integral part of each of the provisions laying down rights and freedoms”. Accordingly, there can be no doubt as to the central place occupied by the promotion of equality within the European system for the protection of human rights. (para. 18)
Excavating this rereading of the role and positioning of Article 14 in relation to other Convention rights can have serious conceptual and doctrinal implications. Conceptually, in labelling Article 14 as an ‘integral part’, the framing elevates the importance of Article 14 as not simply one of many other components but as something that is ‘necessary’ or ‘intrinsic’ to all Convention rights and not an adjunct or appendage. Since the text of Article 14 guarantees non-discrimination in the enjoyment of all ECHR rights and freedoms, a discrimination assessment should be firmly embedded as ‘integral’ to how each of the ECHR rights are enjoyed and violated.
Moreover, this framing can inform how the Court should best approach the task of examining Article 14 complaints in conjunction with other Convention guarantees: by treating such claims as a whole, in integrity, instead of fracturing them and considering it not to be necessary to examine separately whether there has been a violation of Article 14’. In fact, in that we should think of Article 14 as an integral part of all Convention rights speaks to its inseparability from these Convention rights. In doctrinal terms, this means that when the ECtHR decides to examine a complaint under another Convention right alone, should it find a violation of that right, it should not lead to a presumption against examining the complaint under Article 14 taken in conjunction with that right (unlike the Court’s typical approach that can be seen most recently in Macaté v. Lithuania, M.A. v. Denmark, and Navalnyy v. Russia).
In addition, even when Article 14 has not been specifically raised by the applicants, because the right to non-discrimination is an ‘integral part’ of all Convention rights, the examination of the relevant Convention right would not be complete without considering the possibility of discriminatory enjoyment of that right. This consideration must be clearly and transparently located under Article 14 in conjunction with the relevant right. At the same time, the absence of an explicit discrimination claim (for example, in Garib v. the Netherlands) should not preclude the Court from relying on jura novit curia (‘the court knows the law’, as it has previously done in Article 4 cases: see S.M. v. Croatia) to examine the complaint under Article 14 in conjunction with another right that has been invoked.
Beyond these intricacies, that Article 14 forms an integral part of each of the Convention rights marks a shift in how equality can and should be appreciated in European human rights law. It is certainly telling of how, in Judge Pinto’s words, equality ‘pervades’ the Convention. Therefore, instead of being cast as holding less value or deserving less attention in Strasbourg, the value of equality and non-discrimination occupies a ‘central place’ in the European Convention on Human Rights. Although each implication of this rereading remains to be explored, it holds tremendous promise for shifting the scales in Article 14 examinations before the ECtHR, and the Court would do well to consider it seriously, in Duarte Agostinho and beyond.