Proof and Remedies

Some instruments allow for the burden of proof to be reversed in cases of alleged discrimination so that, where facts from which it may be presumed that there has been direct or indirect discrimination have been established, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.²¹⁹⁹ This approach has been used by the UN Human Rights Committee²²⁰⁰ but has not generally been accepted by the European Court other than in cases of indirect discrimination.²²⁰¹

There may also be a burden on a State to prove that violence giving rise to a breach of the right to life and/or the prohibition on inhuman and degrading treatment was not racially motivated and thus also in breach of the prohibition on discrimination.²²⁰² Moreover a failure to carry out an effective investigation into racially motivated violence will constitute a breach of the prohibition on discrimination taken with the breach of the right to life or the prohibition on inhuman and degrading treatment²²⁰³ as will the toleration by the authorities of such violence.²²⁰⁴

Similarly, violence against women resulting in loss of life and inhuman and degrading treatment will amount to a breach of the prohibition on discrimination taken with the provisions guaranteeing the substantive rights concerned where there has been insufficient commitment to take appropriate action to address domestic violence.²²⁰⁵

A victim of discrimination should be afforded an effective remedy by the national legal system. In many instances this may be sufficiently achieved through the provision of civil and public law proceedings but in some instances a criminal remedy may be appropriate and indeed is specifically required in one instance.²²⁰⁶ However, it has also been recognised that it may be harder to establish discrimination in criminal proceedings because of the need to demonstrate intent.²²⁰⁷