Prohibition of Discrimination

Taddeucci and McCall v. Italy: welcome novelty in the ECtHR’s case-law on equal treatment of same-sex couples

Guest Blogger LGBT Rights, Migration, Prohibition of Discrimination, Taddeucci and McCall v. Italy

This guest post was written by Dr. Nelleke Koffeman (*)

The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.

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Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: More Than a Typical Religious Discrimination Case

Guest Blogger Freedom of Religion, Izzettin Doğan and Others v. Turkey, Prohibition of Discrimination

This guest post was written by Dr. Mine Yildirim (*)

On 26 April 2016, the Grand Chamber held, by 12 votes to 5, that there had been a violation of Article 9 ECHR, and, by 16 votes to 1, that there had been a violation of Article 14 taken in conjunction with Article 9 ECHR in the case of Izzettin Doğan and Others v. Turkey.

Relying on Article 9, taken alone and in conjunction with Article 14, the applicants complained that their right to manifest their religion had not been adequately protected in domestic law. It is important to note that their complaints are based both on their claims for public religious services and recognition of their cemevis (Alevi places of worship) as places of worship. They complained of the refusal of their requests seeking, among others, to obtain for the Alevi faith followers the same religious public service provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They also contended that their request for the recognition of cemevis was refused. They further alleged that they had been the victims of discrimination on grounds of their religion, as they had received less favorable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.
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Biao v. Denmark: Grand Chamber ruling on ethnic discrimination might leave couples seeking family reunification worse off

Guest Blogger Biao v. Denmark, Migration, Prohibition of Discrimination, Right to Respect for Family Life

This guest post was written by Alix Schlüter, Ph.D. researcher at Bucerius Law School, Hamburg.

On May 24th 2016 the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 ECHR in conjunction with Article 8 ECHR. Overruling the Chamber’s judgment of 2014, the Court held by a majority of twelve votes to five that Danish Laws on Family Reunification in part constituted indirect discrimination on the basis of ethnic origin. In the past, the Court for the most part has confined itself to finding violations of the prohibition of discrimination on grounds of race or ethnic origin merely in certain tightly circumscribed case groups, namely cases concerning school segregation of Roma children and racist violence cases. Against that background, the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination.[1] The implementation of the judgment by the Danish government, however, has to be awaited with some uneasy suspense. It might result in leaving Danish nationals of non-Danish ethnic origin seeking family reunification worse off.

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Silence as Acquiescence: On the Need to Address Disability Stereotyping in Kocherov and Sergeyeva v. Russia

Guest Blogger Disability, Kocherov and Sergeyeva v. Russia, Prohibition of Discrimination, Right to Respect for Family Life

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

In Kocherov and Sergeyeva v. Russia, a Chamber judgment issued on 29 March 2016, the ECtHR held that the restriction of a mentally disabled father’s parental authority had violated his rights under Article 8 ECHR (the right to respect for private and family life). In the past, the ECtHR has found violations of Article 8 ECHR where the domestic authorities failed to provide sufficient reasons for measures withdrawing parental care or contact rights from disabled parents (compare Olsson v. Sweden (No. 1), Kutzner v. Germany, and Saviny v. Ukraine). One of the most interesting aspects of the Kocherov and Sergeyeva case, however, concerns another provision, namely the prohibition of discrimination in Article 14 ECHR. The complaint made in this regard concerned the fact that Mr. Kocherov was considered an unfit parent based on stereotyped assumptions about parents with mental disabilities, contrary to the evidence about his actual ability to care for a child. The fact that the majority did not find it necessary to examine this complaint represents a missed opportunity to confront stereotyping head-on.

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Back on track! Court acknowledges gendered nature of domestic violence in M.G. v. Turkey

Guest Blogger Domestic Violence, M.G. v. Turkey, Prohibition of Discrimination, Prohibition of Inhuman Treatment

This guest post was written by Fleur van Leeuwen (*)

Around a month ago, the Court ruled in Civek v. Turkey that it was not necessary to examine the applicant’s complaint of discrimination in a domestic violence case that ended in death. This was disheartening, especially because in recent domestic violence judgments the Court has always addressed alleged violations of article 14. What was perhaps even more disturbing about the Civek judgement was that the Court – without any apparent reason – observed that men can also be victims of domestic violence, thereby implying that domestic violence is a gender neutral phenomenon. In doing so, it seconded the worrisome wording of the Istanbul Convention,[1] which – by denoting that men may also be victims of domestic violence and by referring to violence against women and domestic violence – explicitly positions the latter as a gender neutral form of violence.

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Disability discrimination because of denial of “reasonable accommodations”: a very positive connection between the ECHR and the UNCRPD in Çam v. Turkey

Guest Blogger Çam v. Turkey, Disability, Prohibition of Discrimination

This guest post was written by Joseph Damamme, PhD student at the Centre of European Law of the Université libre de Bruxelles (Belgium) and member of the Equality Law Clinic.

The Strasbourg Court recently delivered a significant judgment on the inclusion of students with disabilities in the field of (non-compulsory) education. Çam v. Turkey (ruling only in French for the time being) concerns a person who was refused enrolment at the Music Academy because of her blindness.

In this judgment, the ECtHR examines the issue of discrimination (art. 14 ECHR) under several dimensions. Indeed, in addition to the prohibition of discrimination, attention is focused on the importance of positive steps to ensure that students with disabilities are provided education on a non-discriminatory basis. In this vein, the ECtHR states that the denial of reasonable accommodations is a form of discrimination under article 14 ECHR. As far as we can ascertain, this is a statement that had never been expressed so clearly by the Strasbourg Court.

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ECtHR condemns the punishment of women living in poverty and the ‘rescuing’ of their children

Valeska David Prohibition of Discrimination, Right to Respect for Family Life, Soares de Melo v. Portugal

By Valeska David

The recently delivered ECtHR judgment in Soares de Melo v. Portugal (application No.72850/14) conveys a strong message on childrearing responsibilities and child protection: families living in poverty (mostly led by women) cannot be punished for their deprivation and their children should not be ‘rescued’ from them. Instead, and because children are not the exclusive responsibility of parents, states must fulfill their supportive role and provide material and other forms of assistance to make family life possible.

Following a summary of the facts and the findings of the Court, I will first briefly contextualize the importance of such a message within the Council of Europe (CoE). Subsequently, I will highlight some of the main contributions explicitly and implicitly made by the judgment. Finally, I will conclude by taking the opportunity to suggest that the way forward requires the Court to be more attentive to the discrimination and stereotypes often at play in these types of cases.

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