EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
UNIDEM
Campus trieste seminar
“POLICIES ON THE
PROTECTION AND SOCIAL INTEGRATION
OF IMMIGRANTS AND
THEIR IMPLEMENTATION
AT THE
INTERNATIONAL, NATIONAL AND LOCAL LEVEL”
Trieste, Italy
29 June – 2 July 2009
|
REPORT
IMMIGRATION AND SOCIAL COHESION:
EQUALITY OF TREATMENT AND SOCIAL AND CULTURAL INTEGRATION
OF IMMIGRANT WORKERS AND THEIR
FAMILIES
by
Mr Eduardo RUIZ VIEYTEZ
(Director, Pedro Arupe Institute of
Human Rights,
University of Deusto, Bilbao, Spain)
I. Canada: main events
·
Royal
Commission on Bilinguism and Biculturalism, 1965 (later on Royal Commission on
Bilinguism and Multiculturalism).
·
Official
Adoption of Multiculturalism, 1971
·
Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule
B to the Canada Act 1982 (U.K.). Section 27.
·
Canadian
Multiculturalism Act, R.S. 1985, c. 24 (4th Supp.). Act adopted on 21 July 1988.
·
February
2007: Consultation Commission on Accommodation Practices Related to Cultural
Differences co-chaired by Charles Taylor and Gérard Bouchard. Publication: Building
the Future. A Time for reconciliation. Abridged Report. Consultation Commission
on Accommodation Practices Related to Cultural Differences, Québec, 2008 by Charles
Taylor and Gérard Bouchard http://www.accommodements.qc.ca/index-en.html
II. Reasonable
accommodation
1. Reasonable accommodation is a
legal instrument or concept which originates from the labour relations field in
the United States, where the concept began to be used following the
promulgation of the 1964 Civil Rights Act and the 1973 Rehabilitation Act. In
the mid-1980s, the idea was taken up in Canada as a significant qualitative
extension of the notion of non-discrimination. Reasonable accommodation is
derived not so much from the wording of legislation as from a conception of the
right to equality that gradually took shape in case law. The concept first came
to the fore in the case known as Simpsons-Sears, in which the Supreme Court
recognised for the first time that an apparently neutral rule (in this instance
a work schedule) can have a discriminatory effect on an employee because it is
incompatible with his or her religious observances.
2. In Quebec, whose Charter of
Human Rights and Freedoms
includes, in Article 43, the right of minorities to maintain their culture, the
courts use reasonable accommodation to put an end to or avert discrimination
affecting the exercise of any of the rights recognised in the Canadian or
Quebec Charters. It is, therefore, a legal concept originating in case law
which is founded on the right to non-discrimination. Recognising it means
accepting exceptions to the uniform application of the law or, to put it
another way, accepting plurality in the application of laws. Reasonable
accommodation thus seeks an inclusive form of equality through differential
treatment of persons who would otherwise be penalised or discriminated against
in some of their elementary rights through the application of a certain legal
rule. Reasonable accommodation thus means prohibiting all indirect or
systematic discrimination, whether caused intentionally or involuntarily.
3. For the purposes of our
analysis, a positive line of enquiry would be to focus on a less extensive and
less concrete line of decisions revolving essentially around the Thlimmenos v
Greece case of 2000. The judgment in this case states that the right to enjoy
the rights of the European Convention without discrimination is violated when,
without objective and reasonable justification, states fail to apply a
different treatment to persons whose situations are substantially different. This is the
embodiment in case law of so-called “discrimination through
non-differentiation”, acceptance of which would in practice be the preliminary
to the introduction of reasonable accommodation. It seems, however, that
subsequent decisions have not further pursued this line of approach opened up
on the basis of Article 14 of the Convention, although the Thlimmenos doctrine
has not been forgotten.
And although the latest judgments on freedom of religion seem to reduce the
scope of the national margin of appreciation,
it continues to play a decisive role in the contextualised interpretation of
rights.
4. The thought-provoking Thlimmenos
doctrine has not been applied again with the same result, and so an assessment
of the Strasbourg Court’s case law in this field cannot be very positive.
Nevertheless, in some of the cases in which this doctrine was referred to,
there were cultural differences which could have served to justify
differentiated treatment, although this was not the Court’s assessment in the
specific circumstances. In particular, the Chapman, Beard, Jane Smith, Coster
and Lee cases, all against the United Kingdom,
referred to the particular living conditions of certain Roma communities, which
can be clearly identified as cultural differences which might justify
reasonable accommodation. Furthermore, the Court itself points out that the
fact of being a member of a minority with a traditional lifestyle different
from that of the majority of a society does not confer an immunity from general
laws intended to safeguard assets common to the whole society, but it
recognises that it may have an incidence on the manner in which such laws are
to be implemented.
In practice this means recognising the legality of reasonable accommodation in
the field of cultural diversity. The Court has also recognised that the fact of
establishing exceptions to certain provisions of general application on the
basis of a religious difference may constitute a measure adopted by the state
to ensure effective respect for freedom of religion.
5. The European Court of Human
Rights seems more favourable to the idea of indirect discrimination. Indeed,
the Court does not rule out the possibility that a rule or practice might be
discriminatory when it clearly has a greater negative effect on a certain group
than on the rest of the population. Although this type of discrimination has
been worked on more from the perspective of gender equality, it would also be
applicable to the case of groups defined by cultural criteria. The concept of
indirect discrimination can therefore also be predicated on Article 14 of the
European Convention on Human Rights (and Protocol No 12 to the Convention),
which opens the way to its assessment by the European Court of Human Rights.
The most significant judgment here is possibly that in the D.H. and others v
Czech Republic case,
where the Court finds indirect discrimination on ethnic or racial grounds,
which opens the way to the protection of different minorities and to a
requirement for concrete accommodations due to their vulnerable position.
6. Furthermore, Europe has
incorporated into its shared legislative acquis the notion of indirect
discrimination, mainly through the so-called anti-discrimination Directives, in the European
Union framework. Although indirect discrimination does not coincide exactly
with the legal obligation to accommodate, it no doubt brings the interpretation
of the application of rights significantly closer to that possibility.
III. Relevant cases:
·
European
Court of Human Rights
o
Case
Leyla Sahin against Turkey (application no. 44774/98), judgement of 10 November
2005.
o
Case
Dahlab against Switzerland (application no. 42393/98), judgement of 15 February
2001.
o
Case
Thlimmenos against Greece (application no. 34369/97), judgement of 6 April
2000.
o
Case
Kervanci against France (application no. 31645/04), judgement of 4 December
2008.
o
Case
D.H. against Czech Republic (application no. 57325/00), judgement of 13
November 2007.
o
Case
Cyprus versus Turkey, (application no. 25781/94), judgment of 10 May 2001.
·
United
Nations Human Rights Committee
o
Karnel
Singh Bhinder v. Canada, Communication Nos. 208/1986, UN Doc. CCPR/C/37/D/208/1986
(1989).
o
Mr.
Mümtaz Karakurt v. Austria, Communication No. 965/2000, UN Doc.
CCPR/C/74/D/965/2000 (2002).
o
Waldman
v Canada case, decision of 3 November 1999, UN Doc. CCPR/C/67/D/694/1996,
