Divorcing the Substantive from the Procedural in Racist Police Violence Cases at the ECtHR: A Just Institutional Approach?

Abstract

This article examines how the European Court of Human Rights handles cases of racist police violence. Such cases raise issues under Articles 2 or 3 (right to life and prohibition of ill-treatment) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. In its jurisprudence, the Court has developed a practice of distinguishing between the procedural and the substantive limbs of these rights and separately assessing whether a violation of each limb has taken place. This division can help the Court overcome evidentiary issues to at least find that a partial, procedural violation has occurred. While accepting that this approach can be beneficial in the context of Articles 2 and 3 where the Court considers a specific incident of illtreatment, the examination of the Court's anti-Roma police violence case law reveals significant shortcomings in this approach when applied to Article 14. This article argues that the separation of the procedural and substantive aspects of Article 14 is both artificial and unhelpful given the often-systemic nature of discrimination and that it imposes an undue burden on vulnerable applicants before the Court. It recommends that an integrated approach to the Article 14 be adopted which would recognise the close relationship between the procedural and the substantive limb of the provision.