CYIL Vol. 4, 2013

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 (http://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/DE/publikationen/20110407_ 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.