International Human Rights

7.4.2011

Non-discriminationArticle 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Protocol n. 12Article 1 – General prohibition of discrimination1 The enjoyment of any right set forth by law shall be secured without

discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Right to an effective remedy (art. 13)Kudla v. Poland, no 30210/96, 26.10.2000

Kudla v. Poland146. In many previous cases in which the Court has found a violation

of Article 6 § 1 it did not consider it necessary also to rule on an accompanying complaint made under Article 13. More often than not this was because in the circumstances Article 6 § 1 was deemed to constitute a lex specialis in relation to Article 13.Thus, where the Convention right asserted by the individual is a “civil right” recognised under domestic law – such as the right of property – the protection afforded by Article 6 § 1 will also be available (...). In such circumstances the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (...).

(…)157. As the Court has held on many occasions,

Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (...).

(…)T he scope of the Contracting States’ obligations under Article 13 varies

depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII).The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (...).

Subsidiarity152. (...) the place of Article 13 in the scheme of human rights protection set up by the

Convention would argue in favour of implied restrictions of Article 13 being kept to a minimum.By virtue of Article 1 (...), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention.The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (...). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.).(...) the right of an individual to trial within a reasonable time will be less effective if there exists no opportunity to submit the Convention claim first to a national authority; bligation imposed by that Article not to subject individuals to inordinate delays in legal proceedings.

SubsidiarityA.and Others v. United Kingdom

154. The Court is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries.