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(though people in other countries covered by the European
Convention on Human Rights may also find this page interesting)
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Scope of European Convention rights

Article 14 of the European Convention (non-discrimination) applies only within the scope of another Convention right. This page looks at some other Convention rights which may be particularly relevant to disability, including perhaps to stammering. For article 14 generally and the context, see main European Convention page.

Using rights other than Article 14

Article 14, the non-discrimination provision, can apply to facts falling within the 'ambit' (or scope) of another Convention right. That is dealt with under the next heading: Article 14 and the 'ambit' of other Convention rights.

However it is worth remembering that there may be a breach of a Convention right viewed alone, without requiring Article 14. Examples below are:

Article 8 (right to private and family life) may also be particularly important for disability.

Other examples of Convention rights which - particularly in relation to stammering - might be relevant on their own (as well as with Article 14) are the right to a fair trial under Article 6 regarding the court system, police etc, and education under Protocol 1 Article 2.

Article 14 and the 'ambit' of other Convention rights

Even where a Convention right has not been breached, Article 14 (non-discrimination) can apply if the facts complained fall within the 'ambit' of the other Convention right - in other words within the 'scope' of the other right.

So Article 14 effectively extends the reach of other Convention rights. But also Article 14 is not a freestanding right against discrimination - it only applies in combination with a substantive right under one of the other Articles of the Convention, where the facts fall within the 'ambit' of the other Article.

So Article 14 does not give a general right of non-discrimination in the area of employment for example - see A v London Borough of Hounslow. However, since there is a Convention right covering education (see Protocol 1, Article 2 - below), discrimination against pupils in the field of education is likely to be covered by Article 14.

In Glor v Switzerland the applicant was found unfit to military service due to a disability but nevertheless had to pay a military service exemption tax. The case was found to fall within the scope of Article 8 of the Convention (private and family life), so that Article 14 applied. As discussed below under Article 8 in conjunction with Article 14, Article 8 is one within which the European Court may perhaps be particularly willing to bring disability cases.

This page lists below some rights which may be of particular relevance to disability, including perhaps to stammering. See also full text of rights (link to Schedule 1 of the HRA, on legislation.gov.uk).

Protocol No. 12 (external link) extends the Convention's coverage of discrimination for those countries which have signed up to the Protocol. It seems that the UK government currently has no plans to do so.

Inhuman or degrading treatment: Article 3

In a fairly extreme case, mistreatment of a disabled person can amount to inhuman or degrading treatment within Article 3. This can sometimes include an obligation of the state to take action against mistreatment by others, such as by members of the public.

ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013
The police's treatment of an autistic and epileptic boy who had become 'stuck' at the side of a swimming pool was held to be inhuman or degrading treatment.

Dordevic v Croatia (link to bailii.org), (ECtHR, July 2012)
An adult with learning and physical disabilities suffered sustained harassment by local children. The European Court of Human Rights found there had been inhuman or degrading treatment. The authorities' failure to take effective action here was such that the Croatian state was in breach of Article 3. His mother also succeeded in a claim under Article 8 (below), ie. the right to private and family life.
Summary in blog post: Dordevic v Croatia (link to mentalhealthandcapacitylaw.wordpress.com)

Price v UK (ECtHR, July 2001, Application No.33394/96, on Hudoc database).
The case concerned treatment - in a police cell and then prision - of a 'four-limb-deficient' thalidomide victim. The European Court of Human Rights said that although there was no evidence here of a positive intention to humiliate or debase the applicant, "the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention. It therefore finds a violation of this provision in the present case." There was a breach of Article 3, without the need for Article 14.

Fair trial: Article 6

Article 6 provides, among other things, that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Article also provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, and sets out minimum rights of anyone charged with a criminal offence.

The Equality Act 2010 does now cover public functions, such as arrest by the police. However, there may well be large gaps in the Equality Act's coverage of court proceedings, and the Convention may be important here: see Appearing in court.

Even without Article 14, the right under Article 6 that a hearing be fair may require that arrangements made are appropriate for a person who stammers.

In an employment context, it has been held that Article 6 will sometimes give a right to legal represenation in an employment disciplinary hearing. See Disciplinary, grievance and other orocedures: Right to be accompanied: Legal representation.

Respect for private and family life: Article 8

Article 8 says that, subject to exceptions, "everyone has the right to respect for his private and family life, his home and his correspondence." This is wide-ranging, including for example the right to express one's identity and to form and keep social relationships.

Also Article 12 gives a right to marry and found a family, according to national laws.

Article 8 in conjunction with Article 14

Disability discrimination cases may perhaps be particularly likely to fall "within the ambit" of Article 8, so that the non-discrimination provision in Article 14 applies.

The European Court in Glor v Switzerland, decided that the disability discrimination claim in that case fell within the ambit of Article 8, and so was covered by Article 14. Part of the reasoning in reaching this view was the existence of a European and universal consensus on the necessity of protecting disabled people from discriminatory treatment. The court referred here to the UN Convention. The court said also it had previously acknowledged several times that private life within Article 8 includes a person's physical integrity. This reasoning by the court may indicate that the importance of protecting disabled people from discrimination makes it more likely that disability discrimination will be viewed as falling within the ambit of a Convention right, and that Article 8 is a likely candidate.

Article 8 independently

Article 8 also has potential, independently of Article 14, to give rights to disabled people. Under Article 8 the State may sometimes even be obliged to take positive steps in connection with disability (rather than just avoid interference).

An example of an unsuccessful disability claim is Pretty v UK (link to bailii.org), where the European Court of Human Rights found it justifiable to retain the ban on assisted suicide where a person with motor neurone disease was unable to take her own life.

Property, including tax and social security: Protocol 1, Article 1 ('A1P1')

A1P1 gives a right to peaceful enjoyment of possessions, subject to exceptions. It is important in relation to discrimination because it has been held that taxation and national social security benefits systems are within this Article's "ambit", and are therefore subject to the anti-discrimination rules of Article 14. On social security, see Human rights advance - all benefits are 'possessions' (link to cpag.org.uk), 2005.

R (RJM) v Secretary of State For Work and Pensions (link to bailii.org), House of Lords, 2008
Article 14 was held to apply to disability premium in the UK. However, the claim failed because it was held to be justified to discriminate against homeless people by providing they were not entitled to disability premium.

Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules were found to infringe Article 14. The parties had accepted that housing benefit fell within A1P1.

For example, disability benefit regulations which draw unjustifiable distinctions between certain types of disabilities or health conditions may, it seems, be attacked under Article 14. (Compare G.N. v Italy on unjustifiable distinctions between health conditions, albeit in a different context.)

Education: Protocol 1, Article 2 ('A2P1')

This says: "No person shall be denied the right to education. In the exercise of any functions that it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." (The UK has accepted the second sentence "only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.")

The right to education in the first sentence has been held to include the following (Belgian Linguistic case and Campbell and Cosans v UK):

Article 14 in conjunction with A2P1

As well as A2P1 in its own right, discrimination claims under Article 14 are possible where the claim falls within the 'ambit' (scope) of the right to education in A2P1. There need be no breach of the right to education itself. This area should be largely covered by the Equality Act education provisions in any event. However, the European Convention may still be relevant: see Where may the Convention rights increase the Equality Act's protection?

Elections: Protocol 1, Article 3

Probably not of great relevance to stammering, but an interesting case under this article is an example of how disability discrimination may be a breach of a general convention right without needing to make use of Article 14:

In Alajos Kiss v Hungary (2010) the European Court overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship.

Adjustments to voting facilities to enable access to disabled people may presumably also be covered under this Article, either on its own or in conjunction with Article 14.

No general right against employment discrimination

There is no general right against employment discrimination. However, certain employment situations have been held to fall within the Convention, for example within the ambit of article 8 (private and family life) in Sidabras v Lithuania (2006) where ex-KGB personnel were excluded from a wide range of occupations, or in Kyriakides v Cyprus (2008) where it was held that a dismissal may in some instances seriously interfere with the private life of an individual.

(Reference: O'Connell, Rory, The Right to Work in the European Convention on Human Rights (March 7, 2012). European Human Rights Law Review, No. 2, 2012, pp 176-190. Abstract available at SSRN: http://ssrn.com/abstract=2017651)

As mentioned above, another example of the Convention applying to employment is that Article 6 (fair trial) can sometimes give a right to be legally represented in a disciplinary hearing.

EU Charter of Fundamental Rights

Where something is not within the ambit of the Convention, it may be worth considering whether it can fall within the EU Charter of Fundamental Rights, on the basis that it is an area where the UK is implementing EU law.

Further information

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Last updated 4th December, 2011 (part update 28th February, 2013)