Prohibition of discrimination: a practical review of the approaches of the European Court of Human Rights

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Author: Dmitri Bartenev

DOI: 10.21128/2226-2059-2019-1-43-66

Keywords: case law of the European Court of Human Rights; Convention for the Protection of Human Rights and Fundamental Freedoms; disability; discrimination; sexual orientation

Abstract

The anti-discrimination standards elaborated through the case law of the European Court of Human Rights have limited application in Russian judicial practice. Whereas the ECHR methodology in discrimination cases is primarily used in the practice of the Constitutional Court of the Russian Federation, courts of general jurisdiction seldom employ the relevant tests. This omission is partially explained by Russian doctrine, which has traditionally viewed discrimination as a problem in labour relations only. The article seeks to fill this gap by providing an overview of the ECtHR case law to discuss the concept and types of discrimination, the importance of anti-discrimination provisions in the system of ECHR guarantees of human rights, as well as the general approaches of the European Court of Human Rights to the analysis of allegations of discriminatory conduct by the authorities, including the distribution of the burden of proof in such types of cases. Although the scope of the prohibition of discrimination is significantly narrowed by its subsidiary role in relation to other rights and freedoms guaranteed by the European Convention on Human Rights, the author discusses the criteria for applying the ECHR anti-discrimination provisions as a freestanding guarantee in light of the ambit doctrine established by the ECtHR. The anti-discrimination dimension significantly expands the possibilities for using the ECHR as a tool for defending those rights and freedoms that are not directly guaranteed in the Convention. The author discusses specifically the ECtHR approaches to understanding discrimination of vulnerable social groups, such as people with disabilities and LGBT people, as well as the growing recognition by the Court of international legal obligations of states to protect against discrimination by private individuals. The conclusions summarise the main requirements for the implementation of the ECHR anti-discrimination provisions in domestic judicial practice.

About the author: Dmitri Bartenev – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Law School, Saint Petersburg State University, Saint Petersburg, Russia.

Citation: Bartenev D. (2019) Zapret diskriminatsii: prakticheskiy obzor podkhodov Evropeyskogo Suda po pravam cheloveka [Prohibition of discrimination: a practical review of the approaches of the European Court of Human Rights]. Mezhdunarodnoe pravosudie, vol.9, no.1, pp.43–66. (In Russian).

References

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