A reflection on substantive equality jurisprudence

Abstract

In recent years, the European Court of Human Rights has begun to acknowledge the considerable disadvantage and discrimination that Roma and persons with disabilities face in society. The Court has characterised both Roma and disabled applicants as vulnerable and disadvantaged groups and has stated its intention to apply a strict standard of scrutiny to alleged violations of the rights of both groups. This contribution will analyse the standard of scrutiny adopted by the Court in the context of alleged claims of discriminatory treatment of Roma and disabled applicants. The essential question to be addressed by this article is whether the differential treatment in question is deemed to be justified (either required or allowed) by the Court and whether the Court’s case law relating to these two groups reflects a more substantive conception of equality capable of addressing the deep-seated structural inequalities faced by Roma and persons with disabilities in society. A related question to be addressed by this article is the extent to which the Court’s case law has been influenced by developments in the fields of European and international law, such as the Racial Equality Directive and the United Nations Convention on the Rights of Persons with Disabilities, among others. The influence (and potential influence) of European and international law can be seen in case law related to Roma education and also in recent disability equality case law. This article will analyse case law in these two areas.