Opinion of the European Court of Human Rights on draft Protocol 12 to the European Convention on Human Rights (adopted at the plenary administrative session of the Court on 6 December 1999)

Doc. 8608

5 January 2000

Opinion of the European Court of Human Rights
on draft Protocol 12 to the European Convention on Human Rights (adopted at the plenary administrative session of the Court on 6 December 1999)

Communication

Committee of Ministers

1. At their meeting on 27-28 July 1999 the Ministers’ Deputies decided to transmit to the European Court of Human Rights the text of Draft Protocol No. 12 to the European Convention on Human Rights for opinion.

2. In response to that request the Court wishes firstly to endorse the introduction of a general prohibition of discrimination. It recognises that the principles of equality and non-discrimination are fundamental elements of international human rights law, as reflected in Article 7 of the Universal Declaration of Human Rights and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 1 of the draft Explanatory Report).

3. It recalls that Article 14 of the Convention as currently in force is accessory to the other substantive guarantees of the Convention and has no independent existence as is clear both from its wording and the Court’s case-law. While this has not prevented the Court from considering a wide range of issues under Article 14 read in conjunction with other Articles of the Convention, certain forms of discrimination cannot be brought within the ambit of Article 14.

4. The Court observes that Draft Protocol No. 12 provides a clear legal basis for examining discrimination issues not covered by Article 14.

5. As regards the substantive content of the Protocol, it notes, in relation to Article 1, that the draft Explanatory Report (see paragraph 18) refers to the notion of discrimination as consistently interpreted in the case-law of the Court, namely that 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. As the Court put it in the Belgian Linguistic case, “the competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions” (judgment of 23.7.68, Series A no. 6, p. 34, § 10). This is further reflected, consistently with the subsidiary character of the Convention system, in the margin of appreciation accorded to the national authorities in assessing whether and to what extent differences in otherwise similar situations justify a difference of treatment in law (see, among other authorities, Rasmussen v. Denmark, judgment of 28.11.84, Series A no. 87, p. 15, § 40).

6. Notwithstanding such “limitations” on the prohibition of discrimination as derive from the Court’s case-law, it is foreseeable that the entry into force of Protocol No. 12 will lead to a substantial increase in the Court’s case-load. The Court draws the attention of the Committee of Ministers to the impact of such an increase on a mechanism that is already under great pressure. While the extent of this impact can only be assessed at a later stage and would in any event not be immediate, it should be taken into account in mid- and long-term planning and provision for the Court and the Convention system.

7. In conclusion, and without prejudice to the foregoing comments, the Court welcomes the draft Protocol as a further substantial step in securing the collective enforcement of fundamental rights through the European Convention on Human Rights.