To Examine or Not to Examine Discrimination Allegations? Reassessing the Ancillary and Non-Independent Nature of Article 14 of the ECHR

This contribution examines the ECtHR’s approach to discrimination claims under Article 14 ECHR. Despite non-discrimination being a core value of the Convention, Article 14 has been interpreted as an ancillary and non-independent provision. Accordingly, the Court frequently refrains from assessing discrimination allegations once a violation of a substantive right has been established. The contribution identifies two main categories of reasons behind the Court’s reluctance: principled arguments, rooted in the interpretation of Article 14 as lacking autonomous existence, and practical considerations, such as resource constraints and difficulties in proving discriminatory intent. It then explores counterarguments advocating for a shift towards recognizing Article 14 as conferring an autonomous right not to be discriminated against, albeit with a limited scope tied to the enjoyment of Convention rights. Such a development would align with evolutive interpretation, international trends in anti-discrimination law, and the principle of effectiveness, ensuring that rights under the Convention are practical and effective. The paper argues that non-examination of discrimination claims undermines individual justice and the Court’s signalling function, which is crucial for promoting equality and combating structural discriminations. Finally, the article calls for a more consistent and transparent approach, limiting absorption of Article 14 complaints to clearly defined circumstances and treating evidentiary and practical challenges as ordinary questions of admissibility or merits. By reassessing the Court’s interpretative stance and practice, this contribution advocates for strengthening the role of Article 14 in the ECtHR’s case-law, thereby enhancing the protection against discrimination within the European human rights system.