Prohibition of discrimination: concepts, features and obligations of the state according to the Convention for the protection of human rights and fundamental freedoms

Abstract

Problem setting. Because of the transformational processes in socio-political life, the problems of ensuring equal treatment of equals and different – to persons who have other, characteristic of certain groups of people, characteristics are becoming increasingly important.

Analysis of resent researches and publication. Such scholars as O. Vasylchenko, O. Vashanova, D. Hudyma, N. Dryomina-Volok, B. Nedelek, N. Onishchenko, O. Pankevych devoted their works to the issue of the principles of equality and non-discrimination, in particular in the decisions of the European Court of Human Rights.

Target of research. The purpose of this work is to carry out a comparative legal analysis of the scope of the two concepts, namely the “prohibition of discrimination” provided for in Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the “General Prohibition of Discrimination”, which is enshrined in Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. An additional purpose of this paper is to present ways to overcome the problem of discrimination in Ukrainian society and the problems of legal regulation of discrimination prevention.

Article’s main body. Publication is devoted to the analysis of the prohibition of discrimination under Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. International legal acts, which enshrine the provisions on the prohibition of discrimination, have been studied. A comparative legal analysis of the “prohibition of discrimination” and the “general prohibition of discrimination” was made. The author also draws attention to the problems of applying the provisions on non-discrimination in practice. The publication provides a thorough analysis of the case law of the European Court of Human Rights. The characteristic features inherent in the concept of discrimination are indicated in the decisions of the European Court of Human Rights. Positive, negative and procedural responsibilities for prohibiting and combating discrimination are disclosed. In this article investigated the positive duty of the state as ensuring “application of different law in different circumstances”. Regarding negative obligations, the very construction of the prohibition of discrimination implies that states refrain from any unjustified discriminatory treatment in their legislative and law enforcement activities. As for procedural obligations, states should effectively investigate such cases in the event of discrimination.

Conclusions and prospects for the development. The construction of the prohibition of discrimination presupposes a certain set of characteristics characteristic only of it. The scope of the general prohibition of discrimination has been significantly increased since Protocol No. 12 was opened for signature by the member states of the Council of Europe. Given that the ECHR is a “living document”, the indicative list of protected features of non-discrimination is being expanded by the case law of the ECtHR. Unfortunately, the general level of tolerance, including that of public authorities, leaves much to be desired.