By: Daron Tan, LL.M., Columbia Law School, 2018
I want to extend my gratitude to Professor Nicholas Bamforth for his comments on an earlier draft of this piece. All errors remain my own.
The European Court of Human Rights (“ECtHR”) has been increasingly willing to recognize the positive duties of States and public authorities to realize the right to equality that is protected by Article 14 of the European Convention on Human Rights (“ECHR”). This development has been most noticeable in the areas of indirect discrimination, parental rights, and gender-based violence.
However, this development in the Article 14 jurisprudence needs to be approached cautiously with an appropriate margin of appreciation. This is necessary to balance the orthogonal interests of substantive equality and a necessary degree of deference to Member States. This is especially vital for the imposition of positive duties, which are typically more intrusive than traditional duties of restraint. In this line of logic, articulating a clearer list of factors that can determine what the appropriate margin of appreciation should be in Article 14 cases can help bring transparency to the dilemma between these competing interests.
Section II will address how a textual reading of the provisions of Article 14 permits the finding of positive obligations. The casting of positive obligations on States is an important and necessary step to achieving substantive equality. This will be explained based on an analysis on the case law on gender-based violence (Section III) and parental rights (Section IV). However, the development of the case law on positive obligations must be limited by the principle of subsidiarity (Section V). This paper will articulate a list of relevant factors,for demarcating the margin of appreciation, with the factors organized into the different stages in which the margin is relevant (Section VI). These go towards expanding the scope of Article 14 from being a prohibition on discrimination, to being a protection against discrimination.
II. Moving beyond negative duties under Article 14
Article 14 of the ECHR prohibits discrimination, and provides that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured 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.
The official text of the Convention labels Article 14 as the “prohibition of discrimination.” Under this reading, Article 14 is concerned with negative human rights, where the State or private actors are prevented from certain conduct that treats certain protected groups differently. Initial case law litigated under Article 14 confirms this negative conception. In Abdulaziz, Cabales and Balkandali v. UK, the ECtHR held that the UK’s immigration laws unlawfully discriminated against the applicants, because the applicants were “treated, without proper justification, less favourably than another.” (¶ 82). This reasoning places the emphasis on the active nature of the State’s conduct that is incompatible with Article 14. In this conception, the State has to refrain from discrimination to avoid active impediments of and respect an applicant’s right to non-discrimination.
However, negative duties under Article 14 are not mutually exclusive with positive obligations. The increased willingness of the ECtHR to recognize positive obligations moves Article 14 from merely prohibiting discrimination, to protecting individuals from discrimination. This expansive judicial development is enabled by the unique structure of Article 14. Two characteristics of Article 14 have precipitated this development. First, Article 14 is framed in positive terms. Second, Article 14 is not a freestanding right, and is parasitic to another Convention right being engaged.
First, Article 14 does not expressly prohibit discrimination, but is instead framed as a positive right to secure non-discrimination. Instead of explicitly prohibiting discrimination, it states that the “enjoyment of the rights and freedoms […] shall be secured without discrimination” on the grounds of protected characteristics. The word “secured” suggests an effort to obtain or achieve something: this can be read in contradistinction to a mere duty to refrain from doing something. This reading of Article 14 implies an obligation on the State not only to respect the right, but also to protect and fulfill their obligations. At face value, Article 14 can contain both negative duties and positive duties on the part of the State, with the purpose of attaining the objective of equality and non-discrimination.
This reading of the word “secured” was confirmed by the Council of Europe in their Explanatory Report to the Protocol No. 2 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 1 of Protocol No. 12 also uses the language of “secured without discrimination.” In analyzing the scope of this provision, the Council of Europe stated that “positive obligations cannot be excluded altogether,” especially where “there is a clear lacuna in domestic law protection from discrimination.” Thus, at the very least, Article 14 does not exclude reading positive obligations into its scope. This stands in contrast with the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution, which provides that no state “shall […] deny to any person within its jurisdiction the equal protection of the laws.” The operative word of “deny” has translated to the U.S. Courts narrowly construing the Fourteenth Amendment as solely being a protection of people from the State, without a corresponding positive obligation for the State to protect individuals from each other.
Second, Article 14 is a parasitic right that is accessorial to the enjoyment of other Convention rights. However, the ECtHR’s broader interpretation of the role of the “gateway” rights has allowed for Article 14 to be read more expansively. This expansion can be seen in how the ECtHR has moved from “breach” to “ambit” in the development of Article 14. Instead of requiring a breach of another Convention right for Article 14 to be read in conjunction with the other Convention right, it was sufficient for the discrimination to “touch the enjoyment” of another Convention right (Belgian Linguistics). In other words, as formulated by the ECtHR later in Thlimmenos v. Greece, it is sufficient that “the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols.”
This has widened the net cast by Article 14, because the principle of non-discrimination now extends to all the Convention rights and its resulting obligations, including positive obligations. For instance, in E.B. v. France, the Court made clear that although Article 8 (the right to family life) did not confer an express right to a single person to adopt a child, the fact that adoption clearly fell within the “ambit” of Article 8 meant that “the State, which has gone beyond its obligations under Article 8 in creating such a right cannot in application of that right, take discriminatory measures within the meaning of Article 14.” While Article 8 does not confer a freestanding right to adopt, reading Article 8 in conjunction with Article 14 creates a right that prevents prohibitions on adoption because of one’s sexual orientation. In effect, the applicants can now adopt children as a result of the decision. This casts upon the State a positive obligation to permit adoption, which would not have been possible if the applicants had relied on Article 8 (or Article 12) alone.
III. Realizing Substantive Equality: Gender-Based Violence
The stronger bite of Article 14 that has been created by this expansive reading has allowed the ECtHR to promote a substantive conception of equality, and positive obligations are a crucial measure to attaining this. According to Fredman, substantive equality has four objectives:
[R]edressing disadvantage (the redistributive dimension); addressing stigma, stereotyping, prejudice and violence (the recognition dimension); facilitating participation (the participatory dimension); and accommodating difference, including through structural change (the transformative dimensions).
A substantive conception of equality recognizes that the ostensible façade of formal equality is insufficient. A focus on equal treatment instead of equal outcomes decontextualizes the systemic disadvantage and oppression that some persons are subject to, because of their membership in a particular marginalized group. If Article 14 is concerned solely with duties of restraint, structures of inequality are not challenged, and are left protected by the misguided understanding that responsibility for change rests only with those who have committed acts of deliberate or manifest prejudice. A substantive conception of equality calls on States to take positive measures to promote equality in order to effectively vindicate the values and interests that are protected by the Convention rights. As Liebenberg has pointed out, an enforcement of only negative duties would fail to “interrogate the way in which existing legal rules operate to reinforce poverty and social marginalization.”
This pursuit of substantive equality is reflected in the case law on gender-based violence, where the ECtHR has started recognizing positive human rights duties for the State to prevent gender-based violence. This is part of a movement to effect societal change in terms of attitudes towards women. Notably, the ECtHR’s case law on domestic violence demonstrates a commitment to the recognition and redistributive dimensions of Fredman’s conception of substantive equality, where the disproportionate impact of domestic violence on women is acknowledged, and redressed through the imposition of positive obligations.
In Opuz v. Turkey, the ECtHR held that in cases of gender-based violence, positive interference with the private or family life might be necessary to protect the health and the rights of women. The State’s failure to protect women against domestic violence was a breach of the applicant’s right to equal protection of the law, regardless of the intent of the State. This judicial passivity had been occurring against a backdrop of high numbers of reports of domestic violence, the majority of which were women who “were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income.” (¶ 194). Additionally, Turkish laws on domestic violence are poorly implemented, because “domestic violence is tolerated by the authorities,” and “the remedies indicated by the Government do not function effectively.” (¶ 196). In so doing, the ECtHR was sending a clear judicial signal of moving way from a fault-based system (where fault of the State had to be proven). Instead, the hardship of the applicant can be situated in the wider pattern of gender-based violence in Turkey, and “the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors.” (¶ 200).
This was similarly reflected in Eremia v. Republic of Moldova. The ECtHR held that the State’s failure to protect the victims against domestic violence breached its positive duties under Article 3 and Article 14. It established that the “State’s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.” (¶ 85). The ECtHR highlighted how stereotypes and prejudices against women percolated the State’s indifference towards victims of violence and entrenched structures that perpetuated the disproportionate impact of domestic violence against women. For instance, the ECtHR noted how the relevant family protection department in the applicant’s area failed to enforce the protection order issued in her name for over three months because she was “not the first nor the last woman to be beaten up by her husband.” (¶ 87). The effect of this would be for the ECtHR, like in Opuz, to locate the incident within institutional, patriarchal attitudes. The positive duties enforced by the ECtHR sought to correct the systemic and institutionalized hierarchy of women’s rights as being subservient to the patriarchy. The ECtHR went beyond a mere duty of restraint, by emphasizing the need for structural change in society to achieve substantive equality.
This pursuit of substantive equality in the context of gender-based violence has also been reflected in the ECtHR’s other case law on other Convention rights. For instance, in Valiuliene v. Lithuania, the concurring opinion of Judge Pinto de Albuquerque pointed out that the “full effet utile of the [ECHR] can only be achieved with a gender-sensitive interpretation and application of [the ECHR’s] provisions which takes in account the factual inequalities between women and men and the way they impact on women’s lives.” This approach is also consistent with the UN’s approach, where domestic violence is recognized as a form of gender-based discrimination. States “may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.” (¶ 9).
It is worth noting what positive duties are being expected of the Contracting States in these two cases. As has been noted above, the recognition and redistributive dimensions of Fredman’s conception of substantive inequality can explain the reasoning of the ECtHR. The obligations placed on States here relate primarily to compensation (to redress the harms suffered by the applicants), and the necessity to enforce laws on domestic violence effectively and with due diligence. This, however, falls short of facilitating the participation of women, and transforming the structures in which women live. These are both dimensions that are pivotal to realizing true substantive equality for women in these societies. This can, perhaps, be attributed to how far-reaching the positive duties would be if they were to address these systemic inequalities. If so, the type of positive duties being imposed is a necessary consideration in how wide the margin of appreciation accorded to States should be (which will be discussed in further detail in Section V). However, in the absence of any explicit references to the margin of appreciation in these two cases, one can only speculate on why the ECtHR limited the scope of positive duties in these cases to procedural due diligence and compensation.
IV. Realizing Substantive Equality: Parental Rights
Another instance in which the ECtHR has demonstrated such willingness is when it has called for the State to properly account for its decision to exclude certain groups of socioeconomic benefits provided to others. This non-discrimination clause can transform negative duties associated with civil and political rights, to positive duties to make socioeconomic provisions equally available.
The development of the case law on parental rights from Petrovic v. Austria to Konstantin Markin v. Russia is worth particular perusal. In Petrovic v. Austria, the Court held that unless the State could justify the exclusion of fathers from the right to a parental leave allowance that was available to mothers, it would be under a positive duty to provide the allowance to fathers and not solely to mothers. However, it eventually found that Austria’s justification was acceptable because there was a lack of a common accepted standard among Convention countries of giving fathers the right to paternity benefits. The disparity between legal systems of Contracting States meant that States had a wide margin of appreciation in respect of welfare policy.
However, in Konstantin Markin v. Russia (decided 14 years after Petrovic), the Court took more assertive steps towards realizing shared parenting responsibilities, and the corresponding positive duty of States to provide parental leave to both fathers and mothers. The Court did so by drawing a bright line between maternity leave, and parental leave and parental leave allowances. The former is “intended to enable the woman to recover from the childbirth and to breastfeed her baby if she so wishes.” (¶ 132). However, the latter “relate[s] to the subsequent period and [is] intended to enable a parent concerned to stay at home to look after an infant personally.” (¶ 132). Therefore, providing maternity leave to mothers and not to fathers has the “effect of perpetuating gender stereotypes disadvantageous both to women’s careers and to men’s family life.” (¶ 141). The justification provided by the Russian Constitutional Court on the “special social role of women associated with motherhood” (¶ 34) to preclude the extension of paternal rights was also internally incoherent, because Russian society has already accepted that parental leave should be available to civilian men. Thus, it is hard to follow the logic that Russian culture would not be ready to do the same for servicemen.
This approach by the ECtHR in Konstantin Markin is far more progressive than the approach to gender-based violence in Opuz and Ereima. The language of the Court exemplifies the transformative dimension of Fredman’s substantive equality, where the positive duties that are being imposed on the State are aimed at countering deep-rooted inequalities and stereotypes. The boldness of the Court was motivated in part by the progressive social movement in Europe on parental rights, which seeks to develop a “wide international consensus in European and universal human rights law and international labour law” on the extension of parental leave to both parents as a non-transferable and individual entitlement, as noted by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion.
V. Limiting this Expansion: Margin of Appreciation
Notwithstanding the sanguine perspective that the ECtHR should interpret Article 14 more progressively in the judicial vision of substantive equality, this optimism cannot be divorced from the role of the ECtHR as a supra-national court, and the doctrine of the margin of appreciation. As McGoldrick has observed, the ECtHR’s jurisprudence is underscored by the principle of subsidiarity, meaning that its mandate is premised on “institutional competence, comparative institutional advantage or judicial self-restraint.” The margin of appreciation is a necessary acknowledgement of the politically and economically intrusive nature of positive duties on Member States.
The trepidation inherent in the case law on positive obligations can also be explained with reference to the political backlash that would arise from imposing positive duties on Member States. This was evident in the Russian reaction to Konstantin Markin. A Russian Senator Alexander Torshin suggested a radical bill to limit the ECHR’s influence on Russia’s legal system that places the Kompetenz-Kompetenz with the Russian Constitutional Court. The potentially politically tenuous relationship that the ECtHR may have with its Member States can be threatened if the court takes a too robust approach with regards to substantive equality and positive duties. This may account for the relatively narrow circumstances in which Article 14 has been invoked with regards to positive duties.
However, this falls short of suggesting that the ECtHR should shy away from passing politically controversial decisions. As Judge Pinto de Albuquerque noted in his dissent in Hutchinson v UK, adopting too wide a margin of appreciation would result in “downgrading the role of the Court before certain domestic jurisdictions,” such that it ends up as a “non-judicial commission of highly qualified and politically legitimised experts, which does not deliver binding judgments.” Instead, this paper proposes that because positive duties translate to a greater interference with domestic competence, the ECtHR must be more cautious. Positive duties require complex policy decisions to be made, which the ECtHR may not competence to do. This decision-making is done within the spectrum of providing equal opportunities on the one hand, and equality of results on the other end. Moving forward, the main dilemma that the ECtHR must confront is how to find an appropriate balance between achieving substantive equality on the one hand, and finding an appropriate margin of appreciation for Member States on the other.
VI: Demarcating the Margin
How exactly should the margin of appreciation be demarcated, insofar as it serves the function of balancing the two opposing interests at stake here?
The first area where the margin of appreciation under Article 14 can be more clearly delimited is to note that the margin is relevant at two logically distinct stages:
- Stage 1: in assessing the merits of the State’s justification for the differential treatment under Article 14; and
- Stage 2: in assessing whether the positive obligations expected of the State are reasonable and adequate.
This distinction is important for organizing the factors that are relevant to assessing the margin of appreciation that should be accorded to States for Article 14 prima facie breaches. In fact, a degree of confusion can be seen in some of the academic commentary on the margin of appreciation and judicial deference in Article 14, where the role of deference is conflated for the two stages. For instance, Fredman has suggested that the Court’s role is to “advance accountability, deliberative democracy, and participative equality.” Decision-makers are required to justify their decisions on why, for instance, fathers are precluded from parental allowances from the State. This would increase the range of opinions aired on the issue: since judges have “limited wisdom and limited tools,” their role in the judicial inquiry is thus “catalytic rather than preclusive.” However, it is hard to see how in recognizing positive equality duties, the ECtHR is merely expecting justification from the States to improve the deliberation that goes into decision-making. The merits of the justifications are eventually assessed by the proportionality inquiry (Stage 1), such that the anticipated end result would be positive duties on the part of the Member States that interfere with the socioeconomic policy making of the Member States (Stage 2). The obligation cast on States is twofold: first, in providing justifications for the differential treatment; and second, in providing positive measures in response to the unjustified differential treatment. The two, while interlinked, are conceptually discrete.
For instance, the ECtHR tends towards deference where ending either direct or indirect discrimination would require significant cost and resource implications for governments, e.g. the provision of parental leave allowances in Petrovic. This goes towards assessing what positive measures should be provided by the State (Stage 2). However, this comes logically subsequent to the prior question of whether the State’s justifications for the differential treatment of a group are “objective and reasonable” (Thlimmenos). In some sense, the first stage is a sine qua non for the second stage: it is only where the justification advanced by the State is inadequate, that an assessment of what is a adequate and reasonable positive obligation to remedy the breach would be relevant.
The second area where the clarity can be injected into the proportionality inquiry is by articulating the factors that are involved in the Court’s decision on the size of the margin of appreciation. With respect to assessing whether the justification provided by the State is “objective and reasonable” (Thlimmenos), the regional or international consensus over whether the positive measure is appropriate is one of the most relevant factors. For instance, in Petrovic, Austria had a broader margin because of the lack of consensus, but Russia had a narrower margin because there was a developed consensus on parental rights in Konstantin Markin. While this reasoning might fall prey to the notion of subscribing to positive morality (where what is considered right is determined by consensus), this is a necessary compromise because of the political and socioeconomic intrusiveness of positive obligations.
The next step of the inquiry is then to look at the specific positive measure that is being cast on the State. This step comes logically subsequent to the previous step: it is only where the justification advanced by the State has been considered inadequate that the specificity of the positive measures (which serve as a remedy to the Article 14 breach) is assessed. To this end, the margin of appreciation that is accorded to States at this second stage should depend on:
- Whether a negative duty (narrower margin) or positive duty (broader margin) is imposed;
- The type of obligation being imposed (where a narrower margin of appreciation is accorded for procedural due process obligations, e.g. in Opuz and Ereima, than substantive socioeconomic provisions, e.g. in Petrovic and Konstantin Markin);
- The cost and resource implications for governments (with a broader margin being accorded to costlier measures); and
- The context in which the positive duty is being recognized (with matters of national security having a broader margin).
While fully acknowledging that this is by no means a precise calibrating mechanism, this will nonetheless provide more coherent guidance on determining the margin of appreciation for Article 14 breaches. Once the threshold has been determined, the justifications provided by Member States can then be assessed, within this pre-determined margin of appreciation. This has already been done in the judicial reasoning process under Article 4 breaches. It was held in Rantsev v Cyprus and Russia that the obligation to take operational measures must “be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.” (¶ 219). This was important in order to bear in mind “the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources.” (¶ 287). In other words, the State’s positive obligations would be to take reasonable and adequate measures to protect persons and provide redress, with what is considered reasonable and adequate being determined by the margin of appreciation.
By bringing these policy considerations of Member States to the forefront of the judicial reasoning process, the margin of appreciation that is eventually accorded to Member States can be explicitly justified, beyond a mere recitation of the concept as a smokescreen for actual legal reasoning.
To conclude, the expansion of the scope of positive obligations being recognized under Article 14 of the ECHR is an encouraging development that endeavors towards a judicial vision of substantive equality. However, what is immediately apparent from this is that the finding of positive duties confers upon the ECtHR the additional burden of balancing the interference with the autonomy of Contracting States with an appropriate level of deference to them. This is premised on how recognizing positive duties is far more intrusive than the traditional duties of restraint under discrimination law. In addition, certain positive duties are more onerous than others: for instance, duties that go towards transformative change (as opposed to merely redressing harms) are far more intrusive on the autonomy of Contracting States.
To this extent, two clarifications to the proportionality inquiry have been proposed. First, the margin of appreciation is relevant at two distinct stages. Second, an illustrative and transparent list of factors can be spelled out to assess the extent of the positive duties to be generated from Article 14 breaches. This clarification would allow for the concept of the margin of appreciation in Article 14 breaches to be used in a coherent and consistent manner that balances the rights and responsibilities of the various stakeholders in breaches of fundamental rights.
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