Protection from discrimination: summary of successful legal cases

19.09.2018
This post is also available in: Russian

The present collection “Protection from discrimination: summary of successful legal cases” (in Russian) is based on the materials of expert meetings held by Anti-Discrimination Centre “Memorial” in 2017-2018 and reports presented by ADC “Memorial”, which include Gender Discrimination – Jobs Banned for Women” (2018) and “Violations of the rights of stateless persons and foreign citizens in view of the ECtHR decision in light of the ECHR judgment in ‘Kim v. Russia’” (2016).

According to Thomas Hammarberg, former Commissioner of the Council of Europe, discrimination lays at the “core” of human rights violations. Indeed, it is impossible for people who become victims of discrimination to exercise their basic rights as they are denied the rights solely because they are “different” (other than the dominant group, gender or ethnic group, have disabilities or differ from others in their sexual orientation). Protection against discrimination is often associated with the rights of minorities, although discrimination, for example, that of women, is not associated with being a minority (in most countries women are more numerous than men), but with the traditional division onto “weak” and “strong” sexes.

How to protect from discrimination those groups that suffer most from stigma, exclusion, restriction of their rights? Legal appeals certainly remain one of the most effective methods of legal protection. Proving the fact of discrimination in court is still very complicated, especially when it comes to countries of Eastern Europe and Central Asia, where there is practically no judicial practice of cases involving recognition of actual discrimination, and the legislative framework does not provide an opportunity to consistently protect people suffering from various forms of discrimination. But both the judicial practice and the legislation need to be improved, and appeals to international courts is a way towards this. In Eastern European and Southern Caucasian countries there is the possibility of appealing against the violations of the European Convention on Human Rights to the European Court of Human Rights. In all the countries of the region, a person can appeal to the UN, including lodging individual complaints. One can also try to prove violations of the International Covenant on Civil and Political Rights, Article 26 of which expressly prohibits discrimination. The UN Committee on the Elimination of Discrimination against Women (CEDAW) accepts complaints about specific cases of gender-based discrimination (all countries of the region have ratified this Convention and in most cases also the optional protocol to it, which allows individual complaints).

The meaning of applying to international legal institutions, whether the ECtHR, the UNCHR or the UN CEDAW, is not just the recognition of discrimination, although the definition of discrimination in previously unrecognized signs of discrimination (as was the case of “Alekseyev v. Russia”) is valuable and important in itself. The main aim of such legal cases, which are usually called strategic legal cases precisely because the complaints are based on a strategy for overcoming a systemic legal problem, is to achieve a change of legislation and judicial practice. The collection of materials, prepared by ADC “Memoial”, includes descriptions of precisely such cases, when the aim of changing the general situation had to do with the successfully proven discrimination against women (UN CEDAW decision on Svetlana Medvedeva’s legal claim); LGBT persons (ECtHR decisions in Alekseyev’s and Bayev’s cases, UNCHR decision on Fedotova’s legal appeal) or people with disabilities (decisions of the ECtHR in the cases of Shtukaturov, Kocherov and Sergeeva, Kiyutin, Khalupa, etc.).

In some cases, decisions of international courts led to the recognition of the problem at the national level, and the task then becomes to obtain legal measures in order to eliminate the already recognized problem. Such was the strategy behind the cases of representatives of one of the most vulnerable and legally unprotected groups, stateless persons. The case of ‘Kim v. Russia’ won in the ECtHR later allowed another stateless person, Noe Mskhiladze, to appeal to the Constitutional Court of the Russian Federation, which had admitted that non-implementation of the court’s decision on Kim’s case violated the rights of Mskhiladze and other persons in a similar position, which then lead to an order to change the Russian Code of administrative offences so as not to deprive stateless persons of liberty for a long period of time due to lack of citizenship. Such legal decisions allow not only to protect a certain person from discrimination and to establish an important judicial precedent, but also to achieve systemic legal changes.

Therefore, it is important to study the experience of successful cases, to learn to use strategic approach in defending the rights of discriminated groups, to develop legal work with the assistance of human rights actions, such as human rights reports, campaigns, reporting problems through the mass media, informing the members of protected groups about their rights.