IN THE EUROPEAN COURT OF HUMAN RIGHTS
Application No. 43577/98 & 43579/98
Nachova and Others
Applicant
v.
Bulgaria
Respondent
WRITTEN COMMENTS
BY
INTERIGHTS
PURSUANT TO ARTICLE 36 § 2 OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND RULE 44 § 2
OF THE RULES OF THE EUROPEAN COURT OF
HUMAN RIGHTS
ANDREA COOMBER
LEGAL OFFICER (EQUALITY PROGRAMME)
INTERIGHTS
33 ISLINGTON HIGH STREET
LONDON N1 9LH
TEL: 44-207-843-0475
FAX: 44-207-278-4334
E-MAIL: acoomber@interights.org
http://www.interights.org
2 November 2004
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I.
INTRODUCTION
1.
These written comments are respectfully submitted by INTERIGHTS, the International Centre for the
Legal Protection of Human Rights pursuant to leave granted by the President of the Grand
Chamber in accordance with Article 36(2) of the European Convention on Human Rights and Rule
44 § 2 of the Rules of Court.1
2.
INTERIGHTS is an international human rights law centre. It has a dedicated programme of work on
equality and non-discrimination, which promotes equality through litigation, litigation support, the
dissemination of information and education.2 INTERIGHTS has submitted comments in several
cases before this Court, most recently in M.C. v Bulgaria and D.H. and Others v the Czech Republic.
II.
OVERVIEW
3.
This case concerns the allegedly racist killing of two young men by State officials in Bulgaria. As
was noted in its original consideration by the First Section, the case highlights the difficulties in
proving claims of discrimination, challenges that have been confronted by this Court with increasing
regularity in recent years.
4.
Credible reports of racial discrimination and racist violence are common within the Member States
of the Council of Europe.3 The Council of Europe’s own organs note the “persistence of racial
discrimination” and racist violence against ethnic minorities, including against Roma.4 There is no
doubt that such violence breaches the spirit and substance of the Convention, and yet until its
recent judgment in Nachova and Others v Bulgaria this Court had never found a violation of Article 14
in respect of such acts. It is not that such cases have not been brought or, as this Court has
recognised, that serious arguments have not been presented.5 The problem has been in satisfying
the Court in evidentiary terms that such discrimination has actually occurred. These challenges of
proof are reflected in the persistent disparity between reliable reports of racist violence in Europe,
and the case law of this Court.
5.
It is well established—as acknowledged by this Court6—that proving discrimination claims can be
particularly problematic. These difficulties of proof inevitably have an impact on the effective
protection of equality rights. While intent is not an element of discrimination7, there remains a
Pursuant to a letter dated 5 October 2004 issued by Registrar, Paul Mahoney
is very grateful for the assistance of the following people in the preparation of these written comments: Sylvia Bell; Ambra
Gobena; Margarita Ilieva; Melissa Murphy; Godwin Odo; Suzanne Turner and Dechert LLP; and Colleen Guilford, Stephan Sonnenberg,
Isabel Goodman, and Amy Lehr of Harvard Law Student Advocates for Human Rights and Jamie O’Connell of Human Rights Program,
Harvard Law School.
3 See Summary of Amnesty International’s concerns for the OSCE meeting on Racism, Discrimination and Xenophobia, Vienna, 4 and 5 September 2003,
AI Index: IOR 30/006/2003; European Roma Rights Center, Roma Rights Quarterly Vol. 1-2, 2003
4 See, Annual Report of ECRI’s activities covering the period from 1 January 2002 to 31 December 2002, CRI 2003 (23), 23 March 2003, § 2 and 11
5 Kurt v. Turkey, Judgment of 25 May 1998, § 147; Velikova v. Bulgaria, Judgment of 18 May 2000, § 94; Tanli v. Turkey, Judgment of 10 April
2001, § 177; Anguelova v. Bulgaria, Judgment of 13 June 2002, § 168
6 Nachova and Others v. Bulgaria, Nos. 43577/98 and 43579/98, Judgment of 26 February 2004, § 161
7 As recognised by this Court; Hugh Jordan v. United Kingdom, Judgment of 4 May 2001, § 154. This is consistent with the approach of the
ECJ [Case 170/84, Bilka-Kaufhaus [1986] ECR 1607], United Nations’ treaty body approach [Human Rights Committee General Comment
No. 18, § 2 and its consideration of Althammer v. Austria, (998/01) § 10.2; Simunek et al v. Czech Republic (516/92), § 11.7. See also CERD
General Recommendation No. 19 in which it notes that racial segregation might arise as an “unintended by-product” of individual action;
A/50/18. § 3], jurisprudence in leading national jurisdictions [Beukes v Krugersdorp Transitional Local Council and Anor. 1996 (3) SA 467 (W),
1
2 INTERIGHTS
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question of motivation in discrimination claims that is difficult to evince. It may be true that the
complainant is from a racial minority, but did that identity have anything to do with the way they
were treated? Was their treatment related to their race, or was it just an accident or an unfortunate
coincidence? A judgment on this underlying rationale for the treatment is often necessary for courts
to find a violation of the right to equality. In some cases the prejudice will be overt, and there will
be clear evidence of discrimination. However in the vast majority of cases there will be little, if any
direct evidence, since those who discriminate on the grounds of race do not generally advertise their
prejudices: indeed they may not even be aware of them.8
Frequently, problems of proving
discrimination are also compounded by the power disparities between complainants and alleged
discriminators, with respondents having more resources and information at their disposal than
complainants.
6.
Mindful of the complexity in establishing discrimination, these written comments will address three
critical issues of proof, by reference to the experience of courts in other international and national
systems. First, the comments consider the most appropriate standard of proof in Article 14 cases.
Second, they discuss the importance of a shifting burden of proof upon the establishment of a prima
facie case of discrimination. Finally, these comments review the types of evidence that might be
appropriate in establishing a prima facie case, specifically that circumstantial evidence leading to
strong, clear and concordant inferences of discrimination might constitute sufficient proof of
discrimination.
7.
Certain general principles regarding evidence and proof are relevant across the issues addressed
below. First, in respect of each question, the approach adopted must be appropriate to the human
rights nature of proceedings. The nature of the legal obligations incumbent on States under human
rights law militates in favour of more flexible standards and methods of proof than might be
appropriate in a case against an individual on the national level, particularly in the criminal context,
where the in dubio pro reo principle mandates stringent standards of proof and restrictions on
admissible evidence. No such doubt operates in favour of the State in the human rights context,
which, quite to the contrary, has positive obligations to protect certain rights and may be called
upon to justify what appears, on its face, to be violations thereof. Second, the approach to evidence
and proof should take account of the nature of the particular rights, and what is required to make
their protection meaningful. In this case, the reality that discrimination is difficult to prove must
inform the Court’s approach to issues of proof and rules of evidence.
III.
STANDARD OF PROOF
8.
There is a close relationship between the effective protection of human rights and the standard of
proof required by courts to find a violation: the higher the standard of proof, the more alleged
violators are protected, and the more difficult it is for victims to access redress. This Court, like
other international bodies, has found itself able to adapt its evidentiary requirements depending on
at 480 (South Africa); Perera v. Civil Service Commission and Department of Customs and Excise [1982] ICR 350 (EAT), affirmed [1983] ICR 428
(CA) at § 17 (United Kingdom); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (United States of America)]
8 Nagarajan v. London Regional Transport [2000] 1 AC 501 (HL), per Lord Nicholls of Birkenhead at 513B
3
the violation and the facts of the case concerned. In the past it has demonstrated considerable
flexibility in the application of the standard of proof where it would undermine the protection of
substantive rights.9 While not mandated by the Convention or Rules of the Court, this Court
appears to have established a ‘beyond reasonable doubt’ standard of proof for violations under the
Convention.10 At the same time, it has noted that this “should not be interpreted as requiring such a
high degree of probability as in criminal trials”.11 These comments support the view that the
‘beyond reasonable doubt’ standard is not the appropriate standard for proving human rights cases,
in particular allegations of discrimination, which rather should be found on the ‘balance of
probabilities’.12
9.
First, in respect of Article 14 cases, the Court’s standard has, until recently, proved an insuperable
obstacle to the finding of a violation in cases alleging racist violence. In numerous cases pre-dating
Nachova, this Court found itself unable to hold a violation of Article 14 because the supporting
evidence for what the Court acknowledged as “serious arguments” was not able to meet its
standard.13 INTERIGHTS is concerned that the threshold of the current standard of proof required
by this Court in Article 14 cases is too high to meaningfully allow protection against discrimination.
This is because, in principle as well as in practice, the ‘beyond reasonable doubt’ is inappropriate for
a human rights court adjudicating State responsibility with respect to human rights violations.
10.
A human rights court is not called upon to adjudicate on the guilt or innocence of individuals, but to
determine whether the State has discharged its obligations to protect and prevent violations and
provide redress for victims. As recognised by eight judges of the Grand Chamber in Labita v Italy
the “test, method and standard of proof in respect of responsibility under the Convention are
different from those applicable in the various national systems as regards responsibility of
individuals for criminal offences”.14 The Inter-American Court of Human Rights has similarly
noted that “States do not appear before the Court as defendants in a criminal action. The objective
of international human rights law is… to protect the victims and to provide for the reparation of
damages resulting from the acts of States responsible.”15 Judge Bonello affirmed in Veznedaroglu v
Turkey that while this standard is appropriate to establish criminal culpability, “in other fields of
judicial enquiry, the standard of proof should be proportionate to the aim which the search for the
truth pursues: the highest degree of certainty, in criminal matters; a workable degree of probability
in others”.16 The different nature of the case demands a different standard of proof be adopted.
See, for example, regarding substantive violation of Article 2: Anguelova v. Bulgaria, n. 5, § 110 and 111, Orhan v. Turkey, Judgment of 18
June 2002, § 331; Article 3: Berktay v. Turkey, Judgment of 1 March 2001, § 167-169, Rehbock v. Slovenia, Judgment of 28 November 2000, §
72
10 Article 32 of the Convention provide for the jurisdiction of the Court over all matters relating to the interpretation and application of
the Convention.
11 Nachova, n. 6, § 166
12 This view has been expressed eloquently by Judge Bonello in his partly dissenting opinion in Anguelova v. Bulgaria, n. 5, § 9-10
13 See Velikova v. Bulgaria and Anguelova v. Bulgaria, n. 5
14 Joint partly dissenting opinion of Judges Pastor Ridruejo, Bonello, Makarczyk, Tulkens, Strážnická, Butkevych, Casadevall
and Zupančič, Labita v. Italy, Judgment of 6 April 2000, § 1
15 Velásquez-Rodríguez v. Honduras, Judgment of 29 July 1988, § 134
16 Partly dissenting judgment of Judge Bonello, Judgment of 11 April 2000, § 12
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4
11.
The standard in question seems to largely reflect the criminal law standard in certain common law
jurisdictions. In these jurisdictions, and in the approaches of certain international bodies17, there are
clear distinctions between two standards of proof. A ‘beyond reasonable doubt’ standard is the
highest standard of proof, and is appropriate for the worst offences that hold the most serious
consequences for alleged perpetrators. A ‘balance of probabilities’ standard lowers the threshold,
meaning that the Court needs to believe that the complainant’s claim is ‘more likely than not’ to be
true.18 The distinction between the two standards is not a question of semantics, “it is a matter of
critical substance.”19 This Court appears to have opted for an intermediate standard, which while
avowedly not reaching the criminal level is a heightened civil standard. It is respectfully submitted
that the experience of national jurisdictions suggest that in discrimination cases the only appropriate
standard is a straight ‘probabilities’ standard.
12.
Those national jurisdictions in which judicial protection against discrimination are strongest tend to
be common law jurisdictions, which adopt a ‘balance of probabilities’ standard for discrimination
cases. 20 In these systems judges adjudicate on the evidence presented to them by the parties; they
do not enjoy any fact-finding role in the proceedings. For this reason, civil cases—and critically
discrimination claims—are held to a probabilities standard as judges could seldom satisfy themselves
to a higher standard. In civil law systems, on the other hand, judges enjoy a fact-finding role and are
therefore, theoretically at least, able to satisfy themselves to a high standard of proof on the case
before them.21 While there are obviously numerous distinctions between the two approaches22, a
review of judicial responses to discrimination across the two systems suggests that the common law
approach lends itself to stronger judicial protection against discrimination. The lower standard in
common law jurisdictions better recognises the difficulty in proving discrimination claims, and holds
cases to a standard that provides procedural safeguards for alleged discriminators, while not creating
unreasonable hurdles to ultimately finding a violation. In no common law jurisdiction is there any
suggestion that this standard of proof results in innocent people being branded as discriminators.
13.
Second, beyond the appropriateness of the standard adopted, the current standard of proof also
lacks clarity. As recognised in the past by judges of this Court23, in common law jurisdictions the
phrase ‘beyond reasonable doubt’ is synonymous with a criminal standard of proof.24 To say that
the standard for Article 14 is ‘beyond reasonable doubt’ but that this is not a criminal standard is
The International Criminal Tribunal for the former Yugoslavia (ICTY), for example, holds criminal liability to a ‘beyond reasonable
doubt’ standard, while its evaluation of non-criminal aspects being held to a ‘balance of probabilities’ standard; See, Prosecutor v. Mucic,
Delic, and Landzo (Appeals Chamber), Judgment of 20 February 2001, § 590
18 See US Supreme Court, In re Winship, 397 U.S. 358, 371-72 (1970)
19 High Court of Australia in Rejfek v. McElroy, (1965) 112 C.L.R. 517 at 521-522
20 For example, United Kingdom (Neill LJ in King v. Great British-China Centre (1992) ICR 516 at 528, cited with approval by Lord BrownWilkinson in Glasgow City Council v. Zafar (1998) ICR 120); Canada (Re Blainey and Ontario Hockey Association et al., 1986 A.C.W.S.J); South
Africa (Harksen, para. 53); Australia (High Court of Australia in Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd, (1992) ALR 449, 449-450);
New Zealand (Section 92I Human Rights Act 1993; and United States of America [U.S. Supreme Court in Desert Palace, Inc. v Costa, 539
U.S.90, 99 (2003)]
21 Although section 611a of the German Civil Code provides that in the context of employment, gender discrimination need only be held
to a ‘preponderance of the evidence’ standard.
22 See Kevin M. Clermont and Emily Sherwin, “A Comparative View of Standards of Proof”, 50 Am. J. Comp.L. 243; Juliane Kokott, The
Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and
German Legal Systems (Kluwer Law International, The Hague, 1998)
23 Labita v. Italy, see n. 14 § 1
24 The phrase entered common law parlance in 1935 when Lord Starkey set ‘beyond reasonable doubt’ as the criminal standard in
Woolmington v. D.P.P. [1935] AC 462
17
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unclear, not only for parties to proceedings, but for jurists in other jurisdictions following the
approach of this Court. The parameters of what appears to be an intermediate standard of proof—
somewhere between a ‘balance of probabilities’ and ‘beyond reasonable doubt’—does not allow a
plain understanding of the way in which this Court will evaluate evidence and how it will satisfy
itself in finding a violation. As recently noted by the Inter-American Court of Human Rights, with
regard to questions of evidence it is critical to ensure respect for “legal certainty and procedural
balance among the parties”.25 In the context of standard, this does not require the assigning of a
mathematical formula to the degree to which the Court must be satisfied,26 but does require a clear
sense to be given of the degree of probability and the quantum of proof that will satisfy the Court in
the final analysis of Article 14 claims.
IV.
THE SHIFTING BURDEN OF PROOF
14.
Commonly, the general rule in civil cases is that each party bears the burden of proving those facts it
alleges and from which it derives favourable legal consequences. In Nachova, the First Section
accepted in principle that in discrimination cases, it may be appropriate for the burden of proof to
shift to the Respondent government to justify the treatment.
Specifically, it held that when
examining Article 14, where lines of investigation have not been pursued and evidence of
discrimination has been disregarded, the burden of proof shifts to the Respondent government to
provide additional evidence or a convincing explanation of events, not shaped by a discriminatory
attitude.27 While welcoming the adoption by the Court of a shifting burden of proof in Article 14
cases, it is respectfully submitted such a high threshold for the shift does not accord with
international practice, which increasingly suggests that the burden of proof should always shift in
discrimination cases once a prima facie case has been made.
15.
The shifting the burden of proof is a critical tool by which power disparities between parties to a
discrimination claim may be addressed.28 It effectively operates as a mechanism for refutable legal
presumptions, in that it releases the party claiming discrimination from sole responsibility for
establishing this fact. Instead, it provides that once the complainant establishes a prima facie case the
burden of proof moves to the respondent to prove that discrimination played no part in the
treatment or impact complained of. If the respondent is unable to explain the treatment in raceneutral terms, or to justify the discrimination, discrimination is found.
16.
The importance of a shifting burden of proof in securing effective protection against discrimination
has been recognised by various directives of the European Community, which explicitly require a
shift in the burden of proof. Significantly, these directives have direct impact on the domestic
standards in the 25 Member States of the European Union.
Myrna Mack Chang v. Guatemala, Judgment of 25 November 2003, Series C No. 101, § 120
The Indian Supreme Court, for one, has rejected such an approach; Krishnan and Anor. v. State, 2003 SOL Case No. 399, Judgment of 28
July 2003, at § 2
27 At § 171
28 It should be noted that the legal burden of proof (burden of persuasion in U.S. terms) will always remain with the alleged victim, while
the evidential burden of proof (or burden of production) passes to the Respondent.
25
26
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17.
In 1997, the European Community adopted the Burden of Proof Directive.29 The Directive
establishes the rationale for the mechanism, recognising that complainants “could be deprived of
any effective means of enforcing the principle of equal treatment before the national courts if the
effect of introducing evidence of an apparent discrimination were not to impose upon the
respondent the burden of proving that his practice is not in fact discriminatory.”30 The more
recently adopted Race and Framework Directives31 similarly provide that where a person establishes
“facts from which it may be presumed that there has been direct or indirect discrimination, it shall
be for the respondent to prove that there has been no breach of the principle of equal treatment.”32
Pursuant to the Race Directive many EU Member and Accession States have introduced—and all
must introduce—legislation to shift the burden of proof in race discrimination cases.33 While EC
law does not extend to discrimination with respect to civil and political rights, the mischief that they
seek to address and the principles for which they stand are applicable across fields of discrimination.
18.
The shifting burden of proof in discrimination cases is also well-established practice before the
Court of Justice of the European Communities (ECJ),34 the United Nations treaty bodies35 and
many national courts.36 The Supreme Court of Canada, for example, has confirmed the shifting of
the burden of proof as a matter of course in discrimination cases, regardless of the field of
discrimination. Once a prima facie case is established, “the onus shifts to the defendant to prove on a
balance of probabilities that the discriminatory standard… has a bona fide and reasonable
justification”.37 Similarly, in the United States of America, the so-called McDonnell Douglass-Burdine38
EC Directive 97/80/EC of 15 December 1997.
EC Directive 97/80/EC of 15 December 1997, pre-ambular paragraph 17
31 Directive 2000/43/2000 of 29 June 2000 implementing the principles of equal treatment of persons irrespective of race or ethnic origin
(Race Directive) and Directive 2000/78/2000 of 27 November 2000 establishing a general framework for equal treatment in employment
and occupation (Framework Directive)
32 Article 8 Race Directive; Article 10 Framework Directive; Similar provision is made in Directive 2002/73/EC of the 23 September
2002 amending the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promition, and working conditions (Equal Treatment Directive)
33 Legislation to this effect has already been adopted in: Belgium, Article 19(3) 2003 Act; Bulgaria, Article 9 Protection Against
Discrimination Act; Czech Republic, Code on Civil Court Procedure through Amendment No. 151/2002; Finland, Article 17 Equality
Act; France, Article L 122-45 Labour Code (only in labour-related discrimination cases); Hungary, Article 19 ETA; Italy, to limited extent
Article 3(4) Decree 215/2003; Latvia, Article 29(3) Labour Law, Articles 103(2) and 150 Administrative Procedure Law (entry into force
2004); the Netherlands, Article 10.1 Algemene Wet gelijke behandeling; Poland, only in employment cases: Articles 183(b) Labour Code,
included in draft bill on the General Inspectorate for Counteracting Discrimination; Slovakia, section 13(5) new Labour Code; Slovenia,
Articles 6(4) and 45(3) Employment Relationship Act; Spain, Articles 32 and 36 Law 62/2003; Sweden, Act on Measures Against Ethnic
Discrimination in Working Life, Act on the Prohibition of Discrimination 2003: section 307, Equal Treatment of Students at Universities
Act; Turkey, Articles 5(7) and 18c and read with Article 20(2) new Labour Code; United Kingdom GB: Art. 54A Race Relations Act (since
2003 Regulations), NI: Art. 52A Race Relations Order (since 2003 Regulations). While there is not yet legislation to this effect, in practice
the burden of proof shifts in discrimination cases in Ireland; Bailieborough Community School v Carroll, DEE 4/1983
34 Case 170/84, Bilka-Kaufhaus, n. 7, § 31, Case C-33/89 Kowalska [1990] ECR I-2591, § 16, and C-184/89 Nimz [1991] ECR I-297, § 15;
Case 109/88 Danfoss [1989] ECR 3199, § 16
35 The Human Rights Committee has stated that “substantive reliable documentation” will shift the burden of proof to the Respondent
State; Chedi Ben Ahmed Karoui v. Sweden, Case No. 185/2001 of 25 May 2002, § 10. See also Conclusions of the Committee of Economic,
Social and Cultural Rights on Luxembourg, U.N.Doc. E/C.12/1/Add.86 (2003) § 10, and Poland, U.N.Doc. E/C.12/1/Add.82 (2002) §
7; Conclusions of CERD, United Kingdom of Great Britain and Northern Ireland, U.N.Doc. CERD/C/63/CO/11 (2003) § 4
36 See for example the Netherlands (RK Woningbouwvereniging Binderen vs. S. Kaya, 10 December 1982, NJ 1983/687); Canadian
Human Rights Act, section 15; South African Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, section 13;
section 54A; New Zealand Human Rights Act 1993, section 92F; United States [in context of indirect discrimination, section 105(a) Civil
Rights Act 1991; and McDonnell Douglas Corp. v. Green, 411 U.S. 492 (1973)]. In other jurisdictions, such as Australia and England, the
burden does not generally shift but courts evaluate cases through the establishment of rebuttable presumptions and inferences of
discrimination, which are similar in effect. For the approach in English cases see Neill LJ in King v. Great British-China Centre (1992) ICR
516 at 528, cited with approval by Lord Brown-Wilkinson in Glasgow City Council v. Zafar (1998) ICR 120
37 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer], at § 20
38 Based on the Supreme Court’s approach in McDonnell Douglas Corp. v. Green, n. 36, and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981)
29
30
7
framework provides that if the plaintiff establishes a prima facie case, a rebuttable presumption of
discrimination arises, with the defendant then needing to produce some evidence of a legitimate
non-discriminatory reason for its actions, or the plaintiff is entitled to judgment as a matter of law. 39
Once the burden of proof shifts, it follows for the Court to ascertain whether the evidence adduced
by the respondent is adequate to rebut the factual presumption of discrimination drawn from the
prima facie case of the complainant. If it does not, the court is to consider discrimination proven.
19.
The burden of proof shifts once the complainant has established a prima facie case, that is, facts from
which the court would be entitled to conclude that he or she had been discriminated against. What
will amount to a prima facie case depends on the facts of the case, but the US Supreme Court, for
one, has emphasised that “[t]he burden of establishing a prima facie case of disparate treatment is not
onerous.”40 It is well established that a victim’s race need not be shown to be the only or even the
main reason for the less favourable treatment: it is sufficient if it had a “significant influence on the
outcome”.41 In establishing a prima facie case, therefore, the complainant need not show that
discrimination comprised the sole factor in the respondent’s treatment of them, it will be enough if
discrimination is a factor—and not even the primary factor—in influencing the respondent’s
action.42
20.
The First Section in Nachova held that the burden of proof shifted once the authorities’ failure to
investigate was established. In light of international practice, this plainly sets too high a threshold.
With respect to a substantive violation of Article 14, it should be enough for the applicant to
establish primary facts and circumstantial evidence from which discrimination by the public
authorities can be inferred by this Court. It should then be for the Respondent State to either show
that such inferences are ill founded or inappropriate, or that the treatment was reasonably and
objectively justified in the circumstances, with reference to this Court’s established jurisprudence on
justification.43
V. PROOF REQUIRED FOR A PRIMA FACIE CASE
21.
In the context of a shifting burden of proof, being able to effectively establish a prima facie case is
critical: if the respondent is unable to adequately explain the treatment, the prima facie case stands
and discrimination is found. However, as already noted, establishing a claim of discrimination is
seldom easy and accordingly flexibility is required in respect of the types of evidence allowed in
making out a prima facie case.
22.
There is a distinct trend within the European Community and leading national jurisdictions towards
easing the evidentiary demands on victims of discrimination cases. The Race Directive is a clear
St. Mary’s Honor Centre v. Hicks, 509 U.S. 502 (1993) at 507
Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)
41 Nagarajan v. London Regional Transport , n. 8, per Lord Nicholls of Birkenhead at 513B
42 Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare) (1998), 32 C.H.R.R. D/168 (F.C.T.D.) § 11
43National Union of Police v. Belgium, Judgment of 27 October 1975, § 46; Marckx v. Belgium, Judgment of 13 June 1979, § 33; Rasmussen v.
Denmark, Judgment of 28 November 1984, § 38; Abdulaziz v. UK, Judgment of 28 May 1985, § 72; Lithgow v. UK, Judgment of 8 July 1986,
§ 177; Thlimmenos v. Greece, Judgment of 6 April 2000, § 46
39
40
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example of this.44 In other parts of the world, courts have held that evidence of “a general picture”
of disadvantage, or “common knowledge” of discrimination might be enough to establish a prima
facie case.45 In Switzerland, courts are encouraged to look beyond the facts of the case at hand and
to take account of knowledge of facts from general life.46
In New Zealand, courts find
discrimination on the basis of “judicial notice”, which involves the court taking note of “a fact that
is so generally known that every ordinary person may be reasonably presumed to be aware of it”. 47
In Australia—consistent with the remedial and educative objects of equality legislation—
discrimination provisions are constructed in favour of potential victims of discriminatory conduct. 48
Perhaps the most accommodating approach is adopted in South Africa where, in constitutional and
statutory cases, if the discrimination is based on a “specified ground” (including, inter alia, race) it is
presumed to be unfair and unconstitutional.49 Once the complainant shows that a government policy
or private action treats members of his or her race differently, the burden moves to the defendant to
prove that the discrimination is “fair”. The determination of fairness or unfairness depends
“primarily on the impact of the discrimination on the complainant and others in his or her
situation.”50 At all stages parties are held to a ‘balance of probabilities’ standard. Such approaches
reflect an understanding of the way in which discrimination is actually experienced by victims, and
the obstacles they face in evincing their treatment.
23.
While admissible generally in human rights cases, circumstantial evidence and the drawing of
inferences take on particular significance in the context of discrimination cases, where “often racial
discrimination will have to be established, if at all, as a matter of inference”.51 Courts frequently
allow the establishment of prima facie cases by drawing inferences based on circumstantial evidence.
In Chattopadhyay, it was held that “[t]he question is not whether the evidence, if admitted, would be
decisive but whether it may tend to prove the case.”52 In Enderby, for example, the ECJ found a
prima facie case had been established when it was shown that the pay of speech therapists was
significantly lower than that of pharmacists, and that the former were almost exclusively women
while the latter were predominantly men. This information sufficed to shift the burden of proof in
the case.53 In Anya v University of Oxford the English Court of Appeal stressed that due to the
evidentiary difficulties inherent in race discrimination cases, such cases will often be established by
drawing inferences from facts. The Court went on to hold that those facts may well be background
For example, the Race Directive provides an accommodating approach to establishing indirect discrimination in that it allows for the
use of a hypothetical comparator in establishing disproportionate effect; Article 2(2)(b)
45 EAT in London Underground v. Edwards (No. 2) [1999] IRLR 364: Mayer v. Australian Nuclear Science and Technology Organisation (2003) EOC
93-285
46 Botschaft zum Bundesgesetz über die Gleichstellung von Mann und Frau (Gleichstellungsgesetz) und zum Bundesbeschluss über die
Genehmigung einer Änderung der Verordnung über die Zuweisung der Ämter an die Departemente und der Dienste an die
Bundeskanzlei vom 24. Februar 1993, BBl 1993 I 1248 subs., 1295
47 Auckland City Council v Hapimana [1976] 1 NZLR 731, applied in Northern Regional Health Authority v. Human Rights Commission, [1998] 2
NZLR 218, 242, §232
48 Waters v. Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 359 (with whom Deane J agreed) and also per
Brennan J at 372, per Dawson and Toohey JJ at 394 and per McHugh J at 406-407
49 Harksen v. Lane NO and Others, 1997 (11) BCLR 1489 (CC) § 53
50 Ibid.
51 Chapman v. Simon [1994] IRLR 273, § 43
52 [1982] ICR 132, § 22
53 Case 127/92, Enderby [1993] ECR 673, § 16
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facts and may predate or postdate the acts relating to the claim.54 While an isolated piece of
circumstantial evidence might seem accidental or fortuitous, read together such evidence might
betray a pattern or context from which discrimination can be rightly inferred.
24.
Inferences are particularly important in the context of combating “institutional” or “systemic”
discrimination55, where a discriminator may be unaware of his or her own prejudices, and is merely
acting in accordance with a framework of entrenched societal or workplace bias. The significance of
inferences in such cases was emphasised by Lord Nicholls of the United Kingdom’s House of Lords
who found, in the context of employment discrimination,
An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the
applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may
decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time
or not, race was the reason why he acted as he did… Members of racial groups need protection from conduct
driven by unrecognised prejudice as much as from conscious and deliberate discrimination.”56
25.
In the final analysis, it is for the court to make a finding as to “what inferences it is proper to draw
from the primary facts found.”57 English courts have noted, for example, that “[t]he process of
inference is itself a matter of applying common sense and judgment to the facts, and assessing the
probabilities on the issue whether racial grounds were an effective cause of the acts complained of
or were not.”58 Plainly, the inferences drawn must be strong, clear and concordant as, in the words
of the Australian Supreme Court of Victoria, racial discrimination is “not lightly to be inferred”.59
Critically, the process adopted by the court in drawing inferences must be transparent: the primary
facts and circumstantial evidence from which inferences are drawn should be set out so that the
validity of the inferences can be scrutinised.60
V.
CONCLUSION
26.
This case puts into sharp focus critical issues with respect to proving discrimination under Article
14. While in the context of this Court’s jurisprudence the First Section’s judgment in this case was
in many ways pioneering, it was very much based on conventional approaches to proving
discrimination in other jurisdictions.
27.
It is well established that approaches to evidence adopted by courts have direct bearing on the
ability of legal rights to be recognised. Discrimination claims, by their nature, erect serious and
often insuperable barriers to proof, which have only been fortified by the traditional approach of
this Court to questions of evidence. It is respectfully submitted that this Court’s qualified ‘beyond
reasonable doubt’ standard is inappropriate in a human rights context and provides too great an
(2001) ICR 847 § 9; It should be noted that in response to the prima facie case, the Respondent is required to explain not only the
primary fact of a difference in treatment, but also the pre-dating, accompanying, or post-dating circumstantial evidence of racial bias; § 23
55 The Canadian Supreme Court discussed this phenomenon at length in British Columbia (Public Service Employee Relations Commission) v.
British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3 [Meiorin] at § 41
56 Nagarajan v. London Regional Transport, n. 8, 511–2
57 Barton v. Investec Henderson Crosthwaite Securities Ltd. (EAT 3.04.2003) § 25
58 Qureshi v. Victoria University of Manchester (EAT 21.6.96), cited with approval by the English Court of Appeal, Anya v. University of Oxford
and Anor., n. 54, § 9
59 Department of Health v. Arumugam [1988] VR 319 at 331
60 Chapman v. Simon, n. 51, § 43
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evidentiary obstacle for applicants.
An alternative standard, such as the lower ‘balance of
probabilities’ test—adopted so successfully in other jurisdictions—would provide enhanced
protection for victims, while still guarding against wrongful findings against States. Further, beyond
the original judgment and in line with the European Union practice and that of other countries with
strong judicial protection against discrimination, INTERIGHTS urges the Grand Chamber to confirm
that a shift in the burden of proof should occur as a matter of course once a prima facie case is
established, which may be based on strong, clear and concordant inferences drawn from
circumstantial evidence.
28.
INTERIGHTS appreciates the seriousness of this Court finding a Member State of the Council of
Europe in violation of the Convention and believes that the interpretation of the Convention in the
manner proposed, which accords with experience in national and international systems,
accommodates this concern. At the same time, as those systems have recognised, it is critical that
the Grand Chamber adopts approaches to evidence that will allow effective protection against
discrimination. Plainly, for this Court to be a credible judicial protector against discrimination in
Europe, its jurisprudence must reveal a clear and principled approach that reflects the realities of
racism in the region and the exigencies of its proof.
Andrea Coomber
Legal Officer (Equality Programme)
INTERIGHTS
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