The article elaborates on the concept of discrimination, as well as conducting a critical analysis of national judicial practice in terms of reflecting the legal nature of discrimination in it. Emphasis is made on cases where such nature is reflected incorrectly.

The general or generic concept of discrimination can be briefly stated as negative differentiation on any basis or feature compared to another person, while the narrow concept of discrimination interprets protected characteristics as belonging to various significant social groups (by race, gender, age, etc.). It is argued that national judicial practice often embodies a broad approach to discrimination, which equates legal equality with a prohibition of discrimination. Criticism of this approach is presented.

The author proves that in far from all cases, when it comes to violation of legal equality, discrimination can be established. Using decisions of national courts as examples, it is shown that a broad approach to understanding discrimination causes inflation of this concept, its “devaluation” and “expansion”. It is argued that an overly broad use of the concept of discrimination may be acceptable for legal argumentation by lawyers, but not judges.

Bibliography

Authored books

1. Lippert-Rasmussen K, Born F, Equal A, Philosophical Inquiry into the Nature of Discrimination (Oxford University Press 2014) (in English).

2. Shevchuk S, Sudovyi zakhyst prav liudyny: Praktyka Yevropeiskoho Sudu z prav liudyny u konteksti zakhidnoi pravovoi tradytsii (Referat 2007) (in Ukrainian).

Encyclopedias

3. Altman A, ‘Discrimination’ in The Stanford Encyclopedia of Philosophy (Zalta E ed, 2020) <https://plato.stanford.edu/entries/discrimination> (accessed: 23.06.2023) (in English).

Journal articles

4. Buergenthal T, ‘European Court of Human Rights, 23rd July 1968: Case “Relating to Certain Aspects of The Laws on The Use of Languages in Education in Belgium” Judgment’ (1969) 4 International Legal Materials (in English).

5. O Pankevych, ‘Zakhyst prava liudyny na nedyskryminatsiiu u praktytsi Yevropeiskoho sudu z prav liudyny’ (2016) 3 Naukovyi visnyk Lvivskoho derzhavnoho universytetu vnutrishnikh sprav seriia yurydychna (in Ukrainian).