The Evolving Human Right to Equality

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  • 1 Mag.iur. (University of Salzburg, Austria), LL.M., S.J.D. (George Washington University), European Centre for Minority Issues (ECMI).

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  • 1 See generally Marc Bossuyt, L'Interdiction de la discrimination dans le droit international des droits de I'homme (Bruxelles, 1976); E.W. Vierdag, The Concept of Discrimination in International Law (The Hague, 1973); and Michael Banton, Discrimination (Abingdon, 1994); see also Marc-Andre Eissen, "L'Autonomie de 1'article 14 de la Convention europeenne des droits de 1'homme dans la jurisprudence de la Commission", in Melanges offerts a Polys Modinos: Problemes des droits de I'homme et de I'unification europeenne (Paris, 1968), 122: Franz Matscher, "Betrachtungen uber das Diskriminierungsverbot (Art. 14 EMRK)", in Ludwig Adamovich and Peter Pernthaler (eds.), Auj dem Weg zu Menschenwiirde und Gerechrigkeir: Festschriftfar Hans R. Klecatsky ( Vienna, 1980), 627; and Michel Melchior, "Le Principe de non-discrimination dans le cadre de la CEDH", in A. Alen and P. Lemmens (eds.), Egalite et non-discrimination (Antwerp, 1991), 3. 2 Torkel Opsahl, "Equality and Non-Discrimination", Norwegian Institute of Human Rights, Publication No. 1 (Oslo, 1990), reprinted in Torkel Opsahl, Law and Equality: Selected Articles on Human Rights (Oslo, 1996), 165-206, at 204. 3 Adopted on 16 December 1966, entered into force on 23 March 1976, 999 U.N.T.S. 171. 4 Dated 4 November 1950, E.T.S. No. 5.

  • 5 Opsahl, "Equality and Non-Discrimination", 166 (emphasis added). 6 Progressive achievement of rights is mentioned, for instance, in Article 2( 1 ) of the Covenant on Economic, Social and Cultural Rights (CESCR), adopted on 16 December 1966, entered into force on 3 January 1976, 993 U.N.T.S. 3. The CESCR Committee has spoken of "obligations of conduct and obligations of result" in this respect (CESCR General Comment 3, The Nature of States Parties' Obligations (Art. 2( 1 )), Fifth Session, 1990, para. 1 ) and has added: "In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights", ibid., para. 9. The prevention of discrimination, even in the context of social and economic rights, has been deemed to impose 'immediate' obligations on contracting states, though, ibid., para. 1. 7 Eur. Ct. H.R., Johnston et al. v. Ireland, judgment of 18 December 1986, Series A, No. 112, para. 53, amongst many others. 8 Such an assessment may take into account, for instance, domestic laws and their implementation, proposed changes reflecting a change in practice, but also legislative activities within the Council of

  • Europe and the status of ratifications of European (and occasionally universal) treaties. Cf. Eur. Ct. H.R., Appl. 34406/97, Mazurek v. France, judgment of 1 February 2000, para. 52. 9 Eur. Ct. H.R., Rasmussen v. Denmark, judgment of 28 November 1984, Series A, No. 87, para. 40. 'o ps the Eur. Ct. H.R. determined in 1985 in the Abdulaziz, Cabales and Balkandali v. the United Kingdom case, judgment of 28 May 1985, Series A, No. 94, para. 78. " Eur. Ct. H.R., Appl. 34462/97, Rika E.W. Wessels-Bergervoet c. the Netherlands, decision on the admiss- ibility of 3 October 2000, para. 4. 12 iifa::urek r. France, para. 49. " It should be noted that this approach mirrors the findings of national courts. In the USA, for instance, where the Supreme Court upheld a woman's equal protection claim based on gender discrimination for the first time in 1971, Reed r. Reed, 404 U.S. 71 (1971), that court today speaks of "skeptical scrutiny" when assessing sexual inequality and utilizes a test described in the following terms: "Parties who seek to defend gender-based government action must demonstrate and 'exceedingly persuasive justification' for that". United States v. Virginia, 518 U.S. 515 ( 1996). While certain authors argue that this raises the standard to the strictest level of scrutiny (applied, for instance, in racial discrimination cases): Cf. Candace Saari Kovacic-Fleisher, "United States v. Virginia's New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII", 50 Yanderbilt L. Rev. (1997), 845, others suggest that the standard remains close to, but slightly below 'strict scrutiny': See Louis Henkin et al., Human Rights (New York, 1999), 1050 et seq., note 1. " See generally Sigrun Skogly, "Article 2", in Asbjorn Eide et al. (eds.), The Universal Declaration of Human Rights: A Commentary (Oslo, 1992), 57-72. " "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."

  • 16 "All persons are equal before the law and are entitled without any discrimination to the equal protec- tion of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." 17 Cf. HRC, Communications Nos. 172/1984, S.W.M. Broeks v. the Netherlands, views of 9 April 1987, CCPR/C/29/D/172/1984, paras. 12.1 et seq.; and 182/1984, F.H. Zwaan-de Vries v. the Netherlands, views of 9 April 1987, CCPR/C/29/D/182/1984, paras. 12.1 et seq.; emphasized also in General Comment No. 18 of 9 November, 1989 on Non-Discrimination, para. 12. See also Torkel Opsahl, "Equality in Human Rights Law, with Particular Reference to Article 26 of the International Covenant on Civil and Political Rights", in Manfred Nowak (ed.), Fortschritt im BewuJ3tsein der Grund- und Menschenrechte: Festschrift far Felix Ermacora (Kehl am Rhein, 1988), 51, 61; and Manfred Nowak, U.N. Couenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, 1993), 465, MN 12. 18 Concluded on 22 November 1969, entered into force on 18 July 1978, 1114 U.N.T.S. 123. "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law." 19 Concluded on 26 June 1981, entered into force on 21 October 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5. "(1) Every individual shall be equal before the law. (2) Every individual shall be entitled to equal protection of the law." adopted on 1 February 1995, entered into force on 1 February 1998, E.T.S. No. 157. "The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited." 21 protocol No. 12 to the European Convention on Human Rights and Fundamental Freedoms, adopted on 4 November 2000, E.T.S. No. 177, Art. 1 (emphasis added). See Fabio Buonomo, "Protocol 12 to the European Convention on Human Rights", in this volume. 22 council Directive 2000/43/EC of 29 June 2000, Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, Official Journal L 180 (19 July 2000), 22, which provides in Article 2( 1 ) that "the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin". z3 prticle 2( 1 ) of Council Directive 2000/78/EC of 27 November 2000, Establishing a General Framework for Equal Treatment in Employment and Occupation, Official Journal L 30 (2 December 2000), 16 mirrors the same Article in Directive 2000/43/EC while listing "religion or belief, disability, age, or sexual orientation" as prohibited grounds for discrimination. peter van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, 3rd ed. 1998), 711.

  • z5 Eur. Ct. H.R., Inre t'. Austria, judgment of 28 October 1987, Series A, No. 126, para. 36. zb For a comprehensive survey of European practice relating to Article 14 ECHR, see Karl Josef Partsch, "Discrimination", in R.St.J. Macdonald. Franz Matscher and Herbert Petzold (eds.), The European System for the Protection of Human Rights (Dordrecht, 1993), 571, 577 et seq. - European Commission of Human Rights (Eur.Comm.H.R.I. report of 24 June 1965 in the Case Relating to Certain .4spects of the Laws on the Use of Languages in Education in Belgium ( hereinafter "Belgian Linguistics Case"), Series B, No. 3, 305. z8 Eur. Ct. H.R., Case of the National Unison of Belgian Police, judgment of 27 October 1975. Series A. No. 19, para. 44, with reference to the Belgian Linguistics Case, judgment of 23 July 1968, Series A. No. 6, para 9. z9 Cf. Christian Tomuschat, "Equality and Non-Discrimination under the International Covenant on Civil and Political Rights", in Ingo v. Munch (ed.), Staatsrecht- Volkerrecht- Europearecht: Festschrift for Jargen Schlochauer (Berlin, 1981), 691-716 (arguing for a restrictive interpretation), and B. G. Ramcharan, "Equality and Non-Discrimination", in Louis Henkin (ed.), The International Bill of Rights. The Couenant on Civil and Political Rights (New York. 1981 ). 246 (favouring a more expansion e interpretation of Article 26). '° HRC, Communications Nos. 172 1984, Broeks v. the Netherlands, para. 12.4; and 182,'1984, Zx�aan-de Vries v. the Netherlands, para. 12.4 (emphasis added).

  • 31 Cf. Eur. Ct. H.R., Feld6rugge v. the Netherlands, judgment of 29 May 1986, Series A, no. 99, paras. 25 et seq., and Deumeland v. Germany, judgment of 29 May 1986, Series A, no. 100, paras. 60 et seq. 32 our. Ct. H.R., Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV. 33 Eur. Ct. H.R., Appl. 57946/00, Gerard Rogan v. the United Kingdom, decision on the admissibility of 18 September 2001. " Eur. Ct. H.R., Appl. 65334/01, Peter George Atkinson v. the United Kingdom, decision on the admissibil- ity of 7 June 2001. 3s Eur. Ct. H.R., Appl. 61036/00, Geoffrey Owens v. the United Kingdom, decision on the admissibility of 7 June 2001. 36 our. Ct. H.R., Appl. 53134/99, Brian White v. the United Kingdom, decision on the admissibility of 7 June 2001. " Eur. Ct. H.R., Appl. 65905/01, Alan John Rice v. the United Kingdom, decision on the admissibility of 19 February 2002. 38 Eur. Ct. H.R., Appl. 40161/98, Downie v. the United Kingdom, judgment (striking out) of 21 May 2002. 39 Eur. Ct. H.R, Appl. 31178/96, Werner Petersen v. Germany, decision on the admissibility of 6 December 2001. 40 Ibid., para. 2. 41 Ibid.

  • 42 Ibid. 43 Ibid., para. 3. 44 HRC. CCPR General Comment 18: Non-Discrimination, para. 1_'. " Appl. 2299 64. report of 12 December 1966. 10 Yearbook ECHR (1966), 694. \ote that international legislators today use almost identical terms: EU Directive 2000 �3!EC speaks of situations "where one person is treated less favourably than another is, has been or would be treated in a comparable situation ..." (Art. 2(2)(a)).

  • 46 Eur. Ct. H.R., Appl. 34684/97, Yolcu v. Turkey, decision on the admissibility of 3 May 2001 'The Law', (emphasis added) with reference to Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A, No. 23, para. 56. 47 See Eur. Ct. H.R., Fredin v. Sweden, judgment of 18 February 1991, Series A, No. 192, para. 60; and Appl. 49213/99, Xenodochiaka S.A. v. Greece, decision on the admissibility of 15 November 2001, para. 3, amongst many others, using the term " `relevantly' similar situations". a$ Cf. Donna Gomien, David Harris and Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Council of Europe, 1996), 350, summarizing the Court's test established in the Belgian Linguistics case, and Jochen Abr. Frowein and Wolfgang Peukert, Europdische Menschenrechtskonvention: EMRK Kommentar (Kehl am Rhein, 2nd ed. 1997), 447, MN 17. a9 partsch, "Discrimination", 586. 50 our. Ct. H.R., Appl. 24699/94, VGT Verein gegen Tierfabriken v. Switzerland, judgment of 28 June 2001. 51 Ibid.., para. 84. 52 Ibid., para. 86, with reference to Sunday Times v. the United Kingdom, judgment of 26 April 1979, Series A, No. 30, para. 70.

  • 53 VGTI'. Switzerland, paras. 87-88. 54 arc, Communication No.866/1999, Maria Torregrosa Lafuente et al. r. Spain, decision on the admissibility of 16 July 2001, CCPR,C.7?:D/866/1999, para. 6.3. 55 Cf. also the Eur. Ct H.R: s Yan der btussele r. Belgium judgment of 23 November 1983. Series A. No. 70, where an apprentice lawyer's claim that he was treated unfairly because he, unlike trainees in other liberal professions, was compelled to provide services free of charge to indigent people was rejected. The Court found 'status' differences between lawyers and other liberal professions, each of which was governed by a separate "corpus of rights and obligations of which it would be artificial to isolate one specified aspect". Ibid., para. 46. 56 Cf. Communication No. 866/1999, para. 6.3. 57 bid., dissenting opinion of Christine Chanet, para. 2. 58 arc, Communication No.701/1996, Cesario G6mez Ybzquez r. Spain, views of 20 July 2000, CCPR/C/69/D/701/1996, para 11.2. s9 Eur. Ct. H.R., Appl. 31246/96, Ayfer Ercan r. Turkey, decision on the admissibility of 17 October 2000, para. 5: and 34684/97, Yolcu v. Turkey, decision on the admissibiliy of 3 May 2001, E. with reference to Appl. 24919i94, Gerger 1'. Turkey, judgment of 8 July 1999.

  • bo Eur. Ct. H.R., Appl. 30495/96, Abdullah Mutlu and Necmettin Yildiz v. Turkey, decision on the admissib- ility of 17 October 2000, para. 2; and 36760/97, Hasan Sanli and Fatma Erol v. Turkey, decision on the admissibility of 17 October 2000, para. 2. 6' Eur. Ct. H.R., Appl. 43478/98, S P v. the United Kingdom, decision on the admissibility of 18 January 2000, para. 2. bz Eur. Ct. H.R., Appl. 48989/99, Andry Misman Troenosemito v. the Netherlands, partial decision on the admissibility of 22 May 2001, para. 2. Another part of the complaint was communicated to the respondent state, however: it relates to the right to family life (Article 8 alone) of the applicant whose request for an entry visa for his son, who had resided with his grandfather in Surinam until his death, had been denied. 63 See Eur.Comm.H.R., Appl. 28918/95, Brian Steuens and Ronald Knight v. the United Kingdom, decision on the admissibility of 9 September 1998, para. 2; 30135/96, Thomas G. Bass v. the United Kingdom, decision on the admissibility of 9 September 1998, para. 2; 30291/96, Kathleen Godney, Anthony George Wright and Varley Augustus Edwards v. the United Kingdom, decision on the admissibility of 9 September 1998, para. 3. 6' Eur.Comm.H.R., Appl. 27004/95 and 27011/95, Josef Szrabjer and Walther Kenneth Clarke v. the United Kingdom, decision on the admissibility of 23 October 1997, para. 2. bs Eur. Ct. H.R., Appl. 48784/99, Solhan v. the Netherlands, decision on the admissibility of 16 January 2001, para. 4. 66 In HRC, Communication No. 861/1999, Alain Lestourneaud v. France, decision on the admissibility of 3 November 1999, CCPR/C/67/D/790/1997, for instance, differences in lawyers' remuneration were deemed acceptable because "representation of a person presenting a civil claim in a criminal case cannot be equalled to representing the accused". Ibid., para. 4.2. 6' Partsch, "Discrimination", 586.

  • 68 HRC, Communication No. 873/1999, Thomas Peter Hoelen v. the Netherlands, decision on the admiss- ibility of 3 November 1999, CCPR/C'67/D/873/1999, para. 4.1. 69 Ibid., para. 4.2. of Eur.Comm.H.R., Appl. 23697/94, Renate Saszmann r. Austria, decision on the admissibility of 27 February 1997, concerning the conviction of an editor of a magazine where a proclamation allegedly inciting general disobedience of the law was published while the signers of the proclamation were, at least initially, not prosecuted. The Commission here took note that charges against the signers were subsequently brought; it is unclear, however, whether that fact was decisive when the case was rejected by a majority of the members of the Commission. " Cf. Eur. Ct. H.R., Appl. 42042/98, Wieslaw Peryt v. Poland, partial decision on the admissibility of 30 November 2000, para. 4. '2 Cf. Eur.Comm.H.R.. Appl. 35722/97, Mario Azzopardi c. Malta, decision on the admissibility of 15 January 1998.

  • " Cf. Eur. Ct. H.R., Appl. 52301/99, John Bland v. the United Kingdom, decision on the admissibility of 19 February 2002. 74 Cf. Nowak, CCPR Commentary, 466 et seq., MN 14. 75 International Court of Justice (ICJ), South West Africa Cases (Ethiopia v. South Africa, Giheria v. South Africa), judgment of 18 July 1966, 1966 LC.J. Reports 6, 248 (Tanaka, J., dissenting). 16 Eur. Ct. H.R., Belgian Ginguistics Case, Series A, No. 6, para. 10; and Marckx v. Belgium, judgment of 13 June 1979, Series A, No. 31, para. 33. " Eur. Ct. H.R., Appl. 34369/97, Thlimmenos v. Greece, judgment of 6 April 2000. 78 Eur. Ct. H.R., Appl. 29529/95, Francesco Schettini et al. v. Italy, decision on the admissibility of 9 November 2000, para. 3.

  • '9 HRC, Communications Nos. 172/1984, Broeks v. the Netherlands, para. 13; and 182/1984, Zwaan-de Vries v. the Netherlands, para. 13. e° CERD General Recommendation 14, Definition of Discrimination (Art. 1(1)), dated 22 March 1993, para. 2. 81 arc, Communication No.819/1998, Joseph Kauanagh v. Ireland, views of 4 April 2001, CCPR/C/71/819/1998, para. 10.2. ez Opsahl, "Equality and Non-Discrimination". 167. 83 Ibid., 188. 84 rid., "Equality in Human Rights Law", 53. 85 Id., "Equality and Non-Discrimination", 188. See also Edwin Busuttil. 'The Case-Law of the Commission as Regards Non-Discrimination (Article 14 of the Convention)", in Michele de Salvia and Mark E. Villiger (eds.), The Birth of European Human Rights Law (Baden-Baden, 1998), 31, 31-2. eb Tomuschat, "Equality and Non-Discrimination", 710. of. Eur. Ct. H.R., Appl. 34369/97, Thlimmenos v. Greece, judgment of 6 April 2000, holding that the failure of a Greek law to distinguish between persons convicted for the refusal to bear arms for

  • religious reasons and ordinary felons when setting forth exclusion clauses for admission to certain liberal professions violated Articles 9 and 14 ECHR. 88 Cf. Appl. 33916/96, Karl-Heinz Walden v. Liechtenstein, decision on the admissibility of 16 March 2000, para. 1, holding that it served the interest of legal certainty to continue applying pension legislation that was discriminating on the basis of sex for a period of about seven months until new legislation entered into force. 89 Opsahl, "Equality and Non-Discrimination", 166. 9° Eur. Ct. H.R., Appl. 30943/96, Sahin v. Germany, judgment of 11 October 2001, para. 57. 9' Cf. Eur. Ct. H.R., Gitonas et al. v. Greece, judgment of 1 July 1997, Reports 1997-1V, para. 39. Article 3 does not apply to presidential elections and alleged discrimination in this respect, for instance on the basis of nationality, therefore cannot be tested under Article 14 ECHR: See Eur.Comm.H.R., Appl. 41090/98, Lijucia Baskauskaite v. Githuania, decision on the admissibility of 21 October 1998, paras. 1 and 4. 'z Cf. Eur. Ct. H.R., Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A, No. 113, para. 54. 93 Cf. Eur. Comm. H.R., Appl. 25035/94, Silvius Magnago and Siidtiroler Volkspartei v. Italy, decision on the admissibility of 15 April 1996. 9' Eur. Ct. H.R., Appl. 61473/00, Ancel Farrugia Migneco v. Malta, decision on the admissibility of 12 April 2001, para. 1.

  • cue Eur. Ct H.R., Dudgeon r the United Kingdom, judgment of 22 October 1982, Series A. No. 45. para. 52: Gillow r. the United Kingdom, judgment of 24 November 1986, Series A. No. 109. para. 55: Leander r. Sweden, judgment of 26 March 1987, Series A, No. 116, para. 59; and Buckle r. the United Kingdom, judgment of 26 August 1996, Reports 1996-IV, para. 74. 96 our. Ct. H.R., Appl. 44934/98, John Murdock v. the United Kingdom, decision on the admissibility of 25 January 2000, 'Particular Circumstances of the Case'. ' That includes serving at least two thirds of their prison term. 9$ Murdock t. the United Kingdom, 'The Law'. hoard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague. 1996). 162. commenting on Eur. Ct. H.R., Marckx �·. Belgium, judgment of 13 June 1979, Series A. No. 31. '°° Cf. Eur. Ct. H.R., Bryan v. the United Kingdom, judgment of 22 November 1995, Series A. No. 3 3?-,�. para. 47.

  • 101 Eur. Ct. H.R., Appl. 27238/95, Chapman v. the United Kingdom, judgment of 18 January 2001. ioz Eur. Ct. H.R., Appl. 34334/96, Beatrice and John Smith v. the United Kingdom, decision on the admissib- ility of 3 May 2001. 103 Eur. Ct. H.R., Appl. 28575/95, Susan Clark et al. v. the United Kingdom, decision on the admissibility of 22 May 2001. 104 Chapman v. the United Kingdom, para. 93. ios Ibid., paras. 93 and 94 (emphasis added). 106 Eur. Ct. H.R., Sahin v. Germany; Appl. 31871/96 Sommerfeld v. Germany, judgment of 11 October 2001; and 34045/96, Hoffmann v. Germany, judgment of 11 October 2001. The Sahin and Sommerfeld cases were accepted for referral to the Grand Chamber by the Court's screening panel on 27 March 2002 and are, therefore, not yet final. Cf. Eur. Ct. H.R. Press Release No. 177 of 27 March 2002. 107 Sahin judgment, para. 55.

  • 8 Ibid., paras. 58-59. 109 Eur. Ct. H.R., Appl. 34369/97, Thlimmenos c. Greece, para. 44; and 27238/95, Chapman r. the United Kingdom, para. 129. the HRC currently has several cases before it where benefits stemming from a corporate-type retire- ment schemes of employees in the semi-public sector were no longer treated according to their 'specific' rules but similar to benefits under the general social security schemes. The authors allege breaches of Article 26 of the Covenant by not taking the differences between the schemes into account. Cf. Communications Nos. 803/1998, Rupert .4lthammer et at. (So. I) r. Austria; and 999/2001, Friedrich Dichtl et al. v. Austria. 111 see Article 4�1) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted on 7 March 1966, entered into force on 4 January 1969, 660 U.N.T.S. 195, which reads: "Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not,

  • as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved." llz Chapman v. the United Kingdom; Appl. 34334/96, Beatrice and John Smith v. the United Kingdom, decision on the admissibility of 3 May 2001; and 28575/95, Susan Clark et al. v. the United Kingdom, decision on the admissibility of 22 May 2001. 113 Eur.Comm.H.R., Appl. 25035/94, Silvius Magnagno and Sudtiroler Volkspartei v. Italy, decision on the admissibility of 15 April 1996, 'The Law'. 114 Eur.Comm.H.R., Appl. 31006/96, David and Roselie Webb v. the United Kingdom, decision on the admissibility of 2 July 1997, para. 4. 115 Chapman v. the United Kingdom, para. 95. "6 Webb v. the United Kingdom, para. 4.

  • "' Chapman v. the United Kingdom, para. 96 (emphasis added). 118 see Alexander H.E. Morawa, "The Concept of Discrimination", Journal on Ethnopolitics and Minority 'v Issues in Europe (JE.11/E) (2002), at http://www.ecmi.de:jemie/specialfocus.html (forthcoming). "' Chapman v. the United Kingdom, joint dissenting opinion of judges Pastor Ridruejo, Bonello, Tulkens, Straznicka, Lorentzen, Fischbach and Casadevall, para. 3. 120 Nowak, CCPR Commentary, 476, MN 28. 121 Opsahl, "Equality and Non-Discrimination", 178. 122 CERD, Communication No. 11/1998, Miroslav Lacko v. the Slovak Republic, opinion of 9 August 2001, CERD/C'59/D/11/1998. This case is reported in Alexander H.E. Morawa, "The Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies", in this volume. 123 in Communication No. 209/1986, F G G o. the Netherlands, decision on the admissibility of 25 March 1987, CCPR/C/29/D/209/1986, a complaint of sailors who were non-Dutch nationals and who had been singled out and dismissed by a private shipping company with the approval of the labour office while Dutch nationals were kept on the payroll failed because of non-exhaustion of domestic remedies.

  • 124 Protocol No. 7 to the ECHR, dated 22 November 1984, entered into force on 1 November 1988, E.T.S. No. 117. izs HRC, CCPR General Comment 18: Non-Discrimination, para. 5. 126 Eur. Ct. H.R., Appl. 31061/96, Andrzej Cernecki v. Austria, decision on the admissibility of 11 July 2000. 127 Except in the unusual case of both parents maintaining a common residence after the divorce. izs Cernecki v. Austria, 'The Law'. 'z9 Ibid. See also Eur. Ct. H.R., Appl. 32012/96, Kurt Heckl v. Austria, decision on the admissibility of 31 August 1999, where the applicant and his wife did not actually seek joint custody and were thus not deemed personally affected by the impugned provisions.

  • general Assembly Resolution 217 A (III) of 10 December 1948. "` Opsahl, "Equality and Non-Discrimination", 177. 132 In Communication No.557/1993, X v. Australia, decision on the admissibility of 16 July 1996, CCPR C;57i'D;'S57/1993, the HRC did not proceed to an examination of the complaint of the author, who is an Australian aboriginal, that a family court displayed "racism and ethnocentricism" (para. 3.1) in proceedings concerning custody of his children, since the author had failed to exhaust domestic remedies. 133 See Eur. Ct. H.R., Appl. 29032/95, Feldek r. Slovakia, judgment of 12 July 2001, para. 93. 134 Ibid., para. 95. '35 Eur. Ct. H.R., Appl. 23144/93, Ozgur Gundem v. Turkey, judgment of 16 March 2000. "6 Eur. Ct. H.R., Appl. 26129/95, Tanli v. Turkey, judgment of 10 April 2001. 137 Ozgur Gundem r. Turkey, para. 75. 138 Tanii r. Turkey, para. 177.

  • "9 Eur. Ct. H.R., Appl. 25753/94, Ali 6zler v. Turkey, decision on the admissibility of 30 January 2001, 'Facts'. zap Ibid., para. 4. See also Appl. 40077/98, Recep Marsali v. Turkey, decision on the admissibility of 19 October 2000, para. 4. 141 Cf. Frowein and Peukert, EMRK Kommentar, 447, MN 18. 142 HRC, Communication No. 516/1992, Alina Simunek v. the Czech Republic, views of 19 July 1995, CCPR/C/54/D/516/1992, para. 11.7. "' HRC, Communication No. 774/1997, Robert Brok and Dagmar Brokova v. the Czech Republic, views of 31 October 2001, CCPR/C/73/D/774/1997, para. 7.4. 144 See also EU Directive 2000/43/EC, which stipulates in Article 2(2)(b): "[I]ndirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary" (emphasis added). 145 See Frowein and Peukert, EMRK Kommentar, 447 et seq., MN 18.

  • t'6 Cf. HRC, Communication No. 468,% 1991, Angel S. Old Bahamonde v. Equatorial Guinea, views of 20 October 1993, CCPRC'49/D 468/1991. where acts of intimidation, harassment, and arbitrary arrest were considered to be in violation of Article 9 of the Covenant, inter alia, on the basis of the author's allegation that they happened because of his clan membership. 147 CERD, Lacko v. the Slovak Republic, CERD/C/59/D 11/1998. This case is reported in Morawa, "The Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies", in this volume. '48 Eur. Ct. H.R., Appl. 36141/97, Sophia Gudrun Hansen v. Turkey, final decision on the admissibility of 19 June 2001, para. 2. 149 Eur. Ct. H.R., Appl. 48321,99. Tatjana Slicenko et al. t. Latvia. decision on admissibility of 23 January 2002. rso Cf. ibid., paras. 89-90. `s` Eur. Ct. H.R., Appl. 49706/99, Rajko Rajak r. Croatia, final decision on the admissibility of 12 October 2000. uz Cf. Ibid., para. 1. While the competence of the Court is limited to the period of time after the entry into force of the convention for Croatia (5 November 199"), the "state of the case on that date" will be considered to assess the reasonableness of the time in question. Ibid., with reference to Appl. 27916/95, Podbielski v. Poland, judgment of 30 October 1998, Reports 1998-VIII, para. 31. 153 Cf. Rajak r. Croatia, para. 5.

  • �sa Eur. Ct. H.R., (joined) Appl. 41138/98, Iulius Moldouan et al. v. Romania, and 64320/01, Octavian Rostas et al. v. Romania, partial decision on the admissibility of 13 March 2001. 155 Ibid., 'The Judgment of 17 July 1998'. 156 Ibid., 'Complaints', para. 8. 157 Cf. ibid., 'The Law', para. 3. 158 Ibid., 'Complaints', para. 8. 's9 Eur. Ct. H.R., Appl. 41488/98, Velikova v. Bulgaria, judgment of 18 May 2000, paras. 68-84.

  • 160 Cf. ibid., para. 92. 161 bid., para. 93. 1sz Ibid., para. 94. 163 our. Ct. H.R., Appl. 24746,94. Hugh Jordan v. the United Kingdom, judgment of 4 May 2001: 28883; 95. McKerr v. the United Kingdom, judgment of 4 May 2001; 37715� 97, Shanaghan n. the United Kingdom, judgment of 4 May 2001; and 30054/96, Kelly and others v. the United Kingdom, judgment of 4 May 2001. 164 jordan v. the United Kingdom, para. 152. 165 Ibid. 166 Ibid., para. 153.

  • 167 Ibid.., para. 154. 168 Eur. Ct. H.R., Buckley v. the United Kingdom, judgment of 26 August 1996, Reports 1996-IV, para. 88. 's9 HRC, Communication No.760/1997, J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Nami6ia, views of 25 July 2000, CCPR/C/69/D/760/1997. This case is reported in Morawa, "The Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies", in this volume. "o Cf. ibid., para. 10.6. "' Cf. ibid., para. 10.10. 172 arc, Communication No.884/1999, Antonina Ignatane v. Latuia, views of 25 July 2001, CCPR/C/72/D/884/1999. This case is reported in Morawa, "The Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies", in this volume. "3 Eur. Ct. H.R., Appl. 46726/99, Podkolzina v. Latuia, judgment of 9 April 2002.

  • 174 Arts. 3 of Protocol No. 1 to the ECHR and 25 of the CCPR. 175 It appears that in Podkolzina the appticant was even questioned about her political affiliation by the language inspector. 176 See Ignatane v. Latvia, para. 7.3; and Podkolzina v. Latvia, para. 34. 177 Podkolzina v. Latvia, para. 34. "8 Cf. HRC. Communications Nos. 172/1984, S.W.M. Broeks v. the Netherlands, CCPR/C 29 D/172/1984; 415/1990, Dietmar Pauger v. Austria, views of 26 March 1992, CCPR/C¡44 D/415/1990; and 716/1996, Dietmar Pauger (No. 2) v. Austria, views of 25 March 1999, CCPR/C/65/D/716/1996; Eur. Ct. H.R., Appl. 57946/00, Gerard Rogan v. the United Kingdom, decision on the admissibility of 18 September 2001; and 65905/01, Alan John Rice r. the United Kingdom, decision on the admissibility of 19 February 2002. 179 Eur.Comm.H.R., Appl. 36528/97, Paul Kara r. the United Kingdom, decision on the admissibility of 22 October 1998, The Facts'.

  • 180 bid., para. 3. The applicant had claimed that women were permitted to wear "masculine cloth", such as black trousers and a white shirt, to work. 'e' Cf. Eur. Ct. H.R., B v. France, judgment of 25 March 1992, Series A, No. 232-B, finding that preventing a male-to-female transsexual from changing his first name to a female one amounted to an interference with and violation of her private life. In previous cases the Court has said that "... it must for the time being be left to the respondent State to determine to what extent it can meet the remaining demands of transsexuals" but that the "need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments", Rees v. the United Kingdom, judgment of 17 October 1986, Series A, No. 106, para. 47, affirmed in Cossey v. the United Kingdom, judgment of 27 September 1990, Series A, No. 184, para. 42. See also X, Yand Z v. the United Kingdom, judgment of 22 April 1997, Reports 1997-11, paras. 52 and 56, holding that disallowing a transsexual's request to be registered as the father of a child did not violate Articles 8 and 14 of the convention, and Sheffield and Horsham v. the United Kingdom, judgment of 30 July 1998, Reports 1998-IV, para. 60, where the Court reiterated that "[e]ven if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States". 182 Eur. Ct. H.R., Appl. 35968/97, Carola van Kiick v. Germany, decision on the admissibility of 18 October 2001. I. 183 Eur. Ct. H.R., Dudgeon v. Ireland, Series A, No. 45.

  • 184 Eur. Ct. H.R., Appl. 25186/94, Sutherland v. the United Kingdom (friendly settlement), judgment of 27 March 2001, para. 20. 185 Similar cases pending against the United Kingdom were considered resolved by the Court in light of the Sutherland settlement: CL Appl. 31701/96, Christopher James Morris v. the United Kingdom, decision (striking out) of 27 November 2001. 186 Eur. Ct. H.R., Appl. 39392/98 and 39829/98, G G and A V v. Austria; and 45330/99, S L r. Austria, decisions on the admissibility of 22 November 2001. The applicants G L and A V were in fact convicted under section 209, while applicant S L was never indicted or punished, but was considered to be "directly affected" by the "very existence" of that provision. Cf. S L v. Austria, 'The Law'. 187 On 21 June 2002, the Austrian Constitutional Court set aside as unconstitutional section 209 of the Criminal Code. Judgment (Erkenntnis) G 6/02-11. 188 Section 209 of the Austrian Criminal Code, as reprinted in G Land A V v. Austria, 'Relevant Domestic Law and Background'. Note that this provision targets consensual acts, since all forcible acts are punishable under other provisions of the Criminal Code. 189 Cf. G Gand A V v. Austria, 'The Law'; and S Lv. Austria, para. 1. Reference is made to amendments to the laws of other European states and the practice of the European Parliament and the Parliamentary Assembly of the Council of Europe as well as the HRC. '90 See Eur. Ct. H.R., Appl. 45396/99, Helen Craig v. the United Kingdom, decision on the admissibility of 7 March 2000, 'The Facts'. 191 Cf. ibid., para. 1 (a). 192 Ibid., para. 1 (d).

  • '9' Cf. Eur. Ct. H.R., Appl. 40016/98, Siegmund Karner v. Austria, decision on the admissibility of 11 September 2001, 'The Circumstances of the Case' and 'Relevant Domestic Law'. '9' Ibid., para. 1. '95 Cf. ibid., annex: 'Summary of the Applicant's Observations in Reply'. '96 Eur. Ct. H.R., Appl. 34369/97, Thlimmenos v. Greece, judgment of 6 April 2000. 197 HRC. Communication No. 694/1996, Arieh Hollis Waldman v. Canada, views of 3 November 1999, CCPR/C/67/D/694/1996. '98 Eur. Ct. H.R., Appl. 27417/95, Case of the Jewish Liturgical Association Cha'are Shalom Ve Tsedek v. France, judgment of 27 June 2000; and the German Federal Constitutional Court's (Bundesverfassungsgericht) judgment 1 BvR 1783/99 of 15 January 2002. i99 � Thlimmenos v. Greece, paras. 7 and 8. zoo Cf. ibid., para. 34. 201 Ibid., para. 35.

  • zoz Cf. ibid., para. 38. zos Ibid., para. 48. r°° Ibid., para. 47. 205 Ibid.. z°6 Arieh Hollis Waldman v. Canada, para. 10.4. 207 See HRC, Communication No. 191/1985, Carl Henrik Blom v. Sweden, views of 4 April 1988, CCPR,C�32/D/19I/I985, para. 10.3; and (joined) Communications Nos. 288 and 299/1988, G. and L. Lindgren and A. and B. Hjord et al. v. Sweden, views of 9 November 1990, CCPR/C 40 D/299/1988, para. 10.3, emphasizing the voluntary choice of the parents between equally accessible public and private school systems. zos Arieh Hollis Waldman c. Canada, para. 10.5.

  • 209 Ibid., para. 10.6. 210 Ibid.. 211 HRC, Communication No. 816/1998, Grant Tadman et al. v. Canada, decision on the admissibility of 29 October 1999, CCPR/C/67/D/816/1998. ziz Ibid., para. 3.3. 213 Cf. ibid., para. 5.3. 214 Ibid., para. 6.2. zis Ibid., Individual opinion (dissenting) of P. Bhagwati, E. Evatt, L. Henkin, and C. Medina Quiroga. 216 See Case Note, "The Constitutional Court's `Traditional Slaughter' Decision: The Muslims' Freedom of Faith and Germany's Freedom of Conscience", 3 German Law Journal (No. 2, 2002), at www.germanlawjournal.com/past_issues.php?id= 128. 217 Cha'are Shalom Ve Tsedek v. France, joint dissenting opinion of judges Sir Nicolas Bratza, Fischbach, Thomassen, Tsatsa-Nikolovska, Pantiru, Levits and Traja, holding as follows: "In our view, with- holding approval from the applicant association, while granting such approval to the ACIP and thereby conferring on the latter the exclusive right to authorise ritual slaughterers, amounted to a

  • failure to secure religious pluralism or to ensure a reasonable relationship of proportionality between the means employed and the aim sought to be acliieved:'. z'e Eur.Ct.H.R, Appl. 55170/00, Vasko Kosteski 1'. the Former Yugoslav Republic of Macedonia, partial decision on the admissibility of 3 May 2001. 219 Ibid., 'The Circumstances of the Case'. zzo Ibid., 'Complaints'. 221 Cg ibid., 'The Law', para. 2. The applicant failed to exhaust domestic remedies with respect to one of his absences from work, wherefore that part of his complaint was dismissed. 222 In Appl. 34044/96, 35532 97 and 44801/98, Streletz, Kessler and Kren: r. Germany, judgment of 22 March 2001, however, the Eur. Ct. H.R. found that the convictions of members of the political leadership of the GDR for intentional homicide in connection with the deaths of numerous individuals during their attempts to flee between 1971 and 1989 and the finding of the German Constitutional Court upholding these convictions did not discriminate against them on account of their 'former GDR nationality'. Ibid.. paras. 112-114. See also Appl. 37201/97, K.-H. W Gerrnan-�', judgment of 22 March 2001, paras. 118-120. See also the German espionage cases, where allegations of discrimination for "political reasons" were rejected by the Eur.Comm.H.R. The applicants claimed that punishing individuals who had spied for the former GDR while letting go unpunished or rehabilitating persons who had spied for the FRG and its allies was discriminatory. Appl. 30454/96, Klaus Croissant r. Germany, decision on the admissibility of 27 February 1997 and 38570/97, Armin Hindrichs t. Germany, decision on the admissibility of 4 March 1998. 223 HRC. Communication No.196/1985. Ibrahima Gueve et aL v. France, views of 3 April 1989. CCPR/C/35/D/196/1985.

  • 224 Eur. Ct. H.R., Gaygusuz v. Austria, Reports 1996-IV. 225 Article 3 of Protocol No. 1 to the ECHR guarantees the right to vote and to be elected only to nationals of the member states. 226 Article 16 ECHR provides that the rights to freedom of expression, assembly, and non-discrimination shall not "be regarded as preventing [states] from imposing restrictions on the political activity of aliens". See also Frowein and Peukert, EMRK Kommentar, 454, MN 25, who list nationality as an example where "... die sachliche Rechtfertigung ... aus der Natur der Sache heraus evident sein [kann]." ." 227 The exercise of certain rights under the ECHR - e.g. the right to family life or the right to have a case heard by a court - may "... require that [a person] be granted permission to enter a Contracting State", as the Eur.Comm.H.R. reiterated in Appl. 16595/90, Kole Mangov v. Greece, decision on the admissibility of 18 February 1993, para. 2, with further references, and a refusal might thus raise issues under a substantive provision together with Article 14. zzs Eur.Comm.H.R., Appl. 12313/86, Moustaquim v. Belgium, report of 12 October 1989, para. 69, affirmed by the Eur. Ct. H.R.'s judgment of 18 February 1991, Series A, No. 193, paras. 48 et seq.; and, more recently, Appl. 32797/96, Saban 6zturk et al. v. Norway, decision on the admissibility of 21 March 2000, para. 3. zz9 Cf. Eur. Ct. H.R., Appl. 44770/98, Mekaj Shkelzen v. Germany, decision on the admissibility of 20 January 2000. z3o Eur.Comm.H.R., Appl. 29043/95, Petra Karus v. Italy, decision on the admissibility of 20 May 1998, para. 2.

  • 231 arc, Communications Nos. 516/1992, Alina Simunek v. the Czech Republic, views of 19 July 1995, CCPR,'C/54/D/516j1992; 586/1994; Joseph Frank Adam r. the Czech Republic, views of 23 July 1996, CCPR/C/57/D/586/1994; 747/1997. Dr. Karel Des Fours Walderode and Dr. Johanna Kammerlander v. the Czech Republic, views of 30 October 2001, CCPR/C/73/D/747/1997; and 857/1999, Miroslar Blazek, George A. Hartman and George Krizek v. the Czech Republic, views of 12 July 2001, CCPR;'C/72/D/857/1999. Two related cases are currently before the Eur. Ct. H.R.: The applicants there were convicted and expropriated for 'deserting the Republic' in the 1970s and 1980s, but these convictions were set aside in 1990. The applicants subsequently sought to recover their property but failed because they (no longer) held Czech citizenship, a requirement under the restitution laws. Cf. Eur. Ct. H.R. Press Release No. 216 of 23 April 2002 concerning Appl. 38645/97, Polacek and Polackova v. the Czech Republic; and 39794/98, Gratzinger and Gratzingerová v. the Czech Republic (hearing scheduled for 29 May 2002). 232 Communication No. 516/1992, Simunek v. the Czech Republic, para. 11.6. 233 Ibid. the Eur. Ct. H.R. did not test whether a German law adopted to implement a bilateral settlement agreement for the confiscation of "German assets in Czechoslovakia" discriminated against the applic- ant, a Liechtenstein national, in Appl. 42527/98, Prince Hans Adam II of Liechtenstein v. Germany, judgment of 12 July 2001, paras. 88-94, because it considered the specific claims not to qualify as 'property rights' under Article 1 of the First Additional Protocol and the accessory norm of Article 14, accordingly, not applicable. The Prince's father had owned a painting that was kept at a castle located in what is now the Czech Republic until the end of World War II. In 1946, Czechoslovakia confiscated the painting. In 1991, when the painting was on exhibit in Cologne, the Prince initiated legal action in the German courts to have it returned to him. The courts dismissed the action for lack of jurisdiction, relying on the bilateral settlement agreement. The Prince argued before the Court that Germany had applied the agreement, which covers "German assets", to property owned by a citizen of a third, neutral country. See also the application dated 30 May 2001 filed by Liechtenstein against Germany in this matter with the ICJ, Certain Property (Giechtenstein v. Germany), General List No. 123.

  • 235 HRC, Communication No. 774/1997, Robert Brok and Dagmar Brokova v. the Czech Republic, views of 31 October 2001, CCPR/C/73/D/774/1997. z36 Ibid. para. 7.4. 237 HRC, Communication No. 643/1995, Peter Drobek v. Slovakia, decision on the admissibility of 14 July 1997, CCPR/C/60/D/643/1995. zsa Ibid., para. 6.5. z39 Eur. Ct. H.R., Appl. 25701/94, The Former King of Greece et al. v. Greece, judgment of 23 November 2000.

  • 240 Ibid., para. 101. 1. 241 Ibid., para. 102. 242 Appl. 53360/99; see Eur. Ct. H.R. Press Releases Nos. 025 of 18 January 2002 and 195 of 10 April 2002. Parliament is in the process of repealing the constitutional provision limiting the rights of the House of Savoy. z°3 Arts. 3 of Protocol No. 1 and 3 of Protocol No. 4 to the ECHR. 244 Cf. HRC, Communication No. 855/1999, Af. Schmitz-de-Jong u. the Netherlands, views of 16 July 2001. CCPR/C/72/D/855/1999, para. 7.2. See also Communication No. 865/1999, Alejandro Marin G6mei v. Spain, views of October 2001, CCPR.C'72/D'865/1999, concerning an age criterion in the contexts of the return of military personnel to active duty/reserve status found to be not in violation of Article 26. zas Eur. Ct. H.R., Appl. 40302/98, Michael 11'. kfatthevt,s r. the United Kingdom, decision on the admissibil- ity of 28 November 2000, 'The Circumstances of the Case'. CC ibid., 'The Law'.

  • 247 See Alexander H.E. Morawa, "Das Verbot der unmenschlichen oder erniedrigenden Behandlung oder Bestrafung des Artikel 3 EMRK in der Rechtsprechung der StraBburger Instanzen zum Strafvollzug", in Bundesministerium fur Justiz (ed.), Menschenrechte im Strafvollzug (Vienna, 1998), 203-48, at 220 et seq. z°a See in this context Council of Europe Committee of Ministers Recommendation Rec. (2001) 10 on the European Code of Police Ethics (Adopted by the Committee of Ministers on 19 September 2001 at the 765th meeting of the Ministers' Deputies), which provides in Article 44: "Police personnel shall act with integrity and respect towards the public and with particular consideration for the situation of individuals belonging to especially vulnerable groups", and, in Article 49: "Police investigations shall be objective and fair. They shall be sensitive and adaptable to the special needs of persons, such as children, juveniles, women, minorities including ethnic minorities and vulnerable persons". With respect to detention the Code stipulates in Article 54 that "[deprivation of liberty of persons shall be as limited as possible and conducted with regard to the dignity, vulnerability and personal needs of each detaince". 249 Cf. HRC, Communication No.616/1995, Zephiniah Hamilton v. Jamaica, views of 23 July 1999, CCPR/C/66/D/616/1995, para. 8.2. zso C£ Eur.Comm.H.R., Appl. 9044/80, X v. Italy, report of 8 December 1982, 33 Decisions and Reports, 41-59, at 57 et seq., para. 53 (1982), concerning the continuation of the imprisonment of a severely overweight inmate, and, more recently, Appl. 37609/97, Zdzislaw Skrowronski v. Poland, decision on the admissibility of 30 November 2000, where a visually impaired man who inadvertently bumped into two municipal guards was subsequently detained in a sobering-up cell. The Court communicated the complaints based on Article 5 of the Convention to the respondent state, but in a later decision declared them inadmissible for non-compliance with the six-months-rule, final decision on the admiss- ibility of 19 March 2002, C. 251 Eur.Comm.H.R., Appl. 29046/95, Molly Mclntyre v. the United Kingdom, decision on the admissibility of 21 October 1998, 'The Law', with further references. zsz Ibid. Most of the classes were taught at the ground floor, and whenever that was impossible (once a week), she was attended to by qualified staff during that period of time.

  • zss 11RC, Communication No. 832j 1998, F v. Australia, decision on the admissibility of 25 July 2001, CCPR/C/72/D/832/1998. 254 HRC, Communication No. 741/1997, Michael Cziklin v. Canada, decision on the admissibility of 27 July 1999, CCPR C 66 D; 7�11/1997. zss See, for instance. Eur. Ct. H.R., Appl. 57946%00, Gerard Rogan v. the United Kingdom, decision on the admissibility of 18 September 2001; and 65905,'O1, Alan John Rice r. the United Kingdom, decision on the admissibility of 19 February 2002, where Britain had enacted legislative amendments providing for death benefits and pensions for widows and widowers on an equal footing after the male petitioners had unsuccessfully applied for such benefits under a previous law granting them only to women. 256 HRC, Communication No.786i1997, A P Johannes Vos v. the Netherlands, views of 26 July 1999, CCPR/C/66/D/786/1997, para. 7.6. 257 Cf Appl. 33916/96, Karl-Heinz warden v. Giechtenstein, decision on the admissibility of 16 March 2000, para. 1.

  • zse Eur. Ct. H.R., Appl. 30943/96, Sahin v. Germany, judgment of 11 October 2001, para. 61. 259 Opsahl, "Equality and Non-Discrimination", 177. 260 Cf. Eur. Ct. H.R., Appl. No. 37112/97, Fogarty v. the United Kingdom, judgment of 21 November 2001, paras. 38-39.

  • 261 Ibid., para. 42. 262 Eur. Ct. H.R., Larkos v. Cyprus, judgment of 18 February 1999, Reports 1999-1, para. 31. zb' Eur. Ct. H.R., Appl. No. 36797/97, G M B and K M v. Switzerland, decision on the admissibility of 27 September 2001. '�° Ibid., 'Complaints'. z6s Ibid., para. 2. 266 Swiss law, as amended following the Eur. Ct. H.R.'s Burghartz judgment of 22 February 1995, Series A, No. 280-B, allows families to select the wife's surname as the common family name. Both spouses may keep their own surname, followed by the common family name. See G M B and K M v. Switzerland, 'Relevant Domestic Law and Practice'. 267 Eur. Ct. H.R., Appl. 31061/96, Andrzej Cernecki r. Austria, decision on the admissibility of 11 July 2000. 268 Cf. Eur.Comm.H.R., Appl. 31416,/96, Arthur U. Pendragon v. the United Kingdom, decision on the admissibility of 19 October 1998. 269 Eur.Comm.H.R., Appl. 33298/96, Pinnacle Meat Processors Co. and Eight Others v. the United Kingdom, decision on the admissibility of 21 October 1998, para. 2.

  • 270 Cf. HRC, Communication No. 790/1997, Sergei Anatolievich Cheban et al. v. the Russian Federation, views of 24 July 2001, CCPR/C/72/D/790/1997, para. 7.4. 2" Eur. Ct. H.R., Appl. 38881/97, Gordon Findlater v. the United Kingdom, decision on the admissibility of 26 September 2000, para. 2; and 37657/97, Michael Sean Andrews v. the United Kingdom, decision on the admissibility of 26 September 2000, para. 2. 272 Chapman v. the United Kingdom, para. 99. 273 Ibid., para. 113. 274 Cf. Eur. Ct. H.R., Appl. 35014/97, Maria Hutten-Czapska v. Poland, decision on the admissibility of 16 November 2000, para. 2.

  • z,s Cf. Eur. Ct. H.R., Appl. 46934/99, Kresimir Strunjak et al. v. Croatia, decision on the admissibility of 5 October 2000, para. 3. z'6 Larkos v. Cyprus, para. 31. 277 Ibid. 278 Cf Eur. Ct. H.R., Appl. 43447/98, Branko Soric v. Croatia, decision on the admissibility of 16 March 2000; 43440/98, Bozidar Jankocic r. Croatia, decision on the admissibility of 12 October 2000; 52748/99, Momir Jovic v. Croatia, decision on the admissibility of 22 May 2001; 53921 00, Petar Sevo v. Croatia, decision on the admissibility of 14 June 2001; and 45132/98, Ivan Gander v. Croatia, decision on the admissibility of 21 June 2001. Z'9 Jovic v. Croatia, para. 1. 280 Jankovic v. Croatia, para. 1. '�' Ibid. The "essence" test stems from the complaint under Article 1 of the First Optional Protocol.

  • 282 Eur. Ct. H.R., Appl. 34406/97, Mazurek v. France, judgment of 1 February 2000, para. 35. 211 cue ibid., para. 52. 284 Ibid., para. 54. zes See ibid., para. 50. ze6 Cf. John Joseph Cremona, "The Proportionality Principle in the Jurisprudence of the European Court of Human Rights", in Ulrich Beyerlin et al. (eds.), Recht zwischen Um6ruch und Bewahrung: Festschrift fur Rudolf Bernhardt (Berlin, 1995), 323-30, at 324. 287 Gomien, Harris and Zwaak, Law and Practice ..., 351. zea Cf. Loukis G. Loucaides, Essays on the Developing Law of Human Rights (Dordrecht, 1995), 198. 289 Cremona, "The Proportionality Principle ...", 324; and Busuttil, "The Case-Law of the Commission ...", 33.

  • 290 Eur. Cl H.R., Appl. 29529/95. Francesco Schettini et al. v. Italy, decision on the admissibility of 9 November 2000, para. 3. z9` Opsahl, "Equality and Non-Discrimination", 177. z9z CERD General Recommendation 14. Definition of Discrimination (Art. I( 1)), dated 22 March 1993. para. 2. z�' HRC, Communication No.666!1995, Frederic Foin v. France, views of 3 November 1999, CCPR,C 67'D/666;'1995. z9' See also HRC, Communication No.689/1996, Richard Maille v. France, views of 10 July 2000, CCPR. C % 69,/D/689/ 1996. 295 Foin c. France, para. 10.3 (emphasis added).

  • 296 Eur. Ct. H.R., Appl. 35705/97, M G v. the United Kingdom, decision on the admissibility of 20 March 2001. 297 Lord Jauncey of Tullichettle, giving the judgment of the House of Lords on 4 July 1996, reprinted in M Lv. the United Kingdom, 'The Facts'. z9$ M Lv. the United Kingdom, para. 3. z99 Eur. Ct. H.R., Appl. 2346/02 (new numbering system), Pretty v. the United Kingdom, judgment of 29 April 2002. aoo Arts. 2, 3, 8, 9 and 14 ECHR.

  • 301 CC Pretty v. the United Kingdom, para. 85, and the Court's assessment under Art. 8 ECHR in paras. 68-78. '°2 Ibid., para. 89. 303 Ibid.. 304 This author discriminates against conclusions, especially when a topic cannot possibly be summed up anyway. 3os ICJ, South West Africa Cases, 1966 I.C.J. Reports 248.

  • 6 Cf. Chapman v. the United Kingdom, joint dissenting opinion of judges Pastor Ridruejo, Bonello, Tulkens, Straznicka, Lorentzen, Fischbach and Casadevall, para. 3.

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