Protocol 12 to the European Convention on Human Rights

In: European Yearbook of Minority Issues Online
View More View Less
  • 1 Degree in Italian Law, La Sapienza, Rome, 1996; Admitted to the Italian Bar in 1999; Master's Degree in International Protection of Human Rights; Temporary Lawyer at the European Court of Human Rights. The views expressed are solely those of the author.

If the inline PDF is not rendering correctly, you can download the PDF file here.

  • 1 Austria, Belgium, Croatia, Cyprus, Czech Republic, Estoma, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Moldova, the Netherlands.

  • Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, the former Yugoslav Republic of Macedonia, Turkey and Ukraine. 2 Having studied all existing international human rights instruments which deal with discrimination issues, ECRI submitted its findings to the Committee of Ministers. It considered that the protection offered by the ECHR from racial discrimination should be strengthened by means of an additional protocol containing a general clause against discrimination on the grounds of race, colour, language, religion or national or ethnic origin. In proposing a new protocol, ECRI recognized that the law alone cannot eliminate racism in its many forms uis-d-uis various groups, but it stressed also that efforts to promote racial justice cannot succeed without the law. ECRI was convinced that the estab- lishment of a right to protection from racial discrimination as a fundamental human right would be a significant step towards combating the manifest violations of human rights which result from racism and xenophobia. It emphasized that discriminatory attitudes and racist violence are currently spreading in many European countries and observed that the resurgence of racist ideologies and religious intolerance is adding to daily tension in our societies an attempt to legitimize discrimination. 3 In the course of its work, CDEG underlined the fact that there is no legal protection for equality between women and men as an independent fundamental right in the context of the binding instru- ments of the Council of Europe. Considering that a legal norm to that effect is one of the prerequisites for achieving equality in law and fact, CDEG focused the major part of its activities on the inclusion

  • in the ECHR of a fundamental right of women and men to equality. The work of CDEG resulted in a reasoned proposal to include such a right in a protocol to the ECHR. 4 Despite this, the Court remarked that "it is foreseeable that the entry into force of Protocol No. 12 will lead to a substantial increase in the Court's case law" and it drew "the attention of the Committee of Ministers to the impact of such an increase on a mechanism that is already under great pressure". Opinion of the European Court of Human Rights on the Draft Protocol 12 to the European Convention on Human Rights, as adopted at the plenary administrative session of the Court in December 1999. 5 Opinion of the Parliamentary Assembly on the Draft Protocol 12 to the European Convention on Human Rights, as adopted by the Assembly on 26 January 2000. 6 Hansard, House of Lords, volume 617, column WA37, 11 October 2000, Lord Bassam. For a general position of the British Government, see Urfan Khaliq, "Protocol 12 to the European Convention on Human Rights: A Step Forward or a Step Too Far?", Public Law (Autumn 2001 ), 457-64: Lord Lester of Herne Hill, "Equality under United Kingdom Law: Past. Present and Future", Public Late (Spring 2001 ), 77-96. 7 Schwimmer continued: "We should not forget that the opening for signature takes place at a time of worrying political developments. In today's Europe the fight against racism and intolerance is an urgent necessity. But the protocol is not only an important legal tool for combating racism and intolerance. It will also help furthering equality between women and men and eradicating other forms of discrimination." Council of Europe Press Release, "Twenty-Five States Sign up to Improve Protection Against Discrimination", at'2000/789a(2000).htm.

  • 8 In case law related to Article 14, the Court has already made reference to the "principle of equality of treatment", see e.g. Eur. Ct. H.R., Case "Relating to Certain Aspects of the Laws on the Use of Languages in Belgium" ("Belgian Linguistic case", Merits), judgment of 23 July 1968, Series A, No. 6, para. 10; and to "equality of the sexes": Eur. Ct. H.R., Abdulaziz, Cabales and Balkandali v. The United Kingdom, judgment of 28 May 1985, Series A, No. 94, para. 78. 9 This principle already appears in certain existing international provisions: see e.g. Art. 1 (4) of CERD; Art. 4(1) CEDAW and Art. 4(3) Framework Convention for the Protection of National Minorities. '° The Explanatory Report states: "[T]he meaning of the term 'discrimination' in Article 1 is intended to be identical to that in Article 14 of the Convention. The wording of the French text of Article 1 ('sans discrimination aucune') differs slightly from that of Article 14 ('sans distinction aucune'). No difference of meaning is intended; on the contrary, this is a terminological adaptation intended to reflect better the concept of discrimination within the meaning of Article 14 by bringing the French text into line with the English". The judgment in the Belgian Linguistic case of 23 July 1968 also stated: "[M]algre le libelle tres general de la version frangaise ('sans distinction aucune'), 1'article 14 n'interdit pas toute distinction de traitement dans 1'exercice des droits et libertes reconnus. Cette version doit se lire a la lumiere du texte, plus restrictif, de la version anglaise ('without discrimination')." " See e.g. Eur. Ct. H.R., Rasmussen v. Denmark, judgment of 28 November 1984, Series A, No. 87, para. 40; and National and Provincial Building Society et al. v. the United Kingdom, judgment of 3 October 1997, Reports 1997-VII, 80, in which the Court permitted a wide margin of appreciation as regards the framing and implementation of policies in the area of taxation.

  • 12 Explanatory Report, para. 29. " Khaliq, "Protocol 12 ...", 458. " Explanatory Report, para. 24. [5 Khaliq, "Protocol 12 ...", 458.

  • '6 Eur. Ct. H.R., X and Yu. the Netherlands, judgment of 26 March 1985, Series A, No. 91, paras. 23-24, 27, 30. " Gay Moon, "The Draft Discrimination Protocol to the European Convention on Human Rights: A Progress Report", 1 EHRLR (2000), 49-53.

  • '8 Rouget Didier, "Les etrangers et la Convention europeenne des droits de I'homme: une protection limitee et contrastee", 13( 1 ) Revue quebecoise de droit international (2000), 219-45, in which it is stated that initially, the Convention excluded practically any references to the status of foreigners, political asylum or residential status. Even if the case law has developed in this area, a change of perspective is essential and equality of treatment between nationals and foreigners must he justified. In this perspective, the adoption of Protocol 12 which would thus rule out any form of discrimination is an important step. Its application would open up new means to efficiently combat all forms of direct or indirect discrimination and condemn any legislation, regulations or discriminatory practices. In gen- eral, he states: "L'application du protocole 12 ouvre un champ nouveau pour combattre effectivement toute discrimination directe ou indirecte et condamner les legislations, reglementations et pratiques discriminatoires. De plus, les obligations positives des Etats s'en trouvent renforcees, leur imposant notamment de mettre en reuvre toute mesure necessaire pour assurer a toutes et a tous la jouissance de tous leurs droits." '9 See Eur. Ct. H.R., Salgueiro da Silra .\fouta r. Portugal, judgment of 21 December 1999. Reports 1999-DC, 117; Appl. 25186/94, Sutherland r. The United Kingdom (friendly settlement), judgment of 27 March 2001; Eur. Ct. H.R., %Iarckx r. Belgium, judgment of 13 June 1979, Series A. No. 31: Inze c. Austria, judgment of 28 October 1987, Series A, No. 126; Rasmussen v. Denmark, judgment of 28 November 1984, Series A, No. 87; National Union of Belgian Police r. Belgium, judgment of 27 October 1975, Series A, No. 19. 20 Explanatory Report, para. 20. 21 Georgia's instrument of ratification as deposited on 15 June 2001 contained the following Declaration: "Georgia declines its responsibility for the violations of the provisions of the Protocol on the territories of Abkhazia and Tskhinvali region until the full jurisdiction of Georgia is restored over these territories."

  • zz Andrea Saccucei, "Adottato a Strasburgo il Protocollo n. 12 alia convenzione europea dei diritti dell'uomo", XI(1-2) I diritti dell'uomo cronache a battaglie (2000), 132-4, at http://

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 56 34 1
Full Text Views 36 1 0
PDF Downloads 4 4 0