The study of the case law of the European Court of Human Rights (ECtHR) has shown that, in general, the ECtHR’s practice demonstrates its cautious approach to positive discrimination measures as a controversial, ambiguous issue, and one that to some extent contradicts the fundamental principle of the universality of human rights. This is the reason why the ECtHR considers positive discrimination measures primarily as a discretion of national governments, and not as a separate object of protection by the ECtHR. The ECtHR’s case law on affirmative action is based on an attempt to strike a balance between achieving social justice and preventing new forms of discrimination. The Court recognizes the importance of affirmative action measures to remedy injustice or restrictions that are caused by the objective vulnerability of certain categories of the population or that have occurred in the past in relation to certain categories of society. At the same time, the ECtHR emphasizes that these measures must be proportionate and must not violate the rights of others. Positive discrimination in the context of the ECtHR case law is justified only when its application is consistent with the principles of legal certainty and equality, and when it is necessary to ensure the common good. The ECtHR recognizes the need to use positive discrimination in specific situations to correct social inequality and ensure equality in various spheres of life. The ECtHR judgment in Thlimmenos v. Greece (2000) paved the way for a more detailed interpretation of discrimination, recognizing that formal equality does not necessarily lead to substantive equality. However, the ECtHR retains certain restrictions on positive discrimination measures. Such measures must be temporary, proportionate, and should not lead to unjustified privileges for groups of the population. Positive discrimination should serve as a means of achieving real equality, not perpetuating differences. In its case law, the ECtHR defines the limits of positive discrimination by a number of criteria: 1) Legitimate aim: Are the measures aimed at achieving a socially important goal? 2) Proportionality: Are the measures not excessive in relation to persons outside the group receiving the benefits? 3) Necessity in a democratic society: Is positive discrimination the only way to achieve the goal? Thus, the ECtHR case law demonstrates that positive discrimination may be justified and necessary to ensure the principle of equality among all persons, as actual inequality may require the application of special measures (positive action) in favor of vulnerable groups who are discriminated against or have been oppressed in the past.
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