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Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights

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Human Rights and Civil Liberties in the 21st Century

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 30))

Abstract

The European Court of Human Rights has recognized positive obligations to develop a legal framework to adequately protect the rights guaranteed by the European Convention on Human Rights (‘protection by the law’). This article examines both the substantive and the procedural guarantees that are encompassed by this legal framework. The article examines the rationale behind, as well as the extent of substantive and procedural ‘protection by the law’, thereby identifying the general principles that can be induced from the European Court’s jurisprudence. Where possible, the article compares the European Court’s approach with the one taken by the United States Supreme Court, and with the theoretical account of ‘protection by the law’ as provided by the German Constitutional law theorist Robert Alexy. The article further argues that ‘protection by the law’ could be the key to the proper application of the European Court’s margin of appreciation doctrine. Moreover, ‘protection by the law’ could be seen as a step in the direction of a more ‘constitutionalized’ positive obligations jurisprudence.

This contribution has been funded by the Research Foundation Flanders (FWO) and has been written within the framework of the European Research Council funded project ‘Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning’.

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Notes

  1. 1.

    This is, for example, relevant with respect to the margin of appreciation doctrine as developed by the European Court (see Sect. 4.7), which is an instrument of deference based on the Court’s position as a supranational court.

  2. 2.

    J. Raz, “Right-Based Moralities” in J. Waldron, Theories of Rights (Oxford Readings in Philosophy) (New York: Oxford University Press, 1984), 183.

  3. 3.

    Similarly G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), 104.

  4. 4.

    E.g. S. Bandes, “The Negative Constitution: A Critique”, 88 Michigan Law Review (1989–90), 2285. The rejection of the interest model is reflected in Ronald Dworkin’s metaphor of ‘rights as trumps’ that block reasons that are based on corrupted utilitarian calculations (R. Dworkin, “Rights as Trumps” in J. Waldron, Theories of Rights (New York: Oxford University Press, 1984), 153–167) and in a stronger focus on exclusionary reasons (see, for example, R. Pildes, “Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law”, 45 Hastings Law Journal (1993–94), 711–751, in which Richard H. Pildes considers rights to be “means of defining the reasons for state action that are appropriate in a particular sphere” (724)). However, there are American scholars such as Richard H. Fallon who do consider constitutional rights to be interest-based, see R. Fallon, “Individual Rights and the Powers of Government”, 27 Georgia Law Review (1992–93), 352–360. The interest model is also not incompatible with Frederick Schauer’s metaphor of ‘rights as shields’ that require the state to provide a higher burden of justification, see F. Schauer, “A Comment on the Structure of Rights”, 27 Georgia Law Review (1992–93), 428–431.

  5. 5.

    Dworkin, supra, note 5, 171. Dworkin distinguishes between right-based, duty-based and goal-based political theories.

  6. 6.

    For the distinction, see Sect. 4.3.

  7. 7.

    H. Shue, Basic Rights – Subsistence, Affluence and U.S. Foreign Policy (second edition) (Princeton: Princeton University Press, 1996), 16.

  8. 8.

    G. Letsas, “The Concepts of the Margin of Appreciation”, 26 Oxford Journal of Legal Studies (2006), 718.

  9. 9.

    The ECHR does not recognize the concept of horizontal or third-party applicability (drittwirkung), i.e. the possibility of an individual to bring a claim against another individual directly based on the Convention. The ECHR, however, does require states to protect individuals against other individuals. See D. Harris, M. O’Boyle, E. Bates and C. Buckley, Law of the European Convention on Human Rights (Oxford: OUP, 2009), 20.

  10. 10.

    Art. 8 ECHR: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  11. 11.

    Dimitris Xenos applies a similar concept of ‘proximity’ in relation with the element of knowledge (see below): “In general terms, the element of knowledge is evaluated in relation to two separate identity types that reflect two corresponding conditions of proximity which are critical in the determination of the state’s obligations. (1) The identity of the individual(s) in need of human rights protection (the first condition of proximity); and/or (2) The source of the threat to human rights (the second condition of proximity)” (D. Xenos, The Positive Obligations of the State under the European Convention of Human Rights (Abingdon: Routledge, 2012), 75–76).

  12. 12.

    The same applies to obligations to protect.

  13. 13.

    The distinction between obligations to respect, to protect and to fulfill stems from the work of Asbjørn Eide; The Right to Adequate Food as a Human Right, Report prepared by A. Eide, UN Doc E/CN.4/Sub.2/1987/23. In the context of positive obligations under the European Convention on Human Rights, Dröge distinguishes between positive obligations of a horizontal dimension and positive obligations of a social dimension (C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin: Springer, 2003), 381–382). This distinction generally coincides with the obligation to protect/fulfill distinction.

  14. 14.

    To a certain extent, such a right has been recognized under Art. 8 ECHR, the right to privacy, e.g. ECtHR (GC) 8 July 2003, No. 36022/97, Hatton and Others v. the United Kingdom. The ECtHR generally examines environmental cases under the obligation to protect.

  15. 15.

    While some environmental cases illustrate the contrary, the European Court sometimes examines such cases as involving obligations to respect. For example, the case of ECtHR (GC) 13 August 1981, Nos. 7601/76; 7806/77, Young, James and Webster v. the United Kingdom, para. 49, in which the Court decided to examine a closed shop agreement as a matter of obligations to respect, because “it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained.” The same applied in a case in which a private television company refused to broadcast a commercial directed against industrial animal production because it was too political, in application of domestic law (ECtHR 28 June 2001, No. 24699/94, VgT Verein Gegen Tierfabrieken v. Switzerland, para. 47). See also ECtHR 16 December 2008, No. 23883/06, Khursid Mustafa and Tarzibachi v. Sweden, para. 34. The U.S. Supreme Court made a similar finding in the context of the ‘negative’ Due Process Clause in the case of U.S. Supreme Court 19 December 1921, Truax v. Corrigan, 257 U.S. 312: “The legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and a purely arbitrary or capricious exercise of that power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles.”

  16. 16.

    Or similarly, on access to abortion, see A. Timmer, “R.R. v. Poland: of reproductive health, abortion and degrading treatment”, 31 May 2011, strasbourgobservers.com.

  17. 17.

    The ECtHR examines such cases as involving positive obligations, e.g. ECtHR (GC) 7 July 1989, No. 10454/83, Gaskin v. the United Kingdom. With respect to access to information in the context of a trial, the Supreme Court on the other hand has held that “[i]t is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a ‘right of access’ (…) or a ‘right to gather information’, for we have recognized that ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’ The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily” (U.S. Supreme Court 2 July 1980, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555).

  18. 18.

    The UN Committee on Economic, Social and Cultural Rights (CESCR), for example, considers the hindering of access to be a question of the obligation to respect. See, for example, CESCR 12 May 1999, General Comment No. 12 on the right to adequate food, para. 15, in which it held that “[t]he obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access.” Similarly, in the context of the right to respect for family life (Art. 8 ECHR), the European Court held that “domestic measures hindering [the mutual enjoyment by parent and child of each other’s company] amount to an interference with the right protected by Article 8” (ECtHR 5 February 2004, No. 60457/00, Kosmopoulou v. Greece, para. 47).

  19. 19.

    For example, the case of ECtHR 31 May 2007, No. 7510/04, Kontrová v. Slovakia, concerning domestic violence. Not only was there a failure of the obligation to protect, but the state had also made matters worse, as a police officer had pressurized the victim to drop charges against her husband. One month later the husband killed both of their children.

  20. 20.

    E.g. ECtHR 12 February 2009, No. 2512/04, Noland and K. v. Russia, concerning the separation of a father and son as a result of the refusal by the Russian authorities to allow the father to re-enter the territory after a short trip abroad. According to the Court, “[t]he period of separation was the direct consequence of a combination of the Russian authorities’ actions (the decision to exclude the applicant from Russia) and omissions (failure to notify the applicant of that decision and to take measures that would enable his son to leave Russia).” The Court avoided the characterization problem, by stating that it was not necessary “to decide (…) whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue is whether a fair balance was struck between the competing public and private interests involved.” Other examples under Art. 8 ECHR, the right to respect for family life, are cases in which the state has placed children into public care (which raises an issue under an obligation to respect), but then fails to take positive steps to reunite the family as soon as possible, e.g. ECtHR 23 September 1994, No. 19823/92, Hokkanen v. Finland.

  21. 21.

    Harris et al., supra, note 9, 20–21. Harris et al. argue that a state may be held directly responsible under the Convention “for the acts of private companies and other persons to whom powers that are traditionally state powers have been transferred by privatization, as in the case of private prisons.”

  22. 22.

    In the case of ECtHR 25 March 1993, No. 13134/87, Costello-Roberts v. the United Kingdom, the Court examined a case of corporal punishment of the applicant by the headmaster of an independent school as involving negative obligations. The Court held that “(…) the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals” (para. 27). See similarly ECtHR 16 June 2005, No. 61603/00, Storck v. Germany, para. 103. In the case of Storck, the Court, however, did examine the case as one involving the obligation to protect.

  23. 23.

    ECtHR (GC) 13 July 2012, No. 16354/06, Mouvement Raëlien Suisse v. Switzerland.

  24. 24.

    Judge Pinto de Albuquerque also recognizes “complementary action by the government (…) required to restore the applicant to the situation in which he found himself prior to that violation” as a positive obligation. “If a finding of a violation does not imply the need for any restorative action by the government, that indicates a negative obligation.”

  25. 25.

    F. Cross, “The Error of Positive Rights”, 48 UCLA Law Review (2001), 866.

  26. 26.

    Bandes, supra, note 4, 2284–2285.

  27. 27.

    Bandes, supra, note 4, 2283. According to Bandes, “[t]he assumption that government can deprive individuals of protected rights only by its actions does not take into account government’s pervasive influence through regulatory action and inaction, its displacement of private remedies, and, indeed, its monopoly over some avenues of relief.”

  28. 28.

    Bandes, supra, note 4, 2281, with reference to United States Court of Appeals, Seventh Circuit 23 May 1988, Archie v. City of Racine, 847 F.2d 1211.

  29. 29.

    S. Holmes and C. Sunstein, The Cost of Rights. Why Liberty Depends on Taxes (New York: W.W. Norton, 1999), 48.

  30. 30.

    Shue, supra, note 7, 155.

  31. 31.

    L. Lavrysen, “The Scope of Rights and the Scope of Obligations: Positive Obligations” (to be published in E. Brems and J. Gerards, Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge University Press). In order to tackle criticism that it provides less protection when it considers a borderline case to involve positive rather than negative obligations, the Court generally holds that “[t]he boundaries between the State’s positive and negative obligations (…) do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests” (e.g. ECtHR (GC) 4 December 2007, No. 44362/04, Dickson v. the United Kingdom). Despite this rhetoric, however, in reality the Court does provide less protection in the case of positive obligations, by allowing a wider margin of appreciation (e.g. ECtHR 3 February 2009, No. 31276/05, Women on Waves and Others v. Portugal) and by applying a looser proportionality test (a mere fair balance test, instead of a more structured proportionality analysis, as well as a lack of examination of the legality and the legitimacy of the interference).

  32. 32.

    For a similar discussion, see K. Starmer, “Positive obligations under the Convention” in J.L. Jowell and J. Cooper (eds.), Understanding Human Rights Principles (Portland: Hart Publishing, 2001), 140–144.

  33. 33.

    U.S. Supreme Court 22 February 1989, DeShaney v. Winnebago County, 489 U.S. 189.

  34. 34.

    ECtHR (GC) 10 May 2001, No. 29392/95, Z and Others v. the United Kingdom, paras. 73–74.

  35. 35.

    ECtHR (GC) 13 June 1979, No. 6833/74, Marckx v. Belgium, para. 31.

  36. 36.

    Harris et al., supra, note 9, 15.

  37. 37.

    E.g. ECtHR 9 October 1979, No. 6289/73, Airey v. Ireland, para. 24.

  38. 38.

    See A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004).

  39. 39.

    See J.H. Ely, Democracy and Distrust, a theory of judicial review (Cambridge (Mass): Harvard University Press, 1980), 87.

  40. 40.

    See in a similar vein, Bandes, supra, note 4, 2285: “Consider the proposition that government inaction is not actionable because it is not an abuse of power. This conclusory proposition begs the question of why inaction is not an abuse of power.”

  41. 41.

    For an overview of arguments in favor of overruling DeShaney, see. J.R. Howard, “Rearguing DeShaney”, 18 Thomas M. Cooley Law Review (2001), 381–408. The Supreme Court confirmed DeShaney in the case of U.S. Supreme Court 27 June 2005, Castle Rock v. Gonzales, 545 U.S. 748. The case concerned the murder of a woman’s three children by her husband, against whom she had obtained a restraining order, which the police had failed to enforce. The Court’s reasoning focused primarily on rejecting the argument that, for the purposes of the Due Process Clause, the woman had a property interest in police enforcement of the restraining order. Notably, in the same case, the Inter-American Commission on Human Rights did find violations of the American Declaration of the Rights and Duties of Man (Inter-American Commission on Human Rights 21 July 2011, Jessica Lenahan (Gonzales) et al. v. The United States). The Commission held “that the State failed to act with due diligence to protect Jessica Lenahan and Leslie, Katheryn and Rebecca Gonzales from domestic violence, which violated the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration. The State also failed to undertake reasonable measures to prevent the death of Leslie, Katheryn and Rebecca Gonzales in violation of their right to life under Article I of the American Declaration, in conjunction with their right to special protection as girl-children under Article VII of the American Declaration. Finally, the Commission concludes that the State violated the right to judicial protection of Jessica Lenahan and her next of kin, under Article XVIII of the American Declaration.”

  42. 42.

    Bandes, supra, note 4, 2274.

  43. 43.

    U.S. Supreme Court 30 November 1976, Estelle v. Gamble, 429 U.S. 97.

  44. 44.

    E.g. ECtHR (GC) 26 October 2000, No. 30210/96, Kudła v. Poland.

  45. 45.

    U.S. Supreme Court 23 May 2011, Brown v. Plata, 563 U.S. ___, and amongst many others ECtHR 6 March 2001, No. 40907/98, Dougoz v. Greece.

  46. 46.

    U.S. Supreme Court 6 June 1994, Farmer v. Brennan, 511 U.S. 825, and amongst many others ECtHR 27 May 2008, No. 22893/05, Rodić and 3 Others v. Bosnia and Herzegovina. Fatal incidents in prison are examined under Art. 2 ECHR, the right to life, e.g. ECtHR 14 March 2002, No. 46477/99, Paul and Audrey Edwards v. the United Kingdom.

  47. 47.

    U.S. Supreme Court 18 June 1993, Helling v. McKinney, 509 U.S. 25; ECtHR 14 September 2010, No. 37186/03, Florea v. Romania.

  48. 48.

    U.S. Supreme Court 27 April 1977, Bounds v. Smith, 430 U.S. 817.

  49. 49.

    Bandes, supra, note 4, 2295.

  50. 50.

    While discussing the case of U.S. Supreme Court 22 November 1939, Schneider v. State of New Jersey, 308 U.S. 147, David Currie also labeled the alleged ‘affirmative duty’ concerned as a ‘conditional’ one, in the sense that it only arises after an initial decision by the state (i.e. to designate an area as public forum), see. D. Currie, “Positive and Negative Constitutional Rights”, 53 University of Chicago Law Review (1986), 879.

  51. 51.

    Currie, supra, note 50, 872–886. For a more recent discussion, see Cross, supra, note 26, 868–874.

  52. 52.

    U.S. Supreme Court 23 March 1970, Goldberg v. Kelly, 397 U.S. 254.

  53. 53.

    Currie refers to the case of U.S. Supreme Court 13 March 1908, Ex parte Young, 209 U.S. 123.

  54. 54.

    Bandes, supra, note 4, 2277.

  55. 55.

    U.S. Supreme Court 21 April 1969, Shapiro v. Thompson, 394 U.S. 618.

  56. 56.

    Currie, supra, note 50, 881.

  57. 57.

    Also see O. Arnardóttir, “Discrimination as a Magnifying Lens: Scope and Ambit under Article 14 and Protocol 12” (to be published in E. Brems and J. Gerards, Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge University Press).

  58. 58.

    In the case of ECtHR (dec.) 21 March 2002, No. 65653/01, Nitecki v. Poland, the Court, for example, held that “(…) with respect to the scope of the State’s positive obligations in the provision of health care, the Court has stated that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally (…).” In ECtHR (GC) 27 May 2008, No. 26565/05, N. v. the United Kingdom, para. 44, concerning the expulsion of a HIV-positive woman to Uganda, where her condition could rapidly deteriorate, the Court held that “(…) Article 3 does not place an obligation on the Contracting State to alleviate such disparities [between the level of treatment available in the Contracting State and the country of origin] through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.”

  59. 59.

    For a discussion, see L. May, Global Justice and Due Process (Cambridge: CUP, 2011), 47–52.

  60. 60.

    R. Alexy, A Theory of Constitutional Rights (Oxford: OUP, 2002).

  61. 61.

    M. Kumm, “Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement” in G. Pavlakos (ed.), Law, Rights and Discourse – The Legal Philosophy of Robert Alexy (Oxford: Hart Publishing, 2007), 136.

  62. 62.

    S. Greer, “’Balancing’ and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate”, 63 Cambridge Law Journal (2004), 433.

  63. 63.

    See also Lavrysen, supra, note 31.

  64. 64.

    Alexy, supra, note 60, 84–86. The rule-like element relates to the fact that the norm itself “is applicable without needing to be balanced by any other norm, and cases can be subsumed under it” (85). According to Alexy,” rules are norms which are always either fulfilled or not”: if a rule validly applies, one is required to do exactly what it says (48). When two rules conflict, either an exception is read into one of them or at least one of them is declared invalid (49). Conflicts between principles “are played out in the dimension of weight instead” (50): one principle outweighs the other principle based on the concrete facts of the case. The fact that a principle is outweighed does not imply that it is either invalid or that an exception must be read into it.

  65. 65.

    Ibid., 47–48.

  66. 66.

    Ibid., 66–69. In the wide sense, the principle of proportionality consists of three sub-principles: suitability, necessity and proportionality in the narrow sense (balancing) (67).

  67. 67.

    Ibid., 316. According to Alexy, ‘the right to organization and procedure’ “extends from rights to effective legal protection, which no one would refuse to call ‘procedural rights’, to ‘organizational state measures’ such as those relevant to the creation of academic committees in universities.” A specific example of substantive protection is the requirement that certain private law norms have a certain content (324).

  68. 68.

    Ibid.

  69. 69.

    In Alexy’s theory, not all substantive norms protecting rights fall under the ‘right to organization and procedure’. Some substantive norms, for example, belong to the category of protective rights, which generally require “legal regulations to be structured in such a way as to limit the danger of constitutional rights infringements” (301), the most obvious example being the criminalisation of murder and manslaughter (302). This distinction, however, is of no interest here, as the mechanism that plays is the same: optimising rights as far as possible in the light of countervailing principles. Alexy’s discussion of the mainly procedural ‘right to organization and procedure’ therefore is equally relevant for substantive protection.

  70. 70.

    Ibid., 328. This is a specification of Alexy’s general model of rights adjudication, in which he distinguishes between a first stage in which the question is addressed as to what is prima facie protected by the fundamental right, and a second stage which concerns the question of what is definitively protected after taking into account the possibility of limitations (196–200). According to Alexy, “constitutional protection always depends on a relationship between a reason for constitutional protection and some relevant contrary reason” (209).

  71. 71.

    Ibid., 348 and 400.

  72. 72.

    If not, these norms do not optimise the right concerned and therefore cannot be required by it.

  73. 73.

    He specifically rejected the incorporation of a necessity or less restrictive means test – which in Alexy’s model follows from the character of rights as optimisation requirements – as part of the proportionality test.

  74. 74.

    J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden: Martinus Nijhoff Publishers, 2009), 132 and 135.

  75. 75.

    Mowbray, supra, note 38, 225.

  76. 76.

    Starmer, supra, note 32, 147. Starmer illustrated this obligation by the cases of ECtHR 26 March 1985, No. 8978/80, X and Y v. the Netherlands; ECtHR 22 October 1996, No. 22083/93, Stubbings and Others v. the United Kingdom; and Young, James and Webster v. the United Kingdom, supra, note 15.

  77. 77.

    Starmer distinguishes between (1) a duty to put in place a legal framework which provides effective protection for Convention rights, (2) a duty to prevent breaches of Convention rights, (3) a duty to provide information and advice relevant to a breach of Convention rights, (4) a duty to respond to breaches of Convention rights, and (5) a duty to provide resources to individuals to prevent breaches of their Convention rights. The cases mentioned by Starmer under (4) and (5) are related to the broader conception of ‘protection by the law’ envisaged in this paper.

  78. 78.

    Xenos, supra, note 11, 107.

  79. 79.

    Xenos, supra, note 11, 110.

  80. 80.

    ECtHR (GC) 28 October 1998, No. 23452/94, Osman v. the United Kingdom, para. 115.

  81. 81.

    Xenos, supra, note 11, 137.

  82. 82.

    Admittedly there are some exceptions. The Court has, for example, examined a case concerning shootings by the police (i.e. an obligation to respect) as raising questions as to the obligation to protect the right to life (Art. 2 ECHR) by law, by requiring regulations concerning the use of firearms by state agents, e.g. ECtHR (GC) 20 December 2004, No. 50385/99, Makaratzis v. Greece. An explanation may be that Art. 2 ECHR explicitly couples legality to a positive obligation in its first sentence: “Everyone’s right to life shall be protected by law.” According to Xenos, this sentence corresponds to the legality stage of other rights (Xenos, supra, note 11, 123).

  83. 83.

    These conditions are made explicit in the second paragraph (limitation clause) of Art. 8–11 ECHR, but is also implicit in most other Convention provisions.

  84. 84.

    ECtHR 20 June 2002, No. 50963/99, Al-Nashif v. Bulgaria, paras. 119 and 123.

  85. 85.

    See similarly Xenos, supra, note 11, 118–125. Xenos argues that “the protection of human rights cannot be organised through incidental questions of justifiability of acts of interference, without recognising that protection has already arisen as an obligation for the state much before the isolated interference” (119).

  86. 86.

    See Sect. 4.3.2. As explained above: all things being equal, ‘conditional’ positive obligations under the ECHR require enhanced protection compared with regular positive obligations. This explains why the Court requires more ‘protection by the law’ under the ‘quality of the law’ condition than with respect to obligations to protect/fulfill.

  87. 87.

    See Al-Nashif v. Bulgaria, supra, note 84, paras. 119–128.

  88. 88.

    E.g. ECtHR (GC) 2 August 1984, No. 8691/79, Malone v. the United Kingdom.

  89. 89.

    Similarly Xenos, supra, note 11: “Although in negative obligations cases the state always has a free choice of whether or not to pursue a legitimate aim of interference, the state’s positive obligation to intervene in order to guarantee the protection of human rights is not optional” (139).

  90. 90.

    See, for example, the case of Young, James and Webster v. United Kingdom, supra, note 15, concerning closed-shop agreements that violated the applicant’s freedom of association. The Court examined the case as one concerning negative obligations, exactly because it had enabled such conduct. According to the Court, “(…) it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis” (para. 49).

  91. 91.

    E.g. ECtHR 24 June 2004, No. 59320/00, Von Hannover v. Germany; ECtHR 9 October 2012, No. 42811/06, Alkaya v. Turkey.

  92. 92.

    Z and Others v. the United Kingdom, supra, note 34, para. 74.

  93. 93.

    E.g. Malone v. the United Kingdom, supra, note 88, para. 67.

  94. 94.

    For example, the power imbalances that operate in cases of domestic violence (e.g. ECtHR 9 June 2009, No. 33401/02, Opuz v. Turkey) or domestic servitude (e.g. ECtHR 26 July 2005, No. 73316/01, Siliadin v. France).

  95. 95.

    The Court held that “(…) la première phrase de l’article 5 § 1 doit être comprise comme imposant à l’Etat l’obligation positive de protéger la liberté des personnes relevant de sa juridiction et que les expressions «prévue par la loi» et «selon les voies légales» visent aussi la qualité de la loi qui constitue la base légale des mesures privatives de liberté qui peuvent les concerner (…)” (ECtHR 19 June 2012, No. 22883/05, Cristian Teodorescu v. Romania, para. 65). Also in other cases, the Court has applied clear protection-by-the-law-language in the context of the ‘quality of the law’ condition, for example in ECtHR 3 July 2012, No. 34806/04, X v. Finland, para. 221: “(…) the absence of sufficient safeguards against forced medication by the treating doctors deprived the applicant of the minimum degree of protection to which she was entitled under the rule of law in a democratic society (…).”

  96. 96.

    In other words, the ‘prevention’ of violations of obligations to fulfill.

  97. 97.

    While arbitrariness is certainly an idea hard to define (see G. Wright, “Arbitrariness: Why the Most Important Idea in Administrative Law Can’t Be Defined, and What This Means for the Law in General”, 44 University of Richmond Law Review (2010), 839–865), it has undeniably penetrated the way we think about law in general and about rights in particular.

  98. 98.

    D. Russell, “Supplementing the European Convention on Human Rights: Legislating for Positive Obligations”, 61 Northern Ireland Legal Quarterly (2010), 281.

  99. 99.

    On the importance of trustworthiness of decision-makers in human rights adjudication, see E. Brems and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights”, 35 Human Rights Quarterly (2013), 182.

  100. 100.

    May, supra, note 59, 53. Joseph Raz acknowledges that the rule of law may contribute to the curbing of arbitrariness, but considers the problem of arbitrary power to be broader than the rule of law, as many forms of arbitrary rule are compatible with the rule of law, see J. Raz, The Authority of Law (Oxford: OUP, 1979), 219–220. Raz further holds that “[t]he rule of law is essentially a negative value. The law inevitably creates a great danger of arbitrary power – the rule of law is designed to minimize the danger created by the law itself” (224). It should be noted that, in Raz’s conception, the rule of law is far from an absolute value: “Conformity to the rule of law is a matter of degree, and though, other things being equal, the greater the conformity the better – other things are rarely equal. A lesser degree is often to be preferred precisely because it helps realization of other goals” (228).

  101. 101.

    E.g. ECtHR (GC) 14 September 2010, No. 38224/03, Sanoma Uitgevers B.V. v. the Netherlands, para. 82. More generally, non-arbitrariness can be considered as one of the foundational principles of human rights, e.g. E. Fox-Decent and E. Criddle, “The Fiduciary Constitution of Human Rights”, 15 Legal Theory (2009), 301–336.

  102. 102.

    Dworkin, supra, note 4, 153–167.

  103. 103.

    Letsas, supra, note 3, 113 with reference to J. Waldron, “Pildes on Dworkin’s Theory of Rights”, 29 Journal of Legal Studies (2000).

  104. 104.

    Dworkin, supra, note 4, 234–238.

  105. 105.

    Ibid., 277.

  106. 106.

    Letsas has, for example, identified Art. 14 ECHR, the prohibition of discrimination, as a reason-blocking mechanism, see Letsas, supra, note 3, 104.

  107. 107.

    Mutatis mutandis the autonomous notion of ‘law’ applied under the legality test, e.g. ECtHR 25 March 1985, No. 8734/79, Barthold v. Germany. This is related to the fact that the choice of means to discharge a positive obligation in principle falls within the state’s margin of appreciation, see below.

  108. 108.

    For example, when protection by criminal law is required.

  109. 109.

    Von Hannover v. Germany, supra, note 91, paras. 72–75.

  110. 110.

    ECtHR 17 July 2003, No. 25337/94, Craxi (No.2) v. Italy, 17 July 2003, para. 74.

  111. 111.

    Storck v. Germany, supra, note 22, para. 93.

  112. 112.

    Xenos also considers lack of knowledge to be a problem of proximity, see Xenos, supra, note 11, 76.

  113. 113.

    Ibid.

  114. 114.

    Lavrysen, supra, note 31.

  115. 115.

    ECtHR 2 December 2008, K.U. v. Finland, para. 48.

  116. 116.

    See mutatis mutandis, with respect to procedural protection, Xenos, supra, note 11, 137 and.

  117. 117.

    K.U., supra, note 115, para. 49.

  118. 118.

    Stijn Smet considers ‘preferential framing’ to be the approach in which a court “addresses only the right invoked by the applicant and disregards to a lesser or greater extent the other right(s) involved”, see S. Smet, “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, 26 American University International Law Review (2011), 185.

  119. 119.

    E. Brems, “Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms”, 27 Human Rights Quarterly (2005), 305.

  120. 120.

    Alexy, supra, note 60, 328. This particular quote concerns procedural ‘protection by the law’, but arguably also reflects Alexy’s view on substantive ‘protection by the law’.

  121. 121.

    By allowing the state a so-called ‘wide margin of appreciation’. This concept will be addressed more elaborately in Sect. 4.7).

  122. 122.

    ECtHR (GC) 29 April 1999, Nos. 25088/94, 28331/95 and 28443/95, Chassagnou and Others v. France, para. 113. In ECtHR (GC) 15 March 2012, Nos. 4149/04 and 41029/04, Aksu v. Turkey, para. 66, the Court acknowledged that in earlier cases in which it examined the width of the margin of appreciation, it “attached significant weight to the fact that the domestic authorities had identified the existence of conflicting rights and the need to ensure a fair balance between them.” There are, however, exceptions in which the Court did develop detailed guidelines on how to solve a conflict of rights, such as in cases of anonymous witnesses involving a conflict between the right to examine witnesses (Art. 6(3)(d) ECHR) of the accused on the one hand, and the right not to incriminate oneself (implicit in Art. 6(1) ECHR) of the witness on the other, see Brems, supra, note 119, 309–311, with reference to ECtHR 27 February 2001, No. 33354/96, Lucà v. Italy.

  123. 123.

    Similarly, see hereunder the discussed case of ECtHR (GC) 10 April 2007, No. 6339/05, Evans v. the United Kingdom, para. 84.

  124. 124.

    In ECtHR (GC) 7 February 2012, Nos. 40660/08 and 60641/08, Von Hannover v. Germany (No.2), para. 107, the Court held: “Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case law, the Court would require strong reasons to substitute its view for that of the domestic courts.”

  125. 125.

    Letsas considers that Art. 14 ECHR has a reason-blocking function in the Dworkinian sense, Letsas, supra, note 3, 104.

  126. 126.

    The discrimination was threefold: (1) maternal affiliation was only established by voluntary declaration by the mother or by a court declaration, instead of by application of the principle mater semper certa est; (2) no legal ties were established between such an ‘illegitimate’ child and the mother’s family; (3) and there were restrictions on the child’s capacity to receive property from the mother, as well as a total lack of inheritance rights on intestacy estates of the relatives on the side of the mother.

  127. 127.

    Marckx, supra, note 35, para. 31.

  128. 128.

    According to the Court, Art. 8 does not require that children are entitled to patrimonial rights in relation with their relatives and therefore dismissed this claim under Art. 8. The Court nonetheless found a violation of Art. 14 on the basis that the Belgian law discriminated between ‘legitimate’ and ‘illegitimate’ children.

  129. 129.

    ECtHR (GC) 11 July 2002, No. 28957/95, Christine Goodwin v. the United Kingdom, para. 71.

  130. 130.

    The Court has accepted that indirect discrimination can violate Art. 14 ECHR in ECtHR (GC) 13 November 2007, No. 57325/00, D.H. and Others v. the Czech Republic.

  131. 131.

    The Court held “that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost” (Christine Goodwin v. the United Kingdom, supra, note 129, para. 91).

  132. 132.

    Christine Goodwin v. the United Kingdom, supra, note 129, para. 108.

  133. 133.

    ECtHR 2 September 2010, No. 35623/05, Uzun v. Germany, para. 66.

  134. 134.

    Admittedly, this case concerns ‘protection by the law’ against violations of an obligation to respect, which the Court examined under the legality condition of Art. 8 ECHR (the right to privacy). As explained in Sect. 4.4.2, such an examination is, however, not essentially different from the one under the positive obligation to protect the law, and therefore it is relevant for this discussion.

  135. 135.

    ECtHR (inadm.) 5 October 2010, No. 420/07, Köpke v. Germany.

  136. 136.

    In my view, the Court has underestimated the seriousness of this intrusion, as well as ignored the need for the legislator to reconcile such conflicting interests.

  137. 137.

    The applicant’s case at the domestic level was actually dismissed for procedural rather than for substantive reasons. The victim’s father had lodged a complaint against the son-in-law for abuse of dominant position to cause a minor to commit indecent acts with him. The complaint was dismissed because Dutch law required it to be lodged by the victim herself. This was, however, impossible because, being mentally handicapped, she was legally incapable of lodging such a complaint.

  138. 138.

    X and Y v. the Netherlands, supra, note 76, para. 27. Compare with the case of Stubbings supra, note 76, concerning the dismissal of civil proceedings for being time-barred in a case concerning sexual abuse of minors, in which the Court held that “(…) Article 8 (art. 8) does not necessarily require that States fulfil their positive obligation to secure respect for private life by the provision of unlimited civil remedies in circumstances where criminal law sanctions are in operation” (para. 66).

  139. 139.

    ECtHR (GC) 17 January 2002, No. 32967/96, Calvelli and Ciglio v. Italy, para. 51. This case illustrates that it may be difficult to distinguish between substantive and procedural protection. Access to a remedy is traditionally considered to be a procedural rather than a substantive issue. Protection by substantive legal provisions, however, will in most cases be a prerequisite for effective access to such remedy.

  140. 140.

    With respect to more serious cases of death by negligence, effective protection may require criminal law provisions in order to satisfy the principle of proportionality. In the case of ECtHR (GC) 30 November 2004, No. 48939/99, Öneryildiz v. Turkey – concerning a methane explosion on a state-run dump which resulted in the flooding by waste of the slum dwellings situated below the dump and the death of 39 people – the Court found a violation of Art. 2 ECHR, the right to life, “on account of the lack, in connection with a fatal accident provoked by the operation of a dangerous activity, of adequate protection ‘by law’ safeguarding the right to life and deterring similar life-endangering conduct in future.” This violation was procedural rather than substantive: there existed criminal law provisions that could potentially have provided sufficient deterrence; the problem was the lack of serious application of these provisions in practice, as those responsible for the management of the dump site were only convicted to small suspended criminal fines.

  141. 141.

    This is not really surprising, as the proportionality principle in its broadest sense – i.e. the search for a fair balance between the demands of the general interest of the community and the requirement of the protection of the individual’s fundamental rights – has been recognised as a general principle of Convention law (e.g. ECtHR (GC) 27 May 2008, No. 26565/05, N. v. the United Kingdom, para. 44).

  142. 142.

    E.g. ECtHR 9 June 2005, No. 55723/00, Fadeyeva v. Russia, para. 96.

  143. 143.

    Both options fall within a range of proportionate responses to death by medical negligence.

  144. 144.

    Evans v. the United Kingdom, supra, note 123.

  145. 145.

    ECtHR 4 December 2003, No. 39272/98, M.C. v. Bulgaria, para. 153.

  146. 146.

    Ibid., para. 166.

  147. 147.

    ECtHR 13 November 2012, No. 4239/08, C.N. v. the United Kingdom, para. 80.

  148. 148.

    Ibid., para. 81.

  149. 149.

    Similarly, in the earlier case of Siliadin v. France, supra, note 94, the Court found a violation of Art. 4 ECHR. The applicant was a Togolese girl who had been kept in servitude as a housemaid for a French family. Under French law there was no specific offence of servitude. The Court dismissed the French government’s argument that the servitude was criminally punishable on other grounds, because “those provisions do not deal specifically with the rights guaranteed under Article 4 of the Convention, but concern, in a much more restrictive way, exploitation through labour and subjection to working and living conditions that are incompatible with human dignity.”

  150. 150.

    ECtHR 7 January 2010, No. 25965/04, Rantsev v. Cyprus and Russia, para. 284.

  151. 151.

    ECtHR 6 November 2012, No. 47335/06, Redfearn v. the United Kingdom, para. 55.

  152. 152.

    Ibid., para. 57. While the case was argued as one involving procedural protection, it is more appropriate to consider it as one involving substantive protection: the judgment requires the state to prohibit employers from dismissing their employees during the 1-year qualifying period on grounds of political opinion or affiliation.

  153. 153.

    ECtHR (GC) 16 December 2010, No. 25579/05, A, B and C v. Ireland, para. 248.

  154. 154.

    See, for example, N. v. the United Kingdom, supra, note 141, para. 44, in which the Court held that the provision of free and unlimited health care to all aliens without a right to stay “would place too great a burden on the Contracting states.”

  155. 155.

    ECtHR 24 February 1998, No. 153/1996/772/973, Botta v. Italy.

  156. 156.

    In the Convention on the Rights of Persons with Disabilities (2006), reasonable accommodation is defined as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Art. 2).

  157. 157.

    D. Xenos, “The human rights of the vulnerable”, 13 International Journal of Human Rights (2009), 598.

  158. 158.

    I have made a similar argument in Lavrysen, supra, note 31. As explained in that paper, this would be more in line with an Alexian conception of rights (see Sect. 4.4.1).

  159. 159.

    K.U. v. Finland, supra, note 115, para. 48.

  160. 160.

    ECtHR 21 June 2012, No. 5786/08, E.S. v. Sweden, para. 59. Bizarrely, while the Court lists this ‘no significant flaws’ test as a general principle, it provides no references to earlier case law to justify this. The Court did mention the notion of ‘significant flaws’ in the earlier cases of M.C. v. Bulgaria, supra, note 145, para. 167 (Art. 3 and 8 ECHR), Siliadin v. France, supra, note 94, para. 130 (Art. 4 ECHR) and ECtHR 27 September 2011, No. 29032/04, M. and C. v. Romania, para. 112 (Art. 3 and 8 ECHR). In these cases, this notion merely signified that domestic law and practice must provide effective protection, and, unlike in E.S. v. Sweden, it was not applied as a separate test. While not explicitly rejecting the ‘no significant flaws’ test, the dissenting judges Spielmann, Villiger and Power-Forde consider the appropriate question to be whether “there is a lacuna in the legislation which fails to protect these values.”

  161. 161.

    Ibid., para. 68.

  162. 162.

    This relates to the criterion of knowledge discussed above.

  163. 163.

    Airey v. Ireland, supra, note 37, para. 24.

  164. 164.

    See Sect. 4.3.1.

  165. 165.

    E.g. Dröge, supra, note 13, 388. With respect to the positive obligation to investigate violations of Art. 2 ECHR, the right to life, the Court has explicitly acknowledged this: “[t]he investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (…) and to the identification and punishment of those responsible (…). This is not an obligation of result, but of means” (E.g. Paul and Audrey Edwards, supra, note 46, para. 71).

  166. 166.

    In the context of the preventive positive obligation under Art. 2 ECHR, the Court has held that, in order to find a violation, “it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (e.g. Osman v. the United Kingdom, supra, note 80, para. 116).

  167. 167.

    Xenos, supra, note 11, 118.

  168. 168.

    Ibid., 102.

  169. 169.

    Presuming that one can determine what ‘the most protective measure’ is, as this inevitably involves some degree of speculation.

  170. 170.

    On minimum and maximum perspectives, see E. Brems, “Human Rights: Minimum and Maximum Perspectives”, 9 Human Rights Law Review (2009), 349–372.

  171. 171.

    Both concern lack of protection of a minor against (potential) sexual abuse. In K.U., the Court held “(…) that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives” (K.U. v. Finland, supra, note 115, para. 46).

  172. 172.

    Ibid., para. 48. Also see above.

  173. 173.

    Osman v. the United Kingdom, supra, note 80, para. 116: “[t]he Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or willful disregard of the duty to protect life (…). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2.”

  174. 174.

    This was decided on 19 November 2012 by the Grand Chamber panel of five judges. Before the Grand Chamber, the name of the case was changed to Söderman v. Sweden.

  175. 175.

    See Sect. 4.4.2.

  176. 176.

    ECtHR 7 March 2006, No. 6339/05, Evans v. the United Kingdom.

  177. 177.

    Xenos, supra, note 11, 121. Xenos argues to also apply this as a separate test in positive obligation cases. This is in line with the symmetrical model I proposed in Lavrysen, supra, note 31. If a state fails to comply with or fails to enforce the laws it has enacted to fulfill its positive obligations, the Court should find a violation. The Court has done so in many environmental cases, e.g. ECtHR 9 December 1994, No. 16798/90, López Ostra v. Spain, paras. 54–58 (failure to shut down a waste-treatment plant operating without the legally required license); ECtHR 16 November 2004, No. 4143/02, Moreno Gómez v. Spain, paras. 59–63 (failure to enforce the designation of an area as an acoustically saturated zone); ECtHR 9 November 2010, No. 2345/06, Deés v. Hungary, paras. 22–24 (failure to enforce domestic standards concerning traffic noise pollution). As domestic authorities may still fulfill their positive obligation by other means than by applying a particular measure provided by domestic law, the Court has, however, stated that “domestic legality should be approached not as a separate and conclusive test, but rather as one of many aspects which should be taken into account in assessing whether the State had struck a fair balance.” (Fadeyeva v. Russia, supra, note 142). I am convinced that the legality principle in positive obligations cases consists at least of an obligation of means that requires domestic authorities to take all the reasonable steps possible to enforce compliance with domestic law (mutatis mutandis Osman v. the United Kingdom, supra, note 80, para. 116). I am, however, not convinced that the ‘quality of the law’ in cases of positive obligations should be examined at the separate legality test, as it is impossible to distinguish the question of the requisite ‘quality’ from the principle of effectiveness and the context in which the human rights violation takes place – such a question is more appropriately addressed at the proportionality stage.

  178. 178.

    Xenos, supra, note 11, 121.

  179. 179.

    The ‘quality of the law’ also encompasses the requirement of an element of procedural protection against arbitrariness, this relates to Sect. 4.6 on procedural ‘protection by the law’.

  180. 180.

    Von Hannover v. Germany, supra, note 91, para. 73.

  181. 181.

    ECtHR 10 May 2011, Mosley v. the United Kingdom, paras. 121 and 125–129.

  182. 182.

    Similarly May, supra, note 59, 50.

  183. 183.

    In the context of negative obligations, Başak C̣ali stressed this intrinsic function, by recognizing as one of the rationales underlying procedural fairness that “authorities are required to be more stringent with their own reasoning and empirical evidence to demonstrate the necessity and the degree of restriction” (B. C̣ali, “Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions”, 29 Human Rights Quarterly (2007), 267).

  184. 184.

    E.A. Lind and T.R. Tyler, The Social Psychology of Procedural Justice (New York: Plenum, 1988), 231; T.R. Tyler, P. Degoey and H.J. Smith, “Understanding Why the Justice of Group Procedures Matters: A Test of the Psychological Dynamics of the Group-Value Model”, 70 Journal of Personality and Social Psychology (1996), 914.

  185. 185.

    T.R. Tyler and E.A. Lind, “A Relational Model of Authority in Groups”, in M. Zanna (ed.) Advances in Experimental Social Psychology (Vol. 25) (New York: Academic Press, 1992), 141.

  186. 186.

    T.R. Tyler, Why People Obey the Law (Princeton: Princeton University Press, 2006).

  187. 187.

    T.R. Tyler, “Procedural Justice and the Courts”, 44 Court Review (2007–2008), 30–31.

  188. 188.

    Brems and Lavrysen, supra, note 99, 182–185.

  189. 189.

    A, B and C v. Ireland, supra, note 153, para. 241.

  190. 190.

    ECtHR 20 March 2007, No. 5410/03, Tysiąc v. Poland.

  191. 191.

    A, B and C v. Ireland, supra, note 153, para. 267.

  192. 192.

    U.S. Supreme Court 22 January 1973, Roe v. Wade, 410 U.S. 113.

  193. 193.

    Tysiąc v. Poland, supra, note 190, para. 116.

  194. 194.

    U.S. Supreme Court 3 July 1989, Webster v. Reproductive Health Services, 492 U.S. 490.

  195. 195.

    Undoubtedly, the Court thereby failed to provide sufficient substantive ‘protection by the law’, as external preferences such as public morals were taken into consideration. See in a similar sense, S. Smet, “A., B. and C. v. Ireland: Abortion and the Margin of Appreciation”, 17 December 2010, http://strasbourgobservers.com, with references to Letsas and Dworkin.

  196. 196.

    The Court has rejected a positive obligation to facilitate assisted suicide in ECtHR 29 April 2002, No. 2346/02, Pretty v. the United Kingdom. In ECtHR 20 January 2011, No. 31322/07, Haas v. Switzerland, the Court, however, did not exclude the existence of “a positive obligation on the State to take the necessary measures to permit a dignified suicide” (para. 53), but nonetheless did not find a violation, because he had access to a procedure to obtain legal assisted suicide (i.e. the requirement for a medical prescription, issued on the basis of a full psychiatric assessment). In ECtHR 19 July 2012, No. 497/09, Koch v. Germany, the Court explicitly did not want to rule on the substantive claim – due to a lack of European consensus on the issue – but nonetheless did find a violation of Art. 8 ECHR, because the applicant did not have the opportunity to have the merits of her request examined by a court (see Sect. 4.6.3.1).

  197. 197.

    ECtHR (GC) 21 February 1975, No. 4451/70, Golder v. the United Kingdom.

  198. 198.

    Harris et al., supra, note 9, 560–561.

  199. 199.

    Mowbray, supra, note 38, 124.

  200. 200.

    E.g. ECtHR (GC) 27 September 1995, No. 18984/91, McCann and Others v. the United Kingdom, para. 161. The case concerned the fatal shooting of three IRA terrorists in Gibraltar. The Court recognized a positive obligation for the state to conduct “some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”

  201. 201.

    E.g. ECtHR 28 October 1998, No. 24760/94, Assenov and Others v. Bulgaria, para. 102. The Court found a positive obligation to conduct an effective official investigation into an arguable claim that the applicant had been seriously ill-treated by the police or other state agents.

  202. 202.

    Rantsev v. Cyprus and Russia, supra, note 150, para. 288. In this human trafficking case, the Court recognized “a procedural obligation to investigate situations of potential trafficking.”

  203. 203.

    E.g. ECtHR 25 May 1998, No. 24276/94, Kurt v. Turkey, para. 124. The case concerned the enforced disappearance of a Kurdish man. The Court required “a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.”

  204. 204.

    M.C. v. Bulgaria, supra, note 145, para. 153. The Court recognized a positive obligation under both Art. 3 ECHR and Art. 8 ECHR to effectively investigate and prosecute allegations of rape. In the case of Craxi (No. 2) v. Italy, supra, note 110, para. 74 – concerning the publication by the press of the leaked content of intercepted phone calls of the former Italian prime minister – the Court recognized a positive obligation “to carry out inquiries in order to rectify the matter [i.e. the disclosure of a private nature] to the extent possible.”

  205. 205.

    ECtHR 3 May 2007, No. 71156/01, 97 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, paras. 133–134. While not explicitly recognizing a positive obligation to investigate under Art. 9 ECHR, the Court did take into account the failures in investigating the applicants’ complaints when finding a violation of Art. 9 ECHR.

  206. 206.

    ECtHR 16 March 2000, No. 23144/93, Özgür Gündem v. Turkey, paras. 44–45. The case concerned a violent campaign against a Kurdish newspaper. According to the Court, Art. 10 ECHR required an effective investigation of “the applicant’s allegations that the attacks were part of a concerted campaign which was supported, or tolerated, by the authorities.”

  207. 207.

    E.g. ECtHR (GC) 6 July 2005, No. 43577/98, Nachova and Others v. Bulgaria. The case concerned the obligation to examine a possible racist motive in the killing of two Roma deserters when they attempted to flee from military policemen.

  208. 208.

    E.g. ECtHR (GC) 10 May 2001, No. 25781/94, Cyprus v. Turkey, para. 271. The Court examined whether there was an administrative practice by the Turkish Cypriot authorities to fail to examine acts of criminal damage to Greek Cypriots’ property, when examining whether there had been a violation of Art. 1 Protocol 1.

  209. 209.

    In that case, they can be considered to be ‘conditional’ positive obligations.

  210. 210.

    E.g. ECtHR 20 March 2008, Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Budayeva and Others v. Russia, para. 142, concerning the failure to investigate the failure of state authorities to protect and warn the inhabitants of a village hit by mudslides.

  211. 211.

    E.g. M.C. v Bulgaria, supra, note 145.

  212. 212.

    According to the Court, the obligation under Art. 13 ECHR is broader, in the sense that it also encompasses the obligation to provide the victim or the next-of-kin with appropriate compensation, see e.g. ECtHR 19 February 1998, No. 22729/93, Kaya v. Turkey, para. 107. In Öneryildiz v. Turkey, supra, note 140, the Court held that a violation of a procedural obligation under Art. 2 ECHR does not automatically result in a violation of Art. 13 ECHR: “[w]hat is important is the impact the State’s failure to comply with its procedural obligation under Article 2 had on the deceased’s family’s access to other available and effective remedies for establishing liability on the part of State officials or bodies for acts or omissions entailing the breach of their rights under Article 2 and, as appropriate, obtaining compensation” (para. 148).

  213. 213.

    See Sect. 4.6.3.1.

  214. 214.

    Also Brems and Lavrysen, supra, note 99, 191–193.

  215. 215.

    E.g. ECtHR (GC) 8 July 1987, No. 9749/82, W. v. the United Kingdom.

  216. 216.

    E.g. ECtHR 26 February 2004, No. 74969/01, Görgülü v. Germany.

  217. 217.

    E.g. ECtHR 25 September 1996, No. 20348/92, Buckley v. the United Kingdom.

  218. 218.

    E.g. Hatton and Others v. the United Kingdom, supra, note 14.

  219. 219.

    ECtHR (GC) 10 November 2005, No. 44774/98, Leyla Şahin v. Turkey, para. 159.

  220. 220.

    ECtHR 21 October 2010, No. 35016/03, Saliyev v. Russia, para. 76.

  221. 221.

    ECtHR 26 July 2007, No. 10519/03, Barankevich v. Russia, para. 33.

  222. 222.

    See, for example, also ECtHR 24 October 1986, No. 9118/80, AGOSI v. the United Kingdom, para. 55 (with respect to the right to property, Art. 1 Protocol 1) and ECtHR 9 April 2002, 46726/99, Podkolzina v. Latvia, para. 35 (with respect to the right to free elections, Art. 3 Protocol 1).

  223. 223.

    In this sense, they are comparable with the ‘quality of the law’ condition. A finding of a failure of the ‘quality of the law’ condition, however, always results in a violation of the Convention right, whereas these procedural obligations are taken into account as elements in the proportionality test. Brems and I have argued that severe failures of procedural justice in the context of careful decision-making should nonetheless automatically result in a violation of the Convention right concerned (Brems and Lavrysen, supra, note 99, 199).

  224. 224.

    The Court, for example, has a very rich case law on the way state authorities have to conduct an investigation under Art. 2 ECHR (the right to life), e.g. ECtHR (GC) 15 May 2007, No. 52391/99, Ramsahai and Others v. the Netherlands.

  225. 225.

    U.S. Supreme Court 15 May 1967, In re Gault, 387 U.S. 1.

  226. 226.

    Which are set out in the Fifth and Sixth Amendment.

  227. 227.

    U.S Supreme Court 24 February 1976, Mathews v. Elridge, 424 U.S. 319.

  228. 228.

    U.S. Supreme Court 27 February 1990, Washington v. Harper, 494 U.S. 210.

  229. 229.

    Storck v. Germany, supra, note 22.

  230. 230.

    Also with respect to the application of proportionality analysis in order to verify the appropriate extent of protection.

  231. 231.

    Mutatis mutandis K.U. v. Finland, supra, note 115.

  232. 232.

    For example, the reasonable accommodation of persons with a disability to enable them to participate effectively in the procedure, e.g. ECtHR 15 June 2004, S.C. v. the United Kingdom (Art. 6 ECHR).

  233. 233.

    The Court has, for example, recognized a positive obligation to investigate possible racist motives, e.g. Nachova and Others v. Bulgaria, supra, note 207.

  234. 234.

    ECtHR 26 Feburary 2002, No. 46544/99, Kutzner v. Germany, para. 67: “(…) a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed.”

  235. 235.

    Goldberg v. Kelly, supra, note 52.

  236. 236.

    Mathews v. Elridge, supra, note 227. While the Court required a pre-termination hearing in the case of Goldberg v. Kelly, this was not required in Mathews v. Elridge.

  237. 237.

    See, for example, the case discussed above of Calvelli and Ciglio v. Italy, supra, note 139. For a similar argument, see Brems and Lavrysen, supra, note 99, 183–184. See also O. De Schutter and F. Tulkens, “Rights in Conflict: the European Court of Human Rights as a Pragmatic Institution” in E. Brems, Conflicts Between Fundamental Rights (Antwerp: Intersentia, 2008), 210–213.

  238. 238.

    Xenos, supra, note 11, 137. Xenos refers to the cases of ECtHR 26 May 1994, No. 16969/90, Keegan v. Ireland; ECtHR (GC) 13 July 2000, Nos. 39221/98; 41963/98, Scozzari and Giunta v. Italy; Kutzner v. Germany, supra, note 234; ECtHR 26 September 2006, No. 36065/97, H.K. v. Finland; and ECtHR 18 December 2008, No. 39948/06, Saviny v. Ukraine. See, however, the case of ECtHR (GC) 13 February 2003, No. 42326/98, Odièvre v. France, para. 49 in which the Court rejected the need for procedural protection in a conflicting rights case, because it considered the ‘constitutional’ solution of a blanket preference for the right to remain anonymous of the natural mother, above the right to privacy to gain access to information about one’s origins of the adopted child.

  239. 239.

    Ibid., 138.

  240. 240.

    By allowing the state a so-called ‘wide margin of appreciation’. This concept will be addressed more elaborately in Sect. 4.7.

  241. 241.

    Mosley v. the United Kingdom, supra, note 181, para. 124, in which the Court acknowledges “the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression” and recognizes that this results in a wide margin of appreciation.

  242. 242.

    See, for example, the leading case of Airey v. Ireland, supra, note 37, discussed infra.

  243. 243.

    E.g. ibid., para. 26. See also ECtHR 13 December 2012, Nos. 3675/04 and 23264/04, Flamenbaum and Others v. France, para. 159, in which the Court held, in the context of procedural protection, that “si l’État est tenu de prendre dûment en considération les intérêts particuliers dont il a l’obligation d’assurer le respect en vertu de l’article 8, il y a lieu, en principe, de lui laisser le choix des moyens à employer pour remplir ses obligations.” The applicants complained about the fact that the entire project concerning the extension of the runway of a local airport could not be examined by a single judge. The Court did not find this ‘fragmentation’ of procedures problematic because the applicants nonetheless enjoyed sufficient procedural protection.

  244. 244.

    ECtHR 16 July 2009, No. 20082/02, Zehentner v. Austria, para. 63.

  245. 245.

    E.g. ECtHR 28 June 2007, No. 62540/00, Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, para. 76.

  246. 246.

    Ibid., para. 90.

  247. 247.

    Ibid., para. 77.

  248. 248.

    ECtHR 8 June 2006, No. 10337/04 Lupsa v. Romania, para. 34.

  249. 249.

    Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, supra, note 245, para. 87.

  250. 250.

    ECtHR (GC) 6 September 1978, No. 5029/71, Klass and Others v. Germany, para. 49.

  251. 251.

    Tysiąc v. Poland, supra, note 190, para. 117.

  252. 252.

    See e.g. ECtHR 25 March 1983, Nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, Silver and Others v. the United Kingdom, para. 113: “The principles that emerge from the Court’s jurisprudence on the interpretation of Article 13 (…) include the following: (a) where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (…); (b) the authority referred to in Article 13 (…) may not necessarily be a judicial authority but, if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (…).”

  253. 253.

    Tysiąc v. Poland, supra, note 190, para. 135. See similarly A, B and C v. Ireland, supra, note 153, para. 274. In the case of ECtHR 28 January 2003, No. 44647/98, Peck v. the United Kingdom – concerning the disclosure to the press by local authorities of a CCTV tape in which the applicant was seen attempting to commit suicide in public – the Court considered it more appropriate to consider the lack of an effective domestic remedy under Art. 13 ECHR than under Art. 8 ECHR (para. 90). Again, this illustrates the overlap of both sets of procedural requirements. In a case concerning the night flight scheme of Heathrow airport, the Court, on the other hand, found the remedy of judicial ‘Wednesbury unreasonableness’ review insufficient for the purposes of Art. 13 ECHR (paras. 141–142), whereas it did not find a procedural violation of Art. 8 ECHR (para. 128–129). This suggests that in some cases Art. 13 ECHR may provide more protection. On the other hand, procedural protection implicitly encompassed by a substantive Convention right may sometimes be broader than the explicit procedural protection under Art. 13 ECHR. In the case of Redfearn the Court found a ‘procedural’ violation of Art. 11 ECHR, while rejecting the complaint under Art. 13 ECHR, because this provision “does not require the law to provide an effective remedy where the alleged violation arises from primary legislation” (Redfearn v. the United Kingdom, supra, note 151, para. 62, with reference to ECtHR (GC) 21 February 1986, No. 8793/79, James and Others v. the United Kingdom, para. 85).

  254. 254.

    Koch v. Germany, supra, note 196, paras. 71–72. In the earlier case of Haas v. Switserland, supra, note 196 – concerning the refusal to prescribe the applicant, who had suffered from a serious bipolar affective disorder for about 20 years, a lethal dose of medication – the Court, however, accepted that “the requirement for a medical prescription, issued on the basis of a full psychiatric assessment” was sufficient to meet the obligation under Art. 2 ECHR, the right to life, “to establish a procedure capable of ensuring that a decision to end one’s life does indeed correspond to the free wish of the individual concerned” (para. 58).

  255. 255.

    Zehentner v. Austria, supra, note 244, para. 59.

  256. 256.

    Koch v. Germany, supra, note 196, para. 53.

  257. 257.

    On procedural restrictions that restrict the right of access to court, see e.g. ECtHR (GC) 21 November 2001, No. 35763/97, Al-Adsani v. the United Kingdom, para. 53: “The right of access to a court is not (…) absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. (…) It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (…).”

  258. 258.

    Koch v. Germany, supra, note 196, para. 84; Zehentner v. Austria, supra, note 244, para. 82. See on the other hand the case of ECtHR 25 July 2002, No. 48553/99, Sovtransavto Holding v. Ukraine – concerning a dispute about the increase of the capital of a private company of which the applicant was a minority shareholder – in which the Court examined both the “obligation to afford judicial procedures that offer the necessary procedural guarantees”, as encompassed by the right to property, Art. 1 Protocol 1 (para. 96), as well as the right of access to court under Art. 6 ECHR (para. 81).

  259. 259.

    Gaskin v. the United Kingdom, supra, note 17, para. 49.

  260. 260.

    In the case of Odièvre v. France, supra, note 238, paras. 43–49 – concerning an adopted child who wanted access to information, to enable her to trace her natural mother who had abandoned her at birth – the Court did not consider such a procedure necessary, essentially because it considered a blanket ban on access to such information to be proportionate in the light of the countervailing right to privacy of the mother. As the Court considered the refusal proportionate anyway, it saw no need to require a separate procedure to examine its proportionality in practice.

  261. 261.

    S. Van Drooghenbroeck, La Proportionnalité dans le Droit de la Convention Européenne des Droits de l’Homme (Bruxelles: Facultés Universitaires Saint-Louis, 2001), 322.

  262. 262.

    ECtHR (GC) 19 October 2005, No. 32555/96, Roche v. the United Kingdom, para. 162. In ECtHR 12 June 2012, No. 42730/05, Savda v. Turkey, para. 98, the Court has mutatis mutandis found similar procedural safeguards to be inherent in the right to freedom of religion, Art. 9 ECHR. This case concerned the absence of a procedure to verify whether the applicant met the condition for recognition as a conscientious objector.

  263. 263.

    ECtHR 9 June 1998, Nos. 21825/93; 23414/94, McGinley and Egan v. the United Kingdom.

  264. 264.

    Roche v. the United Kingdom, supra, note 262, para. 164.

  265. 265.

    Ibid., para. 165.

  266. 266.

    See also A, B and C v. Ireland, supra, note 153, para. 263, in which the Court considered that “neither the medical consultation nor litigation options relied on by the Government constituted effective and accessible procedures which allowed the third applicant to establish her right to a lawful abortion in Ireland.”

  267. 267.

    At that time, a real divorce was not allowed under Irish law. After a judicial separation, a couple remained married but was discharged of the obligation to cohabit.

  268. 268.

    Airey v. Ireland, supra, note 37, para. 33. For these reasons, the Court also found a violation of the right of access to court (paras. 26–28). For a strikingly similar case, see U.S. Supreme Court 2 March 1971, Boddie v. Connecticut, 401 U.S. 371. In this case, the Supreme Court found that the fact that poor women were unable to bring divorce suits due to their inability to pay high court fees and costs, was in denial of procedural due process.

  269. 269.

    See also ECtHR 15 February 2005, No. 68416/01, Steel and Morris v. the United Kingdom. In this case, the Court held that the provision of legal aid depends “inter alia upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively” (para. 61).

  270. 270.

    According to the Airey Court, another means to provide effective access could be the simplification of the procedure (para. 26).

  271. 271.

    ECtHR 7 February 2002, No. 53176/99, Mikulić v. Croatia, para. 64.

  272. 272.

    Nachova and Others v. Bulgaria, supra, note 207, para. 110.

  273. 273.

    Assenov and Others v. Bulgaria, supra, note 201, para. 102.

  274. 274.

    Mowbray, supra, note 38, 29.

  275. 275.

    E.g. Budayeva and Others v. Russia, supra, note 210, para. 142.

  276. 276.

    J. Van Dyke, “Promoting Accountability for Human Rights Abuses, 8 Chapman Law Review (2008), 156. In ECtHR (GC) 13 December 2012, No. 39630/09, El-Masri v. “The Former Yugoslav Republic of Macedonia”, para. 191, the Court recognized a ‘right to the truth’ as implicit in the procedural obligations under Art. 3 ECHR.

  277. 277.

    Brems and Lavrysen, supra, note 99, 193–194.

  278. 278.

    Ramsahai and others v. the Netherlands, supra, note 224, para. 321 (Art. 2 ECHR) and 97 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, supra, note 206, para. 122 (Art. 3 ECHR).

  279. 279.

    Tysiąc v. Poland, supra, note 190, para. 118.

  280. 280.

    Storck v. Germany, supra, note 22, para. 105.

  281. 281.

    Ibid., para. 118.

  282. 282.

    Ibid., para. 150.

  283. 283.

    Mosley v. the United Kingdom, supra, note 181, para. 120.

  284. 284.

    Ibid., paras. 118–132.

  285. 285.

    Letsas, supra, note 8, 721. Letsas calls this the ‘structural concept of the margin of appreciation’. Sometimes, the Court also applies the margin of appreciation in order to examine whether a fair balance was struck between individual rights and the public interest (706). According to Letsas, this ‘substantive concept of the margin of appreciation’, however, is not really useful as it “lacks any normative force that can help us strike a balance between individual rights and public interest” (711).

  286. 286.

    For an elaborate discussion on the margin of appreciation in the Court’s case law, see Y. Arai-Takahasi, The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR (Oxford: Intersentia, 2000).

  287. 287.

    Women on Waves and others v. Portugal, supra, note 31, para. 40.

  288. 288.

    Aksu v. Turkey, supra, note 122, para. 58.

  289. 289.

    Ibid., para. 68. See similarly ECtHR 27 April 2009, No. 39311/05, Karako v. Hungary, para. 19: “(…) the choice of measures designed to secure compliance with that obligation falls within the Contracting States’ margin of appreciation. The Court considers, as a minimum requirement, that an effective legal system must be in place and operating for the protection of the rights falling within the notion of “private life”, and it is satisfied that such a system was indeed available to the applicant in the present case.” With respect to procedural protection, see Zehentner v. Austria, supra, note 244, para. 58: “The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation.”

  290. 290.

    As noted in Sect. 4.5.1.2, such a legal framework is particularly important in cases such as Aksu, that involve conflicting rights.

  291. 291.

    For a similar argument that the Court should only provide a wide margin of appreciation when procedural justice is delivered at the domestic level, see: Brems and Lavrysen, supra, note 99, 195–198, with reference to e.g. ECtHR 27 March 2008, No. 44009/05, Shtukaturov v. Russia, para. 89.

  292. 292.

    E.g. J. Gerards, “The Prism of Fundamental Rights”, 8 European Constitutional Law Review (2012), 197–201.

  293. 293.

    Leyla Şahin v. Turkey, supra, note 219, para. 110.

  294. 294.

    Declaration adopted at the High Level Conference on the Future of the European Court of Human Rights, Brighton, 19–20 April 2012. The Court has linked the principle of subsidiarity with procedural ‘protection by the law’ in the case of Koch v. Germany, supra, note 196, para. 71: “Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the domestic courts to examine the merits of the applicant’s claim. The Court has found above that the domestic authorities are under an obligation to examine the merits of the applicant’s claim (…).”

  295. 295.

    In this sense, subsidiarity has two dimensions: a domestic and a supranational. Governments too often abuse the concept of subsidiarity to blame the Court for being too ‘activist’, and to call upon the Court to show more judicial restraint, while ignoring the domestic dimension of the concept.

  296. 296.

    McCann and Others v. the United Kingdom, supra, note 200, para. 153. Reference by C. Pitea, “Scoppola v. Italy (no. 3): The Grand Chamber faces the ‘constitutional justice vs. individual justice’ dilemma (but it doesn’t tell)”, 20 June 2012, strasbourgobservers.com.

  297. 297.

    Pitea, supra, note 296.

  298. 298.

    S. Greer, “Constitutionalizing Adjudication under the European Convention on Human Rights”, 23 Oxford Journal of Legal Studies (2003), 405.

  299. 299.

    M. Fyrnys, “Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights”, 12 German Law Journal (2011), 1232.

  300. 300.

    While the Court only received 8,400 applications in 1999 this exponentially increased to 57,100 in 2009 (ECtHR, “50 YEARS OF ACTIVITY – The European Court of Human Rights: Some Facts and Figures”, echr.coe.int) and further to 64,500 in 2011 (ECtHR, “Analysis of statistics 2011”, January 2012, echr.coe.int).

  301. 301.

    E.g. Greer, supra, note 298, 405–433; S. Greer “What’s Wrong with the European Convention on Human Rights?”, 30 Human Rights Quarterly (2008) 680–702; L. Wildhaber, “A Constitutional Future for the European Court of Human Rights”, 23 Human Rights Law Journal (2002), 161–165.

  302. 302.

    Pitea, supra, note 296.

  303. 303.

    Brighton Declaration, supra, note 294, paras. 31 and 33. Another way of focusing on systemic and structural problems is through the application of the so-called ‘pilot judgment procedure’, see e.g. Fyrnys, supra, note 299, 1231–1260.

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    Laurens Lavrysen

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    Yves Haeck

  2. Human Rights Centre, Ghent University, Ghent, Belgium

    Eva Brems

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Lavrysen, L. (2014). Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights. In: Haeck, Y., Brems, E. (eds) Human Rights and Civil Liberties in the 21st Century. Ius Gentium: Comparative Perspectives on Law and Justice, vol 30. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7599-2_4

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