Arresten:
• Hatton and Others v UK
• Airey v Ireland
• Belgium v Greece
• Conference of European Churches v The Netherlands
Positive obligation: they require national authorities to take the necessary
measures to safeguard a right, to adopt reasonable and suitable measures to protect
the rights of the individual. These measures can be both legal and practical measures.
Goal of all positive obligations: the effective application of the ECHR and the
effectiveness of the rights it secures. Airey judgement is the perfect illustration
of this.
The 2 different state obligations:
• Positive obligations require national authorities to act; that is, to take necessary
measures to safeguard a right or, more precisely, to adopt reasonable and suitable
measures to protect the rights of the individual. Such measures may be judicial (for
example, where the state is expected to enforce sanctions against public officials
who abuse their power in the treatment of smuggled migrants). They may also be of
a more practical nature. One example would be measures taken in places of
detention to prevent smuggled migrants from committing suïcide or harming
themselves or others. In summary, positive obligations are obligations ‘to do
something’ to ensure respect and protection of human rights.
• Negative obligations refers to a duty not to act; that is, to refrain from action that
would hinder human rights. For instance, by not returning smuggled migrants to
countries where they face risks of persecution, the state will be abiding by the
corresponding negative obligation. Importantly, the fulfillment of a negative
obligation might very well require positive action. This may include adoption of laws,
regulations and standard operating procedures that prohibit push back policies of
migrant smuggling vessels found close to the state’s maritime border.
The mere fact that an individual has infringed a provision of the Convention cannot
lead to a finding against the state. It’s necessary for the conduct of the private
individual to be seen as originating in a failing on the part of the state itself or as
tolerated by it.
• Procedural obligations: obligations that call for the organization of domestic
procedures to ensure better protection of persons, those that ultimately require the
provision of sufficient remedies for violations of rights. The procedural rules.
Obligations relating to how things must be done.
• Substantive obligations: obligations which requires the basic measures needed
for full enjoyment of the rights guaranteed. For example: provide notice of a legal
action, participate in mediation before initiating legal action. Obligations relating to
what must be done.
European Social Charter (ESC): social counterpart of the ECHR. It contains a
comprehensive list of social human rights. ESCR is the revised variant. Contrary to the
ECtHR, the ECSR does not issue legally binding decisions. However, since the
contracting parties have authorized the ECSR to issue conclusions and decisions by
ratifying the charter or the additional protocol, the decisions of the ECSR are legally
authoritative.
Art. 31 ESC: right to housing. The language used to formulate state obligations is
cautious and leaves room for interpretation and progressive realization. For this
reason the ECSR concluded that the actual wording of Art. 31 cannot be interpreted as
, imposing on states an obligation of ‘results’. When using the ESC, also check the
appendix! Then check page 218/219 numbers 65,66 van het boekje!
MSS v Belgium and Greece ruled that Greece had violated Art. 3 ECHR because of,
amongst others, the lack of accommodation provided by the state.
Firstly, the ECtHR stresses that Art. 3 ECHR cannot be interpreted as obliging states
to provide everyone within their jurisdiction with a home. Hence, for finding a violation
of Art. 3 ECHR based on poor housing conditions, 2 conditions need to be fulfilled:
• The treatment complained of needs to reach the minimum level of severity, as in
every Art. 3 case
• And it should be possible to hold the state responsible for this treatment.
A few things that need to be kept in mind when checking these conditions are:
• For state responsibility, it’s relevant whether the state acts in violation with its own
domestic legal obligations. The ECtHR requires deliberate and not merely negligent
conduct from the state. In addition, the vulnerability of the applicant is
relevant as well.
• State responsibility under Art. 3 for poor socioeconomic circumstances do not exist
for all persons on the territory, but only for persons who belong to a particularly
vulnerable population group. The ECtHR has held that states cannot be held
responsible for the living conditions of illegal immigrants who don’t apply for asylum,
and are therefore not considered to be members of particularly underprivileged and
vulnerable population groups
• For reaching the minimum level of severity, it needs to be assessed whether the
applicant is able to meet his most basic needs, which are, food, hygiene and a
place
to
live.
However, not meeting basic needs is not enough to reach the threshold of
seriousness under Art. 3. To reach this threshold, the ECtHR requires that persons
are unable to meet these basic needs for a significant period of time, coupled
with the lack of any likelihood of this situation improving.
• Hatton and Others v UK
• Airey v Ireland
• Belgium v Greece
• Conference of European Churches v The Netherlands
Positive obligation: they require national authorities to take the necessary
measures to safeguard a right, to adopt reasonable and suitable measures to protect
the rights of the individual. These measures can be both legal and practical measures.
Goal of all positive obligations: the effective application of the ECHR and the
effectiveness of the rights it secures. Airey judgement is the perfect illustration
of this.
The 2 different state obligations:
• Positive obligations require national authorities to act; that is, to take necessary
measures to safeguard a right or, more precisely, to adopt reasonable and suitable
measures to protect the rights of the individual. Such measures may be judicial (for
example, where the state is expected to enforce sanctions against public officials
who abuse their power in the treatment of smuggled migrants). They may also be of
a more practical nature. One example would be measures taken in places of
detention to prevent smuggled migrants from committing suïcide or harming
themselves or others. In summary, positive obligations are obligations ‘to do
something’ to ensure respect and protection of human rights.
• Negative obligations refers to a duty not to act; that is, to refrain from action that
would hinder human rights. For instance, by not returning smuggled migrants to
countries where they face risks of persecution, the state will be abiding by the
corresponding negative obligation. Importantly, the fulfillment of a negative
obligation might very well require positive action. This may include adoption of laws,
regulations and standard operating procedures that prohibit push back policies of
migrant smuggling vessels found close to the state’s maritime border.
The mere fact that an individual has infringed a provision of the Convention cannot
lead to a finding against the state. It’s necessary for the conduct of the private
individual to be seen as originating in a failing on the part of the state itself or as
tolerated by it.
• Procedural obligations: obligations that call for the organization of domestic
procedures to ensure better protection of persons, those that ultimately require the
provision of sufficient remedies for violations of rights. The procedural rules.
Obligations relating to how things must be done.
• Substantive obligations: obligations which requires the basic measures needed
for full enjoyment of the rights guaranteed. For example: provide notice of a legal
action, participate in mediation before initiating legal action. Obligations relating to
what must be done.
European Social Charter (ESC): social counterpart of the ECHR. It contains a
comprehensive list of social human rights. ESCR is the revised variant. Contrary to the
ECtHR, the ECSR does not issue legally binding decisions. However, since the
contracting parties have authorized the ECSR to issue conclusions and decisions by
ratifying the charter or the additional protocol, the decisions of the ECSR are legally
authoritative.
Art. 31 ESC: right to housing. The language used to formulate state obligations is
cautious and leaves room for interpretation and progressive realization. For this
reason the ECSR concluded that the actual wording of Art. 31 cannot be interpreted as
, imposing on states an obligation of ‘results’. When using the ESC, also check the
appendix! Then check page 218/219 numbers 65,66 van het boekje!
MSS v Belgium and Greece ruled that Greece had violated Art. 3 ECHR because of,
amongst others, the lack of accommodation provided by the state.
Firstly, the ECtHR stresses that Art. 3 ECHR cannot be interpreted as obliging states
to provide everyone within their jurisdiction with a home. Hence, for finding a violation
of Art. 3 ECHR based on poor housing conditions, 2 conditions need to be fulfilled:
• The treatment complained of needs to reach the minimum level of severity, as in
every Art. 3 case
• And it should be possible to hold the state responsible for this treatment.
A few things that need to be kept in mind when checking these conditions are:
• For state responsibility, it’s relevant whether the state acts in violation with its own
domestic legal obligations. The ECtHR requires deliberate and not merely negligent
conduct from the state. In addition, the vulnerability of the applicant is
relevant as well.
• State responsibility under Art. 3 for poor socioeconomic circumstances do not exist
for all persons on the territory, but only for persons who belong to a particularly
vulnerable population group. The ECtHR has held that states cannot be held
responsible for the living conditions of illegal immigrants who don’t apply for asylum,
and are therefore not considered to be members of particularly underprivileged and
vulnerable population groups
• For reaching the minimum level of severity, it needs to be assessed whether the
applicant is able to meet his most basic needs, which are, food, hygiene and a
place
to
live.
However, not meeting basic needs is not enough to reach the threshold of
seriousness under Art. 3. To reach this threshold, the ECtHR requires that persons
are unable to meet these basic needs for a significant period of time, coupled
with the lack of any likelihood of this situation improving.
