PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW APPLYING THE BURDEN OF PROOF REVERSAL PRINCIPLE: DRAWING AN INFERENCE PART TWO – III The determination of whether the claimant has established a prima facie case requires the adjudicator to draw inferences from the material presented. Drawing inferences is crucial for nearly all direct discrimination cases, with the exception of those rare cases in which a discriminating party states explicitly that their decision is based on a person’s protected characteristic. In a notable judgment in the United Kingdom, the House of Lords ruled that: “Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deducted, or inferred, from the surrounding circumstances.”690 The House of Lords reinstated the ruling of an employment tribunal that an applicant had been denied appointment to a job because he had brought a number of previous race discrimination claims against the employer, drawing inferences from the fact that the applicant had received a “plainly ridiculous and unrealistically low” score for articulacy in his interview. Inferences of discrimination are also relevant in addressing forms of structural discrimination for which access to evidence can be limited691 and, indeed, the European Court of Human Rights has relied on inferences in a range of cases in which the collection of evidence would pose challenges to applicants.692 The Committee on the Elimination of Racial Discrimination has found States parties in violation of the right to effective remedy for discrimination in situations in which domestic courts did not draw proper inferences from material presented by people alleging discrimination.693 In some countries, specific provisions on the burden of proof are set out within comprehensive antidiscrimination law, whereas in others, these rules are defined in other legislation. In some States, regulations have been adopted that govern the permissible forms of evidence in discrimination cases. In others, extrajudicial guidance documents on evidence and proof assist the courts in the application of the procedural discrimination law framework. Each of these approaches will be compliant with States’ obligations, provided that rules regulating the shift in the burden of proof are clearly established, well understood by legal practitioners and accessible to members of the public. 2. Exceptions to the rule The presumption of innocence in criminal law is a well-established and important principle that is not compatible with a shift in the burden of proof (see sect. II.A of part two of the present guide).694 Moreover, the transfer of the burden of proof may not be appropriate in inquisitorial systems, in which the court or prosecutor is responsible for investigating the facts of the case.695 In such systems, it is, nonetheless, essential that the right to non-discrimination remains realizable – a fact emphasized by domestic courts in civil law systems, which have recognized the inherent difficulties relating to proof in discrimination cases. 690 United Kingdom, House of Lords, Swiggs and others v. Nagarajan [1999] UKHL 36; [2000] 1 AC 501; [1999] 4 All ER 65; and [1999] 3 WLR 425 (15 July 1999). 691 Building upon this point, the European Court of Human Rights has indicated that demonstration of large-scale structural bias may be sufficient to establish a prima facie case of discrimination. See, for instance, Volodina v. Russia, Application No. 41261/17, 9 July 2019, paras. 112–114. 692 See, for instance, Čonka v. Belgium, an asylum case concerning collective expulsion. The European Court of Human Rights found a violation of article 4 of Protocol No. 4 to the Convention, on the basis that “the procedure followed does not enable [the Court] to eliminate all doubt that the expulsion might have been collective” – an inference that was supported by reference to a number of objective factors, including the treatment of the applicants and the statements of the political authorities. See Čonka v. Belgium, Application No. 51564/99, Judgment, 5 February 2002, paras. 61–63. 693 Committee on the Elimination of Racial Discrimination, Zapescu v. Moldova (CERD/C/103/D/60/2016), paras. 8.5–8.10. 694 See, inter alia, International Covenant on Civil and Political Rights, art. 14 (2); and Human Rights Committee, general comment No. 32 (2007), para. 30. 695 This is made clear under the European Union equal treatment directives. See Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), art. 19 (3); Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, art. 9 (5); Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art. 8 (5); and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 10 (5). 95