Prohibition of discrimination: some theoretical and philosophical and legal aspects of interpretation (based on the European Court of Human Rights)

This article attempts to make a general theoretical and philosophical and legal analysis of the practice of the European Court of Human Rights on protection of human right for non-discrimination. Particular attention is paid to the need of considering differences between communitarian and liberalistic interpretations of legal categories, including category of discrimination. Significant attention is paid to the coverage of features of the Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which make it somewhat unique in the system of the Convention mechanism to protect human rights and freedoms) and Protocol No. 12 thereto. The publication notes that the requirement of non-discrimination (prohibition of discrimination) is the one of the components of general legal principles of equality, which, however, is not limited by the definite requirement itself, as the need for differentiation of legal regulation is also considered as something that contributes to providing the actual («full and true») equality. Thus, the principle of prohibition of discrimination may be regarded as a formaland legal implementation of the principle of equality that is much wider in scope as one of system fundamentals of the constitutional and legal status of human and citizen in the modern states of Europe. It is noted that in numerous precedents of the European Court of Human Rights (particularly in cases: «Relating to certain aspects of the laws on the use of languages in education in Belgium» (23.07.1968), «Thlimmenos v. Greece») 06.04.2000)) the concept of discrimination gained a clear «dual» interpretation as a) different treatment without any objective and reasonable justification for the persons who are in relatively similar situations, and b) equal treatment for the persons that are in completely different situations. However, this approach is not the Court’s own invention, but a certain formalization of philosophical and legal provisions, expressed by Aristotle in «Nicomachean Ethics» (1131a 10). «Cut» wording of Article 14 of the Convention, which is limited to ensuring non-discrimination of exercising the rights and freedoms set forth in the Convention», which has clearly showed its incompleteness in practice of its application, caused a need of adoption of the Protocol No.12 of the Convention, which in Article 1 established the general prohibition of discrimination. At that, established primary interpretation of the term «discrimination» in the Court decisions
remained unchanged. Based on the performed analysis of practice of the European Court of Human Rights on cases of prohibition of discrimination a general conclusion is made, that postulates of so-called liberal communitarianism as a result of a kind of convergence of liberal and communitarian ideologies are the main philosophical basis for modern decisions of this European Court. This, in turn, can be considered a reflection of relevant trends in the development of modern Western ethical and legal and political and legal thought in whole.