Non-Discrimination Ruling at European Court Disappoints

In what may be called a 'landmark' ruling in human rights law relative to equality and non-discrimination, the European Court of Human Rights this morning declared inadmissible one of the first cases filed under Protocol No. 12 to the European Convention, which entered into force in 2005 but which has not yet been the subject of major rulings. Protocol No. 12 introduces a substantive equality clause into the Convention: ‘The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ It extends to analogous grounds of discrimination.
The application was filed by an Irish tourist who claimed the Albanian government was failing to protect ‘gingers’ or ‘gingas’, who are a visible minority distinguished by red hair. Evidence was produced showing a widespread practice of genetic screening of unborn children for the MC1R gene. It is believed that many parents resort to termination of pregnancy once the gene is discovered. The applicant argued that this amounted to discrimination under Protocol No. 12 and might even be described as ‘genocide’, in that it amounted to the prevention of births within a national, ethnic, racial or religious group, which is prohibited by article 2(d) of the 1948 Genocide Convention. It is also an international crime under article 6 of the Rome Statute.
The Prosecutor of the International Criminal Court said informally, in a talk in The Hague last week, that his staff were studying the genocide charges, but that it would take some time to assess whether the situation was of ‘sufficient gravity’ before applying to the Pre-Trial Chamber to initiate an investigation. He referred to a recent ruling of the Appeals Chamber saying that the threshold for issuance of an arrest warrant for genocide was now very low. ‘Rest assured, we will confront impunity in all of its forms’, he said.
In another reaction to the case, the President of the International Association of Genocide Scholars said the organization was considering issuance of an ‘early warning’ notice.
In finding the application inadmissible, the European Court applied its doctrine of the margin of appreciation, citing its established case law concerning visible hair, notably Sahin v. Turkey.
A novel feature of the hearing at the European Court of Human Rights was the screening of a film documenting the phenomenon of discrimination against ‘gingers’.
One of the judges at the European Court recused himself from the decision, saying that he was himself a member of the minority group under consideration, and had suffered from persecution in the past as a result. At the oral hearing, the applicant described the judge as a 'self-hating ginger'. The judge, who only has a fringe of grey hair on his head and a grey moustache, explained that he had patches of red hair on parts of his body that were not normally visible to the public. See the recusal opinion.