Judicial Restraint and Article 14 ECHR: The ‘No Need to Examine’ Practice Viewed Through Dissenting Opinions

Article 14 of the European Convention on Human Rights (ECHR) has been the main tool of the European Court of Human Rights (ECtHR) to fight against discrimination on various grounds. While Article 14 of the Convention is a subsidiary provision prohibiting discrimination in relation to the exercise of another right guaranteed by the Convention, according to the Court's case law, Article 14 can be applicable even if there has been no violation of the substantive right itself raised in conjunction with Article 14. However, the ECtHR has not consistently seized opportunities to advance its anti-discrimination case law under this article. Most notably, the Court frequently concludes that there is “no need to examine the complaint under Article 14 of the Convention” when reviewing cases alongside another substantive article, even when the discrimination complaint is deemed admissible. The Court's practice raises significant concerns, as it risks undermining both the institutional requirements of the Convention system and the proper consideration of the specific circumstances of individual cases. The paper first identifies patterns in the ECtHR's examination of Article 14, with a specific focus on cases in which the Court does not review discrimination complaints under this provision, with particular attention to those cases where disagreement exists among judges about the need to investigate Article 14 separately. In these separate opinions, valuable information can be found about the nature and role the Court assigns to this Article within the Convention system. These opinions are explored through a qualitative discourse analysis to lift out the arguments presented during the deliberations on Article 14. The paper aims to provide a more realistic and comprehensive understanding of the Court's approach to discrimination cases, as well as the actual and potential role of Article 14 in addressing discrimination in Europe through the ECtHR's work.