When do groups matter? Language use in the European Court of Human Rights and the collective dimension of non-discrimination cases
by Cornelia Klocker
What’s in a word? Does it really matter whether Roma schoolchildren or British widowers are part of a “group”? What does that say about these applicants and also, about the decision-maker? Are they treated differently because they belong to a specific group and if so, how are these groups described and understood?
A case before the European Court of Human Rights (ECtHR) is more than just a finding of a rights violation, it is part of a discourse with many dimensions. The collective dimension of this discourse opens the way for a look at the understanding of the term “group” within the context of the European Convention on Human Rights (ECHR), the human rights instrument on which the ECtHR decides. The way in which groups are described in this courtroom matters as it can offer insights into the debate on groups as rightsholders from a practice-based perspective.
The Court is not the only actor having a voice in this discourse. The applicants, respondent governments as well as judges in separate opinions have a voice too. The development of this discourse over time and between the different actors is at the heart of an ongoing empirical study on the language used in the ECtHR’s courtroom describing the term “group” in the case law on non-discrimination over a period of 50 years. The aim of this study is to help to determine which groups are considered as such and therefore feed back into the group rights debate and the question of which groups can be rightholders.
Why focus on the term “group”?
This is a pertinent question, especially since the ECHR does not include any group rights which could be examined for the context in which they are applied. In order to talk about group rights and their relationship with courts and application in practice, it might be useful to go a bit further back and start with the term “group” itself. What do judges, applicants and governments mean when they talk about groups and do they use that term in relation to all groups in the same way? The word cloud below depicts the most common word combinations used in close vicinity of the terms “group” or “groups”. It already highlights frequent occurrences in the context of religion and race and some general markers used to describe discriminatory treatment such as “factual inequalities”, “disproportionately prejudicial” or “indirect discrimination”. In addition, characterisations used in the context of specific groups such as “vulnerable group” are highlighted.
Once we know what actors in a courtroom mean when they refer to a “group” we come closer to an understanding of which groups they might be more inclined to give the standing of a rightholder as well. This means that this study does not contribute to the theoretical advancement of group or collective rights in a traditional sense but to the advancement of group rights in practice by looking at those which might be considered rightholders, which might be considered as “groups” in fora ruling on human rights. And to be considered a rightholder, groups need a certain standing within a legal framework.
This may sound like making a simple issue overly complicated – after all, we all have an idea of what we understand by the term “group” – but given that group rights are an issue that still has its critics, getting a closer look at how the subjects of group rights, the collectivities as rightholders, are addressed already (or not) by a court, by those belonging to these groups, by governments violating the rights of group members and by single judges in separate opinions, can shine a light on their understanding of the term itself.
The collective dimension of non-discrimination cases
This analysis of language use centres on the non-discrimination case law of the Court. Cases dealing with discrimination are brought by applicants who have been treated differently due to their actual or perceived belonging to a group. The prohibition of discrimination is not a free-standing right but can only be triggered once another Convention right has been engaged. However, it goes beyond the individual by addressing the context and group affiliation, meaning why a human rights violation has occurred in the first place.
According to Article 14 ECHR, discrimination based on grounds such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status is prohibited. Yet these categories are not abstract constructions. Behind them stand groups such as Roma and Sinti, the LGBTQ+ community, Chechens, Georgians, Kurds, Muslims, Jehovah’s Witnesses, Trade Unions and many more. It is for this connection, that the empirical study of the meaning of the term “group” in the ECtHR’s case law can offer insights into the question which collectivities are considered to be relevant in the non-discrimination context and as groups. The way in which the Court has treated different collectivities in the course of deciding whether a person was discriminated against because of such affiliation shines a light on the understanding and stance the Court has taken so far on the question of the characterisation of groups.
Why should we look at language use in the courtroom?
Language use in a courtroom cannot predict case outcomes. It can, however, trace the development of terminology and the context in which it is used. The term “group” is not used for all collectivities falling within one or several of the categories listed in Article 14 ECHR in the same way. Some are described as groups whereas others are not. The term “group” is used regularly in the context of discrimination based on race and religion as seen in cases on the treatment of Roma and Sinti or Jehovah’s Witnesses. In other contexts, such as the British widowers referred to above, however, the assessment of their differential treatment rarely mentions the term “group”. This is an example of issues that will be examined more closely in this ongoing study: Do some groups need to emphasise their “groupness” in order to be heard while others do not?
The study of language and its impact on those who are named through it has been addressed by the French sociologist Pierre Bourdieu. His work on language and symbolic power and the force of law can provide insights into the Court’s case law and the terminology used in the courtroom. Bourdieu advises researchers to be cautious about ‘pre-named, pre-classified realities’ and to look at ‘the social operations of naming and the rites of institution through which they are accomplished’.
Article 14 ECHR lists classifications and applies them in cases to different groups and group members. Acknowledging that this exercise is not an act according to a given and immutable set of rules, it becomes a site of struggle and an ongoing process involving not only the Court as an actor but also others such as the applicants, single judges and the respondent governments. Considering all these actors within the juridical field helps to uncover the dynamics that shape these classifications and contribute to the ‘act of naming’.
The following bar chart shows the number of instances in which the term “group” was used over a period of 50 years in non-discrimination cases and by whom, sorted by the categories listed in Article 14 ECHR. Although, and this is unsurprising, the highest number of mentions comes from the Court, the actor which takes the most space in a judgment, the more interesting results are those on the other actors in the courtroom, in particular the applicants (a) in their different forms. In some categories, individuals, groups of applicants and applicant NGOs use the term “group” in their main argumentation and this use should be examined more closely. Does this reference carry special weight for the applicants in making a claim against discrimination based on belonging to a group and if so, does the Court understand this reference in the same way?
The value of Bourdieu’s work for studying court decisions has, amongst others, been recognised by British sociologist Paul Johnson who has written about the ECtHR from a sociological perspective, examining the Court’s case law on homosexuality in particular. This includes cases on the criminalisation of consensual homosexual practices or the dismissal of air force and navy officers from the military due to their sexual orientation. He observes that the habitus of the actors involved has to be considered as ‘judicial methods are not impartial tools’. This goes to the point of challenging the power of naming and the specific language that is used in such processes within the juridical field. The impact of this struggle becomes clear when he concludes that ‘[t]he way in which ‘real’ people are conceived by the ECtHR is of crucial importance in determining who will be deemed protectable by human rights law.’
Language matters. Not only in linguistic or sociological, but also in legal contexts. Several actors have a voice and while some have more leverage than others, the language use of all these voices contributes to the understanding of terminology in the context of this courtroom. As mentioned above, the empirical study of language use in the ECtHR cannot predict judicial outcomes, but it can trace a discourse and reveal its development over time. This is work that might help to inform change in the long run, to support applicants in finding their voice and highlighting their active role in this process. Recognising the multitude of actors within the courtroom also makes the struggle to transform stigmatised identities more visible and can hopefully contribute to making these voices heard.
Dr Cornelia Klocker, Postdoctoral Fellow at the Zukunftskolleg, University of Konstanz, Germany. Research interests include group rights, minority rights and non-discrimination and questions on the intersections between human rights law and the law of armed conflict.