Czech Yearbook Vol. 4 2013

146 / 350

HARALD CHRISTIAN SCHEU CYIL 4 ȍ2013Ȏ
Federal Anti-Discrimination Office, similarly, supposes that in cases of discrimination
the perpetrators only pretend certain motives.15 From the perspective of the ever-
growing community of anti-discrimination lawyers, Isabelle Rorive specifies these
concerns and states that, due to various anti-discrimination campaigns in recent
years, potential perpetrators of discrimination are now much more cautious than
in the past and try to avoid traces of discrimination.16 If we follow the line of this
argument, we have to believe that the result of European anti-discrimination law is
pretending and lying on the part of employers and service providers.
While “clumsy” perpetrators of discrimination are those who state prohibited
grounds of discrimination openly and publicly, “smart” wrong doers are hypocrites
who are able to present politically correct explanations for any differentiation. In such
a situation, the proponents of effective anti-discrimination law have to launch an
attack on the minds of potentially discriminating entities and discover their hidden
intentions. In the light of these pessimistic considerations about human nature, the
reversal of the burden of proof cannot be seen as a fine instrument that will be used
only with regard to the particular circumstances of the “special case”, but it has to be
an effective weapon against all entities sharing a particular economic status. A general
rule of mistrust is applied against employers and service providers.
4. The impact of EU rules on the burden of proof on the system
of the European Convention
Given that the legal regulation of fundamental rights under EU law is closely
connected with the system of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR), it is no wonder that the reversal of the
burden of proof was, eventually, also reflected in the jurisprudence of the European
Court of Human Rights (ECtHR). The allocation of the burden of proof became the
crucial aspect in the leading case of D.H. and Others v. The Czech Republic.17 At the
first stage, the seven-member Chamber of the ECtHR reached a clear majority vote of
six to one concluding that the prohibition of discrimination under Article 14 ECHR
in conjunction with the right to education under Article 2 of the First Additional
Protocol to the Convention had not been violated.18 However, subsequently the
15 Klose, Alexander; Kühn, Kerstin: Die Anwendbarkeit von Testingverfahren im Rahmen der Beweislast,
§ 22 Allgemeines Gleichbehandlungsgesetz, Expertise im Auftrag der Antidiskriminierungsstelle des
Bundes [Applicabiity of testing procedures in the context of burden of proof, § 22 of the General
Equal Treatment Act, Experts‘ report on behalf of the German Federal Anti-discrimination Office, p. 5
(
Expertise_Testing.pdf?_blob=publicationFile).
16 Rorive, Isabelle: Der Situationstest in Europa: Mythen und Wirklichkeit [The situation test in
Europe: myths and reality], Europäische Zeitschrift für. Antidiskriminierungsrecht [European Journal for
Antidiscrimination Law], 3/ 2006, pp. 35-42; p. 35.
17 Application No. 57325/00.
18 Chamber Judgment of 7 February 2006.