HIV-based employment discrimination: the ECtHR takes a strong stance in I.B. v. Greece

The Strasbourg Court has recently delivered its first judgment on the topic of HIV-based employment discrimination. I.B. v. Greece (judgment in French!) concerns a man who is HIV-positive and who was fired from his job, because his employer wished to keep the company running smoothly. What happened was that a group of I.B.’s co-workers, finding out about his HIV diagnosis, had called for his dismissal because they were afraid of contagion.

Although much of the legal reasoning in this judgment is familiar (notably from the landmark case of Kiyutin v. Russia), this ruling is notable for the strong message the Court sends about the harms of HIV-based stigma and discrimination. In this post I will highlight what are to my mind the most noteworthy aspects of this judgment, namely that the Court applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment, I conclude, is that it does not give much support to HIV-positive people requiring some form of accomodation from their employer. Continue reading

Forthcoming Publication on Vulnerable Groups in the Court’s Case Law

This post was written by Alexandra Timmer and Lourdes Peroni

Alexandra and I are happy to announce the forthcoming publication of our joint Article “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law.” The piece will be published in the International Journal of Constitutional Law – I•CON.

In this Article, we critically examine the development and consequences of the concept of “vulnerable groups” in the Strasbourg case law. Our analysis includes a number of high-profile cases, from M.S.S. v. Belgium and Greece, to V.C. v. Slovakia, Alajos Kiss v. Hungary, Kiyutin v. Russia and the recent case of Horváth and Kiss v. Hungary.

The Article was an excellent opportunity to reflect and work together on issues of common interest, such as non-discrimination, equality and vulnerability.

Here is the abstract:

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

Non-nationals, living conditions and disability: Situating S.H.H. v. United Kingdom within Strasbourg’s Article 3 case-law

This guest post was written by Elaine Webster. Elaine holds a PhD from the University of Edinburgh and is currently a lecturer and director of the Centre for the Study of Human Rights Law at the University of Strathclyde. 

In S.H.H. v. United Kingdom a chamber of the ECtHR, by four votes to three, found that a real risk of inhuman or degrading treatment had not been established and found no potential violation of Article 3 ECHR. The applicant in this case sought and was refused asylum in the United Kingdom. It was argued that, as a result of his severe physical disabilities, return to his home country of Afghanistan would give rise to a violation of Article 3. The core question in this case was which line of the Court’s authorities was most appropriately aligned with the facts in S.H.H.  Continue reading

Horváth and Kiss v. Hungary: a strong new Roma school segregation case

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning. Continue reading