unjustifiable indirect discrimination196 and racial harassment. Among other areas, this Directive applies to: “(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion”.197 Apart from practices of employers themselves that might constitute discrimination, employers will also be liable for any actions taken by their employees that contribute to a workplace atmosphere constituting harassment. States have the duty to “ensure that judicial and/or administrative procedures, including, where they deem it appropriate, conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged” (Art. 7). Arguably, this requires EU states to allow members of the armed forces access to civilian legal remedies in order to enforce antidiscrimination provisions and not merely internal processes. Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not establish a free-standing right not to be discriminated against. It only applies to the enjoyment of another Convention right or “within the ambit” of a Convention right (i.e., there is no need to demonstrate a breach, a practical link will suffice). There is, however, no Convention right to employment or to take part in public service as such. Even where such a link or breach is established, and Art. 14 is engaged, it is possible to justify differential treatment. The European Court of Human Rights has stated, for example, that “a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’”.198 It follows that justification is possible under Art. 14 if these conditions are satisfied. However, race and nationality discrimination are two categories that the European Court of Human Rights has said require “very weighty reasons” or “particularly serious reasons”.199 In addition, because of the difficulties of establishing racial motivation in cases of discrimination, the European Court of Human Rights has found that a failure by a state to investigate obvious lines of inquiry in investigations into violence by state agents or disregarding of apparent evidence of discrimination by the authorities, may lead to the drawing of negative inferences. Consequently, the burden of proof will shift to the state to show that discrimination has not taken place.200 This is of relevance, for example, if bullying in the armed forces is apparently racially motivated (see Chapter 17, “Working Conditions”). Unlike Art. 14, Protocol 12 to the ECHR is a free-standing provision to protect individuals from discrimination: • In enjoying any right within national law; • By public authorities carrying out their legal obligations, including when using discretionary powers such as grant-making; • Any other act, or failure to act, by a public authority. 196  Art. 2.2.b: “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. 197  Art. 3. 198  Abdulaziz, Cabales and Balkandali v. the United Kingdom, European Court of Human Rights, 28 May 1985, European Human Rights Reports, Vol. 7, 1985, p. 741, para. 72 (also see the Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistics Case), European Court of Human Rights, 23 July 1968, European Human Rights Reports, 1979-80, Vol. 1, p. 241). 199  Tekeli v. Turkey, European Court of Human Rights, 16 November 2004, European Human Rights Reports, Vol. 42, 2006, p. 53, referring to “compelling reasons”. 200  Nachova v. Bulgaria, European Court of Human Rights, 26 February 2004, European Human Rights Reports, Vol. 39, 2004, p. 793, para. 169. 104 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel