(ETS No. 177)
I. The Protocol No. 12 to the Convention for the
Protection of Human Rights and Fundamental Freedoms was drawn up within
the Council of Europe by the Steering Committee for Human Rights (CDDH). It was opened to signature by the member States of
the Council of Europe on 4 November 2000.
II. The text of the explanatory report prepared by
the CDDH and adopted by the Committee of Ministers of the Council of Europe
on 26 June 2000 does not constitute an instrument providing an authoritative interpretation of the text of the Protocol although
it may facilitate the understanding of the Protocol's provisions.
1. Article 1 of the Universal Declaration of Human
Rights proclaims: "All human beings are born free and equal in dignity
rights". The general principle of equality and non-discrimination is a fundamental element of international human rights law. It
has been recognised as such in Article 7 of the Universal Declaration of Human Rights, Article 26 of the International Covenant
on Civil and Political Rights and in similar provisions in other international human rights instruments. The relevant provision in
the European Convention on Human Rights (ECHR) in this respect is Article 14. However, the protection provided by Article 14
of the Convention with regard to equality and non-discrimination is limited in comparison with those provisions of other
international instruments. The principal reason for this is the fact that Article 14, unlike those provisions in other instruments,
does not contain an independent prohibition of discrimination, that is, it prohibits discrimination only with regard to the
"enjoyment of the rights and freedoms" set forth in the Convention. Since 1950, certain specific further guarantees concerning
only equality between spouses have been laid down in Article 5 of Protocol No. 7 to the ECHR.
2. Various ways of providing further guarantees in
the field of equality and non-discrimination through a protocol to the
Convention have been proposed or studied from the 1960s onwards by both the Parliamentary Assembly and the competent
intergovernmental committees of experts of the Council of Europe. An important fresh impetus was given by work carried out in
recent years in the field of equality between women and men and that of combating racism and intolerance. The European
Commission against Racism and Intolerance (ECRI), the Steering Committee for Equality between Women and Men (CDEG) and
the Steering Committee for Human Rights (CDDH), have actively considered a possible reinforcement of ECHR guarantees in
these two areas.
3. Participants at the 7th International Colloquy
on the European Convention on Human Rights (Copenhagen, Oslo and Lund,
from 30 May to 2 June 1990) affirmed that the principles of equality and non-discrimination are fundamental elements of
international human rights law. With regard to the possibility of broadening, through the development of the Strasbourg
case-law, the protection offered by Article 14 of the Convention beyond the above-mentioned limit (see paragraph 1 above),
participants recognised that there was little scope for further expansion of the case-law on this score since the prohibition in
Article 14 is clearly accessory to the other, substantive guarantees in the Convention.
4. Since 1990, the examination of a possible strengthening
of the Convention's guarantees with regard to equality and
non-discrimination was initially pursued separately, and from specific standpoints, by the Steering Committee for Equality
between Women and Men and the European Commission against Racism and Intolerance.
5. In the course of its work, the CDEG underlined
the fact that there is no legal protection for equality between women and
as an independent fundamental right in the context of the binding instruments of the Council of Europe. Considering that a legal
norm to that effect is one of the prerequisites for achieving de jure and de facto equality, the CDEG focused the major part of its
activities on the inclusion in the European Convention on Human Rights of a fundamental right of women and men to equality.
The work of the CDEG resulted in a reasoned proposal to include such a right in a protocol to the ECHR. In 1994, the Committee
of Ministers instructed the Steering Committee for Human Rights to consider the necessity for and the feasibility of such a
measure, taking into consideration, inter alia, the report submitted by the CDEG. On the basis of the work of its Committee of
Experts for the Development of Human Rights (DH-DEV), the CDDH agreed in October 1996 that there was a need for
standard-setting work by the Council of Europe in the field of equality between women and men but expressed reservations,
from the point of view of the principle of universality of human rights, about a draft protocol based on a sectoral approach.
Further to a request made by the CDDH, the Committee of Ministers subsequently (in December 1996) instructed the CDDH to
examine, and submit proposals for, standard-setting solutions regarding equality between women and men other than a specific
draft protocol to the ECHR.
6. In the meantime, work in the Council of Europe
on the problem of racism and intolerance had intensified as a direct result
the 1st Summit of Heads of State and Government of its member States, held in Vienna on 8 and 9 October 1993. The
Declaration and Plan of Action on combating racism, xenophobia, anti-Semitism and intolerance adopted at this meeting
expressed alarm over the resurgence of these phenomena as well as the development of a climate of intolerance. As part of a
global approach for tackling these problems set out in the Plan of Action, the heads of state and government agreed to establish
the European Commission against Racism and Intolerance and gave it, among other things, the task of working on the
strengthening of the guarantees against all forms of discrimination and, in that context, studying the applicable international
legal instruments with a view to their reinforcement where appropriate.
7. Having studied all existing international human
rights instruments which deal with discrimination issues, ECRI submitted
findings to the Committee of Ministers. ECRI considered that the protection offered by the ECHR from racial discrimination
should be strengthened by means of an additional protocol containing a general clause against discrimination on the grounds of
race, colour, language, religion or national or ethnic origin. In proposing a new protocol, ECRI recognised that the law alone
cannot eliminate racism in its many forms vis-à-vis various groups, but it stressed also that efforts to promote racial justice
cannot succeed without the law. ECRI was convinced that the establishment of a right to protection from racial discrimination as
a fundamental human right would be a significant step towards combating the manifest violations of human rights which result
from racism and xenophobia. It emphasised that discriminatory attitudes and racist violence are currently spreading in many
European countries and observed that the resurgence of racist ideologies and religious intolerance is adding to daily tension in
our societies an attempt to legitimise discrimination.
8. In the light of ECRI's proposal, the Committee
of Ministers decided in April 1996 to instruct the Steering Committee for
Human Rights to examine the advisability and feasibility of a legal instrument against racism and intolerance taking account of
ECRI's reasoned report on the reinforcement of the non-discrimination clause of the ECHR.
9. On the basis of preparatory work done by the DH-DEV,
which included the identification of arguments for and against possible
standard-setting solutions (namely, an additional protocol based on ECRI’s proposal; an additional protocol broadening, in a
general fashion, the field of application of Article 14; a framework convention or other convention; or a recommendation of the
Committee of Ministers), the CDDH adopted, in October 1997, a report for the attention of the Committee of Ministers
concerning both the question of equality between women and men and that of racism and intolerance. The CDDH was of the
opinion that an additional protocol to the ECHR was advisable and feasible, both as a standard-setting solution regarding
equality between women and men and as a legal instrument against racism and intolerance.
10. It was on the basis of this report that, at the
622nd meeting of the Ministers' Deputies (10-11 March 1998), the Committee
of Ministers gave the CDDH terms of reference to draft an additional protocol to the European Convention on Human Rights
broadening in a general fashion the field of application of Article 14, and containing a non-exhaustive list of discrimination
11. The CDDH and its committee of experts, the DH-DEV,
elaborated the draft protocol and an explanatory report in 1998 and
1999. As had been the case during previous stages of this activity, the CDEG and ECRI were associated with this work through
their representatives. During this period, further support for the rapid conclusion of the elaboration of the draft protocol was
expressed by the participants at the European regional colloquy "In Our Hands – The Effectiveness of Human Rights Protection
50 Years after the Universal Declaration" (Strasbourg, 2-4 September 1998), organised by the Council of Europe as a
contribution to the commemoration of the 50th anniversary of the Universal Declaration of Human Rights, and in the political
declaration adopted by the Committee of Ministers on 10 December 1998 on the occasion of the same anniversary.
12. The CDDH, after having consulted the European
Court of Human Rights and the Parliamentary Assembly, finalised the text
the draft protocol at an extraordinary meeting held on 9 and 10 March 2000 and decided to transmit it, together with the draft
explanatory report, to the Committee of Ministers.
13. The Committee of Ministers adopted the text of
the Protocol on 26 June 2000 at the 715th meeting of the Ministers’
Deputies and opened it for signature by member states of the Council of Europe on 4 November 2000.
Commentary on the provisions of the Protocol
14. The brief Preamble refers, in the first recital,
to the principle of equality before the law and equal protection of the
is a fundamental and well-established general principle, and an essential element of the protection of human rights, which has
been recognised in constitutions of member states and in international human rights law (see also paragraph 1 above).
15. While the equality principle does not appear
explicitly in the text of either Article 14 of the Convention or Article
1 of this
Protocol, it should be noted that the non-discrimination and equality principles are closely intertwined. For example, the
principle of equality requires that equal situations are treated equally and unequal situations differently. Failure to do so will
amount to discrimination unless an objective and reasonable justification exists (see paragraph 18 below). The Court, in its
case-law under Article 14, has already made reference to the "principle of equality of treatment" (see, for example, the Court’s
judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A, No. 6, paragraph 10) or to "equality of the sexes" (see, for
example, the judgment of 28 May 1985 in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom, Series A, No.
94, paragraph 78).
16. The third recital of the preamble refers to measures
taken in order to promote full and effective equality and reaffirms that
such measures shall not be prohibited by the principle of non-discrimination, provided that there is an objective and reasonable
justification for them (this principle already appears in certain existing international provisions: see, for example, Article 1,
paragraph 4, of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 4, paragraph 1, of
the Convention on the Elimination of All Forms of Discrimination against Women and, at the regional level, Article 4, paragraph
3, of the Framework Convention for the Protection of National Minorities). The fact that there are certain groups or categories of
persons who are disadvantaged, or the existence of de facto inequalities, may constitute justifications for adopting measures
providing for specific advantages in order to promote equality, provided that the proportionality principle is respected. Indeed,
there are several international instruments obliging or encouraging states to adopt positive measures (see, for example, Article
2, paragraph 2, of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 4, paragraph 2,
of the Framework Convention for the Protection of National Minorities and Recommendation No. R (85) 2 of the Committee of
Ministers to member states on legal protection against sex discrimination). However, the present Protocol does not impose any
obligation to adopt such measures. Such a programmatic obligation would sit ill with the whole nature of the Convention and its
control system which are based on the collective guarantee of individual rights which are formulated in terms sufficiently specific
to be justiciable.
Article 1 – General prohibition of discrimination
17. This article contains the main substantive provisions
of the Protocol. Its wording is based on the following general
18. The notion of discrimination has been interpreted
consistently by the European Court of Human Rights in its case-law
concerning Article 14 of the Convention. In particular, this case-law has made clear that not every distinction or difference of
treatment amounts to discrimination. As the Court has stated, for example, in the judgment in the case of Abdulaziz, Cabales
and Balkandali v. the United Kingdom: "a difference of treatment is discriminatory if it ‘has no objective and reasonable
justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality
between the means employed and the aim sought to be realised’" (judgment of 28 May 1985, Series A, No. 94, paragraph 72).
The meaning of the term "discrimination" in Article 1 is intended to be identical to that in Article 14 of the Convention. The
wording of the French text of Article 1 ("sans discrimination aucune") differs slightly from that of Article 14 ("sans distinction
aucune"). No difference of meaning is intended; on the contrary, this is a terminological adaptation intended to reflect better the
concept of discrimination within the meaning of Article 14 by bringing the French text into line with the English (see, on this
precise point, the Court’s judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A, No. 6, paragraph 10).
19. Since not every distinction or difference of
treatment amounts to discrimination, and because of the general character
principle of non-discrimination, it was not considered necessary or appropriate to include a restriction clause in the present
Protocol. For example, the law of most if not all member states of the Council of Europe provides for certain distinctions based
on nationality concerning certain rights or entitlements to benefits. The situations where such distinctions are acceptable are
sufficiently safeguarded by the very meaning of the notion "discrimination" as described in paragraph 18 above, since
distinctions for which an objective and reasonable justification exists do not constitute discrimination. In addition, it should be
recalled that under the case-law of the European Court of Human Rights a certain margin of appreciation is allowed to national
authorities in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in
law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background
(see, for example, the judgment of 28 November 1984 in the case of Rasmussen v. Denmark, Series A, No. 87, paragraph 40).
For example, the Court has allowed a wide margin of appreciation as regards the framing and implementation of policies in the
area of taxation (see, for example, the judgment of 3 October 1997 in the case of National and Provincial Building Society and
Others v. the United Kingdom, Reports of Judgments and Decisions 1997-VII, paragraph 80).
20. The list of non-discrimination grounds in Article
1 is identical to that in Article 14 of the Convention. This solution was
considered preferable over others, such as expressly including certain additional non-discrimination grounds (for example,
physical or mental disability, sexual orientation or age), not because of a lack of awareness that such grounds have become
particularly important in today’s societies as compared with the time of drafting of Article 14 of the Convention, but because
such an inclusion was considered unnecessary from a legal point of view since the list of non-discrimination grounds is not
exhaustive, and because inclusion of any particular additional ground might give rise to unwarranted a contrario interpretations
as regards discrimination based on grounds not so included. It is recalled that the European Court of Human Rights has already
applied Article 14 in relation to discrimination grounds not explicitly mentioned in that provision (see, for example, as concerns
the ground of sexual orientation, the judgment of 21 December 1999 in the case of Salgueiro da Silva Mouta v. Portugal).
21. Article 1 provides a general non-discrimination
clause and thereby affords a scope of protection which extends beyond the
"enjoyment of the rights and freedoms set forth in [the] Convention".
22. In particular, the additional scope of protection under Article 1 concerns cases where a person is discriminated against:
i. in the enjoyment of any right specifically granted to an individual under national law;
ii. in the enjoyment of a
right which may be inferred from a clear obligation of a public authority
under national law, that
is, where a public authority is under an obligation under national law to behave in a particular manner;
iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);
iv. by any other act or omission
by a public authority (for example, the behaviour of law enforcement officers
controlling a riot).
23. In this respect, it was considered unnecessary
to specify which of these four elements are covered by the first paragraph
rticle 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are
covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut
and that domestic legal systems may have different approaches as to which case comes under which category.
24. The wording of Article 1 reflects a balanced
approach to possible positive obligations of the Parties under this provision.
concerns the question to what extent Article 1 obliges the Parties to take measures to prevent discrimination, even where
discrimination occurs in relations between private persons (so-called "indirect horizontal effects"). The same question arises as
regards measures to remedy instances of discrimination. While such positive obligations cannot be excluded altogether, the
prime objective of Article 1 is to embody a negative obligation for the Parties: the obligation not to discriminate against
25. On the one hand, Article 1 protects against discrimination
by public authorities. The Article is not intended to impose a
general positive obligation on the Parties to take measures to prevent or remedy all instances of discrimination in relations
between private persons. An additional protocol to the Convention, which typically contains justiciable individual rights
formulated in concise provisions, would not be a suitable instrument for defining the various elements of such a wide-ranging
obligation of a programmatic character. Detailed and tailor-made rules have already been laid down in separate conventions
exclusively devoted to the elimination of discrimination on the specific grounds covered by them (see, for example, the
Convention on Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of
Discrimination against Women, which were both elaborated within the United Nations). It is clear that the present Protocol may
not be construed as limiting or derogating from domestic or treaty provisions which provide further protection from
discrimination (see the comment on Article 3 in paragraph 32 below).
26. On the other hand, it cannot be totally excluded
that the duty to "secure" under the first paragraph of Article 1 might
positive obligations. For example, this question could arise if there is a clear lacuna in domestic law protection from
discrimination. Regarding more specifically relations between private persons, a failure to provide protection from discrimination
in such relations might be so clear-cut and grave that it might engage clearly the responsibility of the State and then Article 1 of
the Protocol could come into play (see, mutatis mutandis, the judgment of the Court of 26 March 1985 in the case of X and Y v.
the Netherlands, Series A, No 91, paragraphs 23-24, 27 and 30).
27. Nonetheless, the extent of any positive obligations
flowing from Article 1 is likely to be limited. It should be borne in mind
that the first paragraph is circumscribed by the reference to the "enjoyment of any right set forth by law" and that the second
paragraph prohibits discrimination "by any public authority". It should be noted that, in addition, Article 1 of the Convention sets
a general limit on state responsibility which is particularly relevant in cases of discrimination between private persons.
28. These considerations indicate that any positive
obligation in the area of relations between private persons would concern,
the most, relations in the public sphere normally regulated by law, for which the state has a certain responsibility (for example,
arbitrary denial of access to work, access to restaurants, or to services which private persons may make available to the public
such as medical care or utilities such as water and electricity, etc). The precise form of the response which the state should take
will vary according to the circumstances. It is understood that purely private matters would not be affected. Regulation of such
matters would also be likely to interfere with the individual's right to respect for his private and family life, his home and his
correspondence, as guaranteed by Article 8 of the Convention.
29. The first paragraph of Article 1 refers to "any
right set forth by law". This expression seeks to define the scope of the
guarantee provided for in this paragraph and to limit its possible indirect horizontal effects (see paragraph 27 above). Since
there may be some doubt as to whether this sentence on its own covers all four elements which constitute the basic additional
scope of the Protocol (the question could arise in particular with respect to elements iii and iv – see paragraph 22 above), it
should be recalled that the first and second paragraphs of Article 1 are complementary. The result is that those four elements
are at all events covered by Article 1 as a whole (see paragraph 23 above). The word "law" may also cover international law, but
this does not mean that this provision entails jurisdiction for the European Court of Human Rights to examine compliance with
rules of law in other international instruments.
30. The term "public authority" in paragraph 2 has
been borrowed from Article 8, paragraph 2, and Article 10, paragraph 1,
the Convention and is intended to have the same meaning as in those provisions. It covers not only administrative authorities
but also the courts and legislative bodies (see paragraph 23 above).
Article 2 – Territorial application
31. This is the territorial application clause contained
in the Model Final Clauses adopted by the Committee of Ministers in
February 1980. Paragraph 5 follows closely Article 56, paragraph 4 of the Convention.
Article 3 – Relationship to the Convention
32. The purpose of this article is to clarify the
relationship of this Protocol to the Convention by indicating that all
of the latter shall apply in respect of Articles 1 and 2 of the Protocol. Among those provisions, attention is drawn in particular to
Article 53, under the terms of which "Nothing in this Convention shall be construed as limiting or derogating from any of the
human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other
agreement to which it is a Party". It is clear that this article will apply in the relations between the present Protocol and the
Convention itself. It was decided not to include a reference to Article 16 of the Convention in this Protocol.
33. As has already been mentioned in paragraph 21
above, Article 1 of the Protocol encompasses, but is wider in scope than
protection offered by Article 14 of the Convention. As an additional Protocol, it does not amend or abrogate Article 14 of the
Convention, which will therefore continue to apply, also in respect of States Parties to the Protocol. There is thus an overlap
between the two provisions. In accordance with Article 32 of the Convention, any further questions of interpretation concerning
the precise relationship between these provisions fall within the jurisdiction of the Court.
Article 4 – Signature and ratification
Article 5 – Entry into force
Article 6 - Depositary functions
34. The provisions of Articles 4 to 6 correspond
to the wording of the Model Final Clauses adopted by the Committee of Ministers
of the Council of Europe.