July 15, 2025
By Cathérine Van de Graaf and Beril Onder
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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.
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Scholars closely following the Court will be familiar with the recurring phrase: “it is not necessary to examine whether (…) there has also been a violation of Article 14 in conjunction with [another Article of the Convention].” (one example here). This decision to refrain from examination is typically left unexplained or followed by a few standard phrases.
This practice has been criticised by scholars who perceive this as leaving the applicant in the cold, shying away from taking an effective stance on the protection of minorities or contributing to inconsistency in its own case law. Notably, such criticism has also emerged from within the Court itself. Over the years, a considerable number of ECtHR judges have condemned treating Article 14 as an accessory right within the Convention and have – on certain occasions – publicly advocated for separate review of Article 14 complaints, citing a variety of reasons for this standpoint. In this post, we shed light on the Court’s rather dismissive approach to discrimination cases through a qualitative analysis of these dissenting and concurring opinions of ECtHR judges.
Article 14 of the Convention prescribes that the enjoyment of rights and freedoms it includes shall be secured by the member states without discrimination “on any ground 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”. Based on this phrasing, Article 14 always needs to be attached to another substantive Convention right. For Article 14 to be applicable, it is sufficient that “the facts of the case fall within the ambit of one or more of the Convention Articles” (Molla Sali v Greece [GC], para 123). Therefore, the Court can find a violation of Article 14 in cases where it finds no breach of the other (substantive) Convention right (Belgian Linguistic Case). In Thlimmenos v. Greece, the Grand Chamber stated that “to this end [Article 14] is autonomous” (para 40). However, when the Court finds a violation under the substantive article, it is disinclined to proceed with a separate review of the complaint under Article 14. As such, the provision has earned the description as an accessory, complementary, parasitic, second-class or even a ‘Cinderella’ provision. Review of Article 14 alongside a substantive article following a finding of a violation remains an exceptional practice by the Court, and the identification of these exceptions reveals considerable inconsistency.
According to the Court’s Câmpeanu formula, there is no need for the Court to give a separate ruling on the complaints other than “the main legal questions raised” in the application (Valentin Câmpeanu v. Romania [GC], para 156). This idea originated from earlier cases of Airey v. Ireland (para 30) and Dudgeon v. the United Kingdom (paras 67-69), in which the Court argued that no separate examination of Article 14 is necessary unless a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case. As a result of this case law, review of the substantive provision takes precedence over review of Article 14 in conjunction with that substantive provision.
According to Partsch, not engaging with Article 14 can be seen as a form of judicial restraint where the Court refrains from developing additional reasoning when there is no direct need. As Gerards puts it, the Court is willing to leave the non-discrimination undecided if it “can be readily solved by applying one of the Convention’s substantive guarantees” (p. 1001).While this may be due to several factors, arguably one of the most significant is the Court’s limited resources and the considerable backlog of cases it faces as a supranational institution.
Nevertheless, it should be noted that Article 14 constitutes an integral, distinct and fundamental guarantee under the Convention, carrying significant importance for victims of discrimination. The Court’s reluctance in examining discrimination complaints under this provision and its insufficient reasoning in doing so have been mainly criticised by scholars for its inconsistencies, for not developing a powerful case law against discrimination and for not taking into account the principles of procedural justice into account.
In addition, from the very beginning, many ECtHR judges themselves have also criticised the Court’s approach towards Article 14 in their separate opinions which we explore in this blogpost.
First, since Hudoc does not contain metadata on cases where Article 14 is not subjected to a substantive review, we used automated content analysis, with the help of the programming language Python, to search the entirety of the Courts case law with specific language prompts (such as “alleged violation of Article 14”). Within this group of cases, we focused on the ones in which Article 14 has not been examined by the Court (with prompts such as “separate review”) with particular attention to those cases where disagreement exists among judges about the need to investigate Article 14 separately. According to preliminary findings from our research, we identified 1,370 cases in which the Article 14 complaint was deemed admissible of which 629 cases had no examination on the merits of the Article 14 complaint.
In 47 cases, the decision was not unanimous, and the dissenting judges explained why they were convinced that the Article 14 complaint warranted a separate review. These opinions offer rare insights into internal disagreement about the Court’s approach to Article 14 and were explored through a qualitative discourse analysis.
When looking at the reasoning provided in the Court’s rulings, which is very limited, and separate opinions, the main reason for the Court’s non-reviewing of Article 14 complaints appears to be related to the procedural economy argument. Most notably, when the Court’s judges consider that they have dealt with the main legal question raised, where the complaints coincide or overlap, or when they find a violation of the substantive article, they decide that it is not necessary to discuss and examine separately Article 14 complaints. In this context, even dissenting judges expressing a disagreement about the need to review Article 14 complaints have been cautious and have admitted that, in some cases, the Court should limit the scope of a ruling for reasons of procedural economy (Catan and Others v. the Republic of Moldova and Russia [GC], Joint Partly Dissenting Opinion Of Judges Tulkens, Vajić, Berro-Lefèvre, Bianku, Poalelungi and Keller, para 1 and Şükran Aydın and Others v. Turkey, Partly Dissenting Opinion of Judge Keller, para 3). This approach may be understandable in certain cases, particularly in light of the Court’s limited resources and the persistent issue of case backlog.
There are, however, compelling and persuasive reasons for reviewing Article 14 complaints separately, as articulated in the dissenting opinions. These arguments raised in the dissenting opinions are analysed here under two main groups: (i) institutional requirements, (ii) case-specific requirements.
The first group of arguments in favour of reviewing Article 14 complaints separately can be classified as being related to the institutional requirements of the Convention system.
Judge Keller argued that “the complaint under Article 14 in conjunction with another Convention right is an autonomous one to which the Court must give autonomous meaning” (Şükran Aydın and Others v. Turkey, Partly Dissenting Opinion of Judge Keller, para 3).In addition, Judge Keller also strongly argued that the scope and substance of Article 14 should not be “automatically absorbed by the scope of the substantive right with which it must be invoked”, as “[s]uch automatic absorption would deprive Article 14 of all scope of application and render it the ‘Cinderella provision’ of the Convention” (Kocherov and Sergeyeva v. Russia, Dissenting Opinion of Judge Keller para. 11). Reviewing Article 14 complaint separately and finding a violation under this provision can be crucial to address the separate harm the applicants suffer as a result of discrimination. Finding of an additional violation under Article 14 can “further illustrate the gravity of mistreatment sustained by the applicants” (Scerri v. Malta, Partly Dissenting Opinion of Judge Serghides). Conversely, the lack of a separate review of Article 14 might be considered “unduly reductive, giving an incomplete picture of the situation and the consequences it entails” (Catan and Others v. the Republic of Moldova and Russia [GC], Joint Partly Dissenting Opinion Of Judges Tulkens, Vajić, Berro-Lefèvre, Bianku, Poalelungi and Keller, para 1). Notably, the Court’s restrictive formula for review of Article 14 noted in Airey v. Ireland (para 30) “deprives this fundamental provision in great part of its substance and function in the system of substantive rules established under the Convention” (Dudgeon v. the United Kingdom, Dissenting Opinion of Judges Evrigenis and Garcia De Enterria). “The Court’s traditional line of reasoning concerning the accessory nature of Article 14 (…) could considerably limit [Article 14’s] scope in practical terms”. Also, they add, its “restrictive practice does not correspond to the ratione Conventionis”. Because it forces “an applicant seeking a definitive finding by the discrimination issue”, “in order to achieve a separate examination of Article 14”, to make a difficult decision: to submit the application solely under Article 14 in conjunction with a substantive article, rather than invoking the substantive article on its own as well.
Another important argument arguing the importance of separate review of Article 14 concerns procedural justice. In several dissenting opinions, the judges argued that the Court has a duty to give an answer on the merits of the specific discrimination complaint that has been raised by the applicant under Article 14 (Dudgeon v. the United Kingdom, Dissenting Opinion of Judge Matscher. See also Fernandez Martinez v. Spain, Joint Dissenting Opinion of Judges Spielmann, Sajò and Lemmens; Chiragov and Others v. Armenia [GC], Partly Dissenting Opinion of Judge Hajiyev). Accordingly, the Court “cannot escape this responsibility by employing formulas that are liable to limit excessively the scope of Article 14 to the point of depriving it of all practical value” (Dudgeon v. the United Kingdom, Dissenting Opinion of Judge Matscher).
Reviewing Article 14 complaints separately can provide important opportunities to develop the Court’s case law, particularly in relation to novel topics not yet addressed by the Court, or to clarify its approach to specific matters such as the burden of proof or the margin of appreciation in discrimination cases (Fedotova and Others v. Russia [GC], Partly Dissenting Opinion of Judge Pavli, Joined by Judge Motoc, paras 6-8; Macatė v. Lithuania, Joint Partly Dissenting Opinion of Judges Yudkivska, Lubarda, Guerra Martins and Zünd Joined by Judge Kūris, paras 4, 11). As Judges Loucaides and Tulkens rightly observe, clarity in the Court’s case law is “essential for the execution and enforcement of the Court’s judgments and their contribution to the collective guarantee of human rights” (Mazurek v. France, Joint Partly Dissenting Opinion of Judges Loucaides and Tulkens).
Just satisfaction
As several dissenting opinions have emphasised, a finding of an additional violation under Article 14 carries practical significance for the applicant (Lupeni Greek Catholic Parish and Others v. Romania, Partly Dissenting Opinion of Judge Karakaş; Bagdonavicius and Others v. Russia, Dissenting Opinion of Judge Keller, para 11; Scerri v. Malta, Partly Dissenting Opinion of Judge Serghides); Kocherov and Sergeyeva v. Russia, Dissentıng Opinion of Judge Keller). Typically, the amount awarded for non-pecuniary damage is higher in such cases, providing a further argument in favour of separately reviewing Article 14 complaints raised by applicants.
Lastly, in several cases, the dissenting judges argued that the Court adopted an excessively formalistic approach, dismissing consideration of the complaint, whereas a prima facie case of discrimination had been established by the applicant and the burden of proof had shifted to the Government (Şükran Aydın and Others v. Turkey, Partly Dissenting Opinion of Judge Keller (an indirect discrimination claim regarding the use of a particular language); N. v. Romania (No. 2), Partly Dissenting Opinion of Judge Motoc). In addition, in Macatė v. Lithuania, the dissenting judges argued that the interpretation of discrimination provision together with substantive provisions was “within the competence of the Court” and that no “express argument by the parties” was necessary to examine the discrimination complaint, especially considering the importance of the issues raised by the applicant.
The second group of arguments supporting the separate review of Article 14 complaints is more closely tied to the specifics of individual cases.
In numerous cases (Airey v. Ireland, Şükran Aydın and Others v. Turkey, Buhuceanu and Others v. Romania, Fedotova and Others v. Russia, Macatė v. Lithuania, Valverde Digon v. Spain and Dudgeon v. the United Kingdom), the dissenting judges identified the discrimination complaint as a fundamental aspect of the case and therefore argued that it should have been given due consideration in a separate examination under Article 14.
For instance, in Kocherov and Sergeyeva v. Russia, Judge Keller stressed that she contends that “the first applicant has an arguable claim that the restriction on his parental authority over the second applicant was imposed and maintained because of his mental disability, which therefore seems indeed to be a fundamental aspect of the case. The reasons for this are various, but they largely concern the stereotyped view of the first applicant as a mentally disabled parent expressed by the domestic instances” (para 3). A similar reflection is made by Judge Serghides in the Savinovskikh and Others v. Russia case where he argues that “the complaint in question, regarding discrimination on the basis of gender identity was the most defining feature of the case, encompassing both a social element and human dignity, which in the present case are so apparently and unquestionably the crux of the issue” (para 3).
A considerable number of judges have emphasised that the applicants’ specific status, position, or membership in a particular group—when relevant to the denial of a Convention right—warrants a separate and thorough examination of the Article 14 complaint (see for instance, X, Y and Z v. the United Kingdom, Dissenting Opinion Of Judge Thór Vilhjálmsson and Dissenting Opinion of Judge Foighel; Van der Heijden v. the Netherlands, Joint Dissenting Opinion Of Judges Tulkens, Vajıć, Spielmann, Zupančıč And Laffranque, and Joint Dissenting Opinion Of Judges Casadevall And López Guerra).
In Döner and Others v. Turkey, Judge Lemmens, in his concurring opinion, underscored the critical role of judicial review in cases concerning minority rights. He emphasized that:
An Article 14 complaint is intrinsically different in nature from a complaint under other Articles of the Convention: while the latter complaint is (only) about an interference with the applicant’s rights, the former is about the treatment given to the applicant in comparison with others. Moreover, I would not exclude that in a case relating to the treatment of a minority, the discrimination issue is in fact the heart of the matter” (para 3). (italics by authors).
For instance, Judge Keller argued that the protected status of the applicants (i.e. ethnic origin Roma) was the sole basis of the denial of applicants’ rights (Bagdonavicius and Others v. Russie, Dissenting Opinion of Judge Keller). Often, dissenting judges took into account the extreme vulnerability of certain groups in the exercise of their other rights and widespread discriminatory practices that have been observed against them, such as Roma minority in certain countries (V.C. v. Slovakia, Dissenting Opinion of Judge Mijovic; Carabulea v. Romania, Partly Joint Dissenting Opinion Of Judges Gyulumyan and Power, and Partly Dissenting Opinion of Judge Ziemele) or Turkish citizens of Kurdish origin (Partly Dissenting Opinions of Judge Mularoni in Kişmir v. Turkey, Toğcu v. Turkey, Yasin Ateş v. Turkey, Dizman v. Turkey, Dündar v. Turkey.)
Another point underscored in the separate opinions was that the Court, under Article 14, must acknowledge that in certain cases States have a positive obligation to provide differentiated treatment (Valentin Câmpeanu v. Romania [GC], Concurring Opinion of Judge Pinto de Albuquerque, para 9). In Kacper Nowakowski v. Poland, Judge Sajó stressed that “the rights of the disabled cannot be effectively protected without acknowledging the positive obligation of the State to provide a differentiated treatment”.
The Court should also consider that separate review of Article 14 complaints can have a signalling effect, meaning that it can send an important message that support for discriminated groups’ rights and dignity is valued and protected. Notably, in their Partly Dissenting Opinion, Judge Pavli and Judge Motoc noted how there is “great inherent value in a Court judgment that confirms the “equal enjoyment of rights” imperative” (Fedotova and Others v. Russia, Partly Dissenting Opinion of Judge Pavli, Joined by Judge Motoc, para 5).
In three cases, dissenting judges also drew attention to the stereotyped view of the applicants by the authorities and argued that such practices also require the review of Article 14 complaints (Kocherov And Sergeyeva v. Russia, Dissenting Opinion of Judge Keller; Bagdonavicius and Others v. Russia, Dissenting Opinion of Judge Keller; N. v. Romania (no. 2), Partly Dissenting Opinion of Judge Motoc).
Lastly, in certain cases, the dissenting judges argued that Article 14 ought to have been investigated solely because they disagreed with the violation of the substantive article. So, in order to be complete in their criticism, they then mentioned the need to examine the complaint under Article 14 (Hamidović v. Bosnia And Herzegovina, Dissenting Opinion of Judge Ranzoni; Mile Novakovic v. Croatia, Dissenting Opinion of Judge Wojtyczek).
To conclude, a variety of arguments articulated in dissenting opinions highlight the necessity of a separate examination of Article 14, despite the Court’s tendency to leave Article 14 complaints undecided where the matter “can be readily solved by applying one of the Convention’s substantive guarantees”. These arguments demonstrate that a separate review of Article 14 can be crucial both for fulfilling the Court’s mission within the Convention system and for safeguarding the rights of applicants.
While the Court’s resource limitations and substantial case backlog are acknowledged, the arguments presented above make clear that its current approach risks unduly prioritising efficiency over the effective protection of individuals from discrimination. A recalibration is therefore necessary to ensure that procedural economy does not come at the expense of meaningful protection of rights.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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