Les vulnérables: evaluating the vulnerability criterion in Article 14 cases by the European Court of Human Rights

ABSTRACT

The European Court of Human Rights (the Court) has been invoking the vulnerability criterion to overcome the drawbacks of cases concerning Article 14 of the European Convention on Human Rights, the prohibition of discrimination. This new criterion, allowing the Court to favour the applicants, highlights the applicants’ group affiliation. However, whether this criterion is effective in protecting vulnerable applicants against discrimination is doubtful. To examine this, I divide the Court's approach to Article 14 before and after the application of the vulnerability criterion. I argue that vulnerability criterion was used to fix the drawbacks of Article 14, but eventually backfired. The concept of vulnerability has been ambiguous, inconsistently used by the Court, and paternalistic. I suggest the Court focus on individual autonomy rather than grouping the applicants to improve their legal reasoning of Article 14.