The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases: The Search for Fairness Continues

Abstract

To improve ‘fairness’ and address victims’ difficulties in proving discrimination, a ‘special allocation of the burden of proof’ has been developed. When the claimant persuades the Court to establish a presumption of discrimination, the burden shifts to the defendant, who must persuade the court that no discrimination has occured. Focusing on racial discrimination, this article traces the ECtHR’s struggle towards operating a fair shared burden of proof between applicant and defendant. Whereas for indirect racial discrimination, the search for fairness is one of fine-tuning, for hidden direct racial discrimination, particularly involving crimes with discriminatory motives, considerable work is needed still. So far, the Grand Chamber has identified relevant criteria for the distribution of the burden of proof, but has not applied these criteria in concreto. The Court is invited to provide more guidance to assist national authorities and courts in their search for a fair distribution of the burden of proof.