Rethinking the judgement on discrimination. A horizontal analysis on European jurisprudence

Being increasingly called upon to express its opinion on measures that directly or indirectly give rise to discriminating practices, the European Court of Human Rights uses different parameters based on the risk factors involved. A horizontal comparison of the jurisprudence stated in Article 14 has shown clearly that where sexual orientation is concerned, the discretion afforded to judges fosters an excessively indulgent approach towards State reason, whereas higher protection standards have been adopted with reference to other factors. This scenario is further complicated by the ever-growing importance given to standards prevalent in the European Union, also considering the EU’s possible accession to the ECHR. A convergence with the Court of Justice, which is also oriented towards a differentiated protection of the relevant discrimination grounds, is thus possible. The contribution of the Charter of Nice represents a fundamental step towards “rethinking” the judgement on discrimination, in order to enable the European Courts to act in a univocal manner for all risk factors. The protection of the rights of vulnerable groups should prevail over the comparison of situations. This must be achieved through certain and transparent judgement phases. With this aim in mind, dialogue between the Courts may converge on the defence of human dignity.