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By: Konrad Turnbull

On 26^th March 2024, the European Court of Human Rights (ECtHR) explicitly articulated systemic discrimination for the first time. In VI v Moldova, the Court directly acknowledged that the institutionalised neglect of persons with intellectual disabilities constitutes systemic discrimination. This expression is significant on its own – but what makes this judgment noteworthy is the Court’s application of Article 46. By applying Article 46 to require general measures to remedy a violation of Article 14, the Court implicitly confirms that such violations are, by their nature, systemic.

This judgment builds upon prior case law, such as Tunikova & ors v Russia, which required a plethora of measures to tackle gender-based violence, or Szolcsán v Hungary, which sought to dismantle school segregation of Roma. Yet VI v Moldova goes further, potentially strengthening the doctrinal link between discrimination and the ECtHR’s remedial framework. Essentially, where discrimination is systemic, so must be the remedy.

This post will explore the implications of VI v Moldova and how, through its application of Article 46, the ECtHR is increasingly signalling that individual reparations alone are insufficient to repair systemic violations of Article 14.

VI v Moldova: The Facts

The case involved an individual with a mild intellectual disability who was involuntarily institutionalised in a psychiatric hospital for nearly five months – four months longer than expected. The applicant cited the combination of hospital conditions, mistreatment by staff & other patients, lack of State investigation, limited alternative treatments, and societal discrimination against those with psychosocial disabilities, to claim a violation of Article 14 in conjunction with Article 3 ECHR (the prohibition of torture and cruel, inhuman and degrading treatment or punishment).

Discussing the merits of an alleged Article 14 violation, the ECtHR points to the reports of various UN Special Rapporteurs to observe the ‘existence of systemic discrimination’ (para 172). Consequently, because of the overwhelming combination of discriminatory factors, the Court asserted that Article 46 is applicable in this case to ‘address the discrimination of persons with intellectual disabilities, and in particular children’ (paras 196-197).

Article 46: General Measures for a Systemic Problem

The ECtHR, like the Inter-American Court of Human Rights (IACtHR), is taking efforts to grapple with restitutio ad integrum. In sum, how can a State return victims to a place before the harm occurred, if the harm (structural discrimination) has always been occurring? (Cotton Fields, para 450). This is where the Article 46 procedure comes into play.

In the Court’s own words, general measures under Article 46 ‘should take into consideration the entire group of individuals affected’ to ensure non-repetition (Baybaşin v Netherlands, para 79). Moreover, in VI v Moldova the Court states that the ‘nature of the violations’ would require the State to ‘take a number of general measures’ to properly remedy the violation (para 197). Thus, this budding relationship between Articles 14 and 46 shows promise, as the ECtHR is gradually recognising that reparations for systemic discrimination must extend beyond individual compensation.

One caveat is that the Court’s application of Article 46 remains evolving and opaque, where scholars have highlighted the ECtHR’s varying degree of ‘remedial deference’ by State or subject matter (page 385). In parallel, in N v Romania (No. 2), Judge Motoc compared Article 14 to the famous Hamlet phrase ‘to be or not to be’, where it is not always clear how or whether the ECtHR will address discrimination at all in its judgments (Partly Dissenting Opinion of Judge Motoc, para 1). Consequently, predicting the Court’s rulings could be equated to gazing into a crystal ball made of frosted glass.

What VI v Moldova does do, though, is offer a lens to contextualise cases where Article 46 is applied to violations of Article 14.  This judgment is far from a “chance” occurrence. Prior to VI v Moldova, the Court had already been applying Article 46 to require general measures for violations of Article 14. Previously, the ECtHR has required general measures to: end the segregation of Roma children in schools (Szolcsán v Hungary, paras 68-9, Elmazova & ors v North Macedonia, paras 88-89, & Egyptian students in X & ors v Albania, para 96), to correct deficiencies in the protection of LGBTI individuals from (or failure to investigate & prosecute) violence against them (Stoyanova v Bulgaria, paras 77-79), or to remedy the ‘discriminatory lack of protection of women against domestic violence’ (Tunikova & ors v Russia, paras 146-59). The only difference between these cases and VI v Moldova is that the Court did not overtly identify these violations as “systemic discrimination”.

As established, the Court’s practice remains unforeseeable regarding both Articles 14 & 46.  This is evidenced in cases where systemic discrimination is arguably intrinsically tied to a violation; yet the Court may find it ‘not necessary’ to discuss (for example regarding gender-based violence, NÖ v Turkey, paras 57-58). This post, therefore, posits that – when the ECtHR does apply Article 46 to Article 14 violations – this further galvanises a preexisting trajectory in the Court’s practice. Hence, VI v Moldova is significant as it gives the strongest evidence thus far that the Court is consciously combatting systemic discrimination when requiring general measures.

A Note on Systemic Discrimination

A uniform definition of systemic or structural discrimination has yet to fully crystallise in international law, although the concept is increasingly being engaged with by the international legal community. For example, alongside VI v Moldova, we can find the International Court of Justice (19 July 2024 Advisory Opinion, para 223), IACtHR (Fuentes v Peru, paras 89 and 116), and recent African Disability Protocol explicitly articulating the concept. For the purposes of this discussion, the CESCR’s General Comment 20 offers a strong foundation:

‘[S]ystemic discrimination can be understood as legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups’ (para 12).

Highlighting this definition is not intended to put words in the ECtHR’s proverbial mouth. Yet, it is highly unlikely that the ECtHR assigns a meaning to the term ‘systemic discrimination’ (para 172) completely distinct from the abovementioned institutions. As the above judgments demonstrate, general measures aim to dismantle these discriminatory ‘legal rules, policies, [&] practices’. It is paramount to point out that the focus of this blog post, Article 46, represents just one of many elements essential to tackling systemic discrimination. Nevertheless, outside of reparations, many themes underlying the concept have emerged from the work of the ECtHR, such as:

• Achieving substantive equality (Concurring Opinion of Judge Motoc, paras 4 & 11);
• The positive obligation to correct ‘factual inequality’ (Szolcsán v Hungary, para 55);
• That it is the de facto effect of a measure or policy which can be discriminatory, regardless of intent (Hoogendijk v Netherlands);
• Demonstrating awareness that ‘Roma communities are often confronted with institutionalised racism’ (Lingurar v Romania, para 80);
• The importance of assessing a group’s ‘vulnerability or history of stigmatisation, and its position vis-à-vis society as a whole’ (Behar & Gutman v Bulgaria, para 67);
• How legislation can ‘perpetuate prejudices’ (Beeler v Switzerland, para 113);
• That, regarding vulnerable groups, such as the Roma, ‘special consideration should be given to their needs and their different lifestyle (…) in reaching decisions in particular cases’ (Chapman v United Kingdom, para 96);
• The narrow margin of appreciation afforded to States in applying differential treatment to groups experiencing ‘historic inequalities’, such as those based on sex (Jurčić v Croatia, para 65) or disability (JD & A v United Kingdom, para 89);
• Continual engagement with the output of CEDAW, a body which has heavily discussed systemic discrimination (e.g. CEDAW General Recommendation 35, para 30, or their joint statement with the CRPD & UN Women, intro & para 4). (See the ECtHR’s discussions on gender-based violence (Opuz v Turkey, paras 73-4, 164, 186-7,197, 200).
• And, lastly, articulations of or allusions to ‘systemic discrimination’ in the separate opinions of its judges, such as the Dissenting Opinion of Judge Power-Forde (AA & ors v Sweden) or the Partly Dissenting Opinion of Judge Pavli (Basu v Germany, para 4). 

Clearly, the ECtHR is no stranger to various structural facets of discrimination, even if it has not yet tied all these elements together in a pretty (or cohesive) systemic discrimination bow. Likewise, while Article 46 and reparations remain a vital piece of this greater systemic discrimination puzzle, it is only one piece of this puzzle. As the above examples show, the Court is still in the process of “putting” this puzzle together piece by piece. However, without a definition of systemic discrimination in the Court’s “own” words, for legal practitioners, trying to interpret these judgments it is like trying to assemble a puzzle without the completed puzzle’s picture for reference.

VI v Moldova: A New Lens 

To conclude, VI v Moldova signals that systemic discrimination is not just the logical motive behind the Court’s approach to reparations under Article 46 – it is explicitly named as such. Subsequently, this judgment potentially signifies an emerging doctrinal evolution in how the ECtHR engages with the reparatory element of systemic discrimination. Such a claim is not meant to brush aside the many, many other hurdles required to properly address systemic discrimination in the ECtHR. Rather, this judgment represents a small step towards clearer recognition that systemic discrimination demands systemic reparations, joining a growing body of case law that began with Tunikova & ors v Russia and to which VI v Moldova offers a promising contribution.

Bio:

Konrad Turnbull is a Lecturer and PhD Researcher at the University of Groningen Faculty of Law, where his interdisciplinary research focuses on how Structural Discrimination is interpreted in international law & vulnerable groups’ perceptions of procedural fairness towards these institutions.