Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law

Abstract

The concept of vulnerable groups is gaining momentum in the case law of the European Court of Human Rights. The Court has so far used it in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. Yet the appearance of the vulnerable-group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability as well as on the Court’s case law, this article offers a critical assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

1. Introduction

Though each and every move of the European Court of Human Rights¹ is intensely followed these days,² one recent development in the front lines of its reasoning has so far escaped scholarly attention: the emergence of the concept of vulnerable groups. The Strasbourg Court originally used this concept in relation to the Roma minority. “[A]s a result of their turbulent history,” the Court has held, “the Roma have become a specific type of disadvantaged and vulnerable minority” in need of special protection.³ In recent years, the concept has gained legal momentum when the Court started to regard people with mental disabilities as a “particularly vulnerable group in society, who have suffered considerable discrimination in the past.”⁴ The Court has further expanded the list of vulnerable groups to asylum seekers⁵ and people living with HIV.⁶

In this article, we trace the characterization and implications of the concept of vulnerable groups in the Strasbourg case law. Arguing for a reflective use of group vulnerability, we offer a critical assessment of the concept by reference both to theoretical debates on vulnerability and to the Court’s case law.⁷ We show that the Court’s use of the term “vulnerable groups” is not mere rhetorical flourish. The term does something: it allows the Court to address different aspects of inequality in a more substantive manner. We argue that, for this reason, the emergence of the concept represents a positive development in the Court’s case law. Yet, for all its power to further substantive equality, the concept also risks sustaining the very exclusion and inequality it aims to redress. We therefore maintain that, if the Court wishes to retain the capability of “vulnerable groups” to fulfill its equality mission, it will have to attend to the stigmatizing, essentializing, and stereotyping risks associated to the concept.

Our analysis proceeds in four parts. We begin by locating the broader theoretical context within which vulnerability has been used as a critical tool and by exploring the links between vulnerability and human rights (Section 2). We continue with an assessment of the ways in which the Court has evoked the notion of vulnerable groups, highlighting the pitfalls inherent in the concept and offering guidance on how the Court could circumvent them (Section 3). Then, we evaluate the consequences that the Court’s use of vulnerable groups has had in its case law and show how the concept has reinvigorated the Strasbourg antidiscrimination and equality case law (Section 4). Lastly, we offer some thoughts on whether the Court’s use of the vulnerable-group concept may lead the Court to overstep its proper subsidiary role (Section 5).

2. The concept of vulnerability and its relationship to human rights

Vulnerability is a concept fraught with paradox. To start with, the concept is in common use but its meaning is imprecise and contested. Confusing,⁸ complex,⁹ vague,¹⁰ ambiguous¹¹ are but a few of the labels scholars across disciplines have used to refer to it. (Bio)ethics and law, in particular, are disciplines which have spawned an extensive literature on vulnerability. As the purpose of this Article is to analyze the Strasbourg Court’s deployment of the vulnerable-group concept, we will base our account of vulnerability primarily on legal scholarship.

2.1. Meanings of vulnerability

A central paradox of vulnerability is that it is both universal and particular. Both of these features arise in the first place from our embodiment:¹² as embodied beings we are all vulnerable, but we experience this vulnerability uniquely through our individual bodies. The centrality of the corporeal dimension of vulnerability is reflected in the term’s etymology: the term stems from the Latin vulnus, which means, “wound.”¹³ Turning first to the meaning of vulnerability in the universal sense, it comes as no surprise that harm and suffering feature centrally in most accounts of vulnerability.¹⁴ Mary Neal neatly summarizes the literature:

[V]ulnerability speaks to our universal capacity for suffering, in two ways. First, I am vulnerable because I depend upon the co-operation of others (including, importantly, the State) . . . Second, I am vulnerable because I am penetrable; I am permanently open and exposed to hurts and harms of various kinds.¹⁵

Thus, as vulnerable subjects we are constantly susceptible to harm. Harm, of course, comes in many varieties that intersect and reinforce one another. Injuries can be bodily, moral,¹⁶ psychological,¹⁷ economic and institutional,¹⁸ just to mention a few. These different forms of harm already hint at the ways in which vulnerability is particular (as well as universal). Our “different forms of embodiment” and our different positions within “webs of economic and institutional relationships”¹⁹ mean that each of us experiences vulnerability uniquely. Martha Fineman points out that the experience of vulnerability “is greatly influenced by the quality and quantity of resources we possess or can command.”²⁰

Recently, however, theorists have moved towards an understanding of vulnerability that expands beyond (universal and particular) suffering, to encompass positive aspects.²¹ Human vulnerability is generative of suffering, so the argument runs, but also of empathy, pleasure, innovation, social institutions, intimacy and social-connectedness. Martha Fineman argues that this generative capacity of vulnerability “presents opportunities for innovation and growth, creativity, and fulfillment. It makes us reach out to others, form relationships, and build institutions.”²² Indeed, Fineman insists that we need to re-conceptualize vulnerability in this positive manner in order to get rid of the stigmatizing effects otherwise attached to the term.²³

2.2. Vulnerability as a heuristic device

Fineman has described vulnerability as a heuristic device that allows us to “examine hidden assumptions and biases folded into legal . . . practices.”²⁴ The fact that vulnerability can be used as a heuristic device points to the next paradox inherent in the concept: it can be deployed both to diagnose the “is” and the “ought.” In other words, vulnerability is analytically both a descriptive and prescriptive tool. The problem is that the bridge between the descriptive and the prescriptive powers of vulnerability is not easy to build. Especially ethicists struggle with the question how vulnerability can have prescriptive force, since embodied vulnerability is known to trigger both care and abuse.²⁵ Scholars from different disciplines agree, however, that using vulnerability as a critical tool involves exploring how societal or institutional arrangements originate, sustain, and reinforce vulnerabilities.²⁶ As was mentioned above, part of the reason why people are vulnerable is because they are inevitably dependent on the cooperation of others. Vulnerability is therefore inherently a “relational” concept,²⁷ which supplements “attention to the individual subject by placing him/her in social context.”²⁸ In the next section, we will adopt a similar contextual approach to vulnerability in our case law analysis.

Within the legal literature there is a tension between group-based and universality-based deployments of vulnerability. This seems due to the paradoxical nature of the concept. On the one hand, vulnerability is often used to analyze specific populations;²⁹ on the other hand, Martha Fineman has developed a vulnerability thesis that is expressly universal in its scope and “post identity.”³⁰ Fineman objects to applying the term vulnerability only to specific groups. She maintains that, as long as vulnerability is only associated with certain (marginalized) identities, the liberal myth that, “normally,” people are self-sufficient, independent, and autonomous is sustained.³¹ This myth—which is in her view pervasive in American society—has led to an impoverished notion of what the function of the state is and has moreover legitimized rampant inequality. Instead, Fineman proposes to understand vulnerability as a “universal, inevitable, enduring aspect of the human condition” and posits that the proper role of the state is to be responsive to this.³² She presents her vulnerability thesis as an alternative to traditional group-based US equal protection analysis.³³ Fineman argues that her analysis is capable of delivering substantive equality (where the traditional analysis has failed) because her thesis turns the inquiry to the “institutional practices that produce the identities and inequalities in the first place.”³⁴

The vulnerable-group reasoning of the Strasbourg Court seems to fit ill with Fineman’s thesis. While Fineman supports vulnerability for its potential of capturing the universal, the Court does it for its ability to capture the particular. In our view, however, there is no inherent impediment to reconciling these two approaches on a conceptual level—on the contrary; that would fit the concept’s paradoxical nature well. When we asked a Strasbourg judge about the Court’s reasoning, he replied: “All applicants are vulnerable, but some are more vulnerable than others.” The judge thus neatly merged the universal approach with the group-based approach. This reply also points to the fact that, as we will show in the next section, the Court’s reasoning is a way of recognizing that people are differently vulnerable; that vulnerability is partially constructed depending on economic, political and social processes of inclusion and exclusion. Whether the Court in practice manages to handle vulnerability as a critical tool with the care that is required—without falling in the pitfalls that Fineman and others warn against—is also the subject of the next section.

2.3. Human rights law and vulnerability

Before moving on to the case law analysis, it bears standing still for a moment and consider what kind of role vulnerability has so far played in the human rights context. At first sight, human rights lawyers suffer less from the is/ought dilemma precisely because they can refer to the human rights corpus, which in essence lays down the rule that abuse of human embodied vulnerability is prohibited. However, as we shall see, critically minded human rights scholars have shown that the story is not that straightforward. The relationship between vulnerability and human rights is a contested terrain.³⁵

In view of the topic of this paper the crucial question is: are human rights so construed as to protect the most vulnerable people? On a conceptual level, Anna Grear shows, the answer to this question is complex and bifurcated.³⁶ Grear argues that the Universal Declaration of Human Rights (UDHR)³⁷ paradigm contains two contradictory impulses. On the one hand, the whole human rights system is founded on a concern for embodied vulnerability. ³⁸ Grear presents a genealogy of human rights in which she shows that this is the case both during the idea’s early articulations in the eighteenth century and when the UDHR was created as a reaction to the horrors of World War II. On the other hand, the liberal legal subject has been imported into the human rights structure: archetypically, this is a rationalistic and quasi-disembodied subject.³⁹ In many ways, this subject is conceived of as invulnerable.⁴⁰ What flows from the dominance of the liberal quasi-disembodied subject in human rights law is a set of deeply troubling exclusions. Drawing on a well-known theme from feminist legal theory,⁴¹ Grear argues that the many groups that do not fit the liberal archetype—women, dispossessed, people of color, and (especially) asylum seekers—fall outside the scope of the purportedly universal protection of human rights.

Of course, many within the human rights movement are aware that the human rights universal fails to include marginalized subjects. In response to this problem, specific treaties have proliferated, such as the Convention on the Rights of Persons with Disabilities;⁴² the Convention on the Elimination of all Forms of Discrimination against Women;⁴³ the Convention on the Elimination of Racial Discrimination;⁴⁴ and the Convention on the Rights of the Child.⁴⁵ Grear interprets the creation of these specific human rights instruments as repeated critiques of “the closures of the abstract universal” and “the outcome of quasi-disembodiment.”⁴⁶ Aside from the specific treaties, general treaty bodies—in their General Comments and Concluding Observations—also regularly emphasize the imperative to pay special attention to the needs of particularly vulnerable people.⁴⁷ The same holds true for human rights commissioners.⁴⁸ In academic scholarship, lastly, these critiques are mirrored in the writings of what Marie-Bénédicte Dembour has termed “protest scholars”; those who conceive of human rights as articulating “rightful claims made by or on behalf of the poor, the underprivileged and the oppressed.”⁴⁹

So to go back to the question whether human rights law is so construed as to protect the most vulnerable people: the answer is yes and no (again a paradox!). Drawing on the work of Grear, the subject of human rights law is arguably not an embodied vulnerable subject—let alone a highly vulnerable subject. We would wish that the Court is only doing its regular job by reasoning from vulnerability, but the Court’s reliance on the concept is more complex than that. Our diagnosis is this: in response to the exclusions of human rights law, the Strasbourg Court has been forced to attend to the constructed disadvantage of certain groups, and in so doing, has deployed the concept of group vulnerability.⁵⁰ As we will now proceed to show, the Court’s deployment of the concept has both strengths and weaknesses.

3. Characterization and risks of the concept of vulnerable groups in the Court’s case law

The rapid development of the concept of vulnerable groups in recent high-profile judgments of the Strasbourg case law raises several basic questions. How has the Court evoked the concept of group vulnerability? And, are there any risks associated to the Court’s characterization and deployment of the concept? Based on these questions, this section offers a critical assessment of the Court’s formulation and use of the concept.

3.1. Chapman and the origin of group vulnerability

The concept of vulnerable groups was introduced in 2001, in Chapman v. the United Kingdom, to refer to the Roma minority.⁵¹ The case involved a Roma woman who was evicted from her own land because she stationed her caravan there without a planning permission. The Court rejected the applicant’s alleged violation of the right to respect for her minority lifestyle (Article 8 ECHR). It also dismissed her discrimination complaint (Article 14 ECHR). The applicant’s argument was that the UK government prevented her from pursuing a lifestyle that she viewed as central to her cultural tradition: living and travelling in a caravan. The Court’s Grand Chamber held:

As intimated in Buckley, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases.⁵²

In this early formulation, the vulnerability of Roma seems to arise primarily from the group’s minority status and from the lack of consideration of its minority lifestyle in the planning and decision-making processes. Group vulnerability does not, however, play a key role in the Court’s proportionality reasoning.⁵³ In fact, Ms. Chapman loses the case, mostly as a result of the large margin of appreciation left to states when it comes to the implementation of planning policies, in this case, environmental regulations. Notwithstanding this, Chapman’s articulation of vulnerability already puts in place the elements that will shape the Court’s later formulations of “vulnerable groups”: belonging to a group (in this case, the Roma minority) whose vulnerability is partly constructed by broader societal, political, and institutional circumstances (in this case, power differentials and a planning framework unresponsive to the needs arising from a way of life different from that of the majority).

3.2. Group vulnerability in the post-Chapman case law

a) Characteristics of the vulnerable-group concept: relational, particular, and harm-based

In the years following Chapman, the Court has broadened and refined the concept’s content and scope. As we will discuss, the Court has not only reaffirmed the vulnerability of Roma in different contexts and for a mix of other reasons; it has also extended the list of “vulnerable groups” to persons with mental disabilities, people living with HIV, and asylum seekers. However, what exactly ties all these groups together is still not entirely clear, as the Court has not (yet) fully developed a coherent set of indicators to determine what renders a group vulnerable. To be sure, in all the cases, the Court draws on European or international human rights reports and resolutions to determine what it is that makes groups vulnerable.⁵⁴ These references, however, serve to confirm rather than to establish group vulnerability.

Based on a close reading of the case law, our understanding is that the concept of group vulnerability, as used by the Court, has three characteristics: it is relational, particular, and harm-based. The Court’s account of group vulnerability is first of all relational. As already transpired from Chapman, the Court locates vulnerability not in the individual alone but rather in her wider social circumstances. The Court’s notion of vulnerable groups is thus relational because it views the vulnerability of certain groups as shaped by social, historical, and institutional forces. In other words, the Court links the individual applicant’s vulnerability to the social or institutional environment, which originates or sustains the vulnerability of the group she is (made) part of. The emphasis on context inherent in the relational character of the Court’s understanding of group vulnerability is in line with contemporary analyses that use vulnerability as a critical tool. As we have seen in Section 2.2, they all insist on the need to explore the role of societal or institutional arrangements in originating and maintaining vulnerability.

However, contrary to legal scholars’ efforts to theorize vulnerability in a universal way—most prominently, Fineman’s vulnerability thesis⁵⁵—the Court’s vulnerable subject is not the inherently vulnerable human being. Rather, the Court’s vulnerable subject is a particular group member. In our view, this understanding of vulnerability is not necessarily at odds with universal accounts of vulnerability. On the contrary, and as we have argued in Section 2.2, this fits the concept’s paradoxical nature: vulnerability is at once universal and particular. In fact, the Court tends to talk of “particularly vulnerable groups”⁵⁶ rather than just of “vulnerable groups.” The inclusion of the term “particularly” underlines the idea that people belonging to these groups are simply “more” vulnerable than others. This points to the second characteristic of the Court’s account of vulnerability: it is particular. By “particular,” we mean that the Court’s vulnerable subject is a group member whose vulnerability is shaped by specific group-based experiences.

A third characteristic of the Court’s formulation of group vulnerability in the post-Chapman case law is its focus on harm. Indeed, all the indicators that the Court has employed to determine group vulnerability show that harm features centrally in the Court’s account of group vulnerability. This is far from surprising since, as we have indicated in Section 2.1, harm is central to most basic accounts of vulnerability. Thus, one clear set of indicators that emerges from the Court’s case law is (historical) prejudice and stigmatization. These indicators point to the harm of misrecognition, which, according to Nancy Fraser, takes place when “institutionalized patterns of cultural value . . . constitute some actors as inferior, excluded, wholly other, or simply invisible—in other words, as less than full partners in social interaction. . . .” ⁵⁷ As we will explain below, these indicators have played out in the Court’s group-vulnerability analysis, most notably in the context of discrimination. Most recently, the Court has started to delineate more complex indicators linked to social disadvantage and material deprivation in the context of Articles 3 and 8 ECHR. These indicators point to what Fraser calls maldistribution, which results “when some actors lack the necessary resources to interact with others as peers.”⁵⁸

In what follows, we organize our analysis of the vulnerable-group case law in two sections, depending on which of the two kinds of harm plays out more prominently in determining group vulnerability. This bifurcation of our examination of the Court’s case law does not mean that there are no connections between the two types of harm. What it means is that, though elements of misrecognition and maldistribution underlie all the cases, the Court’s assessment of group vulnerability tends to focus more on one than on the other, often leaving the links between the two unexplored.

b) Prejudice and stigmatization: misrecognition cases

The first set of indicators that has crucially informed the Court’s assessment of group vulnerability are prejudice and stigma. In the post-Chapman years, the Court has preserved the original designation of the Roma minority as “vulnerable” but with different connotations. Indeed, in cases concerning the discrimination of Roma students in education (Article 14 ECHR together with Article 2 of Protocol No. 1 of the Convention), the Court acknowledges the vulnerability of Roma against a different background: prejudices. These are well-known school segregation cases: D.H. and Others v. the Czech Republic (2007), Sampanis and others v. Greece (2008), and Oršuš and others v. Croatia (2010).⁵⁹ In all these cases, the Court found that the Roma children were discriminated against in the enjoyment of the right to education. The Grand Chamber held in D.H.:

[A]s a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority.⁶⁰

The extensive reference in these judgments to Council of Europe documents reporting prejudices against Roma pupils in several parts of Europe indicates that such prejudices have informed the Court’s understanding of Roma’s vulnerability.⁶¹ Moreover, the factual background of some of these cases shows non-Roma parents’ negative and hostile attitudes towards Roma children.⁶² Most recently, the Court has recognized prejudice more explicitly as a source of group vulnerability in Horváth and Kiss v. Hungary, a case concerning the placement of Roma children in special schools following the systematic misdiagnosis of mental disability.⁶³ The Court notes that many students were misdiagnosed because of their socio-economic disadvantage or cultural differences and acknowledges the “bias in past placement procedures.”⁶⁴

The Court has also viewed negative social attitudes as the main source of vulnerability of Roma in V.C. v. Slovakia (2011), a case concerning the forced sterilization of a Roma woman.⁶⁵ The Court recognizes that forced sterilization has affected vulnerable individuals of different ethnic origins but admits that Roma are at particular risk “due, inter alia, to the widespread negative attitudes towards the relatively high birth rate among the Roma compared to other parts of the population, often expressed as worries of an increased proportion of the population living on social benefits.”⁶⁶ The Court condemned Slovakia for not ensuring the applicant’s free and informed consent to sterilization, finding violations of both Article 3 ECHR (degrading treatment) and Article 8 ECHR (respect for private and family life). However, and somewhat puzzlingly, despite linking the harmful practices it condemned to the widespread prejudice against Roma, the Court did not examine the applicant’s discrimination complaint (Article 14 ECHR) separately.

The Court has similarly grounded its vulnerability assessment on (historical) prejudice—and, additionally, on the resulting social exclusion—in cases concerning other non-dominant groups. One example is Alajos Kiss v. Hungary (2010).⁶⁷ The case deals with the blanket disenfranchisement of people with mental disabilities in Hungary. The Court found a violation of the applicant’s right to vote (Article 3 of Protocol 1 to the Convention). The Court’s view of people with mental disabilities as a “particularly vulnerable group” rests on the considerable discrimination they have experienced in the past.⁶⁸ The group, the Court affirms, was “historically subject to prejudice with lasting consequences, resulting in their social exclusion.”⁶⁹ With this approach the Court takes the first steps towards embracing a “social model” of disability: this way of framing disability recognizes the built environment and society’s negative attitude towards people with impairment as the main factors disabling and excluding people.⁷⁰ Contrary to the “medical model” of disability, the hallmark of a social approach to disability emphasizes social prejudices and stereotypes, rather than individual impairments.⁷¹

The Court has continued along these lines with Kiyutin v. Russia (2011), another case concerning the indiscriminate exclusion of a group historically subject to prejudice.⁷² This time, the group in question is people living with HIV and the exclusion at issue the refusal of a residence permit. The applicant, a man from Uzbekistan married to a Russian national with whom he had a daughter, was denied a residence permit on the ground that he was HIV-positive. The Court found that the applicant was discriminated against in the enjoyment of his private and family life (Article 14 ECHR together with Article 8 ECHR). In the Kiyutin judgment, the Strasbourg Court refers to Alajos Kiss and explains in considerable detail how it came about that people living with HIV have suffered from widespread stigma and exclusion from the 1980s till the present. The Court therefore holds that “people living with HIV are a vulnerable group with a history of prejudice and stigmatization.”⁷³ The Court realizes that the basis for excluding HIV-positive non-nationals from obtaining residence permits was the general assumption that they would engage in unsafe behavior.⁷⁴ For the Court, such a generalization was not founded in facts and failed “to take into account the individual situation, such as that of the applicant.”⁷⁵

c) Social disadvantage and material deprivation: maldistribution cases

Two indicators of group vulnerability that are less clearly but not less importantly emerging in the Court’s case law are social disadvantage and material deprivation. In the cases that we will discuss now, what the Court ultimately addresses is the harm of maldistribution. The first case in point is Yordanova v. Bulgaria (2012), which concerned a planned mass eviction of Roma inhabitants from their decades-old settlement.⁷⁶ The applicants had built their homes on state land in Sofia without authorization. The government, however, de facto tolerated the unlawful settlement for decades. It did not take any action until the matter became “urgent,” following neighbors’ complaints “about the Roma families’ behaviour.”⁷⁷ Indeed, neighbors had requested that the Roma inhabitants be removed and “returned to their native places,” holding them responsible for littering, stealing, drug abuse, and aggressive behavior.⁷⁸

The Court found a violation of the applicants’ right to respect for home, private, and family life (Article 8 ECHR). In stopping the eviction that would have rendered the applicants homeless, the Court held that the Bulgarian state failed to recognize “the applicants’ situation as an outcast community and one of the socially disadvantaged groups.”⁷⁹Yordanova differs from the other Roma cases previously discussed—school segregation and forced sterilization—in that the focus of the Court’s group vulnerability lies on poverty rather than on prejudice and discrimination. The Court holds, for example, that the authorities should have taken into account the disadvantaged position of the group to which the applicants belonged in assisting them with the eligibility for social housing.⁸⁰ Surprisingly, the Court does not explore the links between the group’s disadvantaged status (maldistribution) and the social prejudices against them (misrecognition), even though the facts of the case clearly show that prejudices played a role.⁸¹ The Court dismisses the applicants’ complaint of discrimination (Article 14 ECHR).⁸² Like in V.C., and given the particular context of anti-Roma sentiment in which the removal was ordered, the Court should have at least acknowledged the role played by negative social views against Roma.

The case that has significantly broadened the Court’s notion of group vulnerability is M.S.S. v. Belgium and Greece (2011).⁸³ The applicant, an Afghan asylum seeker, was returned by Belgium to Greece under the “Dublin II Regulation” of the EU.⁸⁴ One of the main questions was whether the detention and living conditions of M.S.S. in Greece amounted to inhuman and degrading treatment under Article 3 ECHR. In analyzing the applicant’s conditions of detention—more precisely, in examining the Greek government’s argument that the duration of his detention was insignificant—the Court observes:

In the present case the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.⁸⁵

At first sight, this wording points to the specific experiences of the applicant. Thus, one might easily be under the impression that those individual experiences are para- mount in the Court’s vulnerability decision. In the next paragraph, however, the Court states the particular vulnerability of asylum seekers in a much more sweeping manner, as though it were an inherent attribute of the entire class. The Court holds: “[T]he applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.”⁸⁶

The Court’s analysis of the applicant’s living conditions is also marked by references to different aspects of asylum seekers’ vulnerability. In this part of the reasoning, the Court states yet more sweepingly:

The Court attaches considerable importance to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection.⁸⁷

In this passage, the Court refers to Oršuš and others v. Croatia, a case that, as we have seen above, concerned the vulnerability of Roma in the context of school segregation. This may explain Judge Sajó’s reaction in his separate opinion, arguing that, unlike other “particularly vulnerable groups” in the Court’s case law, asylum seekers “are not a group historically subject to prejudice with lasting consequences, resulting in their social exclusion.”⁸⁸ For him, the concept of vulnerable groups has a “specific meaning in the jurisprudence of the Court” and asylum seekers simply do not fit the concept.⁸⁹

Leaving aside that it is debatable whether asylum seekers have not suffered histor- ically from prejudice, Judge Sajó’s concern clearly points to the problem of the open-endedness of the vulnerable-group concept.⁹⁰ Indeed, while Judge Sajó attempts to keep the vulnerable-group formulation limited to a narrowly defined set of factors,⁹¹ the majority opens up the meaning of the concept by relying on a series of other indicators.

For example, the majority finds M.S.S. particularly vulnerable because he was “wholly dependent on State support . . . unable to cater for his most basic needs.”⁹² The dependency argument rings familiar: it is taken from other Article 3 ECHR cases, concerning prisoners and detainees, although in this part of the M.S.S. judgment the Court reasons outside the context of detention or imprisonment.⁹³ Moreover, the majority realizes that the applicant’s situation exists on a large scale due to a series of institutional shortcomings inherent in the Greek asylum system.⁹⁴ These shortcomings included the lack of sufficient reception centers to accommodate asylum seekers; the administrative obstacles impeding their access to the job market; and the lengthy procedures to examine their asylum requests.⁹⁵ By unveiling all these deficiencies in the Greek asylum system, the Court is ultimately pointing to the institutional production of vulnerability of asylum seekers in Greece.

In sum, M.S.S. seems to show that the Court has deemed asylum seekers vulnerable on a series of interacting grounds, including: (i) the daily reality for asylum seekers in Greece—a reality that is characterized by material and psychological want; (ii) asylum seekers’ complete dependence on the state; (iii) an inherent vulnerability of asylum seekers due to everything they have been through during the process of migration and the trauma that often accompanies such migration; and (iv) the systemic deficiencies of the Greek asylum system. As a result, it is not quite clear whether all asylum seekers are to be considered vulnerable, or just the ones who arrive in Greece. What is clear, however, is that the Court’s analysis in M.S.S. challenges simplistic conceptions of group vulnerability, making room for more textured and complex formulations.

d) Blanks on the map

In examining the Court’s use of the term “vulnerable groups,” we have closely followed the Court’s own terminology. This focus on the Court’s terminology has led us to discuss Roma, people with impaired health or abilities and asylum seekers, but not other groups who could reasonably be considered particularly vulnerable. Indeed, an examination of the Court’s wider case law reveals some blanks or inconsistencies in the application of the notion of vulnerable groups.

Using prejudice and stigmatization, dependency on the state, and social exclusion and disadvantage as indicators of vulnerability, there are more groups that—according to international human rights reports and scholarly literature—could have fallen within the notion of vulnerable groups.⁹⁶ Examples include national minorities,⁹⁷ religious minorities,⁹⁸ and LGBT people.⁹⁹

More puzzlingly, sometimes the Court has been silent on group vulnerability in its case law concerning Roma applicants, notably in cases where the harm of misrecognition towards them is manifested in its most brutal form—namely in physical violence. In these cases, the Court overlooks the broader context of prejudice and discrimination within which vulnerability to violence originates.¹⁰⁰Aksu v. Turkey, concerning the stereotyping of Roma in government-sponsored publications, is another example of the Court’s failure to incorporate a vulnerable-group approach in its reasoning.¹⁰¹ The Court’s Grand Chamber refers to the vulnerability of Roma, but this seems more a matter of lip service, as it carries no real weight in the Court’s analysis of the case.¹⁰² What makes the Court’s omission particularly puzzling is that at the heart of the case was precisely stereotyping and stigmatization of a particularly vulnerable group.

3.3. The risks inherent in the concept of vulnerable groups

These blanks on the map do not represent the only concern we have with regards to the Court’s increasing reliance on the vulnerable-group concept. The Court’s account of group vulnerability also has more fundamental drawbacks. In what follows, we will show that the Court’s reasoning risks reinforcing the vulnerability of certain groups by essentializing, stigmatizing, victimizing, and paternalizing them.

a) Essentialism

In the first place, the Court’s vulnerable-group reasoning is sometimes guilty of essentialism. Briefly put, essentializing means reifying one experience as paradigmatic, at the expense of other experiences.¹⁰³ In fact, the Court runs a double essentializing risk. First, there is essentialism of the so-called vulnerable groups and the people belonging to these groups, i.e. Roma, asylum-seekers, and people with a disability. Essentializing vulnerable groups is harmful to the people from these groups. This occurs, for example, when “significant differences of location and concern” within one sub-group are obscured.¹⁰⁴ The lesson to be learned here is that, with its group-based approach, the Court should not overlook “the different kinds of vulnerabilities that individuals of the same subgroup may be susceptible to.”¹⁰⁵ There have been cases wherein the Court did not seem to realize that it relied on a conception of a unitary vulnerable group. The Roma caravan cases come to mind. Marie-Bénédicte Dembour notes that the applicants in both Buckley and Chapman were women who were the principle caretakers of some of their family members.¹⁰⁶ Dembour points out that the Court failed to consider this in the respective majority judgments. The ways in which Roma mothers might be differently vulnerable are left unexplored and unrecognized in these judgments.

Essentialism of vulnerable groups also occurs when the Court “polices” the boundaries of a group.¹⁰⁷ A case in point is the little-known admissibility decision of Horie v. the United Kingdom (2011).¹⁰⁸ We have not discussed Horie so far because the Court forecloses actual group-vulnerability reasoning in the admissibility phase. And that is precisely the point. Horie concerns a New Traveler who had been pursuing a nomadic lifestyle for almost three decades. The Court observes that, unlike “Romani gypsies” and “Irish travelers,” “New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group.”¹⁰⁹ The Court implies that only those who are gypsies by birth, and not by choice, can be considered as belonging to a vulnerable group. In other words, the Court applies the immutability criterion to police the boundaries of the (vulnerable) group of “gypsies.”¹¹⁰ Ms. Horie’s experiences end up getting no recognition.

The second type of essentialism is essentialism of the heuristic device itself: this kind concerns the question what is and is not allowed to fall under the vulnerable-group concept. Essentializing the heuristic device itself is harmful because it unduly limits the application of group-vulnerability reasoning. The clearest example of this kind of essentialism is found in the separate opinion of Judge Sajó in M.S.S. v. Belgium and Greece. As we noted in Section 3.2, Judge Sajó’s attempts to keep the vulnerable-group formulation limited to a narrowly defined set of factors. This sort of essentialism threatens to create a competition among groups for recognition of their vulnerability.¹¹¹ Sure enough, we see this competition between groups reflected in Judge Sajó’s separate opinion:

In terms of vulnerability, dependence, and so on, the mentally disabled (and other vulnerable groups, whose members are subject to social prejudice) are in a more difficult situation than asylum seekers, who are not a homogeneous group subject to social categorisation and related discrimination.¹¹² (Emphasis added)

b) Stigmatization

In Kiyutin v. Russia, the stigmatization of people living with HIV is central to the Court’s finding that they constitute a vulnerable group.¹¹³ Paradoxically, however, the Court itself risks stigmatizing vulnerable groups, by applying the very term “vulnerable,” which—as was discussed in Section 2—for many people carries solely negative associations such as harm and injury. The Court should be weary of stigmatization, especially as it is possible that vulnerability can take on a “master status.” This occurs when “the defining attribute eclipses all other aspects of stigmatized persons, their talents and abilities.”¹¹⁴ When vulnerability overshadows all other aspects of an applicant’s identity in the Court’s reasoning, it has taken on a master status.¹¹⁵

c) Paternalism: denying agency and imposing protection

Lastly, the Court on occasion engages in misplaced paternalism with its group-vulnerability reasoning. In D.H., in response to the government’s objection that the Roma children would not have been placed in special schools had their parents not consented to it, the majority of the Grand Chamber held:

In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent.¹¹⁶

In a passionate dissent, Judge Borrego Borrego denounced this denial of the ability of Roma parents to make informed decisions regarding the education of their children.¹¹⁷ By denying the Roma parents’ capacity to make an informed decision about placing their children in special schools, the Court seems to reinforce their powerlessness. The Court should have confined itself to noting that meaningful consent is problematic in the specific context of the case.

The Court does much better in assessing the particular circumstances of the case in V.C. v. Slovakia, concerning the forced sterilization of a Roma woman. The Court even roundly condemns the paternalistic behavior of the hospital staff in performing the sterilization procedure on V.C., without first obtaining her informed consent.¹¹⁸ The Court notes that “in similar situations informed consent was required, promoting autonomy of moral choice for patients,”¹¹⁹ and it emphasizes the need to respect a person’s dignity and integrity.¹²⁰ This kind of language is much more empowering than the language used by the majority in D.H.

d) Ways of lessening these risks

In our opinion, it is not problematic that the Court pays increased attention to group vulnerability, provided that the Court ensures that (i) it is specific about why it considers that group particularly vulnerable and (ii) it demonstrates why that makes the particular applicant more prone to certain types of harm or why the applicant should be considered and treated as a vulnerable member of that group in the instant case. The test should therefore entail two interrelated levels of inquiry: collective and individual. Otherwise, the Court may end up essentializing vulnerable groups and stereotyping the individuals from these groups, thereby reinforcing their vulnerability rather than lessening it. Besides, our suggestion has the advantage that the Court does not lay itself open to the charge that it delivers judgments on the situation of particular groups in general, rather than on the facts of the case.¹²¹

Moreover, in order to prevent group-vulnerability reasoning from reducing applicants to pure victims and from stigmatizing their vulnerability, the Court should, first, always make sure that it does not apply vulnerability as simply a “label” (a label easily turns into a stigma), but as a “layered” concept.¹²² The focus should be on the various circumstances that render certain groups vulnerable, not on which groups are vulnerable.¹²³ The Court should insist on and strengthen its contextual inquiry to determine whether a group may be deemed vulnerable or not. This approach will help avoiding a reified conception of group vulnerability, as the focus is expanded towards the social and historical forces that originate, maintain, or reinforce the vulnerability of a group.¹²⁴

All of this is to say that the Court should beware of the temptation to turn group vulnerability into an easy and straightforward narrative: people are rendered particularly vulnerable due to a complex set of causes (ranging from economic disempowerment to social attitudes and physical limitations). Moreover, people always possess sources of resilience in the face of their vulnerabilities.¹²⁵ The Court should not trivialize the abilities of persons who belong to an otherwise vulnerable group. So, for example, in his separate opinion in M.S.S., Judge Sajó points out that the applicant “had money and speaks English.”¹²⁶ In our view, Judge Sajó is right to point out these sources of resilience of the applicant (even if we do not agree with all he says in his separate opinion). Portraying applicants as purely vulnerable will disempower them.

4. The effect of the vulnerable-group concept in the Court’s case law: substantive equality

In spite of the perils that group vulnerability may carry in practice, we still believe that the emergence of the concept has had positive implications in the Court’s case law. Our overall judgment, therefore, is that emphasis on group vulnerability is a welcome development. In particular, its insertion represents a crucial step towards an enhanced antidiscrimination case law and a more robust idea of equality.¹²⁷ The Court’s use of the term “vulnerable groups” is therefore not mere rhetorical flourish. The term does something: it addresses and redresses different aspects of inequality in a more substantive manner.

Using Sandra Fredman’s multi-dimensional characterization of substantive equality, we argue that the Court’s insertion of the notion of vulnerable groups has addressed substantive equality’s four chief aims: participation, transformation, redistribution, and recognition.¹²⁸ The participative dimension of substantive equality, Fredman argues, requires compensating for the “absence of political voice” and opening up “channels for greater participation in the future.”¹²⁹ Participation, as she explains, is a “multi-layered concept,” which entails not only political participation but also “taking part in decisions in a wide range of situations affecting individuals or groups, including at the workplace, in education, in health care, and in community organization.”¹³⁰ The transformative dimension seeks to accommodate group differences; the point is to remove “the detriment which is attached to difference,” rather than difference itself.¹³¹ The redistributive aspect of substantive equality, in turn, aims at “breaking the cycle of disadvantage,” which encompasses, among other things, “the maldistribution of resources.”¹³² Last, substantive equality’s recognition facet seeks to “promote respect for dignity and worth, thereby redressing stigma, stereotyping, humiliation and violence because of membership of an identity group.”¹³³

The capacity of the vulnerable-group concept to address the multiple dimensions of substantive equality lies primarily in its particular nature.¹³⁴ The Court’s particularized understanding of vulnerability explained in Section 3.2—that is, of vulnerability as shaped by specific group-based experiences of prejudice, stigma, and social disadvantage—introduces an asymmetrical approach in the analysis of equality. The notion of asymmetry, essential to substantive equality, implies that not all differentiations are problematic but only those that affect groups suffering disadvantage, prejudice and stereotyping.¹³⁵ Thus, as Sandra Fredman notes, “instead of aiming to treat everyone alike, regardless of status, substantive equality focuses on the group which has suffered disadvantage.”¹³⁶ In practice, this means that substantive equality focuses on women rather than men, ethnic minorities rather than ethnic majorities, sexual minorities rather than heterosexuals.¹³⁷

In the next pages, we discuss three different ways in which the asymmetry implicit in the Court’s vulnerable-group approach has manifested itself: (i) the positive obligations resting on the state become more pronounced under Article 2 of Protocol 1 (in conjunction with Article 14 ECHR), Article 3 ECHR and Article 8 ECHR; (ii) the harm inflicted on the applicant weighs more heavily in Article 3 ECHR scope analysis and in Article 8 ECHR proportionality analysis; and (iii) the margin of appreciation in Article 14 ECHR direct discrimination cases is narrowed.

4.1. Special positive obligations: Article 3 ECHR, Article 8 ECHR, and Article 2 of Protocol 1 (in conjunction with Article 14 ECHR)

Substantive equality does not confine itself to a duty to refrain from discrimination.¹³⁸ Substantive equality involves more than that; it requires the state to take a proactive role and to adopt positive steps to promote equality.¹³⁹ The case law examined below shows that the Court has embraced several aspects of substantive equality by establishing positive obligations towards vulnerable groups in both the context of Article 14 ECHR and of freestanding Convention rights (e.g., Articles 8 and 3 ECHR), which may not associate themselves with equality-based reasoning as easily as Article 14 ECHR.

Moreover, the Court’s recognition of positive obligations towards members of particularly vulnerable groups has often involved “special consideration to” or “special protection of” their “specificities” and “needs.”¹⁴⁰ This kind of reasoning reflects the asymmetry that characterizes substantive equality: when it comes to the most vulnerable, states are obliged to provide a level of protection that is more responsive or tailored to their particular needs and concerns. Though group vulnerability has played an instrumental role in deriving these positive obligations, it would not do to overstate the weight the Court attaches to it. The vulnerability of the group in question is always one of a constellation of factors that the Court takes into account in its decisions to establish positive obligations.

The Court has, first of all, furthered the participative dimension of substantive equality. This has taken place in the context of Article 8 ECHR. Starting with the so-called caravan cases, the Court has held that because Roma are vulnerable, states are to a certain extent under the obligation to facilitate their lifestyle.¹⁴¹ The positive obligation to facilitate a Roma lifestyle in Chapman and its sister cases¹⁴² does not require enabling (Roma) minority members to live according to their culture, which in these cases would have meant making available sufficient caravan sites.¹⁴³ The positive obligation is procedural; it requires that state authorities show they have taken into account the Roma’s cultural situation both in policy-making and judicial interpretation.¹⁴⁴ This kind of positive duty offers redress for the vulnerability of minorities whose concerns are most likely to be ignored in legislative, policy, and administrative decision-making processes. In addition, Chapman and its sister cases take a significant step in the direction of transformative substantive equality (accommodation of differences) by recognizing a “positive obligation . . . to facilitate the Gypsy way of life.”¹⁴⁵ To be sure, the judgments in these cases ultimately fall short of achieving transformative equality because the Court did not actually require the United Kingdom to accommodate traveling people, but the potential is there.

In V.C., though the positive duty derived from Article 8 ECHR takes a different form and character than in Chapman, the Court similarly furthers the participative aspect of equality. This time, the aim is to secure the applicant’s involvement in a procedure that concerns her reproductive health. Indeed, the Court realizes that this process did not involve the applicant “to a degree permitting her interests to be effectively protected.”¹⁴⁶ As a result, the Court demands that the state put in place “safeguards to protect the reproductive health of, in particular, women of Roma origin,” enabling the applicant, “as a member of the vulnerable Roma community, to effectively enjoy her right to respect for her private and family life.”¹⁴⁷ The safeguards the Court has in mind are those aimed at ensuring Roma women’s full and informed consent in procedures that concern their reproductive health.

The Court has also furthered the redistributive aspect of substantive equality in the contexts of Articles 8 and 3 ECHR as a result of the socio-economic nature of the positive duty imposed on the state. The examples are Yordanova and M.S.S. Though decided against different backdrops, both cases raise issues of homelessness. In Yordanova—the case concerning an attempt to remove a Roma community from unlawfully occupied state land—the applicants would have become homeless as a result of the state’s action. In M.S.S., on the other hand, the applicant asylum seeker was actually rendered homeless as a result of the state’s inaction.

The Court reaffirms in both cases that neither Article 3 ECHR nor Article 8 ECHR can be interpreted as giving rise to a duty to provide housing.¹⁴⁸ In M.S.S., moreover, the Court says that Article 3 ECHR does not entail an obligation to give refugees financial assistance.¹⁴⁹ Notwithstanding the Court’s caveats, the obligations affirmed in the two cases contain socio-economic elements. The Court states in Yordanova: “[A]n obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 in exceptional cases.”¹⁵⁰ What exactly the Court means by “exceptional cases” is not clear from the judgment. In the context of Yordanova, the scope of the positive obligation to provide shelter seems to be tied to the negative obligation not to arbitrarily remove vulnerable individuals from their homes. So, if states plan to evict members of a vulnerable group from their unlawful settlement, they should first consider whether the eviction would render them homeless. In fact, the Court makes clear that the risk of rendering the applicants homeless was not “irrelevant,” as the government had claimed.¹⁵¹

M.S.S., on the other side, is the first case in which the Court has found a violation of Article 3 ECHR on the grounds of extreme material poverty for which it held a state responsible.¹⁵² The majority held:

[T]he Court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs.¹⁵³

This reasoning establishes that it is not only in a context of imprisonment¹⁵⁴ that an applicant’s vulnerability can be an argument for deriving positive obligations in the social and economic sphere from the civil and political right encapsulated in Article 3 ECHR. Though the applicant’s status as a member of a particularly vulnerable group carries “considerable importance” in the Court’s decision to derive such positive obligations,¹⁵⁵ this is not the only factor the Court relies on. Another factor that carries much weight is the existence of the EU Reception Directive incorporated into Greek domestic law,¹⁵⁶ which lays down minimal rules as to the material conditions to which asylum seekers are entitled.¹⁵⁷

Last, the Court has advanced the recognition and redistribution aspects of substantive equality in the context of education of Roma children (Article 2 of Protocol 1, in conjunction with Article 14 ECHR). It has furthered recognition by imposing on the state positive obligations “to avoid the perpetuation of past discrimination.”¹⁵⁸ It has fostered redistribution by requiring the state to put in place safeguards guaranteeing that Roma children do not end up in a system of inferior education.¹⁵⁹ In D.H. and Oršuš, the positive obligation that the Court demanded from the states was in essence procedural. For example, in Oršuš the Court speaks of the obligation to put in place “safeguards that would ensure that . . . the State had sufficient regard to [Roma children’s] special needs as members of a disadvantaged group.”¹⁶⁰ However, in Horváth and Kiss, the Court seems to go a step further by demanding from the state a more substantive and far-reaching positive obligation: “to undo a history of racial segregation in special schools.”¹⁶¹ Moreover, in Horváth and Kiss, the Court addresses the redistributive concerns by acknowledging that, as a result of their misplacement in special schools, Roma children are “unlikely to break out of [the] system of inferior education, resulting in their lower educational achievement and poorer prospects of employment.”¹⁶²

4.2. Increased weight of harm in the scope and proportionality analyses: Articles 3 and 8 ECHR

Group vulnerability has introduced an asymmetrical approach in the Court’s Article 3 ECHR scope analysis and Article 8 ECHR proportionality.¹⁶³ This approach entails that the ill treatment inflicted on the applicant may take a greater dimension if she or he belongs to a particularly vulnerable group. This is illustrated in M.S.S. In this case, the vulnerability of the applicant as an asylum seeker plays a role in the Court’s decision of whether his conditions of detention reached the “minimum level of severity” to fall within the scope of Article 3 ECHR. Indeed, in determining whether the duration of the applicant’s detention was significant—the Greek government had argued that it was brief—the Court says:

[The Court] does not regard the duration of the two periods of detention imposed on the applicant—four days in June 2009 and a week in August 2009—as being insignificant. In the present case, the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.¹⁶⁴

So here, because of the applicant’s vulnerable status as an asylum seeker, the effects of his detention take a dimension that they would have not taken if the case had concerned a less vulnerable applicant. As Judge Sajó rightly puts it in his separate opinion: “For the Court the duration of the detention in the present case is comparable in its effects to much longer stays in detention because of the assumed vulnerability of the applicant.”¹⁶⁵ Group vulnerability therefore acts as a magnifying glass: the ill treatment caused to the applicant looks bigger through the vulnerability lens.

Yordonava, on the other side, is an example of the role group vulnerability may play in Article 8 ECHR proportionality analysis. The Court states:

In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.¹⁶⁶

The Court does not indicate the precise weight that national authorities should attach to the applicants’ disadvantaged status. However, it makes clear that when governments do not show that they have considered the specificities and needs of particularly vulnerable groups, they will not be able to pass the ECHR proportionality analysis. In other words, attention to vulnerability takes the form of a procedural requirement.¹⁶⁷ As we have pointed out in Section 3.1, the Court did not follow this approach in Chapman, since vulnerability played no real role in the proportionality analysis in that case.

It goes without saying that the inclusion of group vulnerability in the proportionality does not guarantee a favorable outcome to the vulnerable applicant; vulnerability enters the balance along with a host of other factors. Its inclusion may nonetheless increase the applicant’s chances of obtaining protection. The idea underlying this argument is that the Court should give the interests of vulnerable individuals and groups more weight in the proportionality because they are likely to experience harm more acutely. Ultimately, by thus giving weight to group vulnerability in the proportionality analysis, the Court furthers substantive equality. Fredman has argued that “substantive equality focuses on the group which has suffered disadvantage” with the aim of breaking that cycle of disadvantage.¹⁶⁸ In our view, the Court takes the first step towards breaking the cycle of disadvantage by recognizing disadvantage (in the form of historically developed vulnerabilities) as a relevant factor in the proportionality analysis.

4.3. Narrowed margin of appreciation: Article 14 ECHR

The last way in which the concept of vulnerable groups has introduced an asymmetrical interpretation of the Convention, is by narrowing the margin of appreciation in Article 14 cases. A few times now, the Court has applied strict scrutiny in cases that concerned discrimination of vulnerable groups. This approach is of recent date; the two seminal cases are Alajos Kiss (2010) and Kiyutin (2011). Both cases, as we have seen in Section 3.2, concern the direct and outright exclusion of an entire class of individuals from the enjoyment of a right.

In Kiyutin, the case concerning an indiscriminate refusal of residence permit to those living with HIV, the Court observes:

If a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibited the individualised evaluation of their capacities and needs.¹⁶⁹ (Emphasis added)

This line of reasoning was in fact first used in Alajos Kiss v. Hungary, which actually concerns the right to vote (Article 3 Protocol 1), not Article 14 ECHR.¹⁷⁰ Despite the fact that the Court does not explicitly examine Article 14, however, its analysis in Alajos Kiss is really about discrimination. The Court states:

The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny.¹⁷¹ (Emphasis added)

Thus, in both Alajos Kiss and Kiyutin, the Court indicates that it will scrutinize national authorities’ decisions strictly when they limit the rights of members of particularly vulnerable groups. As a result, states have to put forward “very weighty reasons” for the Court to accept the justification as objective and reasonable. Since neither Russia nor Hungary gave such reasons, the Court concluded that they “overstepped the narrow margin of appreciation afforded to them.”¹⁷²

This approach is noteworthy for a number of reasons. In the first place, it marks a willingness of the Court to explain why certain classifications are particularly problematic. In the past, the Court has seldom taken the trouble to explain why certain grounds of distinction are problematic, except to note a consensus on the topic.¹⁷³ Distinctions on the ground of sex, for example, require very weighty reasons because “the advancement of the equality of the sexes is today a major goal in the member states of the Council of Europe.”¹⁷⁴ With the type of reasoning issued in Alajos Kiss and Kiyutin, on the other hand, the Court takes exceptional care to acknowledge the wrongs of discrimination and clarify the rationale for a narrowed margin of appreciation.¹⁷⁵

Second, this reasoning provides a highly principled approach to justifications, since certain classifications are deemed suspect “per se.” Distinctions are inherently suspect when they concern groups of people that have been historically discriminated against; such distinctions run a high risk of being based on stereotypes rather than on “rational” grounds.¹⁷⁶ The Court acknowledges that past discrimination reverberates in the present and contaminates actions and decisions. This highly context-sensitive approach—which is an expression of the relational character of the Court’s vulnerable-group concept—heralds a substantive (rather than purely formal) conception of equality. Moreover, by narrowing the margin of appreciation, the Court more carefully scrutinizes the possible misrecognition harms of prejudice, stigma, and stereotyping, therein advancing the recognition aspect of substantive equality.

However, neither in Alajos Kiss nor in Kiyutin does group vulnerability in and of itself narrow the margin of appreciation. As we have noted above, both cases concern direct exclusions of entire groups from the enjoyment of a right. The particular nature of the restrictions in question—direct and absolute—may further explain the Court’s willingness to reduce states’ margin of appreciation. Indeed, the Court states in Alajos Kiss: “The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation.”¹⁷⁷ In Kiyutin, moreover, the Court additionally relies on the consensus to narrow the state’s margin of appreciation.¹⁷⁸

As regards the other cases that we have examined in this Article, there the relationship between the margin of appreciation and group vulnerability is less clear. In fact, in the other cases, the role of the margin of appreciation principle is not very prominent. In M.S.S., first of all, the principle is obviously absent (it has no role in Article 3 ECHR cases given the absolute character of this provision). In V.C., the principle is not explicitly mentioned at all; and in D.H., Oršuš, and Yordanova the Court is ultimately not clear on the width of the margin of appreciation. Chapman is the exception. In that judgment the Court kept the margin deliberately wide, because the case concerned an area in which, in principle, states have a wide margin of appreciation: implementation of planning policies.¹⁷⁹

Chapman shows that the Court does not automatically narrow the margin of appreciation when there are countervailing reasons to leave it wide (e.g., implementation of planning policies, considerations of economic and social policy). More recently, however, the Court has established a significant precedent with Alajos Kiss: group vulnerability may decisively narrow the margin of appreciation, even though the case concerns an area in which states are usually granted a wide margin (in this case determination of justified restrictions on the right to vote).¹⁸⁰ Future cases will have to tell how decisive group vulnerability exactly is within the set of factors that determine the margin of appreciation. In the next and final section, we will turn to a topic that is closely associated with this one: the institutional position of the Court.

5. The concept of vulnerable groups and the Court’s legitimacy

The Court has recently been under fire from politicians,¹⁸¹ judges,¹⁸² and scholars¹⁸³ for what is perceived as its usurpation of power from the contracting states and its neglect to take seriously its subsidiary role.¹⁸⁴ Obviously, these are new variations of an old theme: courts—and supranational courts in particular—should be wary of judicial activism. In light of this type of critique, we finish by examining the institutional concerns associated with the Court’s use of group vulnerability. Two related aspects of the Court’s vulnerable-group reasoning, in particular, could raise concern that the Court is overstepping its proper role. The first is the Court’s recognition of special positive obligations towards members of vulnerable groups,¹⁸⁵ and the second is the Court’s decision to narrow the margin of appreciation in Article 14 ECHR cases.¹⁸⁶

The first type of concern has been powerfully voiced by Judge Sajó in M.S.S. v. Belgium and Greece. Judge Sajó raises the specter of unlimited human rights, transforming civil and political rights into social rights: “There seems to be only a small step between the Court’s present position and that of a general and unconditional positive obligation of the state to provide shelter and other material services to satisfy the basic needs of the ‘vulnerable.’”¹⁸⁷ This kind of reasoning, he claims, would be more appropriate for a “constitutional court adjudicating on the basis of a national constitution that has constitutionalised the social welfare state.”¹⁸⁸ The President of the Belgian Constitutional Court, Marc Bossuyt, agrees with Sajó and claims that the Court has fallen through “thin ice.”¹⁸⁹

In our view, those who worry that there is a general tendency on the Court’s part to read too many positive obligations into the text of the Convention—thereby putting too great of a burden on the Convention states—should not necessarily see group vulnerability reasoning as a threat. We are of the opinion that vulnerability might actually be a useful guiding principle: in the prioritization of scarce resources, states give preference to those whose needs they consider most pressing. When reviewing states’ actions on the basis of an individual complaint, the Court should have the same priority. Vulnerability can thus be viewed as a limiting rather than a limitless principle.¹⁹⁰

The second institutional issue with the vulnerable-group concept relates to the margin of appreciation. Often, the Court’s preferred tactic for guarding against accusations that it is overstepping its subsidiary role consists in applying the margin of appreciation principle.¹⁹¹ In the words of Judge Spielmann: in applying the margin of appreciation “the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute.”¹⁹² So what if the Court were to take the line of Alajos Kiss and Kiyutin further,¹⁹³ and narrow the margin of appreciation in all cases that concern vulnerable groups (not just the cases that concern blanket exclusions of these groups)? We emphasize that the Court is not there yet: though it is now established case law that vulnerable groups require special protection,¹⁹⁴ the vulnerable-group concept has by no means turned into a principle that automatically narrows the margin. We do, however, think that the Court is increasingly attaching weight to group vulnerability in determining the proper margin of appreciation. But does that erode the Court’s legitimacy? What should help calm down legitimacy concerns—both with regards to positive obligations and the margin of appreciation—is the fact that the Court never uses group vulnerability as an automatic trigger. As we have discussed in Section 4, the vulnerable-group concept is always one among a set of factors, depending on the facts of the case, which determine the proper extent of positive obligations and the width of the margin of appreciation.

Nevertheless, the concerns about the Court’s supra-national institutional position are real, and they are compounded by the open-endedness of the vulnerable-group concept. One way in which the Court can navigate this problem is by taking the human rights corpus as its reference point for determining group vulnerability: when the activities of international organizations and human rights reports confirm that there is a structural failure to protect the human rights of a particular group, this should be the Court’s cue. The advantage of this suggestion is that it allows the vulnerable-group concept to remain flexible: if the Court continues to base its judgments on recent international human rights reports and other authoritative materials, it can carefully follow developments on the ground.¹⁹⁵ A group’s vulnerability will thus not be set in stone, but re-evaluated case by case. At the same time, in this way the concept does not need to be stretched so thin as to lose all power, nor does it need to become so vague as to risk legal uncertainty.¹⁹⁶

6. Conclusion

Be it an asylum seeker struggling against deprivation, Roma children seeking to share classes with other children, or persons with mental disabilities wishing to exercise the right to vote, the fact is that all these cases reveal that vulnerability to human rights violations is often experienced more routinely and acutely by some than by others. Human rights law, however, has not always responded adequately to these particular vulnerabilities given the import of the liberal legal subject into its structure and the exclusion of those who do not fit the liberal archetype. We have argued that it is in response to these exclusions of human rights law that the Court has been forced to attend to the constructed disadvantage of certain groups. In doing so, the Court has deployed the concept of group vulnerability. In this light, we see the Court’s reasoning as a way of opening up the human rights universal, as a step towards a more inclusive universal human rights subject. In our opinion, the Court thus enhances rather than undermines its own credibility.

Accordingly, we perceive the Court’s increasing use of group vulnerability reasoning as a welcome development. It allows the Court to address several aspects of substantive equality. However, group vulnerability reasoning carries pitfalls with it, most notably essentialism, stigmatization, and paternalism. If the Court is not careful to avoid these pitfalls, it risks sustaining the problematic idea that these groups are the only, “true” and quintessential vulnerable subjects in human rights law; thus leaving in place the notion that the “normal” subject of human rights law is autonomous and independent.¹⁹⁷ In other words, the concept of vulnerable groups is a double-edged tool, which should be handled with care. As Martha Minow put it in another context, the concept raises “questions of complexity” rather than “justifications for passivity, because failing to notice another’s pain is an act with significance.”¹⁹⁸

1

Hereinafter, “the Court” or “the Strasbourg Court.”

2

Both the Court and its criticasters are especially closely followed in the legal blogosphere. SeeECHR Blog, http://echrblog.blogspot.com; Strasbourg Observers, http://strasbourgobservers.com; and UK Human Rights Blog, http://ukhumanrightsblog.com.

3

See, e.g., D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 182 (2007).

4

Alajos Kiss v. Hungary, App. No. 38832/06, 20 May 2010 ¶ 42.

5

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 251 (2011).

6

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26 ¶ 63 (2011).

7

We will confine ourselves to the case law in which the Court speaks of vulnerable groups. There is a considerable amount of case law in which the Court recognizes that the applicant is in a vulnerable position individually, notably in cases concerning prisoners or children. These cases, however, lack a group-centered analysis and therefore raise different kinds of questions than the ones we address in this article. For an analysis of this other area of the Court’s vulnerability case law, see Alexandra Timmer, A Quiet Revolution: Vulnerability in the European Court of Human Rights, inVulnerability: Reflections on a New Ethical Foundation for Law and Politics (Martha Fineman & Anna Grear eds., 2013).

8

Jan Helge Solbakk, Vulnerability: A Futile or Useful Principle in Healthcare Ethics?, inThe SAGE Handbook of Health Care Ethics 228, 229 (Ruth Chadwick, Henk ten Have & Eric M. Meslin eds., 2011).

9

Id.

10

Mary C. Ruof, Vulnerability, Vulnerable Populations, and Policy, 14 Kennedy Inst. of Ethics J. 411, 411 (2004).

11

Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1, 9 (2008–2009).

12

Id. at 9.

13

Bryan S. Turner, Vulnerability and Human Rights 28 (2006).

14

See, e.g., Judith Butler, Precarious Life: The Powers and Mourning of Violence at xii (2006); Robert E. Goodin, Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities 110 (1985); Turner, supra note 13, at 27.

15

Mary Neal, “Not Gods but Animals”: Human Dignity and Vulnerable Subjecthood, 33 Liverpool L. Rev. 177, 186–187 (2012).

16

Turner, supra note 13, at 28.

17

Id.

18

Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251, 268 (2010).

19

Id. at 269.

20

Fineman, supra note 11, at 10.

21

See, e.g., Debra Bergoffen, Contesting the Politics of Genocidal Rape: Affirming the Dignity of the Vulnerable Body 101–119 (2012); Martha Albertson Fineman, “Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility, 20 The Elder L.J. 101 (2012); and Anna Grear, Redirecting Human Rights: Facing the Challenge of Corporate Legal Humanity 132–133 (2010).

22

Fineman, supra note 21, at 126.

23

Id.

24

Fineman, supra note 18, at 266 n. 53.

25

Ann V. Murphy, “Reality Check”: Rethinking the Ethics of Vulnerability, inTheorizing Sexual Violence 55 (Renée J. Heberle & Victoria Grace eds., 2009).

26

See, e.g., Fineman, supra note 11; Goodin, supra note 14, at 191; Peadar Kirby, Vulnerability and Violence: The Impact of Globazalisation (2006); Florencia Luna, Elucidating the Concept of Vulnerability: Layers Not Labels, 2 International Journal of Feminist Approaches to Bioethics 121 (2009); and Wouter Vandenhole & Julie Ryngaert, Mainstreaming Children’s Rights in Migration Litigation: ECtHR, Muskhadzhiyeva and others v. Belgium, inDiversity and European Human Rights: Rewriting Judgments of the ECHR 68 (Eva Brems ed., 2012).

27

Luna, supra note 26, at 129.

28

Fineman, supra note 11, at 13.

29

See, e.g., Audrey R. Chapman & Benjamin Carbonetti, Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights, 33 Hum. Rts. Q. 682 (2011).

30

Fineman, supra note 11, at 1.

31

Fineman’s vulnerability thesis builds in this respect on her earlier work that concerned autonomy and dependency. SeeMartha Albertson Fineman, The Autonomy Myth: A Theory of Dependency (2004).

32

Fineman, supra note 11, at 8.

33

Unfortunately, it falls outside the scope of this Article to take a comparative angle on the Strasbourg Court’s vulnerable-group reasoning. The American “discrete and insular minorities” approach has arguably parallels with the Court’s vulnerable-group approach. See United States v. Carolene Prods. Co., 304U.S. 144, 152, n. 4 (1938). Moreover, American scholars in the anti-subordination tradition have linked group-based equality analysis to social exclusion, be it in the form of prejudice and stigmatization or in the form of material disadvantage. See, e.g., Jack M. Balkin & Reva Siegel, The American Civil Rights Tradition: Anti-Classification or Anti-Subordination, 58 U. Miami L. Rev. 9 (2003–2004). Others, famously John Hart Ely, reason in terms of minorities’ exclusion from the political process. J.H. Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980). Comparative perspectives on vulnerable-group reasoning would make fascinating material for another scholarly project.

34

Fineman, supra note 11, at 16.

35

The scholarly terrain is moreover rapidly expanding. Recent publications include: Bergoffen, supra note 21; Chapman & Carbonetti, supra note 29; Grear,supra note 21; and Turner,supra note 13.

36

Grear,supra note 21.

37

G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc A/819, Dec. 10, 1948. The European Convention on Human Rights is based on the UDHR.

38

Bryan Turner has also conceptualized vulnerability as the foundation of the human rights regime. Turner,supra note 13.

39

Anna Grear, Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights, 7 Hum. Rts. L. Rev. 511, 521–534 (2007); and Grear,supra note 21, at 96–113. See generally Ngaire Naffine, Who are Law’s Persons? From Cheshire Cats to Responsible Subjects, 66 Mod. L. Rev. 346 (2003).

40

Bergoffen, supra note 21, at 109 (“current human rights paradigms take their cue from the masculine image of the invulnerable body”).

41

See, e.g., Catharine A. MacKinnon, Crimes of War, Crimes of Peace, 4 UCLA Women’s L.J. 59 (1993–1994); and Dianne Otto, Lost in Translation: Re-Scripting the Sexed Subjects of International Human Rights Law, inInternational Law and Its Others 318 (Anne Orford ed., 2006).

42

Adopted 13 Dec. 2006, G.A. Res. 61/106, U.N. GAOR, 61st Sess., Agenda Item 67(b), U.N. Doc. A/RES/61/106 (2006) (entered into force 3 May 2008).

43

Adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980), 1249U.N.T.S. 13 (entered into force 3 Sept. 1981).

44

Adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., U.N. Doc. A/6014 (1966), 660U.N.T.S. 195 (entered into force 4 Jan. 1969).

45

Adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/44/49 (1989), 1577U.N.T.S. 3 (entered into force 2 Sept. 1990).

46

Grear,supra note 21, at 112 (italics removed).

47

For example the UN Committee on Economic, Social and Cultural Rights; see, e.g., Chapman & Carbonetti, supra note 29.

48

Thomas Hammerberg, Human Rights in Europe: No Grounds for Complacency (2011).

49

Marie-Bénédicte Dembour, What Are Human Rights? Four Schools of Thought, 32 Hum. Rts. Q. 1, 3 (2010). Examples of such scholarship are: Upendra Baxi, The Future of Human Rights (2002); and Colin Harvey, Protecting the Marginalized?, inJudges, Transition, and Human Rights 515 (John Morison, Kieran McEvoy & Gordon Anthony eds., 2007).

50

We note that, within the Council of Europe, the Strasbourg Court is not alone in this approach. The European Committee of Social Rights, for example, regularly uses the concept of vulnerable groups in its decisions. See, e.g., Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/2009, Merits, June 25, 2010, ¶ 76 (concerning Roma and Sinti); Centre on Housing Rights and Evictions (COHRE) v. Croatia, Complaint No. 52/2008, Merits, June 22, 2010, ¶ 88 (concerning displaced families of Serb ethnicity); and Autism—France v. France, Complaint No. 13/2002, Merits, Nov. 4, 2003, ¶ 53 (concerning persons with autism).

51

Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 96 (2001).

52

Id. The Court refers to the Buckley v. the United Kingdom judgment from 1996, but in that judgment the Court did not actually use the term “vulnerable” to describe Roma.

53

Cf. Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 3 (2001) (Ridruejo, Bonello, Tulkens, Strážnická, Lorenzen, Fischbach and Casadevall J., dissenting).

54

See, e.g., D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 182 (2007) (Roma); Alajos Kiss v. Hungary, App. No. 38832/06, 20 May 2010, ¶ 44 (disability); and M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 251 (2011) (asylum).

55

See supra Section 2.2.

56

See Alajos Kiss v. Hungary, App. No. 38832/06, 20 May 2010, ¶ 42; and Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26, ¶ 74 (2011).

57

Nancy Fraser, Rethinking Recognition, 3 New Left Rev. 107, 113 (2000).

58

Id. at 116.

59

D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3 (2007); Sampanis and others v. Greece, App. No. 32526/05, June 5, 2008; and Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7 (2010).

60

D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 182 (2007) (references omitted). See also Oršuš and Others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, ¶ 147 (2010).

61

See, e.g., D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶¶ 54–80 (2007); and Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, ¶¶ 65–86 (2010).

62

See, e.g., Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, ¶¶ 154 and 204 (2010) and Sampanis and others v. Greece, App. No. 32526/05, 5 June 2008, ¶¶ 18 and 19.

63

Horváth and Kiss v. Hungary, App. No. 11146/11, 29 January 2013.

64

Id. ¶ 116.

65

V.C. v. Slovakia, App. No. 18968/07, Nov. 8, 2011, ¶ 146.

66

Id.

67

Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010.

68

Id.¶ 42.

69

Id.

70

Sandra Fredman, Discrimination Law 172 (2d ed. 2011).

71

Michael Ashley Stein, Disability Human Rights, 95 Cal. L. Rev. 75, 86–87 (2007).

72

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26 (2011).

73

Id. ¶ 64.

74

Id. ¶ 68.

75

Id.

76

Yordanova v. Bulgaria, App. No. 25446/06, Apr. 24, 2012.

77

Id. ¶ 93.

78

Id.

79

Id. ¶129.

80

Id. ¶ 132.

81

Id. ¶¶ 20, 21, 23, 45, and 46.

82

Id.¶¶ 157–161.

83

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2 (2011).

84

Council Regulation 343/2003, O.J. (L 222) 3.

85

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 232 (2011).

86

Id. ¶ 233.

87

Id. ¶ 251.

88

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2 (2011) (Sajó J., partly concurring and partly dissenting, at 102).

89

Id. at 101.

90

We address the problems arising from the concept’s open-endedness, infra, in Section 5.

91

We critique this attempt as a misconceived form of essentialism. See infra Section 3.3.

92

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶¶ 253–254.

93

The Court routinely holds that prisoners and detainees are in a vulnerable position. See, e.g., Denis Vasilyev v. Russia, App. No. 32704/04, Dec. 17, 2009, ¶ 115. On the Court’s use of vulnerability in cases concerning prisoners, see Timmer, supra note 7.

94

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 255 (2011).

95

Id. ¶¶ 258–262.

96

A more general list of vulnerable groups is compiled by the Iceland Human Rights Centre. See Icelandic Human Rights Centre, The Human Rights Protection of Vulnerable Groups, http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/Undirflokkur/. For an analysis on the problems that group-based approaches may entail, see infra Section 3.3.

97

Specifically relating to the Kurds in Turkey as a vulnerable national minority, see Lourdes Peroni, Erasing Q, W and X, Erasing Cultural Differences, inDiversity and European Human Rights,supra note 26, at 445.

98

Hammarberg, supra note 48, at 36–43.

99

Id. at 113–125.

100

A case in point is Eremiášová and Pechová v. the Czech Republic, App. No. 23944/04, Feb. 16, 2012.

101

Aksu v. Turkey (GC), App. Nos. 4149/04; 41029/04, Mar. 15, 2012.

102

Id. ¶ 75.

103

See Vanessa E. Munro, Resemblances of Identity: Ludwig Wittgenstein and Contemporary Feminist Legal Theory, Res Publica 137, 138 (2006). Essentialism is a complex concept, with several meanings, that has been used extensively in feminist and other critical analysis of law. Our discussion is case law oriented, rather than theoretical. Thorough theoretical discussions of the concept are provided by others. See, e.g., id.; and Anne Phillips, What’s wrong with Essentialism?, 20 Distinktion: Scandinavian J. Soc. Theory47 (2010).

104

Phillips, supra note 103, at 55.

105

Solbakk, supra note 8, at 232.

106

Marie-Bénédicte Dembour, Who Believes in Human Rights? Reflections on the European Convention 197–201 (2006).

107

Anne Phillips defines this as the “treatment of certain characteristics as the defining ones for anyone in the category, as characteristics that cannot [be] questioned or modified without thereby undermining one’s claim to belong to the group.” Phillips, supra note 103, at 57.

108

Horie v. United Kingdom, App. No. 31845/10, Feb. 1, 2011.

109

Id. ¶ 28.

110

Many commentators have critiqued the use of the immutability criterion in discrimination law; see, e.g., Fredman, supra note 70, at 131–134; and Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of “Don’t Ask, Don’t Tell,” 108 Yale L.J. 485 (1998).

111

This is an important reason why Martha Fineman disapproves of group language in her vulnerability theory. Fineman, supra note 18, at 253–254.

112

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2 (2011) (Sajó J., partly concurring and partly dissenting, at 104). We note that Judge Sajó’s reference to homogeneity is also a form of essentialism: no group is homogeneous, individuals within a group are always positioned differently.

113

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26, ¶ 64 (2011).

114

R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 78 N.Y.U. L. Rev. 803, 819 n. 63 (2004) (citations omitted).

115

Cf. Zachary A. Kramer, Of Meat and Manhood, 89 Wash. U. l. Rev. 287, 304–305 (2011).

116

D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 203 (2007). Similarly Sampanis and others v. Greece, App. No. 32526/05, June 5, 2008, ¶ 94; and Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, ¶¶ 178–179 (2010).

117

Among other things, the Judge cautioned against “certain ‘well-intentioned’ people [who] feel constrained to impose their conception of life on all.” D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 15 (2007) (Borrego Borrego J., dissenting).

118

V.C. v. Slovakia, App. No. 18968/07, Nov. 8, 2011, ¶ 114.

119

Id.

120

Id.¶ 115.

121

This criticism was leveled at the majority of the Court by the dissenters in Oršuš. See Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7 (2010) (Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić J. partly dissenting, ¶ 15).

122

These metaphors are taken from Luna, supra note 26.

123

Id. at 129.

124

Cf. Kathryn Abrams, “Groups” and the Advent of Critical Race Scholarship, 1 Issues in Legal Scholarship 1, 5 (2003) (describing group disadvantage as not simply “an empirical fact” but as “a circumstance that emerged from a sequence of historical events or a pattern of oppressive treatment.”).

125

See, e.g., Fineman, supra note 21.

126

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2 (2011) (Sajó J., partly concurring and partly dissenting, at 106 n. 1).

127

On other developments within Article 14 ECHR case law that connote a more substantive conception of equality and a more proactive role of the Court in the area, see, e.g., Carmelo Danisi, How Far Can the European Court of Human Rights Go in the Fight Against Discrimination? Defining New Standards in Its Nondiscrimination Jurisprudence, 9 Int’l J. Const. L. 793 (2011); Rory O’Connell, Cinderella Comes to the Ball: Article 14 and the Right to Non-discrimination in the ECHR, 29 legal stud. 211 (2009); and Alexandra Timmer, Toward an Anti-Stereotyping Approach for the European Court of Human Rights, 11 Hum. Rts. L. Rev. 707 (2011).

128

Fredman, supra note 70, at 25–33.

129

Id. at 31.

130

Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties 180 (2008).

131

Fredman, supra note 70, at 30.

132

Id. at 26.

133

Id. at 25 and 28–30.

134

The relational character of the Court’s notion of group vulnerability also serves to advance substantive equality. Indeed, and as we have shown in Section 3.2, this feature has enabled the Court to inquire into the broader societal and institutional structures that create or reinforce applicants’ vulnerabilities. This relational understanding of group vulnerability is in line with one fundamental premise of substantive equality: discrimination and inequalities are not the exclusive or concrete fault of one or various individuals, but the result of societal and institutional structures more broadly. See, e.g., Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Overview of the Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978). In this section, we focus however on the implications that the particular nature of group vulnerability has carried in the Court’s case law, as this aspect has brought more concrete doctrinal consequences.

135

Saras Jagwanth, Expanding Equality, Acta Juridica 131, 133 (2005).

136

Fredman,supra note 70, at 26.

137

Titia Loenen, Indirect Discrimination: Oscillating between Containment and Revolution, inNon-discrimination Law: Comparative Perspectives 195, 205–206 (Titia Loenen & Peter R. Rodrigues eds., 1999). See also, Fredman, supra note 70, at 26.

138

See generallyFredman, supra note 130, at 175–180.

139

Id.

140

See, e.g., Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 96 (2001); M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 251 (2011); and Yordanova v. Bulgaria, App. No. 25446/06, 24 April 2012, ¶¶ 128 and 129.

141

Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 96 (2001). See also Connors v. United Kingdom, App. No. 66746/01, 40 Eur. H.R. Rep. 189, ¶ 84 (2004).

142

Four similar other cases were decided the same day as Chapman. See Smith v. United Kingdom, App. No. 25154/94, 33 Eur. H.R. Rep. 712, 740 (2001); Lee v. United Kingdom, App. No. 25289/94, 33 Eur. H.R. Rep. 677, 702 (2001); Coster v. United Kingdom, 33 Eur. Ct. H.R. 479, 506 (2001); and Beard v. United Kingdom, App. No. 24882/94, 33 Eur. H.R. Rep. 442, 470 (2001) (all from Jan. 18, 2001).

143

Eva Brems, Human Rights as a Framework for Negotiating/Protecting Cultural Differences: An Exploration of the Case-law of the European Court of Human Rights, inCultural Diversity and the Law: State Responses from Around the World 663, 673 (Marie-Claire Foblets, Jean-François Gaudreault-Desbiens & Alison Dundes Renteln eds., 2010).

144

Id. at 674.

145

Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 96 (2001).

146

V.C. v. Slovakia, App. No. 18968/07, 8 November 2011, ¶ 151.

147

Id. ¶ 154 and 179.

148

Yordanova v. Bulgaria, App. No. 25446/06, 24 April 2012, ¶ 130; and M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 249 (2011).

149

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 249 (2011).

150

Yordanova v. Bulgaria, App. No. 25446/06, 24 April 2012, ¶ 130.

151

Id. ¶ 126.

152

In a complaint that was ruled inadmissible, prior to the judgment of M.S.S., the Court had already held that “inhuman or degrading treatment” can occur when “an applicant, in circumstances wholly depend- ent on state support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity.” Budina v. Russia, App. No. 45603/05, June 18, 2009; similar reasoning is in Larioshina v. Russia, App. No. 56869/00, 23 April 2002.

153

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 263 (2011).

154

The Court regularly recognizes that the prisoners with (mental) health problems are vulnerable and that the state is under a duty to provide appropriate (health) care for them. See, e.g., G. v. France, App. No. 27244/09, Feb. 23, 2012, ¶¶ 72 and 77.

155

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 251 (2011).

156

Council Directive 2003/9, 2003 O.J. (L 31) 18 (EC).

157

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 250 (2011).

158

Horváth and Kiss v. Hungary, App. No. 11146/11, Jan. 29, 2013, ¶ 116.

159

In practice, the lack of appropriate safeguards resulted in the placement of Roma children in special schools with a more basic curriculum, which ultimately compromised Roma students’ education and future job opportunities. See, e.g., D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, ¶ 207 (2007).

160

Oršuš and others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, ¶ 183 (2010).

161

Horváth and Kiss v. Hungary, App. No. 11146/11, Jan. 29, 2013, ¶ 127.

162

Id. ¶ 115.

163

See also Timmer, supra note 7.

164

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, ¶ 232 (2011).

165

Id. (Sajó J., partly concurring and partly dissenting, at 101).

166

Yordanova v. Bulgaria, App. No. 25446/06, Apr. 24, 2012, ¶ 129.

167

Timmer, supra note 7.

168

Fredman, supra note 70, at 26.

169

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26, ¶ 63 (2011).

170

Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010, ¶ 42.

171

Id. ¶ 44.

172

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26, ¶ 74 (2011).

173

J. H. Gerards & H.-M.Th.D. ten Napel, De “grondwetsherziening van Martijn” revisited: over kiesrecht en het verbod van discriminatie op grond van handicap, 35 NTM-NJCM Bulletin 1106, ¶ 3 (2010) (Neth).

174

Abdulaziz, Cabales, and Balkandali v. United Kingdom A 94 (1985); 7 Eur. H.R. Rep. 471, ¶ 78.

175

This clarification is especially welcome given the considerable amount of confusion that exists concerning the Court’s use of the margin of appreciation doctrine. See generally, e.g., George Letsas, Two Concepts of the Margin of Appreciation, 26 Oxford J. Legal Stud. 705 (2006).

176

For more discussion on the wrongs of stereotyping in the context of the Strasbourg Court’s case law, see Timmer, supra note 127.

177

Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010, ¶ 42.

178

Kiyutin v. Russia, App. No. 2700/10, 53 Eur. H.R. Rep. 26, ¶ 65 (2011).

179

Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, ¶ 92 (2001).

180

Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010, ¶ 41.

181

A prominent example is the British anger over the Hirst case (wherein the Strasbourg Court decided that the British rule that deprives prisoners of the right to vote constitutes a violation of the Convention). Hirst v. United Kingdom (No. 2) (GC), App. No. 74025/01, 42 Eur. H.R. Rep. 41 (2006).

182

Lord Hoffmann, Judicial Studies Board Annual Lecture (Mar. 19, 2009) http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_2009_JSB_Annual_Lecture_Universality_of_Human_Rights.pdf.

183

Tom Zwart, Een steviger opstelling tegenover het Europees Hof voor de Rechten van de Mens bevordert de Rechtsstaat [A firmer position against the ECtHR enhances the rule of law], Nederlands Juristenblad 343 (2011) (Neth.).

184

See generally about the Court’s institutional position: The European Court of Human Rights between Law and Politics (Jonas Christoffersen & Mikael Rads Madsen eds., 2011); and Janneke Gerards, Judicial Deliberations in the European Court of Human Rights, inThe Legitimacy of Highest Courts’ Rulings 407 (Nick Huls, Maurice Adams & Jacco Bomhoff eds., 2008).

185

See supra Section 4.1.

186

See supra Sectoin 4.3.

187

M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2 (2011) (Sajó J., partly concurring and partly dissenting).

188

Id. See also Dimitris Xenos, The Human Rights of the Vulnerable, 13 The Int’l J. Hum. Rts. 591 (2009).

189

Marc Bossuyt, Belgium condemned for inhuman or degrading treatment due to violations by Greece of EU Asylum Law, M.S.S. v. Belgium and Greece, Grand Chamber, European Court of Human Rights, January 21, 2011,Eur. Hum. Rts. L. Rev. 581, 597 (2011).

190

See also Timmer, supra note 7 (describing the prioritizing role of vulnerability in the case law of the Court).

191

See generallyAndrew Legg, The margin of appreciation in international human rights law: deference and proportionality (2012); Letsas, supra note 175; and Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996).

192

Dean Spielmann, Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review? 1 (Center for European Legal Studies Working Paper Series, Feb. 2012), available athttp://www.cels.law.cam.ac.uk/cels_lunchtime_seminars/Spielmann%20-%20margin%20of%20appreciation%20cover.pdf.

193

See supra Section 4.3.

194

See supra Section 4.1.

195

As we have mentioned above (see supra Section 3.2), the Court has so far used the wider human rights corpus as a reference point in all its vulnerable group cases.

196

Cf. Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 762 (2011) (“[T]he Court can never give heightened scrutiny to classifications of, say, twenty groups without diluting the meaning of that scrutiny”).

197

Cf. Fineman, supra note 11. See supra Section 2.2.

198

Martha Minow, Foreword Justice Engendered, 101 Harv. L. Rev. 10, 11 (1987).