A reflection on substantive equality jurisprudence
| Author | Andrea Broderick |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| DOI | 10.1177/1358229114558381 |
| Subject Matter | Articles |
Article
A reflection on
substantive equality
jurisprudence: The
standard of scrutiny at
the ECtHR for differential
treatment of Roma and
persons with disabilities
Andrea Broderick
Abstract
In recent years, the E uropean Court of Hum an Rights has begun to ac knowledge the
considerable disadvantage and discrimination that Roma and persons with disabilities
face in society. The Court has characterised both Roma and disabled applicants as
vulnerable and disadvantaged groups and has stated its intention to apply a strict
standard of scrutiny to alleged violations of the rights of both groups. This contri-
bution will analyse the standard of scrutiny adopted by the Court in the context of
alleged claims of discriminatory treatment of Roma and disabled applicants. The
essential question to be addressed by this article is whether the differential treatment
in question is deemed to be justified (either required or allowed) by the Court and
whether the Court’s case law relating to these two groups reflects a more sub-
stantive conception of equality capable of addressing the deep-seated structural
inequalities faced by Roma and persons with disabilities in society. A related question
to be addressed by this article is the extent to which the Court’s case law has been
influenced by developments in the fields of European and international law, such as
the Racial Equality Directive and the United Nations Convention on the Rights of
Department ofInternational and European Law,Maastricht University, Maastricht, The Netherlands
Corresponding author:
Andrea Broderick, Department of International and European Law, Maastricht University,
Bouillonstraat 1-3, Maastricht, The Netherlands.
Email: andrea.broderick@maastrichtuniversity.nl
International Journalof
Discrimination and theLaw
2015, Vol. 15(1-2) 101–122
ªThe Author(s) 2014
Reprints and permission:
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DOI: 10.1177/1358229114558381
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Persons with Disabilities, among others. The influence (and potential influence) of
European and international law can be seen in case law related to Roma education
and also in recent disability equality case law. This article will analyse case law in these
two areas.
Keywords
Equality, non-discrimination, standard of scrutiny, European Court of Human Rights,
Roma, disability
Introduction
The Roma ethnic community has variously been described as ‘the most vulnerable
minority’
1
and ‘the most discriminated [against] and disadvantaged group’
2
in Europe
today. In a similar vein, people with disabilities have long been relegated to the mar-
gins of society. Protection of the rights of disadvantaged groups involves not only scru-
tiny of differential treatment but also scrutiny of instances in which States fail to take
into account differential characteristics.For many years, the European Court of Human
Rights (ECtHR) focused merely on formal legal distinctions and failed to deal with
equality arguments under the European Convention on Human Rights (ECHR) in a
manner which could potentially address within its framework issues of structural
inequality. Since the 1980s, however, the Strasbourg Court has shown itself o pen to
a deeper understanding of the non-discrimination norm contained in Article 14 ECHR.
In recent years, the Court has demonstrated an increasing awareness of the consider-
able discrimination, disadvantage and exclusion experienced by Roma and persons
with disabilities. The Court has ruled, in a series of cases,
3
that both Roma and disabled
people constitute particularly ‘vulnerable and disadvantaged groups’ in society on
account of past discrimination.
The Court had previously identified a number of vulnerable groups that suffered
differential treatment on account, inter alia,ofsex,
4
sexual orientation
5
and race or
ethnicity.
6
The ‘vulnerable groups approach’ or the ‘vulnerability approach’
7
may
be viewed as providing a potential means of addressing structural inequalities. Lourdes
Peroni and Alexandra Timmer (2013) are of the opinion that the Court’s use of the
notion of group vulnerability is an important step in the direction of a more substantive
model of equality.
8
By way of contrast to a formal approach to equality issues, the hall-
mark of substantive equality is its focus on contextual and asymmetrical structures of
disadvantage. A substantive equality framework looks not merely to the differential
treatment in question. Rather, it seeks to determine the effects of particular measures
on vulnerable or disadvantaged groups. Substantive equality also calls for s pecial mea-
sures of protection for those with differential characteristics in order to correct for
factual inequalities. It is useful to refer to Sandra Fredman’s (2011) multidimensional
classification of substantive equality.
9
Fredman’s version of substantive equality pro-
vides a neat framework for this article and has been summarized b y Peroni and Timmer
(2013) as follows:
102 International Journal of Discrimination and the Law 15(1-2)
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