Both offer something different, but there’s still a long way to go in the fight for racial harmony
Racial and ethnic discrimination is a problem that plagues our civilisation, so how an earth do the courts go about combating it?
There’s a wealth of anti-discrimination law out there at all constitutional levels. The European Convention on Human Rights (ECHR), for example, contains legally binding rules which the members of the Council of Europe must adhere to. Article 14 guarantees enjoyment of every right it sets out free from discrimination on various protected grounds, including race. Protocol 12 came into force in 2005, which extended this protection to any right which was provided for at a national level, by any Council of Europe member state.
Later came the EU, which originally introduced anti-discrimination legislation for market driven considerations — the prohibition on discrimination based on nationality and pay pro-rated by gender were purely to boost the internal market. Elements of social justice were first seen with the Amsterdam Treaty in 1997, which banned discrimination based on gender, race or ethnicity, religion or belief, disability, age, and sexual orientation.
The Racial Equality Directive (Race Directive) further supplemented racial/ethnic safeguards. It prohibited racial or ethnic discrimination in employment, social welfare and access to goods and services.
And then came the Lisbon Treaty, described by Möschel (2013) as “the latest important step in this evolution from the market towards social justice and fundamental rights”. It incorporated the European Charter of Fundamental Rights (ECFR) and discusses discrimination before dealing with the economic goals of the document.
So that’s the cold, hard law — but how have the European institutions actually gone about dealing with such a widespread, ingrained social problem?
While EU law and the ECHR are similar and complimentary, they do differ slightly in some areas (not least their jurisidictional outreach).
A big difference is that they do not adopt the same definition of what constitutes racism. The ECHR lists nationality or national origin as a distinct protected ground, whereas the Race Directive excludes nationality from its ambit. The reason for the exclusion is that nationality is dealt with under free movement of persons jurisprudence.
That doesn’t mean that EU law uses a narrow definition of ‘race’ — far from it. The EU Council’s Framework Decision includes, in its definition of racism and xenophobia, violence or hatred directed against groups by reference to “race, colour, religion, descent or national or ethnic origin”, clearly a very wide approach.
A similar brevity is evidence in ECHR case law. In Timishev v Russia — a case involving restriction of movement of a Chechen because of his origin — the European Court of Human Rights (ECtHR) said that “ethnicity and race are related and overlapping concepts” and included skin and facial features, nationality, tribal identification, religion, language, culture and tradition within their adopted definition.
Discrimination on the grounds of race can come in many different forms. It can be direct (conduct that is overtly disadvantageous against an individual because of a protected ground) or indirect (conduct or criteria exists which appears fair, but actually unjustly prejudices a party).
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To be directly discriminated against, one must be able to prove they were treated unfavourably. For example, being barred from running in an election because of Serb and Croat ethnicity was deemed to be sufficient unfavourable treatment in Sejdić and Finci v Bosnia and Herzegovina.
Secondly, the claimant must have a comparator. This is an individual in a “materially similar” position to the alleged victim, who is differentiated by the protected ground. For example, in Moustaquim v Belgium, a Moroccan individual due for deportation had a comparator of another non-national residing in the state.
Finally, there must be an infringement of one of the protected grounds. These are: gender, sexual orientation, disability, age, ethnic origin, national origin, religion/belief and of course, race.
Direct discrimination is still common. The European Commission against Racism and Intolerance found that the economic downturn had increased direct discrimination on the Roma community within Ireland, as people search for scapegoats and easy targets. Further afield, an Amnesty International report detailing the culture of xenophobia within the Greek police echoes this point. It details chemical irritants being used against detained migrants, as well as the alteration of mugshots to hide bruises.
Indirect discrimination is quite a bit different, and has been defined in the Race Directive as “an apparently neutral provision, criterion or practice [which] would put persons of a racial or ethnic origin at a particular disadvantage”. The negative effects must be felt by a member of a protected group e.g. asylum seekers, and — as with direct discrimination — a comparator will be needed. The issue with neutral criteria is they don’t take individual differences into consideration, which results in bias. Both the EU court and the ECtHR have agreed that differences in individuals must be treated differently, as noted by article 5 of the Race Directive and held in Pretty v UK.
Harassment is no longer solely a branch of direct discrimination, but its own standalone category. According to the Race Directive, harrassment is any conduct which is unwanted and related to a protected ground which intends to “violate the dignity” of an individual and/or create an environment that is “intimidating, hostile, degrading, humiliating or offensive”.
Importantly for the claimant, there is no need for a comparator in claims of harassment. A demonstration of this comes from Hungary. Roma children in school were being threatened with referral to the “Hungarian Guard”, a violent Nationalist group, if they misbehaved. This created a fearful and intimidating atmosphere and was deemed harassment by the Equal Treatment Authority.
The ECHR deals with harassment implicitly, and it can fall within a number of its articles e.g. freedom from inhumane and degrading treatment/torture, or private and family life. Where the conduct appears discriminatory it will be examined in tandem with article 14. This is particularly important for harassment stemming from race or ethnicity. This is illustrated in Paraskeva Todorova v Bulgaria, where the ECtHR found a violation of the freedom from discrimination and the right to a fair trial.
There are some defences available for different treatment based on a protected ground. However, their application in relation to a person’s race/ethnicity is extremely limited. The general defence is available for claims of direct and indirect discrimination based on the ECHR, but only for the latter when it is against EU law.
In order to qualify under the general defence, a threshold test needs to be satisfied. This means the conduct must be objective and reasonable, pursue a legitimate aim, and be proportionate to that aim to be deemed acceptable, according to the Grand Chamber in Burden v UK. The EU court has been reluctant to allow treatment based on purely financial considerations and favours the pursuit of social and employment policy goals. The ECtHR is particularly averse to allowing the defence when it relates to inherently personal matters i.e. race/ethnicity, private and family life. They prefer social policy considerations with fiscal ramifications.
There are three specific defences, but only the “genuine occupational requirement” exception applies to race. It excuses different treatment based on a protected ground if such a ground will intrinsically limit your ability to do a job. For example, a certain race of actor to play a particular character, or employing a Chinese person in a Chinese restaurant to maintain the illusion of authenticity. The ECtHR has been very strict in dealing with discrimination based on race/ethnicity, and the defences are of very limited use to those hoping to escape liability for race centric conduct.
Given the law’s wide definition of racism and narrowly applicable defences, it’s unsurprising that EU law and the ECHR have both contributed to the positive genesis in anti-racism across the member states. But while their effort’s to fight racism have been lengthy and numerous, the overall picture is very much of a work in progress. The ENAR Shadow Report 2010-2011 shows that the most vulnerable groups remain largely unchanged (African descendants, black Europeans, migrants, Roma, Muslims and Jews).
And what can be done by way of progress?
Usefully, the same report issued practical advice for better effectiveness in anti-racism initiatives. Most important is improving diversity monitoring procedures and reporting requirements. It’s impossible to advance the interests of minorities if the legislators are working off inaccurate information. Secondly, it’s essential to improve awareness of minority rights among the minorities themselves. Finally, businesses, trade unions and communities need to be actively involved in ensuring equality.
These recommendations are merely starting points as racism comes in many different forms, both social and institutional. The words of Black, addressing the migrant crisis of his time, highlighted the common attitude of “others” — a negative concept shared by policy-makers and the public alike.
He concludes that in order for substantive equality to be achieved, it is the overarching principle of social justice which must be applied, both socially and legislatively.
Susan Barry is a final year law and politics student at University College Dublin.
Black R, ‘Immigration and Social Justice: Towards a Progressive European Immigration Policy?’ (1994) 21 Transactions of the Institute of British Geographers
Möschel M, ‘Race Discrimination and Access to The European Court Of Justice: Belov’ (2013) 50 Common Market Law Review. 1433
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