#3634 - Positive Obligations - European Human Rights Law

Positive obligations

Ilascu v Moldova and Russia – scope of positive obligations: “in determining the scope of a state’s positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in contracting states and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden.”

In circumstances where a contracting party had lost effective control of part of its territory, that party nevertheless had a duty to use all appropriate legal and diplomatic means to continue to guarantee the protection of the rights and freedoms guaranteed by the convention.

Judge Bratza dissented from the view expressed by the majority that the responsibility of a sate suffering a loss of control of part of its territory such as that experienced by Moldova would depend upon its sufficient efforts on the legal and diplomatic plane to guarantee convention rights. He did not see how the court could make a determination as to the sufficiency of the efforts made by the state as to the effectiveness of particular measures and as to whether they were possible and were adequately implemented.

Judge Casadevall also dissented on the question of Moldova’s responsibility. But for him and his colleagues the responsibility of Moldova should not be split but should be treated as existing continuously from the date of its ratification of the Convention in September 1997; any other approach would lead to the “paradoxical and incoherent” conclusion of the majority which split liability before and after May 2001.

Judge Ress’ dissenting opinion again related to the positive obligations of Moldova. Adding to the views of Judge Casadevall, whose partly dissenting opinion he had joined, Judge Ress notes that the scope of the jurisdiction of Moldova for the whole of its territory remained the same throughout. What may have fluctuated was its responsibility as a result of its inability to exercise effective control over a part of its territory.

Article 2- positive obligations essay plan

Rationale of positive obligations

Aolain (2002) – “sea of change” is court’s attitude towards positive obligations under Art 2

1) Art 1 – states should “secure” Convention rights to all persons within their jurisdiction

2) effective

Merrills (1993) – effectiveness: “a means of giving provisions of a treaty the fullest weight and effect consistent with the language used and with the rest of the text and in such a way that every part of it can be given meaning”.

Merrills (1993) – every government is away that by subscribing to Convention it places itself in a position where its laws or practices may have to be modified...what a government might not bargain for is to find itself put to considerable trouble and expense as a result of an obligation to advance particular social or economic policies which it may not wholly support... caution in doing so”.

Singh QC (1997) – if not rights “meaningless”

3) Feldman (2002) – some of the positive obligations such as Art 6 are imposed expressly by the language of the Convention, but “a more extensive and less clearly defined set of positive obligations” have been implied. The impetus for this is “the dynamic interpretation of the Convention in the light of changing social and moral assumptions”.

4) the importance of right to life e.g. narrow construction of exceptions in Art 2(2)

McCann – “ranks as one of the most fundamental provisions in the Conventions”

Bradley – a violation of this right makes meaningless the recognition of any other rights

5) Mowbray (2004) the case load crisis appears to be another element in creation of positive obligations, especially investigation.

6) Fredman (2010) – a positive conception of freedom: one that enhances the ability of each individual to achieve his or her full human potential and which thus places concomitant duties on the state to enable and facilitate this.

Prevention - Legal system

Preventative measures too demanding?

Mahmut - Effective criminal laws in force to deter the commission of offences against the person and back up by law-enforcement machinery.

In cases of intentional killings there must be recourse to the criminal law, whereas in cases of unintentional killings, the obligation is satisfied if there is a civil remedy (Vo v France and Calvelli and Ciglio)

Protection

• Those in care

Saoud – no medical observation given to someone restrained in police detention.

Edwards v UK – protection prisoners: wrongly put offender in cell with a mentally ill prisoner who stabbed him to death.

Keenan v UK – this principle extends where the risk or harm comes from the applicant themselves e.g. suicide

Ilhan v Turkey – available even where no person actually dies.

• The public

Osman v UK – whose life is at risk from the criminal acts of another; where real and immediate risk of which state officials knew or ought to have known about. Court is, of course, aware of logistical and practical difficulties (Akkoc v Turkey).

Mastromatteo – no duty of protection to general public as a whole

• Deportation

Al-Saadoon – Iraqis handed over to Iraqi forces with no guarantees that wouldn’t be subjected to the death penalty.

Prevention: State operations

Mowbray (2004) – the jurisprudential justification for the imposition of obligation to take appropriate care in the planning and control of security forces’; operations to minimise the risk to the lives of affected persons is twofold: 1) Art 2(1) – to “protect” everyone’s right to life; this is not satisfied merely by enacting laws, but demands affirmative action; 2) Art 2(2) exceptions are narrowly construed- no more than necessary”.

Ergi – positive obligation on states to exercise appropriate care in the planning and control of operations by their security forces. Need to have regard to dangers posed bystanders. Must “develop and implement plans which “take all feasible precautions...with a view to avoiding and to minimising incidental loss”. Villagers were caught up in foreseeable crossfire – no precautions taken to protect.

The stringent requirements emphasises the importance of right to life.

McCann – need to take greatest of care in evaluating the information at their disposal before transmitting it to solicitors whose use of firearms automatically involved shooting to kill”.

Makaratzis – police operation was chaotic; no proper administrative framework or guidelines given to police.

McKerr v UK – obviously covers not only intentional killings but unintended outcomes. No more force than necessary.

The 9 dissenting judges in McCann suggested how heavy the burden might be and that:

1) resist benefits of hindsight

2) given suspects a tactical advantage

3) practicality

4) failure for concern public safety

5) fairness in reactions i.e. deference

= BUT Art 2 is an absolute right except for narrowly construed exceptions; not about balancing rights.

Investigation

Aolain (2002) – “stretch the boundaries of protection”

1) McCann – the original justification of this positive obligation was to seek to ensure the practical effectiveness at the domestic level of Art 2’s limitations on the use of lethal force by governmental agents. Although language of Art 2 did not expressly provide for this correlative duty, the court was willing to read it in as a necessary element of the combined requirements of Arts 2 and 1 together. Importance of public and independent scrutiny.

Important as if not the substantive right is not worth very much.

2) Ilhan – the practical reason also that the V is deceased and the circumstances of the death may be largely confined within the knowledge of state officials.

History has shown that all too easy for states to cover up unlawful violence. Protection of Art 2 would be of no value if a state could avoid sanction by concealing of evidence of killings. Where an individual is known to have been taken into custody and subsequently disappears (Timurtas) or is found dead, it is logical that state faces a heavy burden of proof on state (Tomasi).

Aksoy v Turkey – right to an effective remedy requires a “thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives”.

3) Mowbray (2004) the case load crisis appears to be another element in creation of positive obligations, especially investigation.

Angelova - The duty extends to cases where there is no direct state responsibility for a death. Racially motivated attack and no-one brought to trial or proper investigation.

Kelly v UK – “effective implementation and to ensure accountability”

Mowbray (2004) there are both institutional elements (independence etc) and procedural duties (quality of tests) now.

Jordan v UK – need for independence and able to return a verdict of unlawful death.

Gul – Scope of autopsies

Edwards – involvement of V’s families

= deterrent effect too.

Silih v Slovenia (2009)- “the procedural obligation to carry out an effective investigation under Art 2 has evolved into a separate and autonomous duty...it can be considered a detachable obligation arising out of Art 2 capable of binding the state even when the death took place before the critical date”.

= effectiveness supported even further

Socio economic/information

O’Cinneide (2008) – “distinctions between enforceable civil and political rights and non-enforceable socio-economic rights are in many ways...