The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Abstract

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.

The dichotomy within denationalisation: Perpetuating or emancipating from its discriminatory past?

“…29 While the Court's 'effects-based concept' of indirect discrimination, 30 has been surrounded by complexities and difficulties, varying from the selection of the relevant group of comparison to the determination of statistic disproportionalities, recent years have provided significant clarifications to the concept and its boundaries. 31 Notably, the Grand Chamber provided in Biao v. Denmark an increased understanding of the application and boundaries of indirect discrimination and opened for an expansion of the material scope pertaining to indirect discrimination outside to domain of immigration and citizenship. 32 The case concerned a refusal to grant family reunification to a Ghanaian couple in Denmark which the Court found in violation of Article 14 in conjunction with Article 8 ECHR.…”

“…While the Biao judgement examines and opens up the material scope of Article 14 to the risk of indirect ethnic discrimination 34 as a result of the differential treatment of a foreign national, its concluding finding of discrimination is not based on a presumption of indirect ethnic discrimination, but restricted to an unjustified form of differential treatment between nationals of the same state on the basis of whether nationality was obtained by naturalisation or by birth. 35 In this sense, Biao clarifies several aspects in regard to the differential treatment of dual citizens, while leaving a few others open-ended.…”

Guest Editor Introduction: Contesting and Undoing Discriminatory Borders

“…40 In the Council of Europe, jurisprudence which broadens the material scope of indirect race discrimination, 41 appears to be creating 'a whole new range of possibilities to challenge the racial underpinnings of measures, practices and provisions that so far had not been subject to scrutiny'. 42 Prohibitions on discrimination may, therefore, be relied on to challenge the decisions of the border official quoted at the start of this introduction, who directly selected on the basis of skin colour. 43 They may also be used to challenge the apparently race-neutral visa regimes that that border guard is enforcing.…”

An overnight success a decade in the making

“…Möschel explains that the European Court has implicitly recognized indirect discrimination since 2000 and then openly since 2007. 22 One example is Thlimmenos v. Greece ('Thlimmenos'), where the applicant was excluded from a job because of his criminal conviction for having refused to enlist in the army, refusal that was due to his religious beliefs. In that occasion, the European Court explained that discrimination occurs also when states 'fail to treat differently persons whose situations are significantly different'.…”

“…24 In the following years, the European Court continued discussing cases of indirect discrimination on the grounds of race, 25 and Möschel argues that since 2007 the European Court has strengthened the distinction between direct and indirect discrimination on the grounds of race. 26 In addition, when discussing the (fragile) convergence of the United Nations Human Rights Committee (hereafter HR Comm) and regional courts' case law in the approach to sexual orientation issues, Abrusci comments that the European Court seems to exclude that the different treatment between a married different sex couple and a same-sex couple unable to marry is discriminatory. Whilst the HR Comm seems to leave a door open for such interpretation.…”