The use of European consensus to interpret the European Convention on Human Rights has generated criticism for, inter alia, being a tool that can potentially disadvantage applicants who belong to minorities. This concern is particularly relevant in Article 14 ECHR cases, where the Court is called upon to determine whether a specific group is facing discrimination in their enjoyment of a Convention right. The chapter argues that the weight the Court places on European consensus in such discrimination cases has been inconsistent. While in some cases the Court takes full advantage of the flexibility of the consensus tool to reinforce the minority status of the applicants and to narrow the margin of appreciation, in other cases, the existence or lack of consensus seems to be the sole determining factor to the outcome of the application. The chapter employs the case-law on discrimination against Roma and their access to education as an example of the former approach, and same-sex marriage cases brought under Articles 8, 12 and 14 ECHR as evidence of the latter. After comparing these two approaches and identifying the inconsistencies in the application of the consensus tool, the paper argues that the relationship between European consensus and the minority status of the applicant must be better defined and more consistently applied across judgments that relate to minority rights.
|Title of host publication||Building Consensus on European Consensus|
|Subtitle of host publication||Judicial Interpretation of Human Rights in Europe and Beyond|
|Editors||Panos Kapotas, Vassilis Tzevelekos|
|Publisher||Cambridge University Press|
|Publication status||Published - Jan 2019|