0

I'm learning about Article 14 of the ECHR and am a bit confused by the practicalities of its application. I understand something must fall within the ambit of another Convention right, and that there must be discriminatory treatment between two comparable groups (or a lack of justification for equal treatment among reasonably different groups).

I further understand, however, that the discrimination is lawful if it is both A) proportionate for the purpose being addressed (ie it doesn't unduly restrict individual freedoms in light of the goal being pursued); and B) is in pursuit of a legitimate aim (ie protection of health).

Suppose Parliament passed a law saying that individuals suffering from disease X, which is no more contagious than other sexually transmitted disease, cannot have unprotected sex. I understand this would likely be an Article 14 violation in light of the Mohammed Dica case, which states that individuals may consensually run the risk of giving another individual an STD, so long as it is not their intention and there is informed consent of that risk, etc.

Could the government justify the difference in treatment on the grounds that "preventing the spread of disease X" is a legitimate aim (protecting public health), even though they have not imposed the same restrictions on those who suffer from any other disease which is equally or more contagious? Or would this fail to be legitimate/proportionate given that such a justification is arbitrary discrimination in that it doesn't provide any justification for the departure from the treatment of similar groups? If it would indeed fail, which principle (proportionality or legitimacy) would be violated?

Improve this question
4
  • Is the affliction X more serious than others? might it be incureable, lethal or hard to detect?
    – Trish
    Commented Oct 22, 2021 at 11:27
  • @Trish For the purpose of my example, let's suppose that it is in every way equivalent in detectability, lethality, and treatment, to HIV (to which the Dica case applied). I suppose the root of my question is whether legitimacy/proportionality is autonomous from domestic case law (ie preventing this disease is a legitimate public health need & it would indeed be proportionate to decree that afflicted individuals cannot have unprotected sex), or whether the existence of additional freedoms granted to comparable groups in domestic case law has an impact upon the assessment.
    – JosephG
    Commented Oct 22, 2021 at 12:33
  • Is the comparison only to other STDs or also to other diseases with other infection methods? There's probably a difference between the severity of restriction of prohibiting unprotected sex and forcing someone to quarantine.
    – IllusiveBrian
    Commented Oct 22, 2021 at 14:01
  • @IllusiveBrian For the purpose of my example, let's say the restriction is solely concerning another comparable infectious STD. The reason this sort of situation confuses me is because on one hand, it would clearly be arbitrary discrimination. However, as I understand it, the government solely needs to demonstrate that such a restriction is in pursuit of a legitimate aim (ie protecting public health) and that it is proportionate to achieving that goal. So I'm wondering if I am missing something, or if this sort of arbitrariness in light of other comparable domestic liberties is permissible.
    – JosephG
    Commented Oct 22, 2021 at 20:46

0

Reset to default

You must log in to answer this question.