CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE FIGHT AGAINST STEREOTYPES AS AN INSTRUMENT OF EUROPEAN … the Russian legislation was inspired by the assumption that HIV positive persons will behave dangerously to other people. Such presumption was not supported by any evidence. From the brief analysis of these cases it is clear that the ECtHR has not yet elaborated on a comprehensive model for assessing the admissibility of stereotypes by public authorities and private individuals. It seems that the question of whether a stereotype is false or true plays a greater role for the ECtHR than for the British courts. According to the ECtHR, only false stereotypes are incompatible with human rights. However, this somewhat less dogmatic approach did not prevent the ECtHR from supporting minority stereotypes in its case law. In her very interesting analysis of case law concerning the identity of the Roma minority, Doris Farget rightly pointed out that, in assessing the violation of Roma rights, the ECtHR itself used a stereotypical image of Roma as members of a particularly vulnerable minority whose protection requires exemptions from standard rules, e.g. in the field of construction law. Actually, the ECtHR did not examine whether a particular Roma complainant was in a vulnerable position. 27 The ECtHR further committed evident stereotyping when it referred to the nomadic way of life and other Roma traditions, which are certainly not typical for all members of the Roma minority. 28 In a similarly critical manner, Alexandra Timmer highlighted the non-conceptual approach of the ECtHR in a study of 2015. 29 According to Timmer, one of the problems of Strasbourg’s case law is that it rarely names stereotypes as such. Further, Timmer criticized the fact that the ECtHR did not sufficiently assess the use of stereotypes in the light of the prohibition of discrimination. However, by emphasizing other human rights, the ECtHR fails to grasp the wider social dimension of the problem, i.e. the harmfulness of stereotypes not only in relation to a particular complainant, but also to the minority as such. 30 In summary, the prohibition of discrimination in combination with other human rights under the ECHR provides the ECtHR with a tool for addressing stereotypes in a broad context. However, so far, the ECtHR has not offered a conceptual solution to the questions which have been formulated in this contribution. Nevertheless, it may be expected that the ECtHR, in the near future, will encounter more and more cases of stereotyping and will have the opportunity to clarify its approach. The current debate on the concept of vulnerability, which is playing a greater role in human rights case law and literature, 31 may serve as a stimulus in this respect as it stems from case law in which the existence of stereotypes and prejudices can be one of the characteristics of a vulnerable group. 3.2.2 The EU Court of Justice Like the ECtHR, the EU Court of Justice, in several judgments, has been confronted with the problem of stereotypes. One of them is the case of CEZ Bulgaria , 32 where the essence 27 FARGET, Doris. Defining Roma Identity in the European Court of Human Rights. International Journal on Minority and Group Rights . 2012, 19(3), pp. 291-316, 300. 28 FARGET, op. cit., pp. 301-302. 29 TIMMER, Alexandra. Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law. American Journal of Comparative Law [online]. 2015, 63(1), pp. 239-284. 30 TIMMER, op. cit. pp. 250-253. 31 For an introduction to the problem, see ARNARDOTTIR, Oddny Mjoll. Vulnerability under Article 14 of the European Convention on Human Rights. Oslo Law Review . 2017, 4(4), pp. 150-171. 32 C-83-14 ČEZ Razpredelenie Bulgaria AD.

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