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‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR,

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Smith, Anne (2011) ‘Transition, equality and non-discrimination’ in Transitional Jurisprudence and the ECHR,. In: Transitional Jurisprudence and the ECHR. Cambridge University Press, , pp. 185-207. ISBN 978-1-107-00301-9 [Book section]

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Abstract

This chapter examines a necessarily select list of Article 14 of the ECHR (the prohibition of discrimination) jurisprudence involving ethnic minorities, most notably the Roma minority in post-Communist countries before the European Court of Human Rights (the Court). The aim is to identify to what extent, if any, have the Court’s ‘equality in transition’ cases informed and helped in progressing the transitional process for Roma? Using two selected categories of law, (racially motivated violence and the subsequent failure to carry out an effective investigation into these incidents; and segregation in schools), the chapter argues that there has been a mixed result. On the one hand, the chapter highlights some positive features of the case law such as the recognition of the need for a sophisticated indirect discrimination doctrine; the ability of the Court to draw inferences as to the existence of discrimination without insisting on proof beyond all doubt; and the development of positive obligations. Perhaps the most significant step is the reliance in the school desegregation cases on evidence of the general context of discrimination and disadvantage facing Roma. However, less promising features of the Court’s approach are also discussed: the failure to develop a positive obligation in investigating allegations of racially motivated violence and a reluctance to find a substantive violation of Article 14. The chapter postulates that even with the progressive decisions, there are problems about implementation on the ground, dissent among the judges and the wider problem as to whether the ECHR and the Court have the tools and ability to tackle some of the major problems facing the Roma. This suggests that international law and an international court are not immune from the difficulties facing national law and judges in transition processes. We argue that there is a joint responsibility for all actors, not just the judges, to bridge the gap that exists not only in these two areas of law, but in all sectors between Roma and the rest of society.

Item Type:Book section
Keywords:Article 14 of the ECHR, equality, non-Discrimination, Roma, Article 2, Protocol 1 Article 2, positive obligations, the European Court of Human Rights, transition,
Faculties and Schools:Faculty of Social Sciences
Faculty of Social Sciences > School of Law
Research Institutes and Groups:Transitional Justice Institute
ID Code:22485
Deposited By:Dr Anne Smith
Deposited On:12 Jun 2012 10:00
Last Modified:12 Jun 2012 10:00

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