Guest Lecture with Cathérine Van de Graaf

Allegation-Picking of Non-Discrimination as Judicial Avoidance?
Article 14 as the Fifth Wheel on the Strasbourg Wagon

Guest Lecture with Cathérine Van de Graaf
Human Rights Center, Ghent University
University of Cologne, Academy for European Human Rights Protection

Article 14 of the European Convention on Human Rights (ECHR) requires that the rights and freedoms guaranteed by the Convention be secured without discrimination. As an accessory provision, Article 14 must be invoked in conjunction with another substantive right. This accessory character has contributed to a persiste judicial practice whereby the European Court of Human Rights (ECtHR) declines to examine Article 14 once it has established a violation of the underlying substantive article and unless it is a "fundamental aspect" of the case. Our data show that this occurs in nearly half of all Article 14 complaints. In such cases, applicants receive the standard formula that “there is no need to examine the complaint under Article 14 of the Convention in conjunction with Article [X] of the Convention.” Greene has recently described this phenomenon as “allegation-picking”—a form of judicial avoidance in which the Court adjudicates only some alleged violations and refuses to engage with the others (2024). Despite its practical significance, this mode of avoidance remains under-researched.

This study aims to identify the characteristics of cases in which the Court avoids examining Article 14. Specifically, it investigates how the likelihood of an Article 14 assessment varies depending on the configuration of the case. Indicators include the substantive article to which Article 14 is attached, the alleged ground of discrimination, the date of the judgment, the respondent State, and the presence of third-party interventions, among others. By analysing these factors, the study seeks to provide a clearer understanding of when and why Article 14 complaints are bypassed and to contribute to broader debates on judicial avoidance and equality protection in the ECtHR’s jurisprudence.

Cathérine Van de Graaf is a postdoctoral researcher at the Centre for Law, Families and Diversity and the Human Rights Centre at Ghent University. Prior to joining Ghent University, she was a postdoctoral researcher at the Academy for European Human Rights Protection at the University of Cologne.
 

The lecture is organized by Dr. Vladislava Stoyanova
as part her Wallenberg project 'The Borders Within.'