C Explanatory
memorandum by Mr Cilevičs, rapporteur
1 Procedure
to date
1 The motion for a resolution on “The Declaration of
Principles on Equality and activities of the Council of Europe”
was transmitted on 2 October 2009 to the Committee on Legal Affairs
and Human Rights for report.
Note At its meeting on 16 November 2010, the
committee appointed me as its rapporteur.
2 At its meeting on 8 March 2011, the committee held a hearing
with the following experts:
- Mr
Frédéric Edel, Doctor of Law, Researcher, Ecole Nationale d’Administration,
France;
- Ms Dimitrina Petrova, Executive Director, The Equal Rights
Trust, United Kingdom;
- Mr Michal Gondek, Legal Officer, Directorate General for
Justice, European Commission.
2 Purpose
of the present report
3 The right to equality before the law and the protection
of all persons against discrimination are fundamental provisions
of international human rights law. The right to equality is central
to the human rights system, both as an autonomous legal right and
as a subsidiary right related to all other human rights which must
be applied without discrimination. It should be stressed that “non-discrimination”
does not have the same meaning as “equality”. However, these two
terms are closely intertwined. In its formal meaning, the principle
of equality requires that equal situations are treated equally and
unequal situations differently; failure to do so will amount to
discrimination unless there is an objective and reasonable justification.
Note The
word “discrimination” normally imports the notion of difference
and in law it generally refers to the different treatment of an
individual or a group of individuals compared to others, which results
in a disadvantage.
NoteNote
4 The European Convention on Human Rights (ETS No. 5, “the Convention”)
does not refer expressly to the principle of “equality” as a free-standing
right, but contains non-discrimination and equality provisions (Article
14) only with regard to enjoyment of other rights laid down in the
Convention. So far, the case law of the European Court of Human
Rights (“the Court”) concerning non-discrimination issues has been
quite modest. It was only with the adoption of Protocol No. 12 to
the Convention that the scope of the principle of non-discrimination
was enlarged to “any right set forth by law” and a clear reference
to the principle of equality was made (but only in the Preamble
of Protocol No. 12). Regrettably, Protocol No. 12 has not yet been
ratified by the majority of the member states of the Council of
Europe, despite constant efforts by the Council of Europe to that
effect, in particular the Assembly.
5 The principle of equality has been recognised in the constitutions
of the majority of European states and the legislation of all European
states, especially European Union member states, in the form of
general provisions outlawing discrimination. However, these provisions
are often declarative, fragmented and fail to cover all grounds
for discrimination. As recent studies and surveys show, discrimination
is still a Europe-wide problem, even within the European Union,
which has developed a high standard of protection for certain sectors.
Note For instance, according to the findings
of the European Union Agency for Fundamental Rights 2010 report,
members of ethnic minorities are on average almost five times more
likely to experience multiple discrimination than those from the
majority population and people on a low income are also more likely
to experience multiple discrimination. The very recent report of
the Group of Eminent Persons of the Council of Europe on the topic
of “Living together. Combining diversity and freedom in 21st-century
Europe” reaffirms that discrimination is especially widespread in
areas such as employment, housing, education, health care and social
services, and treatment by the police and courts of law.
Note Social exclusion of Roma people
due to their high unemployment rate, the education of their children
in segregated schools, restrictions on migrants’ access to social
benefits or a disproportionate number of police checks of members
of minorities are flagrant examples of these bad practices. Such
phenomena create isolation of these disadvantaged groups from the
rest of society and are contrary to the fundamental principles upheld
by the Council of Europe.
6 In a major effort to modernise and integrate legal standards
relevant to non-discrimination and equality, a group of prominent
experts (including Thomas Hammarberg, Council of Europe Commissioner
for Human Rights), under the auspices of an independent international
non-governmental organisation (NGO) “The Equal Rights Trust”, drew
up the Declaration of Principles on Equality
Note(“the
Declaration”),
which
was
published
in October 2008. The Declaration contains legal principles and highlights
the substance of the fundamental right to equality. It covers such
essential issues as defining the scope, the right holders and the
duty bearers of the right to equality, and obligations and prohibitions
and their enforcement.
7 Thus, considering the importance of the principles of equality
and non-discrimination for achieving the statutory goals of the
Council of Europe, I decided to study the Declaration in more detail
in the present report, to promote its principles and to make some
proposals concerning improving, if need be, the existing legal instruments
and the effectiveness of their application. But before drawing final
conclusions, I will also examine closely the existing international
and European legal framework concerning equality and non-discrimination principles.
In this context, it will also be useful to look at the possible
reasons for the non-ratification by many states of Protocol No.
12 to the Convention; indeed, since its entry into force in 2005,
there have been too few ratifications.
3 Non-discrimination
and equality as cornerstones of the modern human rights protection
system
3.1 The universal concept
of equality and its added value
8 There is a range of interpretations of the principles
of “equality” and “non-discrimination”. Equality was traditionally
understood as a system of formal equality or sameness of applicable
rules, and it is only recently that a more sophisticated understanding
of equality has been developed.
Note The most widespread
traditional understanding of “equality” is indeed that of “formal
equality”, which is related to the alleged dictum of Aristotle that
“things that are alike should be treated alike”.
Note Another
concept of equality – that of “equality of opportunity” represents
a departure from this traditional notion and is partially based
on a redistributive justice model which suggests that measures must
be taken to rectify past discrimination (equality of opportunity
is reflected in a number of legal systems, including EU anti-discrimination
directives), but also seeks to limit the application of full redistributive
justice.
Note The notion of “equality of outcomes”, as
opposed to the “equality of opportunity”, attempts to provide more
interventionist substance to the concept of equality, by seeking
to inject a certain moral precept (namely the desirability of equal
distribution of certain public goods) into the application of the
equality principle, in particular through a spectrum of policies
and compulsory legal mechanisms, including strict quotas (this approach
has been adopted in certain areas in the United States of America
and Northern Ireland, concerning racial equality and equality between
Catholics and Protestants).
Note Certain policies concerning the distribution
of educational opportunities and incomes according to social class
that were pursued in the former Soviet Union and other “socialist”
economies were also reflections of this principle.
3.2 International instruments
9 The human rights approach to equality is based on
the notion of human dignity and is related to the notions of equality
of opportunity and, according to some, of equality of outcome.
Note Article
1 of the Universal Declaration of Human Rights of 10 December 1948
Note declares that: “All human beings
are born free and equal in dignity and rights” and its Article 7
reaffirms the general principle of equality and non-discrimination.
Note Although
this declaration has no binding force, it has had an impact on other
international human rights instruments. Thus Article 26 of the International
Covenant on Civil and Political Rights of 16 December 1966
Note recognises the right to equality
and to non-discrimination as an autonomous human right.
Note
10 According to certain international instruments, states parties
are obliged to take specific measures in order to promote equality,
because there are certain groups or categories of persons who are
disadvantaged
de facto. For
instance, according to Article 4.2 of the Framework Convention for
the Protection of National Minorities (ETS No. 157), states parties
undertake to adopt measures in order to promote equality between persons
belonging to a national minority and those belonging to a majority.
Such measures are not considered as acts of discrimination against
the majority group (Article 4.3 of the Framework Convention). Similar provisions
are included in the International Convention on the Elimination
of All Forms of Racial Discrimination of 21 December 1965
Note (Article 1, paragraph 4, and Article
2, paragraph 2) and the Convention on the Elimination of All Forms
of Discrimination against Women of 18 December 1979
Note (Article 4, paragraph 1).
11 The United Nations High Commissioner for Human Rights has
placed non-discrimination at the heart of her mandate. In her 2009
Annual Report, she stated that “countering discrimination, in particular
racism, xenophobia and related intolerance, discrimination on the
grounds of sex, disability, against indigenous groups and national
minorities, and against others who are marginalized” was a key priority.
Note
3.3 3. Council of Europe
instruments on non-discrimination and equality
3.3.1 The European Convention
on Human Rights and the case law of the European Court of Human Rights
3.3.1.1 Article 14 of the
European Convention on Human Rights
12 The European Convention on Human Rights contains
a non-discrimination provision (Article 14), but only with regard
to enjoyment of other rights laid down in the Convention.
Note The
list of proscribed grounds of discrimination is open-ended (Article
14 prohibits discrimination based on any “other status”)
Note and
may be developed further on a case-by-case basis. Under the Convention,
protection against discrimination is offered to any person who is
within the jurisdiction of a state party (Article 1).
13 The European Court of Human Rights was therefore limited to
treating the right to non-discrimination only as an accessory right,
namely only in conjunction with other substantive rights enshrined
in the Convention (such as the right to life, the right to respect
for private and family life or freedom of thought, conscience and religion).
The Court is not competent to examine complaints concerning discrimination
which concern rights that do not fall within the ambit of those
protected by the Convention. As a result, the relevant case law
focuses disproportionately on the pivotal significance of the principle
of non-discrimination. However, the Court has adopted a wide interpretation
of Article 14. Firstly, it may find a violation of Article 14 of
the Convention even when it does not find a violation of the substantive
right.
Note Secondly,
its interpretation may go beyond the letter of the relevant article
when the facts relate to issues that are protected by the Convention.
Note
14 The Court, in its case law on Article 14, has specified the
meaning of “discrimination” and made it clear that not every distinction
or difference of treatment fulfils this definition. According to
the Court, “a difference of treatment is discriminatory if it ‘has
no objective and reasonable justification’, that is, if it does
not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship
of proportionality between the means employed and the aim sought
to be realised’”.
Note It also noted that “certain
legal inequalities tend only to correct factual inequalities”.
Note Moreover,
in the
Thlimmenos v. GreeceNotejudgment, the Court stated that,
in some circumstances, the failure to treat differently persons
whose situations are significantly different may also be contrary
to the principle of non-discrimination.
Note
15 Since the
Nachova and Others v.
BulgariaNotejudgment of 2005, the Court has
applied a concept of “positive obligations” to cases concerning
Article 14 of the Convention, which means that states are obliged
to take the “legislative, regulatory or other” measures aimed at
establishing greater or more effective equality.
Note
16 Even though the number of cases under Article 14 has been
constantly increasing in the last few years, in particular concerning
racial discrimination,
Note this
provision has always been treated as an auxiliary one and is not
seen as an adequate tool for combating discrimination in Europe.
As Mr Edel noted at the hearing in March 2011, the case law of the
European Court of Human Rights has always been unambitious, at least
until 2000. Since the judgment
Thlimmenos
v. Greece, no other judgment has applied the principle
established in this case. Only in 2004 did the Court find a violation
of Article 14 on the ground of race/ethnic origin
Note and refer to the notion
of indirect discrimination (namely when an apparently neutral legislation
or practice results in a disproportionate disadvantage for a particular
group without reasonable justification) in the judgment
D.H. and Others v. the Czech Republic.Note
17 Some violations of the principle of non-discrimination have
clearly resulted from the deficiencies of the national legislation
itself (see, for instance:
Marckx v.
Belgium,Note Mazurek v. France,Note Chassagnou and Others v. FranceNote and
Andrejeva v. Latvia).
Note In these cases,
states were obliged to repeal and/or amend the existing laws in
order to fulfil their obligation to implement the final judgments
of the Court (Article 46 of the Convention).
Note
3.3.1.2 Protocol No. 12
to the European Convention on Human Rights
18 The adoption of Protocol No. 12 to the Convention,
which emerged out of debates over how to strengthen sex and racial
equality in particular,
Note opened a new stage in the
development of the Council of Europe’s legal framework pertinent
to non-discrimination and equality. Protocol No. 12 expanded the
scope of the prohibition of discrimination by guaranteeing equal
treatment in the enjoyment of any right. Therefore the ban on discrimination
does not only relate to the rights which are guaranteed by the Convention,
but it creates a free-standing right not to be discriminated against.
According to the explanatory report, this provision relates to discrimination:
a in the enjoyment of any right specifically
granted to an individual under national law;
b in the enjoyment of a right which may be inferred from
a clear obligation of a public authority under national law, that
is, where a public authority is under an obligation under national
law to behave in a particular manner;
c by a public authority in the exercise of discretionary
power (for example, granting subsidies);
d by any other act or omission by a public authority (for
example, the behaviour of law-enforcement officers when controlling
a riot).
19 It is clear that Protocol No. 12 protects individuals from
discriminatory acts of the state, but the question of whether it
has a “horizontal” effect, namely whether it also applies to relations
between individuals, remains open for the time being.
Note However, according to the explanatory
report to Protocol No. 12, such an interpretation is not excluded
in situations in which the state would be expected to step in, “for
example arbitrary denial of access to work, access to restaurants,
or to services which private persons may provide to the public such
as medical care or utilities such as water and electricity”.
Note
20 The preamble of Protocol No. 12, in the first recital, clearly
refers to “the fundamental principle according to which all persons
are equal before the law and are entitled to the equal protection
of the law”.
Note It
confirms that member states are resolved to promote this principle
through the collective enforcement of a general prohibition of discrimination
by means of the Convention (second recital). The third recital of
the Preamble reaffirms that the “principle of non-discrimination
does not prevent states parties from taking measures in order to
promote full and effective equality, provided that there is an objective
and reasonable justification for those measures”, which is in line
with certain international instruments (see paragraph 10 above).
However, this provision does not impose any obligation to adopt
such measures.
21 So far the European Court of Human Rights has examined only
two cases on the grounds of Article 1 of Protocol No. 12
Note and
found a violation of this provision only in one of them:
Sejdić and Finci v. Bosnia and Herzegovina,
which concerned the fact that the
applicants, of Jewish and Roma origin, were not able to stand in
a presidential election.
Note The
Court found that this situation amounted to racial discrimination,
confirmed that Article 1 of Protocol No. 12 introduced “a general
prohibition of discrimination” and stated that its analysis of cases
based on this protocol would be identical to that established under
Article 14 of the Convention.
Note It also reiterated that racial
discrimination is a “particularly egregious kind of discrimination
and, in view of its perilous consequences, requires from the authorities
special vigilance and a vigorous reaction”.
Note
22 It will be interesting to see how the case law on Protocol
No. 12 evolves in the future, in particular concerning the interpretation
of the clause of “any right set forth by law” and the application
of the non-discrimination principle to situations concerning private
parties through the notion of the state’s failure to fulfil positive
obligations deriving from the Convention.
3.3.1.3 State of ratification
of Protocol No. 12
23 Regrettably, most of the Council of Europe member
states have not yet ratified Protocol No. 12. So far, this instrument
has been ratified only by 18 member states of the Council of Europe,
out of which seven are European Union member states (Cyprus, Finland,
Luxembourg, the Netherlands, Romania, Slovenia and Spain). Only
two founding members of the Council of Europe and the European Union,
Luxemburg and the Netherlands, have ratified it. Most of the states
which ratified this instrument are recent member states of the Council
of Europe (Albania, Andorra, Armenia, Bosnia and Herzegovina, Croatia,
Georgia, Montenegro, Romania, San Marino, Serbia, “the former Yugoslav
Republic of Macedonia” and Ukraine). For the majority of them, the
ratification of Protocol No. 12 was a formal commitment taken upon
accession to the Council of Europe and has been followed up in the
framework of the monitoring of compliance with the state’s obligations and
commitments.
Note
24 It is particularly striking that eight out of the ten states
which have not signed Protocol No. 12 are members of the European
Union (Bulgaria, Denmark, France, Lithuania, Malta, Poland, Sweden
and the United Kingdom) and some of them are not only long-established
democracies but also founding members of the Council of Europe (Denmark,
France, Sweden and the United Kingdom).
3.3.1.4 Possible reasons
for non-ratification of Protocol No. 12
25 The state of ratification of Protocol No. 12 shows
that EU member states have undertaken different levels of obligation
in European non-discrimination law. The refusal of EU member states
to sign and/or ratify Protocol No. 12 is often justified by the
existence of non-discrimination provisions in EU legislation. Some
states are also reluctant to sign/ratify Protocol No. 12, because
they consider that their national legal system provides for better
protection against discrimination (like the United Kingdom), or
because they are uncertain about the future interpretation that
the Court will give to it and concerned about the increase in its
workload. Some states are therefore postponing ratification until
a reform of the Court has been carried out.
Note
26 When reflecting on the reasons for non-ratification of Protocol
No. 12
, I would like to revert
to what Mr Edel pointed out at the hearing in March 2011: member
states are afraid of the concept of equality, due to the case law
and its history. Since Protocol No. 12 has a very general scope
and covers all acts of any public authority, member states may fear
that the European Court of Human Rights could become another appeal court.
However, as Mr Edel convincingly proved, these fears are not justified.
Firstly, most of the cases brought to the Court concerning discrimination
have been dismissed as inadmissible. Secondly, although the scope
of obligations stemming from Protocol No. 12 still remains uncertain,
their interpretation will be aligned with that of Article 14 of
the Convention. Thirdly, although the judicial criteria for determining
whether discrimination has occurred or not remain abstract and formal
(such as “objective and reasonable justification”), the case law
of the Court has been very cautious so far. The only major advances
have concerned the inequalities between children born in and out
of wedlock.
Note
3.3.2 Other Council of
Europe instruments
3.3.2.1 Other conventions
27 Article 20 and Article E (Part V) of the revised
European Social Charter (ETS No. 163) include both a right to equal
opportunities and equal treatment in matters of employment and occupation,
protecting against discrimination on the grounds of sex. Moreover,
some provisions concerning the prohibition of discrimination are
also included in the Framework Convention for the Protection of
National Minorities (ETS No. 157) (Articles 4, 6.2 and 9), the Convention
on Action Against Trafficking in Human Beings (CETS No. 197) (Article
2.1) and the Convention on Access to Official Documents (CETS No.
205).
3.3.2.2 European Commission
against Racism and Intolerance (ECRI)
28 The European Commission against Racism and Intolerance
was created following a decision of the Vienna Summit of 9 October
1993. It is an independent monitoring body of the Council of Europe,
composed of independent experts. Its tasks consist in combating
racism, racial discrimination, xenophobia, anti-Semitism and intolerance
from a human rights perspective, in the light of the European Convention
on Human Rights, its additional protocols and related case law (Article
1 of ECRI’s Statute).
Note ECRI’s objectives are to review member
states’ legislation, policies and other measures to combat racism,
xenophobia, anti-Semitism and intolerance, and their effectiveness;
to propose further action at local, national and European level;
to formulate general policy recommendations to member states and
to study international legal instruments applicable in the matter
with a view to their reinforcement where appropriate.
29 As regards ECRI’s general policy recommendations,
Recommendation
No. 7, adopted on 13 December 2002, on “National legislation
to combat racism and racial discrimination” is of particular importance
in this context. It contains elements proposed by ECRI to be included
in national legislation in order to effectively combat racism and
racial discrimination and advocates the adoption of a comprehensive
anti-discrimination legislation, including provisions covering areas
such as employment, housing, education and access to social and
public services.
Note
3.3.2.3 Commissioner for
Human Rights
30 The Council of Europe Commissioner for Human Rights
has consistently called for “robust and fully comprehensive” anti-discrimination
legislation in all Council of Europe member states.
Note He
has taken a firm stance against all forms of discrimination in several
viewpoints, on issues like discriminatory stops and searches, discrimination
of Roma, rights of people with disabilities and poverty.
Note
3.4 Combating discrimination
in European Union legislation and policies
31 Equality was one of the fundamental values upon which
the European Union was based (now to be found in Article 2 of the
Treaty on the European Union). The European Union Charter of Fundamental
Rights includes a provision on non-discrimination (Article 21)
Note and
a Chapter III on equality. The EU institutions and its member states
are bound by these provisions, but only when implementing EU law.
Note
32 In the area of non-discrimination, the European Union has
developed comprehensive legislation, which must be implemented by
member states in their domestic legislation. The EU prohibition
of discrimination is free-standing, but limited to particular contexts.
The proscribed grounds expressly include: sex, racial or ethnic origin,
age, disability, religion or belief and sexual orientation. Discrimination
on the ground of nationality is prohibited only in the particular
context of the free movement of persons, although there are some
exceptions concerning “third-country nationals”.
Note
33 Whilst the core purpose of the European Communities
Note (preceding
the European Union) was the stimulation of economic growth through
the establishment of an internal market covering all member states,
it was gender equality that developed first, with a number of directives
banning discrimination in areas such as pensions, pregnancy and
statutory social security regimes.
Note Protection
from discrimination based on other grounds was added later, in 2000,
when two directives
Notewere
adopted:
Directive 2000/43/EC
of 29 June 2000 implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin in the area of employment
and occupation, social security, education, supply of goods and
services (Racial Equality Directive), and
Directive
2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation, concerning
discrimination based on religion or belief, age, disability and
sexual orientation. These directives prohibit direct or indirect
discrimination, guarantee access to a court, oblige member states
to reverse the burden of proof and provide for sanctions. On 13
December 2004,
Directive 2004/113/EC
was adopted, implementing the principle of equal treatment between
men and women in the access to and supply of goods and services
and expanding the scope of sex discrimination to these areas.
NoteSince sexual orientation,
religious belief, disability and age are only defined as proscribed
grounds for discrimination in the context of employment, the EU
institutions are currently debating a proposal to extend protection
against these grounds to the area of accessing goods and services
(“Horizontal Directive”, proposed by the European Commission in
2008).
Note
34 The ban on discrimination under these directives covers three
areas: employment, the welfare system, and goods and services, and,
currently, only
Directive 2000/43/EC
– “Racial Equality Directive” – applies to all three areas.
Directive 2000/78/EC – “Framework
Employment Equality Directive” – applies only to employment (though
a proposal to extend it to all three areas is under discussion),
while the “Gender Equality Directive (Recast)” (2006/54/EC) and
the “Gender Goods and Services Directive” (2004/113/EC) apply to
employment and access to goods and services, but not to access to
the welfare system.
Note
35 The European Court of Justice (ECJ – now the Court of Justice
of the European Union) has adopted an approach construing areas
of application of the said directives very widely in order to give
full effect to the rights of individuals under EU law.
Note The
ECJ has, in particular, interpreted broadly such concepts as “access
to employment”, “working conditions”, “vocational guidance and training”
and “social advantages.”
Note
36 Reports of the European Commission have shown that many practical
difficulties have arisen in implementing the EU directives at the
national level.
Note The directives have
been implemented in national law, but not fully – half of the member
states have not fulfilled their obligations in terms of scope, definitions
or provisions on assistance to victims.
Note
37 Combating discrimination and ensuring equal opportunities
in the field of employment and social affairs is of great concern
for the European Union, which is currently implementing the PROGRESS
programme – a Community Programme for Employment and Social Security,
for the years 2007-2013.
Note The programme
has a budget of €743 million and finances analysis, mutual learning,
awareness-raising and dissemination activities.
Note
3.5 Protection under
European Union law and the European Convention on Human Rights:
a comparison
38 There are some differences between the relevant EU
norms and the Council of Europe standards in promoting equality
and combating discrimination. The EU non-discrimination law has
evolved mainly in order to facilitate the functioning of the internal
market and was mainly confined to the area of employment. It is
based on a sectoral approach and applies both to public and private
parties. If national legislation is not within the competence of
the European Union, EU anti-discrimination directives and the European
Union Charter of Fundamental Rights do not apply. Although both
sets of rules are complementary,
Note there are many areas in which
the protection under the Convention surpasses the protection offered
under EU non-discrimination law. The personal scope of EU law protection
is more limited, for instance with respect to third-country nationals.
Note Moreover,
the material scope of the non-discrimination under Article 14 of
the Convention goes beyond EU law, since the Convention guarantees
“civil and political” rights and also certain “economic and social
rights” and therefore protects rights in such areas as family and
private life, political participation or criminal law matters.
4 National legislation
and the problems of implementation of non-discrimination concepts
39 Along with the provisions of international human
rights instruments, the national legislation of all Council of Europe
member states also includes general provisions to outlaw discrimination.
In certain national legal systems equality legislation now contains
legal concepts, definitions, approaches and jurisprudence that have taken
the protection against discrimination and the realisation of the
right to equality to a higher level. Several member states of the
Council of Europe have relatively strong and detailed anti-discrimination
legislation (Belgium,
Note Bulgaria,
Note Sweden
NoteNote and the United Kingdom).
Note,
NoteNote
40 In the last decade, higher standards of protection against
discrimination have evolved in EU member states, following the adoption
of the non-discrimination directives. There are examples of comprehensive
anti-discrimination laws, establishing independent equality bodies
with strong mandates: in Belgium – the Centre for Equal Opportunities
and the Fight against Racism; in Bulgaria – the Commission for Protection
against Discrimination; in France – the High Authority against Discrimination
and for Equality (Haute autorité de lutte contre les discriminations
et pour l’égalité); and in
Hungary (Equal Treatment Authority). These bodies, created mostly
to implement EU legal obligations, are particularly important in
informing and assisting victims in the solution of disputes concerning
discrimination. On the impulsion of the European Union, non-discrimination directives
minimum standards have been established in national legislation.
Numerous member states which did not have national bodies dealing
with equality had to create such bodies.
41 Many Council of Europe member states have recently adopted
comprehensive anti-discrimination legislation (Albania, Czech Republic,
Serbia, etc.) or are currently developing or upgrading it (“the
former Yugoslav Republic of Macedonia”, Moldova, etc.). Meanwhile,
a number of Council of Europe member states still lack comprehensive
anti-discrimination legislation. In most national legal systems,
anti-discrimination law is fragmented and contains many gaps. The
reasons for the fragmentation are various: different grounds for discrimination
(gender, race, religion, etc.) are regulated differently, protection
against discrimination is not provided in all relevant sectors of
social life (administration of justice, education, employment, etc.)
and there is too little co-operation between different actors such
as state authorities and advocacy groups.
Note
5 The Declaration
of Principles on Equality
42 The Declaration of Principles on Equality waspublished in October 2008. The Principleswere drafted and signed initially
by 128 prominent legal practitioners, academics and human rights
activists from 44 countries (including Thomas Hammarberg, the Council
of Europe Commissioner for Human Rights), and subsequently endorsed
by hundreds of individual signatories and organisations.
43 The Declaration advocates a wiser and fairer international
and national law, built on the recognition of differences and on
the presumption that human rights are only achievable when we have
equality. It contains 27 legal principles which:
- define equality as a basic human
right – stating that equality should be seen as an autonomous human right
in itself, rather than as subsidiary or accessory to other rights:
“The right to equality is the right of all human beings to be equal
in dignity, to be treated with respect and consideration and to
participate on an equal basis with others in any area of economic,
social, political, cultural or civil life. All human beings are
equal before the law and have the right to equal protection and
benefit of the law” (Principle 1);
- suggest a comprehensive framework which i) provides protection
in areas where experience shows that discrimination is likely to
occur, and ii) includes a “test” through which new prohibited grounds
for discrimination and therefore new vulnerable groups can be protected,
thus mitigating the risk of prejudice, hostility and discrimination;
- redefine positive action – departing from the concept
of formal equality and construing positive action as inherent in
substantive equality rather than as an exception;
- ensure consistency and fairness – enabling stakeholders
in all nations to enshrine the right to equality in a way that addresses
the gaps, inconsistencies and hierarchies of current equality regulations.
44 The Declaration provides a substantive notion of equality
based on international human rights law which moves beyond the formal
notion of equality that is largely applied in many Council of Europe
member states and whereby individuals would be treated in identical
ways regardless of their relative capabilities for participation
in economic, social, political, cultural or civil life. The Declaration
defines the right to equality as going beyond formal equality and
comprising the following elements:
- the right to equality before the law;
- the right to equal protection and benefit of the law;
- the right to recognition of the equal worth and equal
dignity of each human being;
- the right to participate on an equal basis with others
in any area of economic, social, political, cultural or civil life.
45 It should be stressed that the content of the right to equality
in the Declaration goes beyond the notions of equality before the
law and equality of opportunity.
Note Its meaning is closer to the EU directives,
which refer to “ensuring full equality in practice”.
Note It is also closely related
to the notion of human dignity as articulated in Article 1 of the
Universal Declaration of Human Rights.
Note According to the
Declaration of Principles on Equality, the right to equality and
to non-discrimination is not necessarily related to an existing
right (contrary to the Convention and Protocol No. 12); thus, for
instance, in a country where national law does not recognise a right to
employment, one should still have the right to equality (and non-discrimination).
Note Therefore,
it goes considerably further than existing international human rights
law in proclaiming a free-standing right to equality.
Note Moreover,
according to Principle 8, “the right to equality applies in all
areas of activity regulated by law”, which means that it encompasses
activities by public and private actors, including transnational corporations
and other non-national legal entities.
Note
46 Principle 2 of the Declaration defines equal treatment as
an aspect of equality which is not equivalent to identical treatment
and states that in order “to realise full and effective equality
it is necessary to treat people differently according to their different
circumstances, to assert their equal worth and to enhance their capabilities
to participate in society as equals”.
47 The Declaration also defines the right to non-discrimination
and the most important types of discrimination (direct, indirect,
harassment, discrimination by association and by perception).
Note As
stressed by Ms Petrova at the hearing in March 2011, non-discrimination
is defined as a free-standing and separate right in two senses:
i) in the sense that it is a separate right which can be violated
even if a related right is not (like in the case law of the European
Court of Human Rights) and ii) in the sense of an autonomous right
not related to any other right set forth by law (like in the EU
anti-discrimination legislation and the national legislation in
a number of EU member states in areas such as employment, education,
health, goods and services, public functions, etc.). Concerning
the question whether there should be a limitative enumeration or
an open list of grounds for discrimination, the Declaration contains
a three-step test: the definition of discrimination in Principle 5
contains the possibility of extending the list of “prohibited grounds”
and includes three criteria, each of which could be sufficient to
recognise a further characteristic as a “prohibited ground”.
Note
48 Laws and policies must also protect individuals against “multiple
discrimination”, that is discrimination based on more than one ground
(Principle 12) and special attention should be also given to combating
poverty, which may be both a cause and a consequence of discrimination
(Principle 14 states that measures to alleviate poverty should be
co-ordinated with those aimed at combating discrimination).
49 According to Principle 3 of the Declaration, the right to
equality requires positive action, which includes a range of legislative,
administrative and policy measures to overcome past disadvantage
and to accelerate progress towards equality of particular groups,
in order to be effective. Principle 11 specifies the types of measures
that the state shall take in order to give full effect to the right
of equality, such as: appropriate constitutional, legislative, administrative
and other measures, relevant policies and programmes and measures to
ensure that all public authorities and institutions act in conformity
with the right to equality. Equality laws and policies should be
comprehensive and sufficiently detailed to encompass different forms
and manifestations of discrimination and disadvantage (Principle
15) and states are also under the obligation to raise public awareness
about equality (Principle 17). Positive action does not constitute
discrimination as long as the difference in treatment is aimed at
achieving full and effective equality and the means adopted are proportionate
to that aim.
Note Therefore,
positive measures are a part of the implementation of the equal treatment
principle.
Note
50 The Declaration also contains principles on the enforcement
of the right to equality, in particular the right to seek legal
redress and an effective remedy in judicial and/or administrative
procedures (Principle 18), rules on sanctions for breaches of the
right to equality (Principle 22) and on establishing specialised
bodies (Principle 23). It also contains rules on gathering and disseminating
information. States must also collect and publicise information,
in order to identify inequalities, discriminatory practices and
patterns of disadvantage, and analyse the effectiveness of measures
to promote equality (Principle 24). Laws and policies adopted to
implement the right to equality must be accessible to all persons
(Principle 25).
51 One of the intellectual strengths of the Declaration
is that it overcomes two historically
constructed dichotomies that stand in the way of enacting good laws
and implementing good practices today: the Cold War era division
of human rights into civil and political rights on the one hand
and economic, social and cultural rights on the other; and the even
deeper division between identity-based equality (such as gender,
race, religion) and equality of economic status. The Council of
Europe Commissioner for Human Rights, highlighting the comprehensive
approach of the Declaration of Principles on Equality and its usefulness
for all stakeholders, called for measures to implement the principles
and in particular to overcome the artificial distinction between status-based
discrimination and social injustice.
Note Although the Declaration is only
a general and abstract set of principles on equality, it documents
a degree of consensus among global activists in the field.
6 Conclusion
52 For too long non-discrimination has been regarded
and applied as merely an accessory human right both by the Council
of Europe and its member states. Consequently, the right to equality
has been undermined by two opposite but equally limiting assumptions:
i) being seen as a general principle only and ii) being subjected to
an overly formal procedural approach, ignoring factual inequalities.
This approach must now evolve: equality must be understood as an
effective legal right.
53 Due to the disparity between international, regional and national
approaches to equality, a major effort is required to modernise
and integrate legal standards related to the protection against
discrimination and the promotion of equality. At the European level,
protection against discrimination is not ideal and there are many discrepancies
between the EU member states and non-EU member states, as well as
among EU member states themselves. In particular, Protocol No. 12
should be ratified by all member states of the Council of Europe
in order to harmonise the level of protection and ensure coherence
with other binding international norms. The reasons invoked for
non-ratification of this additional protocol are unconvincing and
anachronistic, as shown above.
54 A lot still has to be done at the level of national legislation.
States should adopt and implement legislation aimed at eradicating
discrimination and promoting equality; such legislation should identify
unacceptable behaviour, specify remedies applicable to the alleged
victims of discrimination and cover all relevant grounds of discrimination,
as well as multiple and compound forms of discrimination. Any arbitrary
ground for discrimination should be considered as proscribed.
Note Strong independent anti-discrimination/equality
bodies ought to be set up in order to monitor anti-discrimination
legislation and receive complaints, since experience has shown that
such bodies are particularly efficient and accessible to the alleged
victims.
55 It should be stressed that one should struggle not only for
legal, but also for factual equality. It is indispensable to incite
political action to promote equality at all levels, in particular
through “positive action”.
56 The Declaration of Principles on Equality, drafted following
a consensus reached between international experts on equality and
non-discrimination principles, may serve as a benchmark for legislators
towards a more progressive set of equality norms and policies in
the 21st century. It may also assist the efforts of the judiciary, civil
society organisations and anyone else involved in combating discrimination
and promoting equality.
57 Given the outstanding importance of the concept of equality
for the statutory goals of the Council of Europe, the Council’s
institutions should promote and take into consideration the Declaration
of Principles on Equality, which defines equality and non-discrimination
as free-standing rights. Taking into consideration the main ideas
of the Declaration may provide a basis for the progressive interpretation
of equality norms, including Article 14 of the European Convention
on Human Rights and its Protocol No. 12, and Article E of the revised European
Social Charter, and for improving the Council of Europe’s standard-setting
and procedures. The promotion of the Declaration could also strengthen
and broaden the consensus among human rights and equality experts
reflected in the Declaration. It will also generate interest and
debate and thus contribute to reaffirming and developing the right
to equality.
58 As stated by the Commissioner for Human Rights, a full and
effective realisation of equality requires asserting the equal worth
of people by treating them differently according to their different
circumstances and enhancing their ability to participate in society
as equals.
Note The right to equality may not
be easy to achieve, but states have no excuse for not taking steps
to implement this right.
