The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain
| Date | 01 January 2017 |
| Published date | 01 January 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12245 |
| Author | Mathias Möschel |
The Strasbourg Court and Indirect Race
Discrimination: Going Beyond the Education Domain
Mathias M¨
oschel∗
Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by
addressing issues of structural discrimination and inequalities in a way that direct discrimination
cannot and will not. However, Article 14, the ECHR’s non-discrimination provision, does not
distinguish between direct and indirect discrimination. It was only in 2007 that the European
Court of Human Rights explicitly included the notion of indirect (race) discrimination under
Article 14 in DH and Others vthe Czech Republic, its famous judgment on Roma education
segregation. Since then it has applied the prohibition of indirect race discrimination in a
limited manner to similar education cases. However, in its recent Grand Chamber decision,
Biao vDenmark, the Strasbourg Court started clarifying some unsolved issues in the distinction
between direct and indirect discrimination in its case law and finally applied the concept to the
much broader area of immigration and citizenship.
INTRODUCTION
In its landmark judgment DH and Others vthe Czech Republic1(DH and Others),
the Grand Chamber of the European Court of Human Rights (ECtHR or the
Court) found that the probability of a Roma child being transferred to a special
school for children with mental deficiencies was 27 times higher than for non-
Roma children in the city of Ostrava, and that this constituted a violation of
Article 14 read in conjunction with Article 2 of Protocol No 1 (the right
to education). Even more importantly, it explicitly recognised that Article 14
encompasses both direct discrimination and indirect discrimination.
Subsequent judgments dealing with similar fact patterns in various European
countries ensured that today DH and Others and the prohibition of indirect
race discrimination is well-established case law in the ECtHR’s jurisprudence.2
Nevertheless, it remained limited to education segregation and even within
that area, the distinction between direct and indirect discrimination was not
always clear.
This article argues that with the recent Grand Chamber judgment in Biao
vDenmark3(Biao), the ECtHR made some initial steps towards strengthen-
ing its conceptual framework and the distinction between direct and indirect
∗Associate Professor, Legal Studies Department, Central European University.
1DH and Others vthe Czech Republic [GC] App no 57325/00 ECHR 2007-IV.
2 In chronological order: Sampanis and Others vGreece App no 32526/05, 5 June 2008; Orˇ
suˇ
sand
Others vCroatia [GC] App no 15766/03, ECHR 2010- II; Sampani and Others vGreece App no
59608/09, 11 December 2012; Horv´
ath and Kiss vHungary App no 11146/11, 29 January 2013
and Lavida and Others vGreece App no 7973/10, 30 May 2013.
3Biao vDenmark [GC] App no 38590/10, 24 May 2016.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(1) MLR 110–132 121
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