On 25 July 2017, the ECtHR delivered an important judgment on discrimination, condemning ageist and sexist assumptions made in the reasoning of the domestic court. In this post, I will share my observations about the novelty of the case and its contribution to the case-law of the ECtHR.
Facts and Judgment in short
The applicant, suffering from a gynaecological disease, underwent surgery during which her left pudendal nerve was injured as a result of medical malpractice. Following discharge from hospital, she began to experience intense pain and loss of sensation in the vagina, urinary incontinence, difficulty walking and sitting, and she could not have sexual relations. In the lawsuit she filed, the Lisbon Administrative Court awarded her a sum of compensation for pecuniary damage, covering inter alia the service of a maid for household tasks which she was unable to carry out, and non-pecuniary damages for the physical and mental suffering she experienced. However, at the appeal, the Supreme Administrative Court (Hereinafter: SAC) reduced the amounts awarded for both pecuniary and non-pecuniary damages on account of three reasons set out as the following:
- The applicant’s complaints had only been aggravated following the surgery but they were not new;
- She probably only needed to take care of her husband, given the age of her children, and did not require a full-time maid; and
- The applicant, who had two children, was already 50 years old, an age when sex was not as important as in younger years and that its significance diminished with age.
In its judgment, the Strasbourg Court drew similarities between the applicant’s case and two other judgments concerning medical malpractice experienced by two men at the ages of 55 and 59, who became impotent and incontinent as a result of medical error in operations they underwent. The ECtHR observed that in those judgments, the SAC did not find the amounts awarded excessive, considering the “tremendous shock” or “strong mental shock” experienced by plaintiffs who would suffer irreversible consequences to their sex lives. Contrary to the applicant’s case, the SAC had taken into account neither the plaintiffs’ age nor whether they had any children in these similar cases.
In the decision the ECtHR stated that the general assumption relied on by the domestic court that sexuality was no longer important for a fifty-year-old woman derived from the traditional understanding of female sexuality, essentially linked to reproduction. The Court also noted the patriarchal understanding of the Supreme Court revealed by the assumption that the applicant was responsible to “take care of her husband”. The ECtHR found that the Supreme Court’s decision was not based on objective assessment of facts but on the wrongful gender stereotyping and eventually, by five votes to two, decided that there was a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private life).
Following the Grand Chamber judgment of Konstantin Markin, the ECtHR successfully captured the phenomenon of gender stereotyping; this time in judicial decision-making. The ECtHR shows that its competence to address discrimination extends beyond legislative processes, which the majority of discrimination cases are concerned about, to include judicial processes. Interestingly, the Strasbourg Court referred to Article 5 of CEDAW and Article 12/(1) of Istanbul Convention in its judgment, setting a good example for the coherent interpretation of rules of international human rights law.
What harm did the gender stereotyping cause to the applicant in this case? The applicant’s loss and suffering as a woman was trivialised by the domestic court as opposed to the suffering of other male plaintiffs, and she was not awarded an adequate amount of compensation, because of the stereotyping of the judicial authorities based on age and sex. The ECtHR acknowledged the relevance of age or sex in the determination of the adequate amount of compensation, but noted that assessments of these elements should have been free from general assumptions and speculations (§ 52).
Another important feature of this case is that the applicant was subjected to intersectional discrimination based on age and sex, two grounds interacting with each other. The Supreme Court’s reasoning, declaring that the significance of sex diminished in the applicant’s life since she was 50 years old, was ageist in nature, based on the misbelief and stereotyping that older people have no interest in or capacity for sexual activity. However, it appears that this ageist view of the Supreme Court only targeted “women”, due to preconceived beliefs about women’s sexuality and gender roles. These two factors intertwined to create a less favourable treatment of the applicant by the judiciary. Even so, the ECtHR has not clearly stated that intersectional discrimination caused cumulative disadvantages for the applicant.
Danger of stereotyping in judicial decision-making
Psychologists and cognitive scientists suggest that 98% of the time we are on automatic pilot driven by subconscious, emotional and/or instinctive forces conditioned by social and cultural norms. Nonetheless, it must not be forgotten that stereotypes distort reality, as they indiscriminately attribute the same characteristics to all members of a group without allowing any individualised difference and variations. Therefore, it should be avoided in judicial decision-making.
If public authorities rely on false and negative stereotypes in their decisions, it results in the reinforcing and perpetuating of these stereotypes in society. As seen in the present case, the applicant was deprived of an individualised assessment of her circumstances as stereotypes prevented judges from making objective assessments of the evidence, potentially relying on expert opinion. This may have important consequences both at individual and societal levels: Individuals are denied justice through a fair trial by an impartial court, sometimes even resulting in impunity for offenders – as seen in the case of M.C. v Bulgaria.
Controversies about the methodology of the ECtHR
The two dissenting judges argued that a much larger number of judgments delivered by the SAC should have been examined to determine if there was a pattern of discriminatory attitude in its decision-making. It is hard to comprehend this argument: why was there a need to establish the case-law of the Supreme Court or identify any trend when the only duty of the ECtHR was to judge in the given case whether or not the applicant had been discriminated against? What is important here is not the judicial authorities’ intent or general attitude but the effect of the impugned judicial deliberation which disadvantaged the applicant as a woman.
Another controversy relates to the issue of whether a comparator is always needed to prove discrimination. In the judgment, the Court indicates the possibility of a more open approach to reveal discrimination:
“where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.”
This suggests that the ECtHR does not always require a comparator to reveal discriminatory treatment, as illustrated in the way the ECtHR recently dealt with Russian gay propaganda law in Bayev and others v. Russia. No comparator was used to identify discriminatory attitudes of authorities against LGBTI in the adoption and enforcement of the impugned law. Similarly, in the case of indirect discrimination, a comparator would again be irrelevant as seen in the cases of D.H. and Others v. Czech Republic, Zarb Adami v. Malta and Biao v. Denmark. Likewise, less favourable treatment deriving from stereotyping should not require a comparator to prove its harm. Concurring Judge Yudkivska rightly argues that where prejudicial stereotypes have affected the judicial assessment of evidence it is sufficient to find a violation of Article 14.
Although not clearly stated in the judgment, the majority seems to agree with this approach because the comparison was only used to reinforce the finding of a violation of Article 14, rather than basing the whole judgment on it by rigidly applying the three-tiered methodology.
Overall, the judgment is a positive contribution to the anti-discrimination precedent of the ECtHR, especially in the realm of stereotyping, despite the lack of explicit acknowledgment of the intersectional nature of discrimination suffered by the applicant. The increased sensitivity of the Strasbourg Court to stereotyping can be seen in a number of recent judgments in which biased assumptions of national authorities have been identified and challenged. On the other hand, the ECtHR has fallen into the pitfall of generalising about the judiciary in Portugal when stating that gender prejudice was a prevailing problem, even in the absence of a clear reference supporting this inference (§ 54).
This is the first judgment addressing “judicial stereotyping” which negates an individual’s right to equality and a fair trial. Although the right to a fair trial was not raised in the case, the ECtHR has still drawn the link between judicial stereotyping and its effect of denying procedural justice for individuals. However, as revealed by the controversies between the judges once more, the ECtHR’s methodological approach in addressing discrimination remains to be harmonised.