Discrimination as a magnifying lens: Scope and ambit under article 14 and protocol no. 12

Introduction. The classic structure of analysis under Article 14 of the European Convention on Human Rights (ECHR; the Convention) asks first whether the non-discrimination guarantee is applicable to the case at hand and whether any prima facie discrimination has occurred, which refers to establishing the ground for the discrimination in question and the facts of the case against the Convention's operative concepts of discrimination. It is only when these questions have been answered that the second stage of analysis comes into play, namely assessing whether the prima facie discrimination so established constitutes actual discrimination or whether it only constitutes different, or similar treatment. Questions of material, personal and conceptual scope would therefore belong to the first stage of analysis, where the applicant bears the burden of persuasion. Only when those questions have been settled would the Court proceed to the second stage of analysis, where the respondent state bears that burden. This chapter will focus on the material scope of the protection under Article 14 and Article 1 of Protocol 12 ECHR. In open-model non-discrimination clauses the material scope of protection will be relatively wide, while it is limited to specific fields of activity in closed models. Article 14 ECHR is in fact situated somewhere between the open and closed models in this respect. While not being quite as limited to specific spheres of activity as the EU non-discrimination directives, it is not an independent equality clause that applies across the board to any activity. Instead, it is formulated as a guarantee ‘accessory’ to the enjoyment of the other rights protected by the Convention. There is, therefore, a fairly conspicuous ‘gap’ in the scope of protection that the article provides, and it has sometimes been referred to as ‘parasitic’ on other Convention rights. Protocol 12 was intended to amend this by introducing an independent non-discrimination guarantee into the Convention, but the ratification process has been extremely slow. Optimistic predictions on the future redundancy of the ‘ambit’ doctrine that governs the relationship between Article 14 and the other Convention right involved, put forward shortly after the adoption of Protocol 12, have therefore proven incorrect. Article 14 continues to be the main source of protection against discrimination under the Convention and the issue of its relationship with other Convention rights continues to be of great relevance.