The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?

• Published in: Nordic journal of human rights 2016-07, Vol.34 (3), p.157-177
• Main Author: Henrard, Kristin
• Format: Article
• Language: English
• Subjects: Burden of Proof; Church-State Relations; diskriminering; Duties of Differential Treatment; ECtHR; Ethnic Minorities; etniske minoriteter; internasjonale domstoler; Level of Scrutiny; Margin of Appreciation; Prohibition of Invidious Discrimination; Religious Minorities; religiøse minoriteter
• ISSN: 1891-8131; 1891-814X
• DOI: 10.1080/18918131.2016.1225656

This article argues that it is no longer tenable to qualify the Court's non-discrimination jurisprudence overall as 'poor'. Indeed, a different speed of development is noted for the 'prohibition of invidious discrimination' track and the 'duties of differential treatment' track. In cases concerning invidious discrimination, the Court tends to engage explicitly with the complaint in terms of the prohibition of discrimination, while adopting high levels of scrutiny in regard to differentiations on the basis of ethnicity and religion. Admittedly, there are ongoing flaws in the jurisprudence on the allocation of the burden of proof, and particularly the identification of a prima facie case of direct discrimination. Nevertheless, the Court seems to be willing to test the boundaries. A markedly different picture emerges concerning duties of differential treatment. The analysis of the selected case law confirms that the Court avoids as much as possible non-discrimination analysis in cases on claims to official recognition of separate identities and ways of life of ethnic and religious minorities. The Court prefers to conduct its analysis of the related complaints about a lack of accommodation in terms of articles 8 and 9 of the ECHR respectively. Arguably, demands for reasonable accommodation of different ethnic and religious identities are on the rise in the current era of globalisation. While the Court is not supposed to impose uniform standards, it remains important that it provides guidance about the benchmarks that contracting states need to take into account when developing policies, legislation, and practices, in order to live up to their commitment to respect fundamental rights. Consequently, the Court is urged to engage more explicitly and properly in non-discrimination analysis, also in relation to complaints about a lack of differential treatment (accommodation), while identifying and weighing the respective interests.