Proving Discriminatory Violence at the European Court of Human Rights

Jasmina Mačkić, Ph.D. (1984), Leiden University, is Assistant Professor of Human Rights Law at that university. She has published articles and case notes on the topical theme of discriminatory violence.

• 1 Introduction1 Discriminatory Violence as a Global Phenomenon2 The Need for a More Significant Role for the ECtHR In Addressing and Combating the Phenomenon of Discriminatory Violence3 Scope and Structure of this Book4 Some Final Words 0n Methodology2 Contextualising Discriminatory Violence within the Council of Europe1 Introduction2 The Substantive Legal Framework: Anti- Discrimination Law in the Council of Europe3 General Features of Article 14 Echr and their Impact on Complaints of Discriminatory Violence4 Important Taxonomies to Categorise Discrimination Complaints4.1Formal and Substantive Equality4.2Direct and Indirect Discrimination5 Conclusion3 Ordering Discriminatory Violence: Three Types of Complaints1 Introduction2 The Negative Duty of State Officials to Refrain from Inflicting Discriminatory Violence3 The Positive Duty of State Officials to Effectively Investigate Discriminatory Violence and to Identify and Punish those Responsible4 The Positive Duty of State Officials to Take Preventive Measures against Discriminatory Violence5 The remaining Cases of Discriminatory Violence: Complaints Connected to Provisions other than Article 2 or Article 3 ECHR6 Conclusion4 The Collection of Facts and the Actors Involved in Fact- Finding at the ECtHR1 Introduction2 The legal Framework for the Examination of a Case by the ECtHR3 How Applicants and Respondent States are Engaged in Fact- finding during the Procedure before the ECtHR3.1Presenting an Application to the Court3.2The Parties’ Obligation to Cooperate with the Court4 Fact- finding Missions Conducted by the ECtHR5 Contributions to Fact- Finding by External Actors6 Conclusion5 The Standard of Proof in Cases of Discriminatory Violence1 Introduction2 Some General Observations on The Notion of ‘Standard of Proof’3 Standards of Proof in ECtHR Case Law4 ‘Beyond Reasonable Doubt’ in ECtHR Case Law4.1The ECtHR Definition of ‘Beyond Reasonable Doubt’ and the Origins of this Standard of Proof4.2Testing the ‘Beyond Reasonable Doubt’ Standard in Cases of Discriminatory Violence5 Conclusion6 The Distribution of the Burden of Proof in Cases of Discriminatory Violence1 Introduction2 Some General Observations on the ‘Burden of Proof’3 Presumptions and Inferences4 The Influence of Presumptions and Inferences on the Distribution of the Burden of Proof in Violence Cases4.1Cases in which Individuals were Injured, Died or Disappeared while in the Hands of State Agents4.2Presumptions and Inferences in Cases in which Evidence Discloses an Administrative Practice4.3Interim Conclusion5 The Distribution of the Burden of Proof in Cases in which a Discriminatory Nature of Violence is Alleged5.1The Circumstances Under which the Burden of Proof May Shift5.2Exploring New Criteria to Shift the Burden of Proof in Cases of Discriminatory Violence6 Conclusion7 Evidentiary Material Used to Prove Discriminatory Violence at the ECtHR1 Introduction2 Admissibility of Evidence in ECtHR Proceedings3 Factual Elements from the Domestic Case File Pointing to Discriminatory Violence3.1Confessions3.2Instructions3.3Discriminatory Remarks3.4Extremist Groups3.5The Remaining Factual Elements3.6Interim conclusion4 Statistics4.1General Views on Statistics as Evidence4.2The ECtHR Approach: Statistics Gaining Ground as Evidence in Cases of Indirect Discrimination4.3The Use of Statistics in Cases of Discriminatory Violence5 Reports Issued by Intergovernmental Organisations and NGO s6 Conclusion8 Conclusion1 Introduction2 Discrimination’ and ‘Discriminatory Violence’ in ECtHR Case Law: A Call for a More Substantive Conception of Equality in Cases Concerning Discriminatory Violence3 Most Notable Means of Gathering Facts and Evidence in the Context of Complaints of Discriminatory Violence at the Court4 The Adequacy of the Evidentiary Framework in Cases of Discriminatory Violence4.1Standard of Proof4.2Burden of Proof4.3Evidentiary Material4.4Synopsis: Evaluating the Evidentiary Framework in ECtHR Cases of Discriminatory Violence5 Epilogue and Outlook: The Ecthr as the Guardian of the Rights of Disadvantaged GroupsBibliographyIndex