CYIL vol. 9 (2018)

MARTIN ŠOLC CYIL 9 ȍ2018Ȏ would be a good reason to assume that such practice constitutes direct discrimination (or, more broadly, is discriminatory against women). For these reasons, it would not be reasonable to assess the comparability of male and female embryos, or of men and women, in relation to anything that is not directly connected to the reason for which MRT is carried out selectively. The comparability must, therefore, be assessed in relation to the prohibition of any gene modification transmissible to the future generations. From this perspective, male and female embryos must be considered incomparable. 5.5 Objective and reasonable justification We might also consider the possibility that the ECtHR, in spite of the good reasons to do so analysed above, would not come to the conclusion that male and female embryos are incomparable for the purpose of selective MRT. In that case, the ECtHR would proceed to assess the objective and reasonable justification of the different treatment. The reasons for this justification are, however, often transitive: they could be as well used for the declaration of incomparability of subjects. We believe that this is also true in our case. Before explaining this conclusion, it is necessary to summarize the criteria of objective and reasonable justification. In this respect, the distinction between direct and indirect discrimination might be relevant. In cases of direct discrimination, different treatment is objectively and reasonably justified if it pursues “a legitimate aim” and, cumulatively, there is “a reasonable relationship of proportionality between the means employed and the aim to be realised”. 74 Since the ECtHR started accepting claims for indirect discrimination, these criteria have remained unchanged, be it in the landmark judgment in the area of indirect discrimination, D. H. v. the Czech Republic, 75 or in the subsequent decisions. 76 However, the ECtHR has specified several differences between direct and indirect discrimination. 77 Perhaps the most important of them is the fact that indirect discrimination is, in comparison with direct discrimination, much less connected with the situation of the particular complainant. As a result, the complainants do not have to prove that discrimination occurred in their individual cases, but it is sufficient for them to prove that a) the seemingly neutral criterion has a disproportionately prejudicial effect on a certain protected group of persons, and that b) he or she belongs to this relevant group. 78 If these facts are proven, the presumption of indirect discrimination is raised. As a result, the burden of proof shifts to the government which can either deny the above-mentioned facts or claim that there is an objective and reasonable justification for the different treatment. 79 74 See, among many other decisions, for example Larkos v. Cyprus, (application no. 29515/95), the ECtHR judgment of 18 February 1999, § 29. 75 D.H. v. the Czech Republic, (application no. 57325/00), the ECtHR judgment of 13 November 2007, § 196. 76 For example, Horváth and Kiss v. Hungary, (application no. 11146/11), the ECtHR judgment of 29 January 2013, § 112, or Biao v. Denmark, (application no. 38590/10), the ECtHR judgment of 24 May 2016, § 90. 77 See the analysis of the recent development in the ECtHR case law in MÖSCHEL, Mathias. The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain. The Modern Law Review. (2017, Vol. 80, No. 1), pp. 121-132. 78 See D.H. v. the Czech Republic, (application no. 57325/00), the ECtHR judgment of 13 November 2007, § 209. 79 See BOBEK, Michal. Zákaz diskriminace (čl. 14 EÚLP a Protokol č. 12). [The Prohibition of Discrimination (Article 14 of the ECHR and the Protocol No. 12).] In KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář. [The European Convention on Human Rights. The Commentary.] C. H. Beck, Praha 2012, pp. 1232-1233.

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