Human rights instruments prohibit discrimination on several grounds. Article 2 UDHR , which inspired the wording of other human rights instruments, prohibits discrimination on the following ten grounds: 1) race, 2) colour, 3) sex, 4) language, 5) religion, 6) political or other opinion, 7) national or social origin, 8) property, 9) birth, or 10) other status. The same prohibited grounds are included in Article 2 ICCPR . Similarly, Article 2 ACHPR lists the same prohibited grounds as the ICCPR, although instead of ‘property’ the ACHPR prohibits discrimination on the ground of ‘fortune’. At the Inter-American level, Article 1(1) ACHR prohibits discrimination on the same grounds, adding ‘economic status’. Article 14 ECHR contains the same prohibited grounds as the UDHR, adding the prohibition of discrimination based on ‘association with a national minority’.
As the case-law will demonstrate, the grounds enumerated in these provisions are merely illustrative and not exhaustive. The term ‘or other status’ is open-ended; some grounds not explicitly mentioned, such as age, disability, nationality and sexual orientation, could also be considered prohibited grounds. Some of these grounds are going to be examined here. Nonetheless, it is necessary to stress that in the case of Kavanagh v. Ireland , (Communication No. 819/1998, Views of 4 April 2001), the Human Rights Committee has given an independent meaning to Article 26 ICCPR ensuring the ‘right to equality before the law and to the equal protection of the law’ suggesting that it is not necessary to identify any specific ground for discrimination.
The prohibition of discrimination on the ground of sex is included in the general provisions prohibiting discrimination, such as Article 2 ICCPR, Article 2 ACHPR and Article 1(1) ACHR. In addition, some human rights instruments such as the ICCPR, add specific provisions dealing with right to equality between men and women (Article 3 ICCPR). This is understood as a necessity to stress the principle of equality between the sexes.
Although ‘sex’ is understood to refer to the biological differences between men and women whereas ‘gender’ is viewed as the social, cultural and psychological structures constructed on the basis of the biological sex, in the following analysis no strict distinction will be maintained. In fact, the jurisprudence of the supervisory bodies has not directly dealt with the distinction between ‘sex’ and ‘gender’. For example, in Müller and Engelhard v. Namibia (Communication No. 919/2000, Views of 26 March 2002), the Human Rights Committee uses the notion of ‘gender’ in its reasoning for a violation of Article 26 ICCPR but it does not provide any explanation as to whether the term is equal to the word ‘sex’ included in Article 26 ICCPR.
The following case concerns discriminatory legislation in Mauritius. According to the Immigration and Deportation Act of Mauritius, non-national wives of Mauritian men had an unlimited residency right, while non-national husbands of Mauritian women were required to obtain an official residency permit.
Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius
Communication No. 35/1978
Views of 9 April 1981
Keywords: non-discrimination - equal treatment - non-nationals - immigration law – deportation - residence permits - prohibition of discrimination on the grounds of sex - family life, respect for
Views under Article 5 (4) of the Optional Protocol
1.1 The authors of this communication (initial letter dated 2 May 1978 and a further letter dated 19 March 1980) are 20 Mauritian women, who have requested that their identity should not be disclosed to the State party.
2. They claim that the enactment of the Immigration (Amendment) Act, 1977, and the Deportation (Amendment) Act, 1977, by Mauritius constitutes discrimination based on sex against Mauritian women, violation of the right to found a family and home, and removal of the protection of the courts of law, in breach of Articles 2, 3, 4, 17, 23, 25 and 26 of the International Covenant on Civil and Political Rights. The authors claim to be victims of the alleged violations. They submit that all domestic remedies have been exhausted.
9.2 (b) I The Committee will next examine that part of the communication which relates to the effect of the laws of 1977 on the family life of the three married women.
9.2 (b) 2 The Committee notes that several provisions of the Covenant are applicable in this respect. For reasons which will appear below, there is no doubt that they are actually affected by these laws, even in the absence of any individual measure of implementation (for instance, by way of a denial of residence, or an order of deportation, concerning one of the husbands). Their claim to be “victims” within the meaning of the Optional Protocol has to be examined.
9.2 (b) 2 (i)1 First, their relationships to their husbands clearly belong to the area of “family” as used in Article 17 (1) of the Covenant. They are therefore protected against what that Article calls “arbitrary or unlawful interference” in this area.
9.2 (b) 2 (i) 2 The Committee takes the view that the common residence of husband and wife has to be considered as the normal behaviour of a family. Hence, and as the State party has admitted, the exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of Article 17. In principle, Article 17 (1) applies also when one of the spouses is an alien. Whether the existence and application of immigration laws affecting the residence of a family member is compatible with the Covenant depends on whether such interference is either “arbitrary or unlawful” as stated in Article 17 (1), or conflicts in any other way with the State party’s obligations under the Covenant.
9.2 (b) 2 (i) 3 In the present cases, not only the future possibility of deportation, but the existing precarious residence situation of foreign husbands in Mauritius represents, in the opinion of the Committee, an interference by the authorities of the State party with the family life of the Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the families concerned whether and for how long it will be possible for them to continue their family life by residing together in Mauritius. Moreover, as described above (para. 7.4) in one of the cases, even the delay for years, and the absence of a positive decision granting a residence permit, must be seen as a considerable inconvenience, among other reasons because the granting of a work permit, and hence the possibility of the husband to contribute to supporting the family, depends on the residence permit, and because deportation without judicial review is possible at any time.
9.2 (b) 2 (i) 4 Since, however, this situation results from the legislation itself, there can be no question of regarding this interference as “unlawful” within the meaning of Article 17 (1) in the present cases. It remains to be considered whether it is “arbitrary” or conflicts in any other way with the Covenant.
9.2 (b) 2 (i) 5 The protection owed to individuals in this respect is subject to the principle of equal treatment of the sexes which follows from several provisions of the Covenant. It is an obligation of the State parties under Article 2 (1) generally to respect and ensure the rights of the Covenant “without distinction of any kind, such as ? (inter alia) sex”, and more particularly under Article 3 “to ensure the equal right of men and women to the enjoyment” of all these rights, as well as under Article 26 to provide “without any discrimination” for “the equal protection of the law”.
9.2 (b) 2 (i) 6 The authors who are married to foreign nationals are suffering from the adverse consequences of the statutes discussed above only because they are women. The precarious residence status of their husbands, affecting their family life as described, results from the 1977 laws which do not apply the same measures of control to foreign wives. In this connection the Committee has noted that under section 16 of the Constitution of Mauritius sex is not one of the grounds on which discrimination is prohibited.
9.2 (b) 2 (i) 7 In these circumstances, it is not necessary for the Committee to decide in the present cases how far such or other restrictions on the residence of foreign spouses might conflict with the Covenant if applied without discrimination Of any kind.
9.2 (b) 2 (i) 8 The Committee considers that it is also unnecessary to say whether the existing discrimination should be called an “arbitrary” interference with the family within the meaning of Article 17. Whether or not the particular interference could as such be justified if it were applied without discrimination does not matter here. Whenever restrictions are placed on a right guaranteed by the Covenant, this has to be done without discrimination on the ground of sex. Whether the restriction in itself would be in breach of that right regarded in isolation, is not decisive in this respect. It is the enjoyment of the rights which must be secured without discrimination. Here it is sufficient, therefore, to note that in the present position an adverse distinction based on sex is made, affecting the alleged victims in their enjoyment of one of their rights. No sufficient justification for this difference has been given. The Committee must then find that there is a violation of Articles 2 (1) and 3 of the Covenant, in conjunction with Article 17 (1 ).
9.2 (b) 2 (ii) I At the same time each of the couples concerned constitutes also a “family” within the meaning of Article 23 (1) of the Covenant, in one case at least—that of Mrs. Aumeeruddy-Cziffra—also with a child. They are therefore as such “entitled to protection by society and the State” as required by that Article, which does not further describe that protection. The Committee is of the opinion that the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions.
9.2 (b) 2 (ii) 2 Again, however, the principle of equal treatment of the sexes applies by virtue of Articles 2 (1), 3 and 26, of which the latter is also relevant because it refers particularly to the “equal protection of the law”. Where the Covenant requires a substantial protection as in Article 23, it follows from those provisions that such protection must be equal, that is to say not discriminatory, for example on the basis of sex.
9.2 (b) 2 (ii) 3 It follows that also in this line of argument the Covenant must lead to the result that the protection of a family cannot vary with the sex of the one or the other spouse. Though it might be justified for Mauritius to restrict the access of aliens to their territory and to expel them therefrom for security reasons, the Committee is of the view that the legislation which only subjects foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, is discriminatory with respect to Mauritian women and cannot be justified by security requirements.
9.2 (b) 2 (ii) 4 The Committee therefore finds that there is also a violation of Articles 2 (1), 3 and 26 of the Covenant in conjunction with the right of the three married co-authors under Article 23 (1)
As the Committee has consistently stressed in its case-law, any difference in treatment based on sex requires the most compelling justification. In this case, the Committee noted that the legal protection, or other measures, a society can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions, but such protection must be equal, and restrictions based solely on sex are not allowed.
In the following case, the applicants were three foreign women who were lawfully and permanently settled in the United Kingdom. Their husbands, and in one instance fiancé, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country. The immigration legislation in force in the United Kingdom at that time allowed entry of foreign wives of legally established men but specifically restricted the entry of foreign husbands. The applicants claimed a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) and of Article 8 (respect for family life), taken alone or in conjunction with Article 14. They further alleged that, contrary to Article 13, no effective domestic remedy existed for the aforesaid claims.
Abdulaziz, Cabales and Balkandali v. The United Kingdom
Applications Nos. 9214/80; 9473/81; and 9474/81
Judgement of 28 June 1985
Keywords: non-discrimination – torture - family life, respect for - effective remedy
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (Article 14.8)
70. The applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and also - in the case of Mrs. Balkandali - birth, they had been victims of a violation of Article 14 of the Convention, taken together with Article 8 (Article 14+8). The former Article (Article 14) reads as follows: “The enjoyment of the rights and freedoms set forth in [the] 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.” In the event that the Court should find Article 8 (Article 8) to be applicable in the present case, the Government denied that there was any difference of treatment on the ground of race and submitted that since the differences of treatment on the ground of sex and of birth had objective and reasonable justifications and were proportionate to the aims pursued, they were compatible with Article 14 (Article 14).
71. According to the Court’s established case-law, Article 14 (Article 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 (Article 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, inter alia, the above-mentioned Rasmussen judgment, Series A no. 87, p. 12, para. 29). The Court has found Article 8 (Article 8) to be applicable (see paragraph 65 above). Although the United Kingdom was not obliged to accept Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali for settlement and the Court therefore did not find a violation of Article 8 (Article 8) taken alone (see paragraphs 68-69 above), the facts at issue nevertheless fall within the ambit of that Article (Article 8). In this respect, a parallel may be drawn, mutatis mutandis, with the National Union of Belgian Police case (see the judgment of 27 October 1975, Series A no. 19, p. 20, para. 45). Article 14 (Article 14) also is therefore applicable.
72. For the purposes of Article 14 (Article 14), a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, inter alia, the above-mentioned “Belgian Linguistic” judgment, Series A no. 6, p. 34, para. 10, the above-mentioned Marckx judgment, Series A no. 31, p. 16, para. 33, and the above-mentioned Rasmussen judgment, Series A no. 87, p. 14, para. 38). The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the above-mentioned Rasmussen judgment, ibid., p. 15, para. 40), but it is for the Court to give the final ruling in this respect.
73. In the particular circumstances of the case, the Court considers that it must examine in turn the three grounds on which it was alleged that a discriminatory difference of treatment was based.
B. Alleged discrimination on the ground of sex
74. As regards the alleged discrimination on the ground of sex, it was not disputed that under the 1980 Rules it was easier for a man settled in the United Kingdom than for a woman so settled to obtain permission for his or her non-national spouse to enter or remain in the country for settlement (see paragraphs 23-25 above). Argument centred on the question whether this difference had an objective and reasonable justification.
75. According to the Government, the difference of treatment complained of had the aim of limiting “primary immigration” (see paragraph 21 above) and was justified by the need to protect the domestic labour market at a time of high unemployment. They placed strong reliance on the margin of appreciation enjoyed by the Contracting States in this area and laid particular stress on what they described as a statistical fact: men were more likely to seek work than women, with the result that male immigrants would have a greater impact than female immigrants on the said market. Furthermore, the reduction, attributed by the Government to the 1980 Rules, of approximately 5,700 per annum in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was claimed to be significant. This was said to be so especially when the reduction was viewed in relation to its cumulative effect over the years and to the total number of acceptances for settlement. This view was contested by the applicants. For them, the Government’s plea ignored the modern role of women and the fact that men may be self-employed and also, as was exemplified by the case of Mr. Balkandali (see paragraph 53 above), create rather than seek jobs. Furthermore, the Government’s figure of 5,700 was said to be insignificant and, for a number of reasons, in any event unreliable (see paragraph 38 (e) in fine above).
76. The Government further contended that the measures in question were justified by the need to maintain effective immigration control, which benefited settled immigrants as well as the indigenous population. Immigration caused strains on society; the Government’s aim was to advance public tranquillity, and a firm and fair control secured good relations between the different communities living in the United Kingdom. To this, the applicants replied that the racial prejudice of the United Kingdom population could not be advanced as a justification for the measures.
77. In its report, the Commission considered that, when seen in the context of the immigration of other groups, annual emigration and unemployment and economic activity rates, the impact on the domestic labour market of an annual reduction of 2,000 (as then estimated by the Government) in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was not of a size or importance to justify a difference of treatment on the ground of sex and the detrimental consequences thereof on the family life of the women concerned. Furthermore, the long-standing commitment to the reunification of the families of male immigrants, to which the Government had referred as a reason for accepting wives whilst excluding husbands, no longer corresponded to modern requirements as to the equal treatment of the sexes. Neither was it established that race relations or immigration controls were enhanced by the rules: they might create resentment in part of the immigrant population and it had not been shown that it was more difficult to limit abuses by non-national husbands than by other immigrant groups. The Commission unanimously concluded that there had been discrimination on the ground of sex, contrary to Article 14 (Article 14), in securing the applicants’ right to respect for family life, the application of the relevant rules being disproportionate to the purported aims. At the hearings before the Court, the Commission’s Delegate stated that this conclusion was not affected by the Government’s revised figure (about 5,700) for the annual reduction in the number of husbands accepted for settlement.
78. The Court accepts that the 1980 Rules had the aim of protecting the domestic labour market. The fact that, as was suggested by the applicants, this aim might have been further advanced by the abolition of the “United Kingdom ancestry” and the “working holiday” rules (see paragraph 20 above) in no way alters this finding. Neither does the Court perceive any conclusive evidence to contradict it in the Parliamentary debates, on which the applicants also relied. It is true, as they pointed out, that unemployment in the United Kingdom in 1980 was lower than in subsequent years, but it had nevertheless already attained a significant level and there was a considerable increase as compared with previous years (see paragraph 38 (d) above). Whilst the aforesaid aim was without doubt legitimate, this does not in itself establish the legitimacy of the difference made in the 1980 Rules as to the possibility for male and female immigrants settled in the United Kingdom to obtain permission for, on the one hand, their non-national wives or fiancées and, on the other hand, their non-national husbands or fiancés to enter or remain in the country. Although the Contracting States enjoy a certain “margin of appreciation” in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, the scope of this margin will vary according to the circumstances, the subject-matter and its background (see the above-mentioned Rasmussen judgment, Series A no. 87, p. 15, para. 40). As to the present matter, it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.
79. In the Court’s opinion, the Government’s arguments summarised in paragraph 75 above are not convincing. It may be correct that on average there is a greater percentage of men of working age than of women of working age who are “economically active” (for Great Britain 90 per cent of the men and 63 per cent of the women) and that comparable figures hold good for immigrants (according to the statistics, 86 per cent for men and 41 per cent for women for immigrants from the Indian sub-continent and 90 per cent for men and 70 per cent for women for immigrants from the West Indies and Guyana) (see paragraph 38 (d) above). Nevertheless, this does not show that similar differences in fact exist - or would but for the effect of the 1980 Rules have existed - as regards the respective impact on the United Kingdom labour market of immigrant wives and of immigrant husbands. In this connection, other factors must also be taken into account. Being “economically active” does not always mean that one is seeking to be employed by someone else. Moreover, although a greater number of men than of women may be inclined to seek employment, immigrant husbands were already by far outnumbered, before the introduction of the 1980 Rules, by immigrant wives (see paragraph 38 (e) above), many of whom were also “economically active”. Whilst a considerable proportion of those wives, in so far as they were “economically active”, were engaged in part-time work, the impact on the domestic labour market of women immigrants as compared with men ought not to be underestimated. In any event, the Court is not convinced that the difference that may nevertheless exist between the respective impact of men and of women on the domestic labour market is sufficiently important to justify the difference of treatment, complained of by the applicants, as to the possibility for a person settled in the United Kingdom to be joined by, as the case may be, his wife or her husband.
80. In this context the Government stressed the importance of the effect on the immigration of husbands of the restrictions contained in the 1980 Rules, which had led, according to their estimate, to an annual reduction of 5,700 (rather than 2,000, as mentioned in the Commission’s report) in the number of husbands accepted for settlement. Without expressing a conclusion on the correctness of the figure of 5,700, the Court notes that in point of time the claimed reduction coincided with a significant increase in unemployment in the United Kingdom and that the Government accepted that some part of the reduction was due to economic conditions rather than to the 1980 Rules themselves (see paragraph 38 (d) and (e) above). In any event, for the reasons stated in paragraph 79 above, the reduction achieved does not justify the difference in treatment between men and women.
81. The Court accepts that the 1980 Rules also had, as the Government stated, the aim of advancing public tranquillity. However, it is not persuaded that this aim was served by the distinction drawn in those rules between husbands and wives.
82. There remains a more general argument advanced by the Government, namely that the United Kingdom was not in violation of Article 14 (Article 14) by reason of the fact that it acted more generously in some respects - that is, as regards the admission of non-national wives and fiancées of men settled in the country - than the Convention required. The Court cannot accept this argument. It would point out that Article 14 (Article 14) is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 (Article 14) includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.
83. The Court thus concludes that the applicants have been victims of discrimination on the ground of sex, in violation of Article 14 taken together with Article 8 (Article 14.8).’
In this case the Court found a violation of the right to family life guaranteed by Article 8 in conjunction with discrimination on the basis of sex prohibited under Article 14. In finding no violation of Article 8, the Court noted that states have no obligation to respect a married couple’s choice of country of residence and thereby to accept non-national spouses for settlement. However, the Court held that the United Kingdom had violated Article 14 in conjunction with Article 8, stating that ‘The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.’
It is thus the inequity of a particular treatment that is the issue under Article 14, not the comparison of different options available to the state when restricting the exercise of a given substantive right. After the Court’s findings in 1985, the United Kingdom amended the Immigration Rules. The new rules removed the difference of treatment between married men and women settled in the United Kingdom in respect of admission or leave to remain on the basis of marriage.
The following case decided by the Human Rights Committee deals with matrimonial property. According to the Peruvian Civil Code, only husbands of married women were entitled to represent matrimonial property before the Courts. Ms. Graciela Alto del Avellanal complained that this situation discriminated against her as a woman.
Ato del Avellanal v. Peru
Communication No. 202/1986
Views of 28 October 1988
Keywords: legal prohibition against women representing matrimonial assets before the courts - equal treatment - prohibition of discrimination on the grounds of sex
Views under Article 5, paragraph 4, of the Optional Protocol
1. The author of the communication (initial letter dated 13 January 1986 and a subsequent letter dated 11 February 1987) is Graciela Ato del Avellanal, a Peruvian citizen born in 1934, employed as professor of music and married to Guillermo Burneo, currently residing in Peru. She is represented by counsel. It is claimed that the Government of Peru has violated Articles 2, paragraphs 1 and 3, 16, 23, paragraphs 4 and 26, of the Covenant, because the author has been allegedly discriminated against only because she is a woman.
2.1 The author is the owner of two apartment buildings in Lima, which she acquired in 1974. It appears that a number of tenants took advantage of the change in ownership to cease paying rent for their apartments. After unsuccessful attempts to collect the overdue rent, the author sued the tenants on 13 September 1978. The court of first instance found in her favour and ordered the tenants to pay her the rent due since 1974. The Superior Court reversed the judgement on 21 November 1980 on the procedural ground that the author was not entitled to sue, because, according to Article 168 of the Peruvian Civil Code, when a woman is married only the husband is entitled to represent matrimonial property before the Courts (“El marido es el representante de la sociedad conyugal”). On 10 December 1980 the author appealed to the Peruvian Supreme Court, submitting, inter alia, that the Peruvian Constitution now in force abolished discrimination against women and that Article 2 (2) of the Peruvian Magna Carta provides that “the law grants rights to women which are not less than those granted to men”. However, on 15 February 1984 the Supreme Court upheld the decision of the Superior Court. Thereupon, the author interposed the recourse of amparo on 6 May 1984, claiming that in her case Article 2 (2) of the Constitution had been violated by denying her the right to litigate before the courts only because she is a woman. The Supreme Court rejected he recourse of amparo on 10 April 1985.
9.1 The Human Rights Committee, having considered the present communication in the light of all the information made available to it, as provided in Article 5, paragraph 1, of the Optional Protocol, notes that the facts of the case, as submitted by the author, have not been contested by the State party.
9.2 In formulating its views, the Committee takes into account the failure of the State party to furnish certain information and clarifications, in particular with regard to the allegations of discrimination of which the author has complained. It is not sufficient to forward the text of the relevant laws and decisions, without specifically addressing the issues raised in the communication. It is implicit in Article 4, paragraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, and to furnish to the Committee all relevant information. In the circumstances, due weight must be given to the author’s allegations.
10.1 With respect to the requirement set forth in Article 14, paragraph 1, of the Covenant that “all persons shall be equal before the courts and tribunals”, the Committee notes that the court of first instance decided in favour of the author, but the Superior Court reversed that decision on the sole ground that according to Article 168 of the Peruvian Civil Code only the husband is entitled to represent matrimonial property, i.e. that the wife was not equal to her husband for purposes of suing in Court.
10.2 With regard to discrimination on the ground of sex the Committee notes further that under Article 3 of the Covenant State parties undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant” and that Article 26 provides that all persons are equal before the law and are entitled to the equal protection of the law. The Committee finds that the facts before it reveal that the application of Article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the courts and constituted discrimination on the ground of sex.
11. The Human Rights Committee, acting under Article 5, paragraph 4, of the optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the events of this case, in so far as they continued or occurred after 3 January 1981 (the date of entry into force of the Optional Protocol for Peru), disclose violations of Articles 3, 14, paragraph 1 and 26 of the Covenant.’
The Committee determined that Articles 3, 14(1) and 26 were violated as a result of the inability of married women to represent her own property in courts. This case is similar to Morales de Sierra v. Guatemala (Case 11.625), decided by the Inter-American Commission on Human Rights that held that depriving a married woman of the legal capacity to represent the union, was gender-based discrimination in violation of Article 24 American Convention . The Inter-American Court has yet to decide a case on this topic.
In the following case Mr. Karlheinz Schmidt complained that he was required to pay a fire service levy under an Act of the Land of Baden-Württemberg, which made it compulsory for men, but not women, to serve in the fire brigade or pay a financial contribution in lieu of such service. He claimed to be the victim of discrimination on the ground of sex in breach of Article 14 taken in conjunction with Article 4 (3)(d) ECHR.
Karlheinz Schmidt v. Germany
Application No. 13580/88
Judgement of 18 July 1994
Keywords: non –discrimination - civic obligations - forced labour
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 PARA. 3 (d) (Article 14+4-3-d)
21. Mr Karlheinz Schmidt complained that he was required to pay a fire service levy under an Act of the Land of Baden-Württemberg, which made it compulsory for men, but not women, to serve in the fire brigade or pay a financial contribution in lieu of such service (see paragraphs 12-14 above). He claimed to be the victim of discrimination on the ground of sex in breach of Article 14 taken in conjunction with Article 4 para. 3 (d) (Article 14.4.3.d) of the Convention [?]
22. As the Court has consistently held, Article 14 (Article 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 (Article 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, in particular, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, para. 71, and the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36). The Court reiterates that paragraph 3 of Article 4 (Article4-3) is not intended to “limit” the exercise of the right guaranteed by paragraph 2 (Article4-2), but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what “the term ‘forced or compulsory labour’ shall not include” (ce qui “n’est pas considéré comme ‘travail forcé ou obligatoire’”). This being so, paragraph 3 (Article4-3) serves as an aid to the interpretation of paragraph 2 (Article4-2). The four subparagraphs of paragraph 3 (Article4-3), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 19, para. 38).
23. Like the participants in the proceedings, the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the “normal civic obligations” envisaged in Article 4 para. 3 (d) (Article4-3-d). It observes further that the financial contribution which is payable - in lieu of service - is, according to the Federal Constitutional Court (see paragraph 15 above), a “compensatory charge”. The Court therefore concludes that, on account of its close links with the obligation to serve, the obligation to pay also falls within the scope of Article 4 para. 3 (d) (Article4-3-d). It follows that Article 14 read in conjunction with Article 4 para. 3 (d) (Article 14+4-3-d) applies. B. Compliance 24. For the purposes of Article 14 (Article 14) a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Abdulaziz, Cabales and Balkandali judgment, cited above, pp. 35-36, para. 72). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67, and the Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 29, para. 27).
25. According to the applicant, the Contracting States do not enjoy any margin of appreciation as regards equality of the sexes. He argued that service in the fire brigade was comparable for men and for women and that account could be taken of the biological differences between the two sexes by a sensible division of the various tasks. The concern to protect women could not in itself justify a difference of treatment in this context. As at 31 December 1991, 68,612 women had served in fire brigades in Germany and even in Baden-Württemberg the fire brigades had accepted women since 1978. The financial contribution was of a purely fiscal nature, as in Baden-Württemberg no man had ever been called upon to serve. There was in any case discrimination since women were just as capable as men of paying the levy in question.
26. The Commission in substance accepted the applicant’s argument.
27. In the Government’s view, on the other hand, the difference of treatment is based on objective and reasonable grounds. Fire brigade duty is a traditional civic obligation in Baden-Württemberg, defined by the Federal Constitutional Court as a “genuine and potential obligation to perform a public duty”. The Government maintained that, in making this duty compulsory solely for the male sex, the legislature had taken account of the specific requirements of service in the fire brigade and the physical and mental characteristics of women. The sole aim which it had pursued in this respect was the protection of women. The financial contribution was purely compensatory in nature.
28. The Court notes that some German Länder do not impose different obligations for the two sexes in this field and that even in Baden-Württemberg women are accepted for voluntary service in the fire brigade. Irrespective of whether or not there can nowadays exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what is finally decisive in the present case is that the obligation to perform such service is exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person is in practice obliged to serve in a fire brigade. The financial contribution has - not in law but in fact - lost its compensatory character and has become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex can hardly be justified.
29. There has accordingly been a violation of Article 14 taken in conjunction with Article 4 para. 3 (d) (Article 14.4.3.d) of the Convention.
The Court stressed that any differential treatment on the grounds of sex requires a compelling justification and that such justification was not provided in this case. The Court decided that imposing civic obligations upon men but not on women had no objective and reasonable justification, therefore the different treatment was discriminatory in the case of the applicant.
In the following case the applicant was a Netherlands national who had never been married and had no children. He complained that according to the General Child Care Benefits Act, unmarried childless women of 45 years or over were exempted from paying the contributions but men in the same situation were not exempted from the tax.
Van Raalte v. The Netherlands
Application No. 20060/92
Judgement of 21 February 1997
Keywords: accessory and autonomous character of Article 14 – taxes – property - contribution to the Child Care Benefits scheme - prohibition of discrimination on the ground of sex
C. The Court’s assessment
1. Applicable principles
39. For the purposes of Article 14 (Article 14) a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, pp. 32-33, para. 24). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, ibid.). 2. Whether there has been a difference in treatment between persons in similar situations.
40. At the time of the events complained of contributions under the General Child Care Benefits Act were levied from unmarried childless men aged 45 or over but not from unmarried childless women of the same age (see paragraphs 21 and 23 above). This undoubtedly constitutes a “difference in treatment” between persons in similar situations, based on gender. The factual difference between the two categories relied on by the Government, namely their respective biological possibilities to procreate, does not lead the Court to a different conclusion. It is precisely this distinction which is at the heart of the question whether the difference in treatment complained of can be justified. 3. Whether there is objective and reasonable justification.
41. The Court notes that the General Child Care Benefits Act set up a social-security scheme to which, in principle, the entire adult population was subject, both as contributors and as potential beneficiaries. A key feature of this scheme was that the obligation to pay contributions did not depend on any potential entitlement to benefits that the individual might have (see paragraph 21 above). Accordingly the exemption in the present case ran counter to the underlying character of the scheme.
42. While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 (Article 14) requires that any such measure, in principle, applies even-handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment.
43. In the present case the Court is not persuaded that such reasons exist. In this context it must be borne in mind that just as women over 45 may give birth to children (see paragraph 17 above), there are on the other hand men of 45 or younger who may be unable to procreate. The Court further observes that an unmarried childless woman aged 45 or over may well become eligible for benefits under the Act in question; she may, for example, marry a man who already has children from a previous marriage. In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them might equally well apply to unmarried childless men or to childless couples.
44. Accordingly, irrespective of whether the desire to spare the feelings of childless women of a certain age can be regarded as a legitimate aim, such an objective cannot provide a justification for the gender-based difference of treatment in the present case.
45. There has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (Article 14. P1-1).
In this case the Court maintained its requirement that only compelling reasons can justify a difference in treatment based on gender (see above Karlheinz Schmidt v. Germany). The Court refused to accept that factual differences between genders could in themselves be a sufficient justification in this case. In fact, the Court did not consider that the variation in the possibilities to procreate was sufficient to justify a different treatment. However, the dismissal of the suggestion that unmarried women would suffer a greater emotional burden was understandable but the same would apply to unmarried childless men or childless couples.
Selected Additional cases: ECHR: Schuler-Zgraggen v. Switzerland, Application No. 14518/89, Judgement of 24 June 1993; Willis v. The United Kingdom, Application No. 36042/97, Judgment of 11 June 2002. HRC:Broeks v. the Netherlands , Communication No. 172/1984, Views of 9 April 1987;Vos v. The Netherlands, Communication No, 786/1997, Views of 26 July 1999 and Zwaan-de-Vries v. The Netherlands, Communication No. 182/1984, Views of 9 April 1987 (see below).
The international supervisory organs examined here have only decided a few cases in relation to the prohibition of discrimination based on race. Cases decided by the European Court of Human Rights regarding discrimination suffered by the Roma population will mainly be discussed here.
The following case, also mentioned under the right to life, refers to the complaint alleging that Mr. Angelov and Mr Petkov were killed by the police using lethal force without absolute necessity. The applicants also complained that the authorities had failed to conduct an effective investigation into the deaths. In 1996 Mr Angelov and Mr Petkov, who were twenty-one years old of Roma origin, were serving short sentences for being absent without leave from compulsory military service. They had escaped from prison peacefully by simply leaving their place of work, which was outside the detention facility. When the police arrested them, they tried to escape and were shot dead. Neither man was armed or represented a danger to the arresting officers or third parties. No effective investigation was carried out into their deaths. It is important to stress that the applicants alleged that prejudice and hostile attitudes towards persons of Roma origin had played a decisive role in the events leading up to the deaths of Mr Angelov and Mr Petkov and the fact that no meaningful investigation was carried out. They submitted that popular prejudice against the Roma in Bulgaria was widespread and had frequently manifested itself in acts of racially motivated violence, to which the authorities reacted with inadequate investigations that resulted in impunity. The applicants referred to the fact that the victims’ ethnic origin was known to the officers who tried to apprehend them. In their view, the officials in charge of the arrest would not have fired an automatic rifle in a populated area had they not been in the Roma part of the village.
Nachova and et al. v. Bulgaria
Application Nos. 43577/98; 43579/98
Judgement of 26 February 2004
Keywords: life - non-discrimination - Roma population
B. The Court’s assessment
155. The right to life under Article 2 of the Convention and the prohibition of discrimination in general, and of racial and ethnic discrimination in particular, under Article 14 reflect basic values of the democratic societies that make up the Council of Europe. Acts motivated by ethnic hatred that lead to deprivation of life undermine the foundations of those societies and require particular vigilance and an effective response by the authorities.
156. As stated above (see paragraphs 116-19 above), States have a general obligation under Article 2 of the Convention to conduct an effective investigation in cases of deprivation of life.
157. That obligation must be discharged without discrimination, as required by Article 14 of the Convention. The Court reiterates that where there is suspicion that racial attitudes induced a violent act it is particularly important that the official investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and ethnic hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Compliance with the State’s positive obligations under Article 2 of the Convention requires that the domestic legal system must demonstrate its capacity to enforce criminal law against those who unlawfully took the life of another, irrespective of the victim’s racial or ethnic origin (see Menson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).
158. The Court considers that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97,§ 44, ECHR 2000-IV). In order to maintain public confidence in their law enforcement machinery, contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing.
159. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom , no. 37715/97,§ 90, ECHR 2001-III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence.
160. In the present case, certain facts which should have alerted the authorities and led them to be especially vigilant and investigate possible racist motives were not examined. No attention was paid by the investigation to the fact that Major G. had fired an automatic burst in a populated area – the Roma neighbourhood of Lesura – against two unarmed, non-violent fugitives and one of the victims had wounds to the chest, not the back (suggesting that he may have turned to surrender). The force used was in any event disproportionate and unnecessary. Indeed, as stated by one witness, immediately after the incident the other military police officers had started remonstrating with Major G. telling him that he should not have fired (see paragraphs 13, 14, 16, 18-24, 37, 42 and 46-50 above).
161. Furthermore, despite information that Major G. knew some of the villagers and the village where the shooting took place, no effort was made to investigate whether or not personal hostility might have played a role in the events (see paragraphs 14 and 24 above). Evidence by one of the witnesses, Mr M.M., a neighbour of the victims, that Major G. had shouted: “You damn Gypsies” while pointing a gun at him moments after the shooting, was disregarded, although it had not been contradicted (see paragraphs 31 and 46-50).
162. The Court considers that any evidence of racist verbal abuse by law enforcement agents during an operation involving the use of force against persons from an ethnic or other minority is highly relevant to the question whether or not unlawful, hatred-induced violence has taken place. Where such evidence comes to light in the investigation, it must be verified and – if confirmed – trigger a thorough examination of all the facts in order to uncover any possible racist motives. This was not done in the present case.
163. On the basis of the above the Court finds that the authorities failed in their duty under Article 14 of the Convention, taken together with Article 2, to take all possible steps to establish whether or not discriminatory attitudes may have played a role in events.
164. The Court considers, furthermore, that the domestic authorities’ failure to discharge that duty should have an incidence on its approach in the present case in the examination of the allegation of a “substantive” violation of Article 14.
165. In cases where it is alleged that a violent act was motivated by prejudice and hatred on the basis of ethnic origin – as here – an assessment is required of such subjective inner factors as intent and state of mind. However, the Court is particularly ill-equipped to play the role of a primary tribunal of fact for establishing intent or state of mind, which is better dealt with in the context of a criminal investigation. For these reasons, the duty of Contracting States under Articles 2 and 14 of the Convention, to investigate suspicious deaths and possible discriminatory motives takes on particular importance.
166. The Court has held on many occasions that the standard of proof it applies is that of “proof beyond reasonable doubt”, but it has made it clear that that standard should not be interpreted as requiring such a high degree of probability as in criminal trials. It has ruled that proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It has been the Court’s practice to allow flexibility, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. It has resisted suggestions to establish rigid evidentiary rules and has adhered to the principle of free assessment of all evidence. The Court has also acknowledged that its task is to rule on State responsibility under international law and not on guilt under criminal law. In its approach to questions of evidence and proof, it will have regard to its task under Article 19 of the Convention to “ensure the observance of the engagements undertaken by the High Contracting Parties”, but without losing sight of the fact that it is a serious matter for a Contracting State to be found to be in breach of a fundamental right (see, among others, the following judgments: Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 64-65,§ 161; Ribitsch v. , judgment of 4 December 1995, Series A no. 336, p. 24,§ 32; Tanli v. Turkey, no. 26129/95,§ 109-11, ECHR 2001-III;Aktas v. Turkey, no. 24351/94,§ 272, ECHR 2003-V (extracts)).
167. The Court has already recognised that specific approaches to the issue of proof may be needed in cases of alleged discriminatory acts of violence. In one such case, it held that it is not excluded that a measure may be considered as discriminatory on the basis of evidence of its impact (disproportionately prejudicial effects on a particular group), notwithstanding that the measure is not specifically aimed or directed at that group (see Hugh Jordan, cited above,§ 154).
168. In addition, it has become an established view in Europe that effective implementation of the prohibition of discrimination requires the use of specific measures that take into account the difficulties involved in proving discrimination (see paragraphs 74-76 above concerning anti-discrimination legislation, including evidentiary rules tailored to deal with the specific difficulties inherent in proving discrimination). The Court has also emphasised the need for a broad interpretation of the protection provided by Article 14 of the Convention (see Thlimmenos, cited above,§ 44). Member States have expressed their resolve to secure better protection against discrimination by opening for ratification Protocol No. 12 to the Convention.
169. In the light of the above, the Court considers that in cases where the authorities have not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and have disregarded evidence of possible discrimination, it may, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government, as it has previously done in situations involving evidential difficulties (see Salman v. Turkey [GC], no.21986/93,§ 97, ECHR 2000-VII, Selmouni v. France [GC], no.25803/94,§ 87, ECHR 1999-V and Conka v. Belgium, no. 51564/99,§61, ECHR 2002-I).
170. In the present case, as the Court found above, the investigator and prosecutors at all levels ignored certain facts, failed to collect all the evidence that could have clarified the sequence of events and omitted reference in their decisions to troubling facts. As a result, the killing of Mr Angelov and Mr Petkov was labelled lawful on dubious grounds and the State agents involved were cleared of potential charges and spared criticism despite there being obvious grounds for prosecuting at least one of them. That conduct on the part of the authorities was seen by the Court as a matter of particular concern (see paragraphs 138 and 139 above). The authorities made no attempt to investigate whether discriminatory attitudes had played a role, despite having evidence before them that should have prompted them to carry out such an investigation (see paragraphs 160-164 above).
171. In these circumstances, the Court considers that the burden of proof shifts to the respondent Government, which must satisfy the Court, on the basis of additional evidence or a convincing explanation of the facts, that the events complained of were not shaped by any prohibited discriminatory attitude on the part of State agents.
172. The Government have not, however, offered any convincing explanation for the facts that may be seen as pointing to the shooting having been induced by discriminatory attitudes.
173. The Court considers it highly relevant that this is not the first case against Bulgaria in which it has found that law enforcement officers had subjected Roma to violence resulting in death. In its Velikova andAnguelova judgments, the Court noted that the complaints of racial motivation in the killing of two Roma in police custody in separate incidents were based on “serious arguments” (see Velikova, cited above,§ 94 andAnguelova, cited above,§ 168).
174. Many other incidents of alleged police brutality against Roma in Bulgaria have been reported by the European Commission against Racism and Intolerance, the European Committee for the Prevention of Torture, United Nations bodies and non-governmental organisations. It appears that some of those reports have not been contested by the Bulgarian authorities. They have apparently acknowledged the need to adopt measures to combat discrimination against Roma and are working in that direction (see paragraphs 53-55, 65 and 66 above).
175. In sum, having regard to the inferences of possible discrimination by Major G., the failure of the authorities to pursue lines of inquiry – in particular into possible racist motives – that were clearly warranted in their investigation, the general context and the fact that this is not the first case against Bulgaria in which Roma have been alleged to be the victims of racial violence at the hands of State agents, and noting that no satisfactory explanation for the events has been provided by the respondent Government, the Court finds that there has been a violation of Article 14, taken together with Article 2, of the Convention.
In this case the Court reiterated that the Bulgarian authorities had made no attempts to investigate whether discriminatory attitudes had played a role in the killings, despite having evidence before them that should have prompted them to carry out such an investigation. The Court therefore considered that the Bulgarian government had to satisfy the Court, on the basis of additional evidence or a convincing explanation of the facts that the events complained of were not shaped by any prohibited discriminatory attitude on their part. They had failed to do so. The Court considered it highly relevant that this was not the first case against Bulgaria in which it had found that law enforcement officers had subjected Roma to violence resulting in death. In its Velikova and Anguelova judgements (see right to life,Duty to carry out an effective official investigation when individuals have been killed or ‘disappeared') the Court noted that the complaints of racial motivation in the killing of two Roma in police custody in separate incidents were based on ‘serious arguments’. Other incidents of alleged police brutality against Roma in Bulgaria had been reported by the European Commission against Racism and Intolerance (ECRI), the European Committee for the Prevention of Torture (ECPT), United Nations bodies and non-governmental organisations. It appeared that some of those reports had not been contested by the Bulgarian authorities. They had apparently acknowledged the need to adopt measures to combat discrimination against Roma.
Selected additional cases: HRC: Semey v. Spain , Communication No. 986/2001, Views of 30 July 2003; Rajan v. New Zealand , Communication No. 820/1998, inadmissibility decision of 6 August 2003. ECHR: Gregory v. The United Kingdom , Application No. 22299/93, Judgement of 25 February 1995.
Discrimination based on religious belief is prohibited in all the human rights instruments examined here. Nonetheless, the case-law on the topic is limited.
The following case refers to alleged discrimination on the basis of religion as a result of a rule requiring all employees working for the national railway company to wear a hard-hat. The applicant belonged to the Sikh community and therefore wore a turban and was dismissed due to his refusal to comply with the hard-hat regulation.
Singh Bhinder v. Canada
Communication No. 208/1986
Views of 9 November 1989
Keywords: non-discrimination - religion
6.1 The Committee notes that in the case under consideration legislation which, on the face of it, is neutral in that it applies to all persons without distinction, is said to operate in fact in a way which discriminates against persons of the Sikh religion. The author has claimed a violation of article 18 of the Covenant. The Committee has also examined the issue in relation to article 26 of the Covenant.
6.2 Whether one approaches the issue from the perspective of article 18 or article 26, in the view of the Committee the same conclusion must be reached. If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.
7. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts which have been placed before it do not disclose a violation of any provision of the International Covenant on Civil and Political Rights.
Although the Committee failed to find a violation of the Covenant, it observed that de facto discrimination against persons belonging to a given religion falls under the ambit of Article 26 ICCPR.
Selected additional cases: HRC: Waldman v. Canada , Communication No. 694/1996, Views of 3 November 1999 (see below) an Riley et al. v. Canadad , Communication No. 1048/2002, inadmissibility decision of 21 March 2002.
Children born out of wedlock are commonly discriminated against in many regions of the world. Human rights supervisory bodies have stressed that states must repeal, amend or modify any legislation which discriminates against children on this ground.
At the European level, see Marckx v. Belgium (Application No. 6833/74, Judgement of 13 June 1979) (reproduced above). The Court has held that weighty reasons need to be put forward before a difference in treatment on the ground of birth out of, or within, wedlock can be regarded as compatible with the Convention (see Mazurek v. France e, Application No. 34406/97, Judgement of 1 February 2000, and Camp and Bourimi v. The Netherlands, Application No. 28369/95, Judgement of 3 Oct ober 2000). The same is true for treating a father of a child born of a relationship where the parties were living together out of wedlock differently from the father of a ‘legitimate’ child. Recently, in Pla and Puncernau v. Andorra Application No. 69498/01, Judgement of 13 July 2004) the Court reiterated that the Convention was a living instrument, to be interpreted in the light of present-day conditions and that great importance was currently attached in the member states of the Council of Europe to the question of equality between children born in and out of wedlock as regards their civil rights.
Selected additional cases: ECHR: Inze v. Austria, Application No. 15/1986, Judgement of 25 September 1987;Vermeire v. Belgium , Application No. 12849/87, Judgement of 29 November 1991, Mazurek v. France, Application No. 34406/97, Judgement of 1 February 2000; and Sahin v. Germany , Application No. 30943/96, Judgement of 8 July 2003. HRC:Gillot et al. v. France , Communication No. 932/2000, Views of 15 July 2002; Derksen v. The Netherlands , Communication No. 976/2001, Views of 1 April 2004.
Considering that the list of grounds on which discrimination is prohibited is not exhaustive, several non-explicitly listed grounds, such as ‘sexual orientation’ are also considered to be prohibited grounds of discrimination.
In the following case the applicant alleged that the Government of Australia discriminated against a homosexual man by denying him pension benefits following the death of his male partner. Under Australian law, only heterosexual married couples or heterosexual couples who were de facto married were entitled to receive pension benefits.
Young v. Australia
Communication No. 941/2000
Views of 6 August 2003
Keywords: non-discrimination - prohibition of discrimination on the ground of sexual orientation - prohibition of discrimination on the grounds of sex - effective remedy
3.1 The author complains that the State party’s refusal, on the basis of him being of the same sex as his partner, that is, due to his sexual orientation, to provide him with a pension benefit violates his right to equal treatment before the law and is contrary to Article 26. He concedes that Article 26 does not compel a State party to enact particular legislation, but argues that where it does, the legislation must comply with Article 26. The author recalls that in Broeks v. the Netherlands, Zwaan de Vries v. the Netherlands, and Danning v. the Netherlands, the Committee, in principle, found social security legislation to be subject to Article 26. He also recalls that in Toonen v. Australia the Committee recognized sexual orientation as a proscribed ground for differentiation under Article 26.
3.2 The author argues that although he could have appealed to the Commonwealth Administrative Appeals Tribunal (“AAT”) such an appeal would have had no prospect of success, as it would also have been bound by the provisions of the VEA.
Consideration of the merits
10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in Article 5, paragraph 1, of the Optional Protocol.
10.2 The author’s claim is that the State party’s refusal to grant him a pension on the ground that he does not meet with the definition of “dependant”, for having been in a same-sex relationship with Mr. C, violates his rights under Article 26 of the Covenant, on the basis of his sexual orientation. The Committee notes the State party’s argument that had the domestic authorities applied all the facts of the author’s case to the VEA it would have found other reasons to dispose of the author’s claim, reasons that apply to every applicant regardless of sexual orientation. The Committee also notes that the author contests this view that he did not have a prima facie right to a pension. On the arguments provided, the Committee observes that it is not clear whether the author would in fact have fulfilled the other criteria under the VEA, and it recalls that it is not for the Committee to examine the facts and evidence in this regard. However, the Committee notes that the only reason provided by the domestic authorities in disposing of the author’s case was based on the finding that the author did not satisfy the condition of “living with a person of the opposite sex”. For the purposes of deciding on the author’s claim, this is the only aspect of the VEA at issue before the Committee.
10.3 The Committee notes that the State party fails specifically to refer to the impugned sections of the Act (sections 5(E), 5(E) 2 and 11) on the basis of which the author was refused a pension because he did not meet with the definition of a “member of a couple” by not “living with a member of the opposite sex”. The Committee observes that the State party does not deny that the refusal of a pension on this basis is a correct interpretation of the VEA but merely refers to other grounds in the Act on which the author’s application could have been rejected. The Committee considers, that a plain reading of the definition “member of a couple” under the Act suggests that the author would never have been in a position to draw a pension, regardless of whether he could meet all the other criteria under the VEA, as he was not living with a member of the opposite sex. The State party does not contest this. Consequently, it remains for the Committee to decide whether, by denying a pension under the VEA to the author, on the ground that he was of the same sex as the deceased Mr. C, the State party has violated Article 26 of the Covenant.
10.4 The Committee recalls its earlier jurisprudence that the prohibition against discrimination under Article 26 comprises also discrimination based on sexual orientation. It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. It transpires from the contested sections of the VEA that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a “marriage-like” relationship) fulfill the definition of “member of a couple” and therefore of a “dependant”, for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated Article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.
11. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal a violation by Australia of Article 26 of the Covenant.
12 Pursuant to Article 2, paragraph 3(a), of the Covenant, the Committee concludes that the author, as a victim of a violation of Article 26 is entitled to an effective remedy, including the reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law. The State party is under an obligation to ensure that similar violations of the Covenant do not occur in the future.
The Human Rights Committee found that Australia had not demonstrated how a distinction between same-sex partners, which excluded provision of pension benefits, and unmarried heterosexual partners, who were granted such benefits, was reasonable and objective. Australia challenged the admissibility of the communication on the grounds that Mr. Young was not a victim since, regardless of the decisions of the veterans’ affairs authorities, he could not establish a prima facie entitlement to a pension and therefore that his sexual orientation was not determinative of the issue. The Committee observed that the Australian domestic authorities refused Mr. Young a pension on the grounds that he did not meet the definition of being a ‘member of a couple’ under the Veteran’s Entitlement Act (VEA), as he had not lived with a ‘person of the opposite sex’. The Committee found that it was ‘clear that at least those domestic authorities seized of the case found that the author’s sexual orientation [was]‘determinative.’ In 1994 in Toonen v. Australia (Communication No. 488/1992, Views of 31 March 1994, also discussed under the right to privacy, Sexual Privacy ), the Committee noted that ‘sexual orientation’ is a prohibited ground for discrimination falling under the grounds of ‘sex’ included in Article 26 ICCPR. In 2002, in Muller and Engelhard v. Namibia (Communication No. 919/2000, Views of 26 March 2002), the Committee referred to ‘gender’ as a prohibited ground for discrimination. In the case under examination, decided in 2003 the Committee does not clearly establish whether it followed the Toonen case in that sexual orientation is included in ‘sex’ or whether sexual orientation falls under ‘other status’ (e.g. gender). It seems preferable to follow the approach adopted in the Toonen case, because discrimination based on sex often attaches better procedural protection at the national level than if one has to rely on ‘other status’.
In B.B. v. The United Kingdom, the applicant claimed that he was discriminated against on grounds of his sexual orientation by the existence of, and by his prosecution under, legislation that made it a criminal offence to engage in homosexual activities with men under the age of eighteen whereas the age of consent for heterosexual activities was fixed at sixteen years of age. He also complained that he was discriminated against on the grounds of age by the decision to prosecute him while failing to prosecute the sixteen-year-old boy who would technically have been as guilty as he was of the same offence.
European Court of Human Rights
Application No. 53760/00
Judgement of 10 February 2004
Keywords: non-discrimination - prohibition of discrimination on the ground of sexual orientation - prohibition of discrimination on the ground of age
B. The Court’s assessment
1.Complaint of discrimination on the grounds of sexual orientation
30.The Court recalls that, in the case of Sutherland v. the United Kingdom, the Commission was of the opinion that the existence of legislation making it a criminal offence to engage in male homosexual activities unless both parties had consented and attained the age of 18 while the age of consent for heterosexual activities was set at 16 years of age violated Article 14 of the Convention taken in conjunction with Article 8 (Sutherland v. the United Kingdom, (striking out) [GC], no. 25186/94, 27 March 2001 and Commission’s report of 1 July 1997, unpublished). The Court further recalls its finding of a violation of Article 14 taken in conjunction with Article 8 due to the existence of, and in one case the conviction of individuals under, legislation which criminalised homosexual activity with men of 14 to 18 years of age when no such criminal offence existed for heterosexual or lesbian relations (S.L. v. Austria, no. 45330/99, 9 January 2003 and L. and V. v. Austria , nos. 39392/98 and 39829/98, 9 January 2003).
31. The Court notes that, while domestic law has since been amended, the present applicant was prosecuted under legislation which made it a criminal offence to engage in homosexual activities with men under 18 years of age while the age of consent for heterosexual relations was fixed at 16 years of age. It further notes that the prosecution did not proceed with the case to trial and that the applicant was subsequently formally acquitted of the charges against him. The Government’s concession outlined at paragraph 22 above is also noted. However, the Court considers that the circumstances of the present case are such that it should examine the applicant’s complaints (S.B.C. v. the United Kingdom, no. 39360/98,§ 19 and 20, 19 June 2001, unreported).
32. The Court sees no reason to reach a conclusion different to those reached in the cases of S.L. v. Austria and L. and V. v. Austria (cited above). It therefore finds that the existence of, and the applicant’s prosecution under, the legislation applicable at the relevant time constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention.
2. Complaint of discrimination on the grounds of age
33. In light of its finding of a violation of Article 14 of the Convention in conjunction with Article 8 on the basis of discrimination on the grounds of sexual orientation, the Court does not consider it necessary also to consider the applicant’s complaint of discrimination on the grounds of age.
The Court held unanimously that the existence of, and the applicant’s prosecution under, the legislation applicable at the relevant time constituted a violation of Article 14 taken in conjunction with Article 8 (right to respect for private life). The Court found that the different treatment constituted discrimination on the grounds of ‘sexual orientation’ despite the fact that Article 14 ECHR does not explicitly refer to this ground.
Selected additional cases: HRC: Muller and Engelhard v. Namibia, Communication No. 919/2000, Views of 26 March 2002. ECHR: Lustig-Prean and Beckett v. The United Kingdom , Application Nos. 31417/96, 32377/96, Judgement of 27 September 1999; Dudgeon v. The United Kingdom , Application No. 7525/76, Judgement of 22 October 1981; Norris v. Ireland , Application No. 10581/83, Judgement of 26 October 1988; B. v.France, Application No. 13343/87, Judgement of 25 March 1992;Modinos v. Cyprus , Application No. 15070/89, Judgement of 22 April 1994; and L. and V. v. Austria, Application Nos. 39392/98 and 39829/98, Judgement of 9 January 2003.
Prohibition of discrimination on grounds of age is not explicitly included in the human rights instruments under examination, with the exception of Article 18 of the African Charter which prohibits discrimination against women, children, the aged and the disabled. It is worth stressing that this article provides for ‘special measures’ of protection in respect of the aged and the disabled.
In the following case, the authors of the communication, all experienced pilots, were working for an airline which terminated the authors’ contracts upon their reaching the age of sixty, pursuant to a compulsory age-based retirement policy. They alleged, inter alia, that Australia had violated their rights to non-discrimination on the basis of age under Article 26, through failing to protect them from terminations in the workplace when they turned sixty.
Love et al. v. Australia
Human Rights Committee
Communication No. 983/2001
Views of 25 March 2003
Keywords: non-discrimination - prohibition of discrimination on the ground of other status - prohibition of discrimination on the ground of age - objective and reasonable justification
The facts as presented
2.1 On 27 October 1989, 24 November 1989, 10 January 1990 and 24 March 1990, respectively, Messrs. Ivanoff, Love, Bone and Craig, all experienced pilots, commenced contracts as pilots on domestic aircraft operated by Australian Airlines, now part of Qantas Airlines Limited. Australian Airlines was wholly State-owned and operated by government-appointed management. The airline terminated the authors’ contracts upon their reaching 60 years of age pursuant to a compulsory age-based retirement policy. The respective dates of the authors’ compulsory retirement were the day before they reached 60 years of age, that is, for Mr. Craig, 29 August 1990; for Mr. Ivanoff, 18 September 1990; for Mr. Bone, 12 October 1991, and, for Mr. Love, on 17 May 1992. The contracts under which they were employed did not include a specific clause to provide for compulsory retirement at that or any other age. Each of the authors held valid pilot licences, as well as medical certificates, at the time of the terminations. Following the termination, Mr. Ivanoff was engaged by another airline company as a B727 captain and in 1997 was working as a B737 simulator instructor.
2.2 From 25 December 1991 onwards, the Airline refused the authors’ requests for re-employment negotiations. On 12 June 1992, the four authors submitted a complaint to the Australian Human Rights and Equal Opportunities Commission (HREOC) claiming that they had been discriminated against on the basis of their age. The investigation of the complaints was drawn out, according to the authors, due to the airline’s refusal to take part in negotiation or conciliation, and, possibly, contentious medical evidence. Following the takeover in 1993 of Australian Airlines by the Government-owned Qantas, Qantas was entirely sold to private ownership in a transaction completed on 31 July 1995.
2.3 On 30 March 1994, the federal Industrial Relations Act 1988 was amended to make it unlawful to terminate a person’s employment on the grounds of his or her age. Following that amendment, a Mr Allman, also a pilot employed by Australian Airlines, lost his job upon reaching 60 years of age. He took an action against the company and, on 18 March 1995, the Industrial Relations Court found in his favour. Mr Allman was re-employed as a result. Since that date, Quantas (having taken over Australian Airlines) ceased to impose a retirement age on its domestic pilots.
2.4 On 14 August 1995, the (then) Human Rights Commissioner, who performs HREOC’s function of inquiring into any act or practice that may constitute discrimination, reviewed the findings of previous Commissioners who had concluded that mandatory retirement was discriminatory and formed the same opinion. On 9 November 1995, the Commissioner convened an inquiry into the authors’ dismissals, taking submissions from Qantas (the respondent) and the authors. On 12 April 1996, the Commissioner decided that the compulsory retirement of the authors upon reaching the age of 60 constituted discrimination in employment based on age. It rejected the argument that the age limit of 60 was per se—required to ensure the safety of flight operations. The Commissioner made the following recommendations to Qantas: (1) the airline should discontinue the practice of compulsorily retiring its employees on the sole basis that they reach 60 years of age; (2) that the airline should pay the authors compensation for loss of earnings suffered as a result of the discriminatory conduct; (3) that the airline should make the necessary arrangements for Mr. Ivanoff to undertake the Qantas “over 60” medical tests and, if these and other requirements of the Civil Aviation Authority were satisfied, to re-employ Mr. Ivanoff and where necessary retrain him as a pilot to fly equivalent aircraft or aircraft as near to equivalent as possible to those he was flying prior to his compulsory retirement. More generally, it recommended to the federal Government to institute a comprehensive national ban on age discrimination, including a removal of the mandatory retirement provisions in the Public Service Act 1922 and other federal legislation.
2.5 Qantas, now in private hands, refused to accept the findings of the Commissioner and rejected its recommendation to pay compensation. On 10 May 1996, its legal advisors responded to HREOC that it had generally discontinued the practice of compulsory retirement at 60, however it considered that it was not appropriate to accept the recommendations for re-employment or compensation made by HREOC in the specific case. It noted that its policy, which had been based primarily on air safety, was lawful, and had not been rendered unlawful by the legislation empowering HREOC to make recommendations. It recalled that it had made plain during the HREOC hearings that it would not be inclined to accept recommendations for re-employment or compensation.
3. The authors allege that Australia has violated their rights to non-discrimination on the basis of age under Article 26, through failing to protect them from terminations in the workplace made on this proscribed ground. They also allege a violation of Article 26’s protection against age discrimination in the refusal of the Australian Airlines to engage in, and the failure of the State to facilitate, from 25 December 1991, re-employment negotiations concerning Mr. Ivanoff. Moreover, the authors argue that, where violations have occurred, the State party is under an obligation to comply with the recommendations for redress of its own human rights commission. In response to the State party’s submission, the authors further add a violation of Article 2 in that the State party has failed to provide an effective remedy for a violation of a Covenant right.
Consideration of the merits
8.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in Article 5, paragraph 1 of the Optional Protocol.
8.2 The issue to be decided by the Committee on the merits is whether the author(s) have been subject to discrimination, contrary to contrary to Article 26 of the Covenant. The Committee recalls its constant jurisprudence that not every distinction constitutes discrimination, in violation of Article 26, but that distinctions must be justified on reasonable and objective grounds, in pursuit of an aim that is legitimate under the Covenant. While age as such is not mentioned as one of the enumerated grounds of prohibited discrimination in the second sentence of Article 26, the Committee takes the view that a distinction related to age which is not based on reasonable and objective criteria may amount to discrimination on the ground of “other status” under the clause in question, or to a denial of the equal protection of the law within the meaning of the first sentence of Article 26. However, it is by no means clear that mandatory retirement age would generally constitute age discrimination. The Committee takes note of the fact that systems of mandatory retirement age may include a dimension of workers’ protection by limiting the life-long working time, in particular when there are comprehensive social security schemes that secure the subsistence of persons who have reached such an age. Furthermore, reasons related to employment policy may be behind legislation or policy on mandatory retirement age. The Committee notes that while the International Labour Organisation has built up an elaborate regime of protection against discrimination in employment, mandatory retirement age does not appear to be prohibited in any of the ILO Conventions. These considerations will of course not absolve the Committee’s task of assessing under Article 26 of the Covenant whether any particular arrangement for mandatory retirement age is discriminatory.
8.3 In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant. As to the reasonable and objective nature of the distinction made on the basis of age, the Committee takes into account the widespread national and international practice, at the time of the author’s dismissals, of imposing a mandatory retirement age of 60. In order to justify the practice of dismissals maintained at the relevant time, the State party has referred to the ICAO regime which was aimed at, and understood as, maximising flight safety. In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love’s dismissal, based on objective and reasonable considerations. Consequently, the Committee is of the view that it cannot establish a violation of Article 26.
8.4 In the light of the above finding that Mr Love did not suffer discrimination in violation of Article 26, it is unnecessary to decide whether the dismissal was directly imputable to the State party, or whether the State party’s responsibility would be engaged by a failure to prevent third party discrimination.
9. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of Article 26 of the Covenant.’
Although the Committee did not find a violation of Article 26 ICCPR because it found that the different treatment was based on objective and reasonable considerations (the aim of maximising safety to passengers), it clearly stated that age is a prohibited ground for discrimination although it is not expressly mentioned in Article 26 ICCPR.
Selected additional cases: HRC: Schmitz-de-Jong v. The Netherlands s, Communication No. 855/199, Views of 16 July 2001. ECHR: B.B. v. The United Kingdom, Application No. 53760/00, Judgement of 10 February 2004 (see above).
Some provisions explicitly refer to ‘national origin’ as a prohibited ground for discrimination but it is unclear if this term applies to ‘non-nationals’. This point is, however, no longer of great relevance because the notion of ‘other status’ as prohibited grounds for discrimination implies that ‘nationality’ and ‘citizenship status’ could also be prohibited grounds for discrimination.
In the following case, the complainants claimed to be victims of discrimination since French legislation provided for larger pensions for soldiers of French nationality compared to retired soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960.
Gueye et al. v. France
Human Rights Committee
Communication No. 196/1983
Views of 3 April 1989
Keywords: non-discrimination - social security – nationality - non-national
Views under Article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication (initial letter of 12 October 1985 and subsequent letters of 22 December 1986, 6 June 1987 and 21 July 1988) are Ibrahima Gueye and 742 other retired Senegalese members of the French Army, residing in Senegal. They are represented by counsel.
1.2 The authors claim to be victims of a violation of Article 26 of the Covenant France because of alleged racial discrimination in French legislation, which provides for different treatment in the determination of pensions of retired soldiers of Senegalese nationality who served in the French Army prior to the dependence of Senegal in 1960 and who receive pensions that are inferior to those enjoyed by retired French soldiers of French nationality.
1.3 It is stated that, pursuant to Law No. 51-561 of 18 May 1951 and Decree No. 51-590 of 23 May 1951, retired members of the French Army, whether French or Senegalese, were treated equally. The acquired rights of Senegalese retired soldiers were respected after independence in 1960 until the Finance Act No. 74.1129 of December 1974 provided for different treatment of the Senegalese. Article 63 of this Law stipulates that the pensions of Senegalese soldiers would no longer be subject to the general provisions of the Code of Military Pensions of 1951. Subsequent French legislation froze the level of pensions for the Senegalese as at 1 January 1975.
1.4 The authors state that the laws in question have been challenged before the Administrative Tribunal of Poitiers, France, which rendered a decision on 22 December 1980 in favour of Dia Abdourahmane, a retired Senegalese soldier, ordering the case to be sent to the French Minister of Finance for purposes of full indemnification since 2 January 1975. The authors enclose a similar decision of the Conseil d’Etat of 22 June 1982 in the case of another Senegalese soldier. However, these decisions, it is alleged, were not implemented, in view of a new French Finance Law No. 81.1179 of 31 December 1981, applied with retroactive effect to 1 January 1975, which is said to frustrate any further recourse before the French judicial or administrative tribunals.
1.5 As to the merits of the case, the authors reject the arguments of the French authorities that allegedly justify the different treatment of retired African (not only Senegalese) soldiers on the grounds of: (a) their loss of French nationality upon independence; (b) the difficulties for French authorities to establish the identity and the family situation of retired soldiers in African countries; and (c) the differences in the economic, financial and social conditions prevailing in France and in its former colonies.
9.1 The Human Rights Committee, having considered the present communication in the sight of all the information made available to it by the parties, as provided in Article 5, paragraph 1, of the Optional Protocol, bases its views on the following facts, which appear uncontested.
9.2 The authors are retired soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960. Pursuant to the Code of Military Pensions of 1951, retired members of the French Army, whether French or Senegalese, were treated equally. Pension rights of Senegalese soldiers were the same as those of French soldiers until a new law, enacted in December 1974, provided for different treatment of the Senegalese. Law No. 79/1102 of December 1979 further extended to the nationals of four States formerly belonging to the French Union, including Senegal, the regime referred to as crystallization” of military pensions that had already applied since January 1961 to the nationals of other States concerned. Other retired Senegalese soldiers have sought to challenge the laws in question, but French Finance Law No. 81.1179 of 31 December 1981, applied with retroactive effect to January 1975, has rendered further recourse before French tribunals futile.
9.3 The main question before the Committee is whether the authors are victims of discrimination within the meaning of Article 26 of the Covenant or whether the differences in pension treatment of former members of the French Army, based on whether they are French nationals or not, should be deemed compatible with the Covenant. In determining this question, the Committee has taken into account the following considerations.
9.4 The Committee has noted the authors’ claim that they have been discriminated against on racial grounds, that is, one of the grounds specifically enumerated in Article 26. It finds that there is no evidence to support the allegation that the state party has engaged in racially discriminatory practices vis-a-vis the authors. It remains, however, to be determined whether the situation encountered by the authors falls within the purview of Article 26. The Committee recalls that the authors are not generally subject to French jurisdiction, except that they rely on French legislation in relation to the amount of their pension rights. It notes that nationality as such does not figure among the prohibited grounds of discrimination listed in Article 26, and that the Covenant does not protect the right to a pension, as such. Under Article 26, discrimination in the equal protection of the law is prohibited on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. There has been a differentiation by reference to nationality acquired upon independence. In the Committee’s opinion, this falls within the reference to “other status” in the second sentence of Article 26. The Committee takes into account, as it did in communication No. 182/1984, that “the right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26”
9.5 In determining whether the treatment of the authors is based on reasonable and objective criteria, the Committee notes that it was not the question of nationality which determined the granting of pensions to the authors but the services rendered by them in the past. They had served in the French Armed Forces under the same conditions as French citizens; for 14 years subsequent to the independence of Senegal they were treated in the same way as their French counterparts for the purpose of pension rights, although their nationality was not French but Senegalese. A subsequent change in nationality cannot by itself be considered as a sufficient justification for different treatment, since the basis for the grant of the pension was the same service which both they and the soldiers who remained French had provided. Nor can differences in the economic, financial and social conditions as between France and Senegal be invoked as a legitimate justification. If one compared the case of retired soldiers of Senegalese nationality living in Senegal with that of retired soldiers of French nationality in Senegal, it would appear that they enjoy the same economic and social conditions. Yet, their treatment for the purpose of pension entitlements would differ. Finally, the fact that the State party claims that it can no longer carry out checks of identity and family situation, so as to prevent abuses in the administration of pension schemes cannot justify a difference in treatment. In the Committee’s opinion, mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment. The Committee concludes that the difference in treatment of the authors is not based on reasonable and objective criteria and constitutes discrimination prohibited by the Covenant.
10. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the events in this case, in so far as they produced effects after 17 May 1984 (the date of entry into force of the Optional Protocol for France), disclose a violation of Article 26 of the Covenant.’
The Committee rejected the government’s arguments. It was not the question of nationality that determined the granting of pensions but the services rendered by them in the past, which the facts of the case indicated were equal to those rendered by their French counterparts. Mere administrative inconvenience or the possibility of abuse of pension rights cannot be invoked to justify unequal treatment. Finally, differences in the economic, financial and social conditions between France and Senegal could not be invoked as a legitimate justification: for example; all retired soldiers living in Senegal, whether of Senegalese nationality or French nationality in Senegal, would face the same economic and social conditions.
In the following case the author, a Turkish national, had an open-ended residence permit in Austria. He was an employee of the ‘Association for the Support of Foreigners’ in Linz. He was considered ineligible to be elected for the Association’s work-council because according to the relevant labour law the right to stand for election was limited to Austrian nationals or members of the European Economic Area (EEA). Austria had a reservation to the ICCPR as to difference in treatment between Austrian nationals and non-nationals and the Committee therefore examined the claim in relation to the distinction made in the state party’s law between EEA nationals and other non-nationals.
Karakurt v. Austria
Communication No. 965/2000,
Views of 4 April 2002
Keywords: right to take part in the conduct of public affairs - prohibition of discrimination on the ground of other status - prohibition of discrimination on the ground of race – employment – nationality - objective and reasonable justification - reservation
The facts as presented by the author
3.1. The author possesses (solely) Turkish citizenship, while holding an open-ended residence permit in Austria. He is an employee of the ‘Association for the Support of Foreigners’ in Linz, which employs 10 persons in total. On 24 May 1994, there was an election for the Association’s work-council (‘Betriebsrat’) which has statutory rights and responsibilities to promote staff interests and to supervise compliance with work conditions. The author, who fulfilled the formal legal requirements of being over 19 years old and having been employed for over six months, and another employee, Mr Vladimir Polak, were both elected to the two available spaces on the work-council.
3.2. On 1 July 1994, Mr Polak applied to the Linz Regional Court for the author to be stripped of his elected position on the grounds that he had no standing to be a candidate for the work-council. On 15 September 1994, the Court granted the application, on the basis that the relevant labour law, that is s.53(1) Industrial Relations Act (Arbeitsverfassungsgesetz), limited the entitlement to stand for election to such work-councils to Austrian nationals or members of the European Economic Area (EEA). Accordingly, the author, satisfying neither criteria, was excluded from standing for the work-council.
3.3. On 15 March 1995 the Linz Court of Appeal dismissed the author’s appeal and upheld the lower Court’s reasoning. It also held that no violation of Article11 of the European Convention on Human Rights (ECHR) was involved, considering that the right to join trade unions had not been interfered with. On 21 April 1995, the author appealed to the Supreme Court, including a request for a constitutional reference (including in terms of the ECHR) of s.53(1) of the Act by the Constitutional Court.
3.4. On 21 December 1995, the Supreme Court discussed the author’s appeal and denied the request for a constitutional reference. The Court considered that the work-council was not an ‘association’ within the meaning of Article11 ECHR. The work-council was not an association formed on a voluntary and private basis, but its organisation and functions were determined by law and was comparable to a chamber of trade. Nor were the staff as such an independent association, as they were not a group of persons associated on a voluntary basis. As to arguments of discrimination against foreigners, the Supreme Court, referring to the State party’s obligations under the International Convention for the Elimination of All Forms of Racial Discrimination, considered the difference in treatment between Austrian nationals and foreigners to be justified both under the distinctions that the European economic treaties draw in labour matters between nationals and non-nationals, and also on account of the particular relationship between nationals and their home State. Moreover, as a foreigner’s stay could be limited and subjected to administrative decision, the statutory period of membership in a work-council was potentially in conflict.
3.5. On 24 July 1996 the author applied to the European Court of Human Rights. On 14 September 1999, the Third Chamber of the Court, by a majority, found application 32441/96 manifestly ill-founded and accordingly inadmissible. The Court held that the work-council, as an elected body exercising functions of staff participation, could not be considered an ‘association’ within Article 11 ECHR, or that the statutory provisions in question interfered with any such rights under this Article.
4.1 The author contends that s.53(1) of the Act and the State party’s Courts’ decisions applying that provision violate his rights to equality before the law and to be free of discrimination, contained in Article 26 of the Covenant. The author refers to the Committee’s findings of violations of gender-specific legislation in Broeks v Netherlands and Zwaan-de Vries v Netherlands in this connection. The author contends that the distinction made in the State party’s law regarding eligibility to be elected to a work-council as between Austrian/EEA nationals and other nationals has no rational or objective foundation.
4.2. The author contends that where an employee receives the trust, in the form of the vote, of fellow employees to represent their interests upon the work-council, that choice should not be denied by law simply on the basis of citizenship. It is argued that there can be no justification for the law’s assumption that an Austrian/EEA national can better represent employee’s interests. Nor, according to the author, does the law limit the exclusion of non-nationals to, for instance, those who do not have a valid residence period for the term of office or are not fluent in the German language, and so the exclusion is overbroad. It is contended that the reservation of the State party to Article 26 of the Covenant should not be interpreted as legitimising any unequal treatment between nationals and non-nationals.
4.3 As to issues of admissibility, the author concedes the State party’s reservation to Article 5 of the Optional Protocol, but argues that the Committee’s competence to consider this communication is not excluded as the European Court only considered the ‘association’ issue under Article 11 ECHR and did not examine issues of discrimination and equality before the law. The author points out that Article 26 of the Covenant finds no equivalent in the European Convention, and so the communication should be held admissible.
The State party’s observations on admissibility and merits
5.1 The State party, by submissions of 31 July 2001 and 14 March 2002, contests both the admissibility and the merits of the communication.
5.2 As to admissibility, the State party argues that the European Court of Human Rights has already considered the same matter, and that accordingly, by virtue of the State party’s reservation to Article 5 of the Optional Protocol, the Committee is precluded from examining the communication.
5.3 As to the merits, the State party advances three arguments as to why there is no violation of the Covenant. Firstly, the State party argues that the claim, properly conceived, is a claim under Article 26 in conjunction with Article 25, as the right to be elected to work-councils is a political right to conduct public affairs under Article 25. Article 25, however, as confirmed in the Committee’s General Comment 18, explicitly acknowledges the right of States parties to differentiate on the grounds of citizenship in recognising this right. Accordingly, the Covenant does not prevent the State party from granting only its citizens the right to participate in the conduct of political affairs, and for this reason alone the claims must fail.
5.4 Secondly, the State party submits that the Committee is precluded by its reservation to Article 26 of the Covenant from considering the communication. The State party argues that it has excluded any obligation to treat equally nationals and non-nationals, thereby harmonising its obligations under the Covenant with those it has assumed under the International Covenant on the Elimination of All Forms of Racial Discrimination (see Article 1, paragraph 2). Accordingly, it has assumed no obligation under Article 26 to confer the treatment accorded nationals also to foreigners, and the author has no right under Article 26 to be treated in the same way as Austrian nationals in respect of eligibility to stand for election to the work-council.
5.5 Thirdly, the State party submits that, if the Committee reaches an assessment of whether the difference in treatment between the author and Austrian/EEA nationals is justified, the differentiation is based on reasonable and objective grounds. The State party argues that the privilege accorded EEA nationals is the result of an international law obligation entered into by the State party on the basis of reciprocity, and pursues the legitimate aim of abolishing differences in treatment of workers within European Community/EEA Member States. The State party refers to the jurisprudence of the Committee for the proposition that a privileged position of members of certain states created by an agreement of international law is permissible from the perspective of Article 26. The Committee observed that creating distinguishable categories of privileged persons on the basis of reciprocity operated on a reasonable and objective basis.
5.6 The State party refers to the decision of its Supreme Court of 21 December 1995, which, relying on the jurisprudence of the European Court of Human Rights on the justification for treating Community nationals preferentially, held that the European Accession Treaty constituted an objective justification for different legal status of Austrian/EEA nationals and nationals of third countries.
5.7 The State party points out in conclusion that the issue of whether, as a matter of directly applicable European law, Turkish employees have the right to stand for election to work-councils, is a matter currently being litigated before the European Court of Justice. It emphasises however that even if the outcome is that there is such a right, which would satisfy the object of the author’s current complaint, the distinction in the current law between Austrian/EEA nationals and others remains objectively justified and accordingly consistent with Article 26.
Examination of the merits
8.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as required by Article 5, paragraph 1, of the Optional Protocol.
8.2 As to the State party’s argument that the claim is, in truth, one under Article 25 of the Covenant, the Committee observes that the rights protected by that Article are to participation in the public political life of the nation, and do not cover private employment matters such as the election of an employee to a private company’s work-council. It accordingly finds Article 25, and any adverse consequences possibly flowing for the author from it, not applicable to the facts of the present case.
8.3 In assessing the differentiation in the light of Article 26, the Committee recalls its constant jurisprudence that not all distinctions made by a State party’s law are inconsistent with this provision, if they are justified on reasonable and objective grounds.
8.4 In the present case, the State party has granted the author, a non-Austrian/EEA national, the right to work in its territory for an open-ended period. The question therefore is whether there are reasonable and objective grounds justifying exclusion of the author from a close and natural incident of employment in the State party otherwise available to EEA nationals, namely the right to stand for election to the relevant work-council, on the basis of his citizenship alone. Although the Committee had found in one case (N°. 658/1995, Van Oord v. The Netherlands) that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of Article 26 of the Covenant. Rather, it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has to take into account the function of a member of a work council, i.e., to promote staff interests and to supervise compliance with work conditions (see para. 3.1). In view of this, it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality. Accordingly, the Committee finds that the author has been the subject of discrimination in violation of Article 26.
9. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of Article 26 of the Covenant.
10. In accordance with Article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, consisting of modifying the applicable law so that no improper differentiation is made between persons in the author’s situation and EEA nationals.
The Human Rights Committee has set out that states parties assume an obligation under Article 26 ICCPR to confer the same treatment accorded to nationals to foreigners regarding the rights contained in the Covenant, except when there are objective and reasonable justifications for different treatment. In this case, the Committee considered that there was no objective and reasonable justification for distinction between nationals and foreigners concerning their capacity to be elected to a work council. It is worth stressing the partly dissenting individual opinion of two Committee members (Sir Nigel Rodley and Mr. Martin Scheinin). Although they agreed that there was a violation of Article 26 ICCPR, they stressed that the state party’s reservation to that provision should not be understood to preclude the Committee’s competence to examine whether the distinction between Austrian nationals and aliens was contrary to Article 26. In their view, distinctions based on citizenship fall under the notion of ‘other status’ in Article 26 and not under any of the grounds of discrimination covered by Article 1(1) of the CERD . Consequently, they noted that the Austrian reservation to Article 26 does not affect the Committee’s competence to examine whether a distinction made between citizens and aliens amounts to prohibited discrimination under Article 26 of the Covenant on other grounds than those also covered by CERD. Therefore, they noted that the Committee was not prevented from assessing whether a distinction based on citizenship was per se incompatible with Article 26 in this case.
In the following case decided by the Human Rights Committee, Mr. and Mrs. Simunek were, respectively, Polish and Czech citizens residing in Canada who were pressured by the security forces to leave Czechoslovakia in 1987. Mrs. Tuzilova was an American citizen by marriage who was resident in Switzerland and who had emigrated from Czechoslovakia in 1968. Mr. Prochazka was a Czech citizen who had also fled from Czechoslovakia in 1968. Their property had been confiscated after their departure, and in Prochazka’s case this occurred despite previous official recognition of its transfer to his father who had since died. The applicants were unable to recover their property or receive compensation because they did not meet the requirements of a law adopted in 1991 that they be citizens of the Czech and Slovak Republic and permanent residents there. The authors complained about the conditions for restitution and Prochazka also complained about the application of the law to him because he had never lost legal title to his property since its confiscation had been held null and void.
Simunek et al. v. the Czech Republic
Communication No. 516/1992
Views of 19 July 1995
Keywords: non-discrimination - discrimination, indirect – property - citizenship
3.1 Alina and Jaroslav Simunek contend that the requirements of Act 87/1991 constitute unlawful discrimination, as it only applies to “pure Czechs living in the Czech and Slovak Federal Republic”. Those who fled the country or were forced into exile by the ex-communist regime must take a permanent residence in Czechoslovakia to be eligible for restitution or compensation. Alina Simunek, who lived and worked in Czechoslovakia for eight years, would not be eligible at all for restitution, on account of her Polish citizenship. The authors claim that the Act in reality legalizes former Communist practices, as more than 80% of the confiscated property belongs to persons who do not meet these strict requirements.
3.2 Alina Simunek alleges that the conditions for restitution imposed by the Act constitute discrimination on the basis of political opinion and religion, without however substantiating her claim.
3.3 Dagmar Hastings Tuzilova claims that the requirements of Act 87/1991 constitute unlawful discrimination, contrary to article 26 of the Covenant.
3.4 Josef Prochazka also claims that he is a victim of the discriminatory provisions of Act 87/1991; he adds that as the court decided, with retroactive effect, that the confiscation of his property was null and void, the law should not be applied to him at all, as he never lost his legal title to his property, and because there can be no question of ‘restitution’ of the property.
The Committee’s admissibility decision:
4.3 The Committee noted that the confiscation and sale of the property in question by the authorities of Czechoslovakia occurred in the 1970’s and 1980’s. Irrespective of the fact that all these events took place prior to the date of entry into force of the Optional Protocol for the Czech Republic, the Committee recalled that the right to property, as such, is not protected by the Covenant.
4.4 The Committee observed, however, that the authors complained about the discriminatory effect of the provisions of Act 87/1991, in the sense that they apply only to persons unlawfully stripped of their property under the former regime who now have a permanent residence in the Czech Republic and are Czech citizens. Thus the question before the Committee was whether the law could be deemed discriminatory within the meaning of article 26 of the Covenant.
4.5 The Committee observed that the State party’s obligations under the Covenant applied as of the date of its entry into force. A different issue arose as to when the Committee’s competence to consider complaints about alleged violations of the Covenant under the Optional Protocol was engaged. In its jurisprudence under the Optional Protocol, the Committee has consistently held that it cannot consider alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after the entry into force of the Optional Protocol. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of the previous violations of the State party.
Examination of the merits
11.2 This communication was declared admissible only insofar as it may raise issues under article 14, paragraph 6, and article 26 of the Covenant. With regard to article 14, paragraph 6, the Committee finds that the authors have not sufficiently substantiated their allegations and that the information before it does not sustain a finding of a violation.
11.3 As the Committee has already explained in its decision on admissibility (para. 4.3 above), the right to property, as such, is not protected under the Covenant. However, a confiscation of private property or the failure by a State party to pay compensation for such confiscation could still entail a breach of the Covenant if the relevant act or omission was based on discriminatory grounds in violation of article 26 of the Covenant.
11.4 The issue before the Committee is whether the application of Act 87/1991 to the authors entailed a violation of their rights to equality before the law and to the equal protection of the law. The authors claim that this Act, in effect, reaffirms the earlier discriminatory confiscations. The Committee observes that the confiscations themselves are not here at issue, but rather the denial of a remedy to the authors, whereas other claimants have recovered their properties or received compensation therefor.
11.5 In the instant cases, the authors have been affected by the exclusionary effect of the requirement in Act 87/1991 that claimants be Czech citizens and residents of the Czech Republic. The question before the Committee, therefore, is whether these preconditions to restitution or compensation are compatible with the non-discrimination requirement of article 26 of the Covenant. In this context the Committee reiterates its jurisprudence that not all differentiation in treatment can be deemed to be discriminatory under article 26 of the Covenant [ Zwaan de Vries v. The Netherlands, Communication No. 182/1984, Views adopted on 9 April 1987, para. 13.]. A differentiation which is compatible with the provisions of the Covenant and is based on reasonable grounds does not amount to prohibited discrimination within the meaning of article 26.
11.6 In examining whether the conditions for restitution or compensation are compatible with the Covenant, the Committee must consider all relevant factors, including the authors’ original entitlement to the property in question and the nature of the confiscations. The State party itself acknowledges that the confiscations were discriminatory, and this is the reason why specific legislation was enacted to provide for a form of restitution. The Committee observes that such legislation must not discriminate among the victims of the prior confiscations, since all victims are entitled to redress without arbitrary distinctions. Bearing in mind that the authors’ original entitlement to their respective properties was not predicated either on citizenship or residence, the Committee finds that the conditions of citizenship and residence in Act 87/1991 are unreasonable. In this connection the Committee notes that the State party has not advanced any grounds which would justify these restrictions. Moreover, it has been submitted that the authors and many others in their situation left Czechoslovakia because of their political opinions and that their property was confiscated either because of their political opinions or because of their emigration from the country. These victims of political persecution sought residence and citizenship in other countries. Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation.
11.7 The State party contends that there is no violation of the Covenant because the Czech and Slovak legislators had no discriminatory intent at the time of the adoption of Act 87/1991. The Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with article 26. But an act which is not politically motivated may still contravene article 26 if its effects are discriminatory.
11.8 In the light of the above considerations, the Committee concludes that Act 87/1991 has had effects upon the authors that violate their rights under article 26 of the Covenant.
12.1 The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the denial of restitution or compensation to the authors constitutes a violation of article 26 of the International Covenant on Civil and Political Rights.
12.2 In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, which may be compensation if the properties in question cannot be returned. To the extent that partial restitution of Mr. Prochazka’s property appears to have been or may soon be effected (para. 10.2), the Committee welcomes this measure, which it deems to constitute partial compliance with these Views. The Committee further encourages the State party to review its relevant legislation to ensure that neither the law itself nor its application is discriminatory.
12.3 Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee’s Views.
The Committee found the denial of restitution or compensation to the authors in violation of Article 26 ICCPR. The Committee took into account that the state party itself was responsible for the departure of the authors and considered that it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation. The Committee acknowledged the state’s argument that the law did not have a discriminatory intent at the time of its adoption in 1991. However, the Committee recalled that it needed to consider whether ‘effects’ of the legislation were compatible with Article 26. In its views, the Committee did not find justification for the difference in treatment. The Committee reasoned that its decision did not preclude the possibility of citizenship or residence requirements being adopted for the ownership of land but specified that such requirements must be reasonable and objective.
Selected additional cases: African Commission:Organisasion Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ), Union Interafricaine des Droites de l’Homme v. Rwanda, Communication Nos. 27/89, 46/91, 49/91 and 99/93, Tenth Activity Report, Annex X. HRC: Veriter v. France, Communication No. 1088/2002, inadmissibility decision of 6 August 2003; Blazek et al. v. The Czech Republic, Communication No. 857/1999, Views of 12 July 2001; Des Fours Walderode and Kammerlander v. The Czech Republic, Communication No. 147/1997, Views of 30 October 2001; and Adam et al. v. The Czech Republic, Communication No. 586/1994, Views of 23 July 1996. ECHR: Gaygusuz v. Austria, Application No. 17371/90, Judgement of 16 September 1996.