Page1/18

Page 1 of 18
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 253
THE EUROPEAN COURT OF HUMAN RIGHTS AND MINORITY
Bineet Kedia1
ABSTRACT
The concept of minority rights is countered with number of problems, such as, the definition
of minority; whether minority rights are available to the whole group or to its individual
members; whether legally protected rights are adequate for the protection and promotion of
minority groups, etc.
The European Convention on Human Rights is the first regional human rights treaty that sets
out the human rights and fundamental freedoms of persons within the region of Europe. The
European Court of Human Rights also through its various case laws has developed
jurisprudence of minority rights in Europe. The latest step taken to protect and promote
minority rights in Europe is the Framework Convention for the Protection of National
Minorities and the European Charter for Regional or Minority Languages. This paper seeks to
examine the nature of the problem faced by the European Council in the process of the
protection and promotion of the minority rights and the jurisprudence of minority rights
developed by the European Court of Human Rights. Both descriptive and analytical methods
have been followed throughout the course of this paper.
Keywords: Minority, European Convention, European Court, Framework
Convention, European Charter.
I. INTRODUCTION
“Persons belonging to national or ethnic, religious and linguistic minorities have the right to
enjoy their own culture, to profess and practice their own religion, and to use their own
language, in private and in public, freely and without interference or any form of
discrimination.”
2 The human rights of minorities find their origin from the Peace of Westphalia. Thereafter
there were some special treaties, within the members of the League of Nation to protect and
promote the rights of the minorities. After the Second World War, the United Nation
Organization recognized the human rights of the minorities by creating the Sub-Commission
for the Prevention of Discrimination and the Protection of Minorities. It was
1Lecturer-in-Law, Amity University, Rajasthan (bineetkedia@gmail.com)
2 Article 2(1) of the Declaration on the Rights of Persons belonging to National or Ethnic,
Religion and Languistic Minorities.
Page 2 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 254
followed by Article 27 of the International Convention on Civil and Political Rights which is
especially dedicated to the minorities and the two declarations, i.e., the Declaration on the
Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and
the Declaration on the Rights of Indigenous Peoples.
The European Convention on Human Rights is the first regional human rights treaty that sets
out the human rights and fundamental freedoms of persons within the region of Europe.
However this convention does not directly speak about of the minority rights. The latest step
taken to protect and promotion of minority rights in Europe is the Framework Convention for
the Protection of National Minorities and the European Charter for Regional or Minority
Languages. The later one aims to protect and promote the minority languages of Europe and
thus, does not protect every right which a minority should be entitled to live a good life.3
II. THE CONCEPT AND DEVELOPMENT OF MINORITY RIGHTS
The European Convention on Human Rights is the first regional human rights treaty that sets
out the human rights and fundamental freedoms of persons within the region of Europe. This
convention does not directly speak about of the minority rights. Nevertheless, the
interpretation and the application of the European Convention have contributed a lot into the
jurisprudence of minority rights in Europe. “The Council of Europe's Framework Convention
for the Protection of National Minorities (Framework Convention) represents the latest step
taken to protect minority groups in Europe.”4
The concept of minority rights is countered with number of problems, such as, the definition
of minority; whether minority rights are available to the whole group or to its individual
members; whether legally protected rights are adequate for the protection and promotion of
minority groups, etc. This portion of the paper seeks to address these questions with special
concentration on the Framework Convention for the Protection of National Minorities and the
European Convention for the Protection of Human Rights and Fundamental Freedoms.
3
Summary of the European Charter for Regional or Minority Languages, available at
http://conventions.coe.int/Treaty/en/Summaries/Html/148.htm, (Last visited on September
15, 2010.
4
Geoff Gilbert, The Council of Europe and Minority Rights, 18(1) Human Rights Quarterly
160, 160 (1996).
Page 3 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 255
A. DEFINITION OF MINORITY
There is not any exclusive definition of minority in international arena. It has been noted that
the definition of the term ‘minority’ has been avoided whenever possible. 5
The Framework Convention for the Protection of National Minorities and the UN Declaration
on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, 1992 also fails to give a specific definition of the term ‘minority’. For granting
any rights to any specific group it is necessary that group is well defined. The traditional
definition of minorities in international law is that ‘minorities are the group of people who are
numerically less in number and are generally dominated by the majorities.’ But this definition
have no legal
support as it is not been defined in any international document and raises lots of problem,
such as whether size of the group is important for according minority status or the
qualification of been dominated by the other group is enough; which criteria is more
important (i.e., domination by other group and less in number) or both are of equal
important? It is necessary that there must be some objective difference between the majority
and the minority within a state.
In the UN Sub- Commission on the Prevention of Discrimination and Protection of
Minorities, Fawcett6 have tried to define the term ‘minority’.
According to him, minorities are those non-dominating group who are loyal to their state and
wishes to preserve their ethnic, religious or linguistic culture, which is markedly different
from those of the rest of the population.7
Thus, going through the above definition it can be said that a person would be accorded the
status of a member of minority group, if he posses the following qualification:
a) He must be member of a group which is numerically lesser than rest of the population,
b) That group must be anon-dominating group,
c) That group must be loyal to the state,
d) That group must have objectively distinguished characteristics based on ethnicity, religion;
language culture- or combination of some of those elements, and
e) That group must wish to preserve those distinguish culture. 5
John Packer and Kristian Myntti, The Protection of Ethnic and Linguistic Minorities in
Europe 24-27, Institute for Human Rights, Abo Akademi University (1993).
6 James Fawcett, The International Protection of Minorities, Minority Rights Group Report
No. 14, 4 (1979).
7 Supra note 4 at 164.
Page 4 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 256
B. TO WHOM DO THE RIGHTS ATTACH: A CONFLICT BETWEEN INDIVIDUAL
RIGHTS AND GROUP RIGHTS
An unresolved question which arises before the international community is that to whom the
rights are vested- is it on individual member of the group or on the group itself? Before the
Second World War, the tradition was that the rights was vested on individual member of the
group, although according to the practice of the League of Nations the right of groups was
also recognized. After the Second World War there has been emphasis on the
individualization of rights. Article 27 of the International Convention on Civil and Political
Rights8 also speaks of the rights of individual. However, Article 34 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms states:
The Court may receive applications from any person, non- governmental organization or
group of individuals claiming to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in the Convention or the Protocols thereto. The High
Contracting Parties undertake not to hinder in any way the effective exercise of this right.
In the case of Grande D’Italia di Palazzo Guistiniani v. Italy,
9 it has been said that the said that groups and organizations have a right to make a claim,
subject to the condition that they must be victim of their own right. Thus, it can be concluded
that the post Second World War recognizes the rights of groups and organizations, but it
makes more emphasis on the individualization of rights.
C. LEGAL RIGHTS AND THE MINORITY
With the development of the minority rights in international arena, a question arises before
the international body that whether legal rights are enough to protect and promote the rights
of the minorities or they should be provided with some other enhanced rights? One of the
tendencies of the lawyers is that they bisect the legal (enforceable) rights with non-
enforceable rights and thus the rights which are not enforceable are of no use.
8
Article 27 of the International Convention on Civil and Political Rights states: “In those
States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members of their group,
to enjoy their own culture, to profess and practice their own religion, or to use their own
language.”
9
34 EUR. HUM. RTS. REP. 22 (2001).
Page 5 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 257
The OSCE’s Geneva Meeting of Experts on National Minorities in 1991 said that, the
historical and territorial circumstances of such minority group should be taken into
account.10 There is no doubt that legally protected rights have many advantages, as the
aggrieved can move before the appropriate authority only when his legal rights are violated,
but on the other hand it is also true that for the enhancement of the individual rights it is
necessary that minority group should have political control over their own affairs. In short, it
can be pointed out that whether legal rights are enough to protect the minorities interest or not
depends on the working of the Framework Convention for the Protection of National
Minorities and how far this Convention will be able to keep the OSCE commitment.
III. THE COUNCIL OF EUROPE AND MINORITY
After the Second World War it has been seen that the emphasis of the international
community was on individual human rights. The attractions which were seen towards the
minority community during the period of 1919-1939 were totally absent aftermath of the
Second World War. Thus, it should not be surprising that the European Convention for the
Protection of Human Rights and Fundamental Freedoms does not contain any direct
provision relating to minority rights. Though the European Convention for the Protection of
Human Rights and Fundamental Freedoms per se does not deal with the minority rights, it is
also not true that it is ignoring the interest of the minorities in total. There are some
provisions which indirectly protect the minority rights also, such as non discriminating
provision11 and there are protocol attached with the Convention which speaks of the minority
rights. The Framework Convention for the Protection of National Minorities is the first
concrete work of the Council of Europe which manifestly deals with the protection and
promotion of the minorities interests. This portion seeks to deal with the rights enshrined in
the international instrument with special concentration on the Framework Convention for the
Protection of National Minorities and on the European Convention for the Protection of
Human Rights and Fundamental Freedoms.

10 Stephen J. Roth, Comments on the CSCE Meeting of Experts on National Minorities and
Its Concluding Document, 12 HUM. RTS. L.J. 330, 331 (1991).
11 Article 14 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms.

Page 6 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 258
A. THE FRAMEWORK CONVENTION
This convention was open for signature by the member states of the Council of Europe on 1st
of February, 1995. This convention shall enter into force on the first day of the expiration of
three months after twelve member States of the Council of Europe have expressed their
consent to be bound by the Convention.12

This Convention is the first concrete work which has been done by the Council of Europe
since its inception for the protection and promotion of the minority rights. According to
Article 24(1)13 of the Convention, it is the Committee of Ministers of the Council of Europe
who shall have the power to monitor the implementation of this framework Convention by
the Contracting Parties. Thus, the Framework Convention for the Protection of National
Minorities fails to establish any supranational enforcement mechanism and the
implementation of the principle is to be achieved through the legislation and policies of the
member state of the Council of Europe.
B. MINORITY RIGHTS AND INTERNATIONAL HUMAN
RIGHTS CONVENTION
While stating that the Framework Convention does not establish any supranational
enforcement mechanism, it does not mean that matter relating to the implementation of its
principle is dependent on the competence and the sovereignty of the state. Article 1 and
Article 17(1) reads with Article 2 makes the provisions of minority rights in this Framework
Convention as the international concern and thus, to some extent, it provides reservation to
the defence of state sovereignty. Article 114 states: The protection of national minorities and
of the rights and freedoms of persons belonging to those minorities’ forms an integral part of
the international protection of human rights, and as such falls within the scope of
international co-operation.
Article 17(1)15 provides “national minorities to establish and maintain free and peaceful
contacts across frontiers with persons lawfully staying in other States, in particular those with
whom they share an ethnic, cultural,
12 Article 28 of the Framework Convention for the Protection of National Minorities.
13 Article 24(1) of the Framework Convention for the Protection of National Minorities
States: “The Committee of Ministers of the Council of Europe shall monitor the
implementation of this framework Convention by the Contracting Parties.”
14 Article 1 of the Framework Convention for the Protection of National Minorities.
15 Article 17 (1) of the Framework Convention for the Protection of National Minorities.

Page 7 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 259
linguistic or religious identity, or a common cultural heritage.” Article 216 , on the other
hand, requires the member states to practice the principle of Framework Convention in
neighbourliness, friendly relations and co- operation with each other. Thus, the minority
rights in this Framework Convention and the international human rights law walk in the same
path. Moreover, Article 2217 and 2318 of the Framework Convention makes it clear that the
provisions of this Convention is to be construed in line with other international human rights
convention of which the member states of the Council of Europe are party.
C. INDIVIDUAL RIGHTS AND COLLECTIVE RIGHTS
Before analyzing whether the intention of the drafter of the Framework Convention was to
provide individual rights or group rights, it is necessary to go through the meaning of the
word ‘national minority’. The term ‘national minority’ is not defined in the Framework
Convention for the Protection of National Minorities. However, if we go through the literal
interpretation of the term ‘national’, it can be said that protection under the Framework
Convention is accorded only to the national of the state and the non-citizen are barred from
such protection.
Looking into Article 1 and 3(2) of the Framework Convention it can be pointed out that the
intention of the drafter of this convention was only to accord individual rights and not the
group rights. By referring to the “the rights and freedoms of persons belonging to national
minorities” in Article 1 of the Framework Convention, the drafter intended to accord rights to
the individual member of the minority group and not to the collectivity . 19
Article 3(2) says that rights enshrined in this Framework Convention can be enjoyed
“individually as well as in community with others.” Thus, this provision is referring to the
joint rights and not to the collective rights. However, the word ‘persons’ in Article 1 and 3(2)
may refer to the minority group as a whole and not to the individual. Moreover, Article 1 in
the Framework Convention makes minority rights as “an integral part of the
16 Article 2 of the Framework Convention for the Protection of National Minorities.
17 Article 22 of the Framework Convention for the Protection of National Minorities states:
“Nothing in the present framework 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 Contracting Party or under any other agreement to which it is a Party.”
18 Article 23 of the Framework Convention for the Protection of National Minorities states:
“The rights and freedoms flowing from the principles enshrined in the present framework
Convention, in so far as they are the subject of a corresponding provision in the Convention
for the Protection of Human Rights and Fundamental Freedoms or in the Protocols thereto,
shall be understood so as to conform to the latter provisions.”
19 Supra note 4 at 178.
Page 8 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 260
international protection of human rights” and in certain case protection can be availed only
through group action. In some Articles of the Framework Convention words ‘every person’ is
mentioned20. Thus, if the words ‘every person’ refers to individual, than it can be presumed
that the word ‘persons’ must refer to group as whole. Article 5 of the Framework Convention
states:
a) The Parties undertake to promote the conditions necessary for persons belonging to
national minorities to maintain and develop their culture, and to preserve the essential
elements of their
identity, namely their religion, language, traditions and cultural heritage.
b) Without prejudice to measures taken in pursuance of their general integration policy, the
Parties shall refrain from policies or practices aimed at assimilation of persons belonging to
national minorities against their will and shall protect these persons from any action aimed at
such assimilation.
Article 5 speaks of the group rights. It is difficult to see how an individual member of the
group is eligible to claim such rights in its individual capacity. An individual can only act as a
representative of the group, but cannot seek to preserve his own individual rights.
In short, whether Framework Convention provides individual rights or collective rights is still
remains the matter of debate and depends on the legislation and policies adopted by the
member states.
D. THE FRAMEWORK CONVENTION AND OTHER
CONVENTION RIGHTS
The European Convention for the Protection of Human Rights and Fundamental Freedoms is
basically designed to protect the human rights of the persons. It directly is not related to the
minority rights, but while dealing with the human rights this Convention is also protecting
some of the rights of the minorities. Some of the provisions of the Framework Convention
have been elaborated on provisions contained in the
European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 25 (1)21 provides locus standi to “any 20 See for example Article 7, 8 and 9 of The
Framework Convention for the Protection of National Minorities.
21 Article 25(1) of The European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in this Convention, provided that the High
Contracting Party against which the complaint has been lodged has declared that it
Page 9 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 261
person, non-governmental organisation or group of individuals” to move before the
Commission whenever their rights enshrined in this convention are violated. Article 14 22
deals with non-discriminatory provision and Article 623 says that “everyone is entitled to a
fair and public hearing.” This provision is somewhat similar to the provision enshrined in
Article 4(1) 24 of the Framework Convention for the Protection of National Minorities.
Article 725 and 826 of the Framework convention deals with freedom of peaceful assembly,
freedom of association, freedom of expression, right to religion etc. These provisions are
mirrored to Article 9 to 11 of the European convention.
The other major provision of the Framework Convention which is mirrored to the European
Convention is Article 10(3). Article 10(3) of the Framework convention states:
The Parties undertake to guarantee the right of every person belonging to a national minority
to be informed promptly, in a language which he or she understands, of the reasons for his or
her recognises the competence of the Commission to receive such petitions. Those of the
High Contracting Parties who have made such a declaration undertake not to hinder in any
way the effective exercise of this right.”; see also The Liberal Party et al. v. United Kingdom,
App.No. 8765/79, 4 European Human Rights Reports 106, 120-121 (1982).
22 Article 14 of The European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
23 Article 6(1) of The European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. Judgment shall
be pronounced publicly but the press and public may be excluded from all or part of the trial
in the interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice.”

24 Article 4(1) of the Framework Convention for the Protection of National Minorities states:
“The Parties undertake to guarantee to persons belonging to national minorities the right of
equality before the law and of equal protection of the law. In this respect, any discrimination
based on belonging to a national minority shall be prohibited.”
25 Article 7 of the Framework Convention for the Protection of National Minorities states:
“The Parties shall ensure respect for the right of every person belonging to a national
minority to freedom of peaceful assembly, freedom of association, freedom of expression,
and freedom of thought, conscience and religion.”
26 Article 8 of the Framework Convention for the Protection of National Minorities states:
“The Parties undertake to recognise that every person belonging to a national minority has the
right to manifest his or her religion or belief and to establish religious institutions,
organisations and associations.”
Page 10 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 262
arrest, and of the nature and cause of any accusation against him or her, and to defend himself
or herself in this language, if necessary with the free assistance of an interpreter. This
provision is similar to article 527 and 628 of the European Convention. It is seen that the
provisions of the Framework Convention are to some extent similar to the provisions of other
international human rights convention and thus, cannot be stated as a pure minority rights.
However, all the provisions of the Framework Convention are not mirrored to human rights
convention and are pure minority rights provisions. The first of this is Article 5 of the
Framework Convention which requires the member states to “refrain from policies or
practices aimed at assimilation of persons belonging to national minorities against their will
and shall protect these persons from any action aimed at such assimilation.” Article 15 and 16
of the Framework Convention provides further protection. Article 15 requires the member
states to “create the conditions necessary for the effective participation of persons belonging
to national minorities in cultural, social and economic life and in public affairs, in particular
those affecting them.”
The Liberal Party et al. v. United Kingdom29 and Lindsay et al. v. United Kingdom30 cases
provides the states a right to discriminate in a proportional manner for the greater
participation of the national minority in political life within the four walls of Article 15 of the
Framework Convention. Article 16 states that “The Parties shall refrain from measures which
alter the proportions of the population in areas inhabited by persons belonging to national
minorities and are aimed at restricting the rights and freedoms flowing from the principles
enshrined in the present framework Convention.” However, if the measures are taken for
some other reason, than minority groups are not protected from the provision of Article 16 of
the Framework Convention. Article 6 of the Framework Convention requires the state parties
to “to promote mutual respect and understanding and co-operation among all persons living
on their territory” and “to take appropriate measures to protect persons who may be subject to
threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural,
linguistic or religious identity.”

27 Article 5 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms speaks of the “right to liberty and security of person.”
28 Article 6 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms speaks of “a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.”
29 App.No. 8765/79, 4 European Human Rights Reports 106, 120-121 (1982).
30 App.No. 8364/78, 3 CMLR 166, 170-171 (1979).

Page 11 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 263
Article 13 31 and 14 32 of the Framework Convention provides national minorities rights to
establish their own educational establishment to learn his minority language. However, the
state parties are not bound to provide any financial assistance for establishing educational
system.33 Article 21 and 22 provides some criteria which are required to keep in mind while
interpreting the provision of the Framework Convention. Article 21 states that provision of
the Framework Convention shall not be interpreted in a way which permits anyone to
derogate from the principles of international law. This Article gives preference to the
sovereign equality,
territorial integrity and political independence of States. Article 22 says that provision of the
Framework Convention shall not be interpreted in a way which permits anyone to derogate
from the human rights and fundamental freedoms ensured under the laws to which that state
is a party.
IV. THE GROWING MINORITY RIGHTS JURISPRUDENCE OF THE EUROPEAN
COURT OF HUMAN RIGHTS
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.”34 The European Convention for the Protection of Human Rights and
Fundamental Freedoms does not contain any minority rights provision as mentioned in
Article 27 of the International Covenant on Civil and Political Rights. The Council of Europe,
for the sake of the protection of the interest of minorities in Europe, drafted the Framework
Convention for the Protection of National Minorities in the year of 1995. But this Framework
Convention contains no supranational enforcement mechanism and the implementation of its
principle is dependent on the legislation and policies of the member state of the Council of
Europe. There is no direct way through which the minority groups claim their minority rights.
The European Court of Human Rights through its various case laws made it

31 Article 13(1) of the Framework Convention for the Protection of National Minorities
states: “Within the framework of their education systems, the Parties shall recognise that
persons belonging to a national minority have the right to set up and to manage their own
private educational and training establishments.”
32 Article 14 (1) of the Framework Convention for the Protection of National Minorities
states: “The Parties undertake to recognise that every person belonging to a national
minority has the right to learn his or her minority language.”
33 See Article 13(2), id.
34 Article 27 of the International Covenant on Civil and Political Rights.

Page 12 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 264
clear that the member states of the European Convention are under an obligation to uphold
“international standard in the field of the protection of human and minority rights.”35
This portion seeks to examine the jurisprudence of the European Court of Human Rights in
relation to minority groups, with special concentration on non-discriminative right, education
right, religious right, freedom of expression etc.
A. THE EUROPEAN CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
As already said European Convention for the Protection of Human Rights and Fundamental
Freedoms directly does not contain any provision relating to minority rights in Europe.
However, Article 14 of the European Convention, which deals with the non-discriminatory
provision, makes some reference to minority rights. Article 14 states: The enjoyment of the
rights and freedoms set forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status. In Velikova
v. Bulgaria, 36 the European Court held that without any reasonable justification no person,
group or organization can be discriminated on any of the grounds mentioned in Article 14 of
the European Convention for the Protection of Human Rights and Fundamental Freedoms.
However, the onus of proving that the case falls beyond any reasonable doubt lies on the
applicant who alleges that their rights has been violated.
It is to be noted that the European Court of Human Rights does not act as an appellate court
and if the domestic court of the relevant has adjudicated the case, the European Court of
Human Rights is barred to exercise its jurisdiction, even though the victim is not satisfied
with the judgment delivered by the domestic court.
Article 34 of the European Convention states:
The Court may receive applications from any person, non- governmental organisation or
group of individuals claiming to be the
35 See Denizci v. Cyprus, 25316-25321/94 & 27207/95, Eur. Ct. Hum. Rts. (Fourth
Section).
36 41488/98, Eur. Ct. Hum. Rts. (Fourth Section), 18 May 2000.

Page 13 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 265
victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in
any way the effective exercise of this right. Thus, along with the individual, groups and
organizations can also bring the claim before the European Court, subject to the condition
that they must be victim of the violation of their own right.37
B. NON-DISCRIMINATION AND THE EUROPEAN CONVENTION
Article 1438 of the European Convention deals with the non-discriminatory clause and
provides that no one shall be discriminated in the enjoyment of rights enshrined in the present
convention. Article 14 is not freestanding non-discrimination clause as Article 2639 of the
International Covenant on Civil and Political Rights. Rights under this Article can only be
claimed in conjunction with other rights in the present Convention.
On the one hand, Article 14 demands the state parties not to discriminate on any ground
mentioned in the present Article and on the other hand, state parties have margin of
appreciation and can reserve some of the aspect of Article 14 to accommodate domestic laws.
However, the reservation made by the state parties must be reasonable and objectively
justified.
In United Christian Broadcasting Ltd. V. United Kingdom, 40 the Court held that in a
domestic society, to respect every one’s interest and belief, the state may place restriction on
the freedom of one’s religion.
37 See Grande D’Italia di Palazzo Guistiniani v. Italy, 34 EUR. HUM. RTS. REP. 22
(2001).
38 Article 14 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”

39 Article 26 of the International Covenant on Civil and Political Rights states: “All persons
are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.”
40 44802/98, Eur. Ct. Hum. Rts. (Third Section), 7 Nov. 2000.

Page 14 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 266
In Cyprus v. Turkey, 41 the Court held that “the discrimination against the Greek Cypriot
community in northern Cyprus was so severe that it amount to inhuman and degrading
treatment.42

In Thlimmenos v. Greece, 43 the court held that Article 14 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms demands equality between two
equals and not between two different persons. If two different persons are treated equally
without any reasonable and objective justification, then also it violates Article 14 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms. In
Sanli and Erol v. Turkey, 44 it has been decided that where distinction is made between two
different offences and not between two different groups, than such distinction does not
amounts to discrimination as enshrined in Article 14 of the European Convention.
C. REGISTRATION & RECOGNITION OF MINORITY GROUP &
ORGANISATION
For providing any rights to any minority groups, it is necessary that they should be given the
right to get registered and recognized by the state. In Stankov & United Macedonian
Organisation ILINDEN v. Bulgaria, 45 it has been held that though registration is one of the
important aspects of minority rights, but non-registration of any group or organization does
not prevent such group or organization to make a claim before the Court.
In Al-Nashif v. Bulgaria, 46 a teacher was appointed by the local Muslim committee for the
purpose of religion within the community. However, latter on, his permanent right of
residence was revoked by the Bulgarian Authorities as there was allegation that the appellant
was threat to the interest of the state and was teaching religion without any proper
authorization. A complaint was made before the European Court of Human Rights, as
according to the appellant the act of the Bulgarian Authorities violated his rights under Article
9 and 13 of the European Convention. The Court rejected the complaint stating that
revocation of the permanent address and deportation of the appellant does not bar the local
Muslim community to appoint a new teacher from their population.

41 24781/94, Eur. Ct. Hum. Rts. (Grand Chamber), 10 May 2001.

42 Geoff Gilbert, The Burgeoning Minority Rights Jurisprudence of the European Court of
Human Rights, 24(3) Human Rights Quarterly 736, 745 (2002).
43 31 EUR. HUM. RTS. REP. 15, PP. 53 (2001).
44 36760/97, Eur. Ct. Hum. Rts. (First Section), 17 Oct. 2000.
45 29221 & 29225/ 95, Eur. Comm’n Hum. Rts., 29 June 1998.
46 50963/99, Eur. Ct. Hum. Rts. (Fourth Section), 16 Dec. 1999 & 25 Jan. 2001.

Page 15 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 267
D. FREEDOM OF EXPRESSION AND MINORITY
ORGANIZATION
For the proper recognition of any group or organization, it is necessary that such group or
organization must have the freedom to hold opinions and to receive and impart information
and ideas without interference by any public authority. Article 10(1) of the European
Convention states: Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not prevent
States from requiring the licensing of broadcasting, television or cinema enterprises.
Article 10(2),47 however, restrict the exercise of this right “in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of health
or morals or for the protection of the rights and freedoms of others.”
The Ozgur v. Turkey, 48 case extended the role of the state in relation to right to freedom as
enshrined in Article 10 of the European Convention. In this case the Court held that Article
10 of the European Convention makes a positive obligation on part of the state that the view
and opinion of the minority group is safely imparted.
In sum, Article 10 of the European Convention provides a broad degree of freedom of
expression to the minority groups in Europe and limitation is only imposed when it affects
the interest of others.
E. RIGHT TO EDUCATION AND MINORITY GROUPS AND ORGANIZATION
Article 2 of Protocol No. 1 of the European Convention recognizes the rights of education of
every individual. However, this article does not recognize the right to education in any
particular language, not does it create 47 Article 10(2) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms states: “No restrictions shall be
placed on the exercise of these rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or for the protection of
the rights and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of the police or of
the administration of the State.”
48 23144/93, Eur. Ct. Hum. Rts. (Fourth Section), 16 Mar. 2000.

Page 16 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 268
any positive obligation upon the state to create any particular kind of
educational establishment.
In Cyprus v. Turkey49 the Court held the Article 2 of Protocol No.1 of the European
Convention gives right to access only to existing education establishment and states are not
bound to establish any education institution. But if any education facility existed in the past
and have been abolished the state, then such practice of the state may amount to denial of the
substantive rights to education.
F. RIGHT TO RELIGION AND MINORITY GROUPS AND
ORGANIZATION
Article 9(1)50 of the European Convention provides to everyone the right to freedom of
thought, conscience and religion. Article 9(2) 51 ; however, restrict the exercise of this right
“in the interests of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.”
Through many case laws it has been found the Court is very conscious about the importance
of religion to the group and does not tolerate the interference of the state in the management
of the internal religious affairs. However, the enjoyment of this freedom is not unlimited. In a
democratic society, where many religious groups exist, then for the protection of the interest
of other group, the state may impose reasonable and objective restriction on the enjoyment of
such right on one or other group.52
49 24781/94, Eur. Ct. Hum. Rts. (Grand Chamber), 10 May 2001.
50 Article 9(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief and freedom, either alone
or in community with others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.”

51 Article 9(2) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms states: “Freedom to manifest one's religion or beliefs shall be subject
only to such limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.”
52 United Christian Broad Ltd. v. United Kingdom, 44802/98, Eur. Ct. Hum. Rts. (Third
Section), 7 Nov. 2000.
Page 17 of 18
Kedia/The European Court of Human Rights and Minority
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 269
G. RIGHT TO PARTICIPATE IN CULTURE, RELIGIOUS, SOCIAL, ECONOMIC
AND PUBLIC LIFE AND MINORITY GROUPS AND ORGANIZATION
“While the minority group needs to be able to preserve its own culture and promote its own
identity and institutions, which requires self-segregation in part, it also needs to be able to
participate in the political life of the state, particularly with respect to matters affecting its
culture, identity and institution.”53 In Mcguiness v. United Kingdom, 54 members of British
Parliament was not permitted to access to the facility of the House for the reason that they
refused to take an oath that they would bear faithful and true allegiance to the Queen and her
heirs. They alleged that their rights under Article 14 (discrimination) in conjunction with
Article 10 (taking such oath was contrary to their political principles) and Article 9 (oath was
contrary to their religious feeling, as they were the member of Roman Catholic whereas the
monarch was not) are violated. Moreover, their right of free election under Article 3 of
Protocol no.1 of the European Convention was also violated. The Court dismissed the whole
case as manifestly ill-founded.
The court observed that taking oath before the monarchic model of government is one of the
basic rule of the Constitution. Rights under Article 10(1) is subjected to Article 10 (2) and
thus, subjected to formalities and conditions prescribed by law. Thus, there is no violation of
rights under Article 10 of the Convention. It also does not violate the religious rights of the
persons enshrined under Article 9 of the Convention, as the rule demanded their loyalty to the
monarch and not to any religious institution. The prohibition of access to the facility of the
House also does not violate Article 3 of Protocol no.1 of the European Convention, as free
election does not means that the candidate should be exempted from fulfilling the basic
norms of election. Since, the requirement of making an oath was compulsory to each and
every person, irrespective of his religious feeling, it does not violate article 14 also. The
jurisprudence set by the European Court of Human Rights suggest that the European
Convention protects the minority rights in variety of ways, it should be kept in mind the this
Convention is not designed for minority rights exclusively. It is open to dismiss any claim as
manifestly ill-founded.
Furthermore, even where the Court has upheld the claim, the states are not under the
obligation to be obliged by its decision and it is a matter for the
53 Supra note 42 at 769.
54 39511/98, Eur. Ct. Hum. Rts. (Third Section), 8 June 1999.
Page 18 of 18
International Journal of Law and Policy Review (IJLPR)
ISSN (O): 2278-3156 Vol. 2 No. 2 July 2013 270
Committee of Ministers to consider whether the measures to be taken or
not.55
V. CONCLUSION
After undertaking the particular studies my understanding point to the fact that there is no
doubt that there is a need to guarantee the minority rights in Europe. The Framework
Convention which is exclusively designed for the protection and promotion of minority rights
in Europe is a weak law. It fails to give any exclusive definition of the term ‘national
minority’ and fails to establish any supranational enforcement mechanism and the
implementation of the principle is to be achieved through the legislation and policies of the
member state of the Council of Europe. However, under Article 24(1) of the Framework
Convention, the Committee of the Committee of Ministers of the Council of Europe has the
power to monitor the implementation of this framework Convention.56
The European Court of Human Rights through its various case laws has developed enough
jurisprudence of minority’s rights in Europe. Though the European Convention on Human
Rights and Fundamental Freedoms is not designed is not designed for minority rights
exclusively, Article 14 reads with other provisions of the Convention is protecting and
promoting the rights of the minorities. However, according to Article 46 of the European
Convention on Human Rights and Fundamental Freedoms, the states are not under the
obligation to be obliged by the European Court and it is a matter for the Committee of
Ministers to consider whether the measures to be taken or not.57 After going through the
following discussion it can be suggested that there is necessity of defining the term ‘national
minority’ and a provision should be made in the Framework Convention for the establishment
of the supranational enforcement mechanism, so that the rights of the minorities are more
effectively protected.
55 See Article 46 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
56 Supra note 12.
57 Supra note 51.

3. The European Court of Human Rights and Minority- By Bineet Kedia - Final.pdf