Emerging from the shadows: Substantive equality and article 14 of the european convention on human rights

Abstract

The equality guarantee in Article 14 of the European Convention on Human Rights and Fundamental Freedoms has often been regarded as an insipid right. However, recent jurisprudence indicates that the European Court of Human Rights has taken a more robust stand. This article assesses recent developments to determine whether we can now discern a coherent conception of the right to equality. The article draws on a four-dimensional conception of substantive equality, which assesses the case law according to whether it furthers the complementary aims of redressing disadvantage (distributive dimension), addressing stereotypes, prejudice, humiliation and violence (recognition dimension), facilitating participation (participative dimension); and accommodating difference, including through structural change (transformative dimension). The article concludes that the judgments have important resonances with this approach, particularly in relation to the distributive, recognition and participative dimensions. The Court remains cautious, however, in relation to transformation. It also has a worrying tendency to revert unexpectedly to formal equality, as in relation to racial violence.