LITIGATION AND ADVICE
TRAINING: BUILDING CAPACITY
OTHER PROJECTS

LITIGATION AND ADVICE

Indirect Discrimination Against Roma Schoolchildren: Brief before the European Court

On 11 June 2004, INTERIGHTS and Human Rights Watch submitted an amicus brief to the European Court of Human Rights in the case of DH and Others v the Czech Republic. The case concerns discrimination on the basis of race in school placement. In particular, the case alleges the discriminatory assignment of Roma to �special schools� for intellectually disabled children, as a result of which practice, disproportionate numbers of Roma children are denied opportunities for further schooling, employment and professional advancement, and personal development. The case raises critical questions regarding the interpretation of Article 14 of the European Convention on Human Rights.

In recent years, the European Court has recognised that discrimination can occur when a general policy or measure has a disproportionate, prejudicial effect on a particular group, even if such an effect was not intended.  This acknowledgement of indirect discrimination has marked a watershed in the development of the Court�s Article 14 jurisprudence, however the Court has not yet indicated how such discrimination might be demonstrated by applicants. The brief outlines ways in which courts in other jurisdictions allow for indirect discrimination to be proved, and the critical role of statistics in this regard. It is argued that international and comparative practice supports the conclusion that the Court should give due regard to credible statistical evidence when considering indirect discrimination cases.

Appended to the brief are expert opinions from four jurisdictions--Australia (John Basten QC and Kate Eastman), United Kingdom (Dinah Rose and Claire Weir), Canada (Paul Schabas) and South Africa (Gilbert Marcus SC)--selected on the basis of their experience in applying and developing the principles of indirect discrimination. The brief also calls heavily on developments within Europe, particularly directives of the European Community and the case law of the Court of Justice of the European Communities. 

Right of Same-Sex Couples to Marry: Controversial Case against Massachusetts Dept of Health

INTERIGHTS is one of 15 international human rights organisations that have signed on to an amicus brief responding to a request from the Senate of Massachusetts for an advisory opinion on the right to equality for same-sex couples. Click here to read the brief. To read the full text of the Court's advisory opinion to the Senate, click here, and to read the opinion on the case of Goodridge et al v Department of Public Health which preceded the current opinion, please click here. You can also find the brief here.

          Lawrence v Texas: Landmark Decision to Overturn Criminal Sodomy Laws

In a landmark decision six-three (one Justice concurring) delivered on 26 June 2003, the US Supreme Court struck down criminal sodomy laws in Texas. The Court overturned its 1986 decision in Bowers v Hardwick, which had held that the constitutional guarantee of the right to privacy did not fully extend to same sex partners. Lawrence v Texas  has declared that the right to liberty under the Due Process clause of the 14^th Amendment of the US Constitution  includes the freedom for all individuals to engage in private sexual conduct without government intervention. 

The decision is viewed as a momentous achievement for gay rights, largely because it has located the sexual rights of same sex couples in the Due Process clause of the 14^th Amendment. The Court could have alternatively struck down the Texas statute as a violation of the Equal Protection clause of the 14^th Amendment, which would have prevented the ban on homosexual sodomy only to the extent that such a ban did not apply equally to heterosexual sodomy. The Court would thus have abided by its judgment in Bowers. In her concurrence, Justice O�Connor, the only member of the present court to rule with the majority in the Bowers decision, in fact declined to overturn Bowers and argued for striking down the Texas statute based on the Equal Protection clause. By locating the private, consensual sexual activities of  all couples within the Due Process clause of the 14^th Amendment, the Court held unconstitutional any legislation that seeks to limit such intimacy.  

In addition to powerfully protecting the right to privacy, the judgment provides a significant boost to the use of comparative human rights law. The majority opinion cited, for the first time ever, a case decided by the European Court of Human Rights. The majority invoked the 1981 case of Dudgeon v United Kingdom as an indication that Western values are not anathematic to fully protecting the right to privacy for same sex partners. The majority also cited an amicus brief submitted by Mary Robinson et al., whose amici included Interights and which adopted a comparative human rights approach. Such unprecedented reference to comparative law by the Court did not go unnoticed by Justice Antonin Scalia, who in his dissenting opinion termed reliance on foreign views as �dangerous� and �meaningless�.

Read the amicus brief to which Interights contributed here and the judgment of the Supreme Court here.

Advice during 2004

Advice to lawyers representing the applicant in Asmundsson v Iceland before the European Court of Human Rights concerning disability discrimination in respect of the provision of pensions. Research assistance was provided by the Harvard Law School�s Human Rights Programme. As of August 2004 INTERIGHTS is awaiting the decision of the European Court.

Read the Court's original admissibility decision here.

Advice to Spanish lawyers on applicability of the ECHR to a migrant woman in Spain. Advice related to the admissibility and merits of a case on the basis of Articles 3, 5 and 14 of the ECHR

Advice to a Fijian High Court judge on comparative jurisprudence with respect to the necessity for collaboration of evidence in rape trials.

Advice to the Women�s Lobby, Kosovo on the draft gender equality law for Kosovo. The draft is now being considered by parliamentarians.

Lawyers� Training Programme in Equality and Non-Discrimination Held in Fiji

Following the highly successful judicial training programme in international and comparative human rights law held in 2003 in Fiji, INTERIGHTS� legal officers with the Fiji Human Rights Commission (FHRC) facilitated a two-day programme of practical training in international and comparative human rights law, with a particular focus on equality and non-discrimination.

Attended by 20 local lawyers, NGO and government workers from 11�12 August 2004, the workshop introduced the participants to the key provisions of international human rights law, both civil and political rights and economic, social and cultural rights. Participants were invited to examine the human rights provisions in their own Constitution and their relationship to international law.

The right to equality is entrenched in section 38 of the 1988 Fiji Constitution (as amended 1997). On the second day of the programme, INTERIGHTS and FHRC legal officers discussed local equality and non-discrimination issues and law, framing them in the context of the international instruments and comparative jurisprudence to which Fijian lawyers have recourse. Throughout the two-day session, participants took part in break-out exercises where they focused on how international law could be applied in practice to cases on which they are working.

Feedback from the event has been very positive, with some participants already taking equality cases forward in which they will interpret constitutional provisions in light of international law. All participants agreed to be part of a new human rights network, to be facilitated by the FHRC.  

On 8�9 November 2003, INTERIGHTS� legal officers gave a workshop on the European Convention on Human Rights (ECHR) to students of Harvard Law School. Following a brief introduction to the ECHR, the European Court of Human Rights and its procedures, the programme centred on consideration of a hypothetical case. Students worked in two groups: representatives of the applicant and of the respondent government. Equality Law Officer Andrea Coomber facilitated the applicants� preparation on a hypothetical concerning Articles 8 and 14 of the ECHR. 

Andrea Coomber was an expert at the Practical Training on Non Discrimination and Minority Rights for CEE/fSU Lawyers (Soesterberg, Netherlands, 24 November�6 December). The training is organised jointly by INTERIGHTS� CEE Programme and the Netherlands Helsinki Committee. The goal of the training was to equip the participants with knowledge of how to use the international instruments on non-discrimination in their daily work. Andrea Coomber presented on the UN mechanisms (both Charter and Treaty-based) concerned with discrimination, with a hypothetical on discrimination against women and migrant workers.

Andrea Coomber was a trainer at a two-day workshop on the protection of women�s sexual and reproductive rights and the ECHR. The workshop brought together activists and lawyers working with the ASTRA network, the leading network of NGOs concerned with sexual and reproductive rights in CEE/fSU (http://www.astra.org.pl).

Transnational Workshops on Implementing European Anti-Discrimination Law

As part of the Implementing European Anti-Discrimination Law project, INTERIGHTS, with partners European Roma Rights Center (ERRC) and Migration Policy Group (MPG), held a two-day workshop in October 2003 which examined ways to assist the European legal and NGO community to undertake strategic litigation to implement the Race Directive, and other relevant legal instruments in the area of race discrimination in Europe. Twenty leading race discrimination experts from across Europe met and identified key challenges for the implementation of the Directive, appropriate means to litigate these issues and ways in which litigation might dovetail with other strategies for change. They canvassed the type of cases we need to identify and put to the courts including discrimination in access to education, housing, employment and also looked at the challenges of arguing this type of case including the burden of proof, admissible evidence and indirect discrimination. On the basis of workshops, participants devised strategies to push forward race litigation in regional and international forums. 

The substantial background papers prepared for the Litigation Strategy Workshop and the workshop output have been published as a Litigation Manual for practitioners in the region. Click here for more information on how to order a copy or download a PDF version.

BACK TO TOP

Workshops for judges, lawyers, NGO anti-discrimination advocates, government officials, members of parliament and representatives of specialised bodies to provide key actors throughout Europe with information about the legal obligations flowing from the Directive and the Protocol, support for their creative use and application, and the opportunity to discuss comparative approaches and methods;

Strategic litigation before selected constitutional and Supreme Courts, the European Court of Human Rights and the European Court of Justice, to ensure the adoption in judicial case law of the various elements of the Directive and the Protocol; and

Legislative advocacy before individual governments and relevant EU institutions to ensure that the requirements of the Directive � in short, the adoption of comprehensive anti-discrimination legislation and the establishment of effective enforcement bodies � are swiftly and adequately complied with, and that Protocol No. 12 to the ECHR is speedily ratified by at least the minimum ten states required for its entry into force. This activity is conducted primarily by ERRC and MPG, with INTERIGHTS' involvement limited to legislative drafting.

All three Project components are predicated on extensively researched country reports by local lawyers assessing the status of anti-discrimination law as it exists both on the books and as implemented in practice.