Tutorial 5: Development of positive obligations and protection of social rights
Subjects:
o Different sources of social rights in Europe: ESC, ECHR and EU Charter
o Development of positive obligations under ECHR
o Social rights in EU Charter (distinction between rights and principles)
Learning aims:
o To be able to identify the different sources of social rights in Europe and analyse the
differences and similarities between them
o To be able to analyse the difference between civil and political rights on the one hand
and social rights on the other
o To be able to explain and analyse the difference between positive and negative
obligations as used by the ECtHR and apply it to a case-solving question
Literature:
o Jean-François Akandji-Kombe, ‘Positive obligations under the European Convention on
Human Rights. A guide to the implementation of the European Convention on Human
Rights, Council of Europe, 2007, pp. 7-20, available here
> You should know the difference between negative and positive obligations, the
difference between procedural and substantive positive obligations and how the ECtHR
tests compliance with positive obligations.
o Ida Elisabeth Koch, ‘Chapter 5. The interaction between human rights case law:
Convergence or competition?’, in F. Pennings and G. Vonk (eds), Research Handbook on
European Social Security Law, Edward Elgar Publishing 2015, pp. 103–120, available here
> You should know the main features of and differences between the protection of social
rights under the ECHR, the ESC and the EU Charter.
o EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS (2007/C
303/02) Explanation on Article 52 — Scope and interpretation of rights and principles
Case law
o ECtHR, Airey v Ireland, 9 October 1979, No. 6289/73
o ECtHR, Hatton and Others v The United Kingdom, 8 July 2003, No. 36022/97
o ECtHR, M.S.S. v Belgium and Greece, 21 January 2011, No. 30696/09
Question 1
Remember Bella from last tutorial. Bella was prosecuted for involvement in terrorist activities.
Let us now suppose that Bella was in the end found not guilty. During this procedure, however,
her landlord finds out that Bella might be involved in terrorist activities and immediately wants
to terminate the rental agreement. The landlord starts an eviction procedure before a national
, court. Bella does not want to be evicted from her apartment and fortunately finds out that she
might get legal aid for this procedure. However, she is informed that she has to pay a
contribution for this legal aid herself, as well as court fees. Due to the prosecution, Bella has not
been able to work anymore and she cannot afford to pay these costs. She is afraid that she
cannot effectively plead her case without legal aid.
a) Can Bella appeal to the EU Charter and/or the European Social Charter (ESC) in order
to argue that the state should provide her with free legal aid? Discuss whether you
need additional information in order to answer this question.
First you need to look into the scope of application, that is art. 51 Charter.
Here it’s about art. 47 Charter which contains the right to an effective remedy.
But in this case of Laura there is not any information if the State is implementing Union law, so
you need more information when you want to apply to the Charter. .
Legal aid shall be made for those who lack sufficient resources in so far as such aid is necessary
to ensure effective access to justice.
The ESC has no provision for free legal aid.
So you don’t need to look into the scope of application.
NB: can she appeal is about scope.
NB: can she successful appeal is a substantive question.
b) Do you think that Bella can successfully argue that denial of free legal aid would
violate the ECHR?
Here we need to look into the case law Airey v. Ireland.
Case: there was a civil procedure and the applicant argued that art. 6 ECHR gives
her the right to a fair trial, and the applicant argued that this article is also
possible for civil procedures. The reason why she went to the Court was she
wanted to divorce and that was not possible before her highest national court.
Therefore she could not afford a lawyer so she went to the ECtHR and that art. 6
ECHR has been violated because of the legal aid provision. This right is about the
right to a fair trial, art. 6 ECHR. But art. 6 par. 3 says this right applies to criminal
charges.
In par. 18 (page 201) the Court is saying that art. 6 ECHR embodies the right of access to a court
for determination of civil rights and obligations. And therefore the applicant argues that her
access to the right has been violated because she does not had the legal aid.
The outcome was that art. 6 is initially mend for criminal proceedings but it can also be applied
for civil proceedings, in specific circumstances which are related to the circumstances of the
applicant. So she will have an equal position .
Subjects:
o Different sources of social rights in Europe: ESC, ECHR and EU Charter
o Development of positive obligations under ECHR
o Social rights in EU Charter (distinction between rights and principles)
Learning aims:
o To be able to identify the different sources of social rights in Europe and analyse the
differences and similarities between them
o To be able to analyse the difference between civil and political rights on the one hand
and social rights on the other
o To be able to explain and analyse the difference between positive and negative
obligations as used by the ECtHR and apply it to a case-solving question
Literature:
o Jean-François Akandji-Kombe, ‘Positive obligations under the European Convention on
Human Rights. A guide to the implementation of the European Convention on Human
Rights, Council of Europe, 2007, pp. 7-20, available here
> You should know the difference between negative and positive obligations, the
difference between procedural and substantive positive obligations and how the ECtHR
tests compliance with positive obligations.
o Ida Elisabeth Koch, ‘Chapter 5. The interaction between human rights case law:
Convergence or competition?’, in F. Pennings and G. Vonk (eds), Research Handbook on
European Social Security Law, Edward Elgar Publishing 2015, pp. 103–120, available here
> You should know the main features of and differences between the protection of social
rights under the ECHR, the ESC and the EU Charter.
o EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS (2007/C
303/02) Explanation on Article 52 — Scope and interpretation of rights and principles
Case law
o ECtHR, Airey v Ireland, 9 October 1979, No. 6289/73
o ECtHR, Hatton and Others v The United Kingdom, 8 July 2003, No. 36022/97
o ECtHR, M.S.S. v Belgium and Greece, 21 January 2011, No. 30696/09
Question 1
Remember Bella from last tutorial. Bella was prosecuted for involvement in terrorist activities.
Let us now suppose that Bella was in the end found not guilty. During this procedure, however,
her landlord finds out that Bella might be involved in terrorist activities and immediately wants
to terminate the rental agreement. The landlord starts an eviction procedure before a national
, court. Bella does not want to be evicted from her apartment and fortunately finds out that she
might get legal aid for this procedure. However, she is informed that she has to pay a
contribution for this legal aid herself, as well as court fees. Due to the prosecution, Bella has not
been able to work anymore and she cannot afford to pay these costs. She is afraid that she
cannot effectively plead her case without legal aid.
a) Can Bella appeal to the EU Charter and/or the European Social Charter (ESC) in order
to argue that the state should provide her with free legal aid? Discuss whether you
need additional information in order to answer this question.
First you need to look into the scope of application, that is art. 51 Charter.
Here it’s about art. 47 Charter which contains the right to an effective remedy.
But in this case of Laura there is not any information if the State is implementing Union law, so
you need more information when you want to apply to the Charter. .
Legal aid shall be made for those who lack sufficient resources in so far as such aid is necessary
to ensure effective access to justice.
The ESC has no provision for free legal aid.
So you don’t need to look into the scope of application.
NB: can she appeal is about scope.
NB: can she successful appeal is a substantive question.
b) Do you think that Bella can successfully argue that denial of free legal aid would
violate the ECHR?
Here we need to look into the case law Airey v. Ireland.
Case: there was a civil procedure and the applicant argued that art. 6 ECHR gives
her the right to a fair trial, and the applicant argued that this article is also
possible for civil procedures. The reason why she went to the Court was she
wanted to divorce and that was not possible before her highest national court.
Therefore she could not afford a lawyer so she went to the ECtHR and that art. 6
ECHR has been violated because of the legal aid provision. This right is about the
right to a fair trial, art. 6 ECHR. But art. 6 par. 3 says this right applies to criminal
charges.
In par. 18 (page 201) the Court is saying that art. 6 ECHR embodies the right of access to a court
for determination of civil rights and obligations. And therefore the applicant argues that her
access to the right has been violated because she does not had the legal aid.
The outcome was that art. 6 is initially mend for criminal proceedings but it can also be applied
for civil proceedings, in specific circumstances which are related to the circumstances of the
applicant. So she will have an equal position .
