‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR,

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

This chapter examines a necessarily select list of Article 14 of the ECHR (the prohibition of discrimination) jurisprudence involving ethnic minorities, most notably the Roma minority in post-Communist countries before the European Court of Human Rights (the Court). The aim is to identify to what extent, if any, have the Court’s ‘equality in transition’ cases informed and helped in progressing the transitional process for Roma? Using two selected categories of law, (racially motivated violence and the subsequent failure to carry out an effective investigation into these incidents; and segregation in schools), the chapter argues that there has been a mixed result. On the one hand, the chapter highlights some positive features of the case law such as the recognition of the need for a sophisticated indirect discrimination doctrine; the ability of the Court to draw inferences as to the existence of discrimination without insisting on proof beyond all doubt; and the development of positive obligations. Perhaps the most significant step is the reliance in the school desegregation cases on evidence of the general context of discrimination and disadvantage facing Roma. However, less promising features of the Court’s approach are also discussed: the failure to develop a positive obligation in investigating allegations of racially motivated violence and a reluctance to find a substantive violation of Article 14. The chapter postulates that even with the progressive decisions, there are problems about implementation on the ground, dissent among the judges and the wider problem as to whether the ECHR and the Court have the tools and ability to tackle some of the major problems facing the Roma. This suggests that international law and an international court are not immune from the difficulties facing national law and judges in transition processes. We argue that there is a joint responsibility for all actors, not just the judges, to bridge the gap that exists not only in these two areas of law, but in all sectors between Roma and the rest of society.
LanguageEnglish
Title of host publicationTransitional Jurisprudence and the ECHR
PublisherCambridge University Press
Pages185-207
ISBN (Print)978-1-107-00301-9
Publication statusPublished - 1 Sep 2011

Fingerprint

ECHR
jurisprudence
gipsy
equality
human rights
discrimination
segregation
Law
obligation
violence
ability
case law
international law
school
national minority
doctrine
incident
minority
responsibility
evidence

Keywords

  • Article 14 of the ECHR
  • equality
  • non-Discrimination
  • Roma
  • Article 2
  • Protocol 1 Article 2
  • positive obligations
  • the European Court of Human Rights
  • transition

Cite this

Smith, A. (2011). ‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR, In Transitional Jurisprudence and the ECHR (pp. 185-207). Cambridge University Press.
Smith, Anne. / ‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR,. Transitional Jurisprudence and the ECHR. Cambridge University Press, 2011. pp. 185-207
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Smith, A 2011, ‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR, in Transitional Jurisprudence and the ECHR. Cambridge University Press, pp. 185-207.

‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR, / Smith, Anne.

Transitional Jurisprudence and the ECHR. Cambridge University Press, 2011. p. 185-207.

Research output: Chapter in Book/Report/Conference proceedingChapter

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Smith A. ‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR, In Transitional Jurisprudence and the ECHR. Cambridge University Press. 2011. p. 185-207