Cross-Fertilisation, Clarity and Consistency at an Overburdened European Court of Human Rights – The Case of the Discrimination Grounds under Article 14 ECHR
iCourts Working Paper Series No. 34
(2015) 33 Nordic Journal of Human Rights 220-242
31 Pages Posted: 30 Sep 2015 Last revised: 17 May 2017
Date Written: September 29, 2015
The literature on the non-discrimination provision in Article 14 ECHR has identified how recent case-law on the scope ratione materiae of Article 14 seems unclear and conflicting, and how this could indicate a change of approach whereby some discrimination grounds would be excluded from protection altogether. After describing this case law against the background of settled doctrine, this article moves on to exhibit how it is also accompanied by an undercurrent towards a subtle change in analytical approach, which seems to be taking hold irrespective of whether a clear narrowing of the scope of Article 14 ratione materiae will take place. The article is critical of these trends, and asks why the changes described have occurred at this point in time in the life of the Convention. Placing current developments in context, it suggests three key explanatory factors related to the reform of the Strasbourg Court and calls for the gradual convergence between the Strasbourg and Luxembourg jurisprudence. In conclusion it is argued that the developments discussed exemplify the pitfalls of the current process of reengineering the European system for the protection of human rights, and how each step the Strasbourg Court takes in pursuance of the aims of the reform process must be accompanied by careful judicial reflection.
Keywords: European Convention on Human Rights; reform of the European Court of Human Rights; discrimination grounds; admissibility ratione materiae; cross-fertilisation
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