Andrea Broderick

A reflection on substantive equality jurisprudence The standard of scrutiny at the ECtHR for differential treatment of Roma and persons with disabilities

In recent years, the European Court of Human Rights has begun to acknowledge the considerable disadvantage and discrimination that Roma and persons with disabilities face in society. The Court has characterised both Roma and disabled applicants as vulnerable and disadvantaged groups and has stated its intention to apply a strict standard of scrutiny to alleged violations of the rights of both groups. This contribution will analyse the standard of scrutiny adopted by the Court in the context of alleged claims of discriminatory treatment of Roma and disabled applicants. The essential question to be addressed by this article is whether the differential treatment in question is deemed to be justified (either required or allowed) by the Court and whether the Court’s case law relating to these two groups reflects a more substantive conception of equality capable of addressing the deep-seated structural inequalities faced by Roma and persons with disabilities in society. A related question to be addressed by this article is the extent to which the Court’s case law has been influenced by developments in the fields of European and international law, such as the Racial Equality Directive and the United Nations Convention on the Rights of Persons with Disabilities, among others. The influence (and potential influence) of European and international law can be seen in case law related to Roma education and also in recent disability equality case law. This article will analyse case law in these two areas.

Article 7 [Children with Disabilities]

All children deserve special measures to ensure the effective protection of their rights. Children with disabilities are particularly vulnerable to discrimination and violations of their rights. Disabled children face double prejudice on account of the combined disadvantage accruing to them due to their impairment and age. They often fall through the gaps of legal protection, as the norms applied to non-disabled children are inadequate to ensure that the rights of children with disabilities are upheld. As particularly vulnerable individuals, there is no doubt that the rights of disabled children must be subject to specific safeguards. The United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention) revolutionises the manner in which international human rights law addresses the rights of people with disabilities. This chapter explores the novelties introduced by the CRPD in respect of children with disabilties, analysing in particular the constituent elements of Article 7 of the CRPD.