While there is now general agreement that fundamental rights protection can give rise to (some types of) positive obligations there is still disagreement as to whether the judiciary in particular is competent to impose positive obligations on the state. 60 One of the strongest critiques against the development of positive obligations is that it is at odds with the principle of separation of powers. Of relevance in this context also is the supranational position of the ECtHR, which will be discussed later (see section 4.5.).
55 See sections 3.2.6. and 3.5.
56 Lavrysen (2016), p. 130.
57 See sections 3.3.2. and section 4.2.2.
58 See sections 3.2.4. See e.g. ECtHR 26 May 1994, no. 16969/90, Keegan v. Ireland , para. 51.
59 See further Lavrysen (2016), pp. 246 – 251.
60 Fredman (2008), p. 92.
Chapter 4. A Critical Appraisal of the Development of Positive Obligations Under the European Convention on Human Rights
Th e discussion in the following sections thus focuses more generally on the arguments against the competence of the judiciary in general to determine positive obligations.
4.4.1. LACK OF DEMOCRATIC LEGITIMACY
In principle, it is problematic for the judiciary to determine which actions must be undertaken by the state, considering that judges are, aft er all, not democratically elected nor politically accountable. 61 Th e judiciary does not have the same capacity as the legislature and administrative bodies to consider all of the interests involved for determining which actions must be undertaken by the state. Positive obligations can generally be fulfi lled by a range of possible actions and thus require political deliberation. Moreover, the fulfi lment of certain positive obligations can impose a high burden on states resources in terms of fi nances as well as organisation. 62 Such decisions imply political choices which are generally not entrusted to the judiciary.
From this perspective, it can be maintained that courts should take a restrained approach in defi ning positive obligations related to politically sensitive decisions, especially those decisions in the fi eld of social and economic policy with fi nancial implications. It should, at the least, leave states parties a wide margin of appreciation as far as the further realisation of those obligations is concerned. 63
Various judgments of the ECtHR on positive obligations have been criticised for this reason, especially where the ECtHR failed to provide clear reasoning for the choices it made in those judgments. 64 Van Kempen, in particular, is concerned over the practice of the ECtHR in which it indicates that states must undertake positive obligations in the area of criminal law. 65 Th e ECtHR does not always explain why criminal law measures in particular would be necessary to protect fundamental rights. Are there no other possibilities available to provide eff ective protection ? Could prevention not have been chosen over repression ? 66 Th ese choices, it can be argued, should instead be made only aft er deliberation in the political domain.
Van Kempen therefore suggests that the ECtHR should adopt a diff erent approach and refrain from specifying which positive (legislative) obligations should be undertaken by
61 Fredman (2008), pp. 32 ff .; and see ECtHR 21 February 1986, no. 8793/79, James and others v. the United Kingdom , para. 46, where the Court held: ‘ Th e Court, fi nding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature ’ s judgment as to what is “ in the public interest ” unless that judgment be manifestly without reasonable foundation. ’
62 Fredman (2008), pp. 69 ff .
63 Cf. Fredman (2008), pp. 95 – 96; and Nieuwenhuis (2011), pp. 191 – 195.
64 See Van Kempen (2008), p. 74.
65 See Van Kempen (2008), pp. 25 – 56 and 76; and Van de Westelaken (2010), pp. 135 – 152.
66 Van Kempen (2008), p. 78. See also the dissenting opinion of Judge Kj ø lbro to ECtHR 20 October 2015, no. 15529/12, Bal á zs v. Hungary , where it was held that the ECtHR had interfered too much in examining the choice over whether to criminally prosecute an individual involved.
the state. 67 Th e Court ’ s recourse to such broad legal bases as Articles 1 and 13 ECHR, and the object and purpose of the Convention to provide eff ective fundamental rights protection, does not provide suffi ciently precise legitimation for the far-reaching eff ects of positive obligations under the Convention. 68 Th e ECtHR could instead adopt an approach in which it fi rst considers whether and/or which positive obligations are already recognised at the national level or in administrative structures. If such positive obligations can be recognised, the ECtHR can then examine whether the state fulfi ls such positive obligations without discriminating (on the basis of Article 14 ECHR and Article 1 of the Twelft h Protocol to the Convention). 69 States parties would then preserve the prerogative to determine whether and when to have recourse to particular methods – such as criminal law measures – in order to protect fundamental rights. 70
Th is approach thus respects the principle of state sovereignty and the responsibility to protect. Th e concerns over the democratic legitimacy of judicial review are generally (also in relation to negative obligations) an important aspect to be aware of. 71 In developing positive obligations in its case-law, the ECtHR has explained in some cases that it looks at the choices that have already been made at national level which could secure the protection of certain fundamental rights. For example, in the case of X. and Y. v. the Netherlands, which was about a young and handicapped girl who was not able to lodge a complaint about sexual abuse that had taken place, the ECtHR held that:
this is in fact an area in which the Netherlands has generally opted for a system of protection based on the criminal law. Th e only gap so far, as the Commission and the Court have been made aware, is as regards persons in the situation of Miss Y; in such cases, this system meets a procedural obstacle which the Netherlands legislature had apparently not foreseen. 72
While the ECtHR had established in this case that a positive obligation to take measures in the fi eld of criminal law derived from the right to protect private life, the ECtHR also explained that there is a certain basis that can be found under national law for taking such measures.
Furthermore, in the case of X. and Y. v. the Netherlands , the ECtHR explained that ‘ Eff ective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions ’ . 73 Th e ECtHR thus clarifi ed its choice for specifi c types of measures that need to be taken by states, in this case criminal law, while its choice is
67 Van Kempen (2008), pp. 87 and 89 – 94.
68 Van Kempen (2008), pp. 68 – 69.
69 A similar approach seems to be taken as the ‘ in for a penny – in for a pound ’ approach that was discussed in section 2.4.
70 Th is approach is also visible, to some extent, in the case of Ç am v. Turkey , where the ECtHR was required to examine whether the state had violated the prohibition of discrimination in relation to the right to education in a case of a blind girl who was refused entry to a music academy on the basis of her sight impairment. See ECtHR 23 February 2006, no. 51500/08, Ç am v. Turkey , para. 56.
71 See in particular Waldron (2006). Cf. Klatt (2015).
72 ECtHR 26 March 1985, no. 8978/80, X. and Y. v. the Netherlands , para. 27.
73 ECtHR 26 March 1985, no. 8978/80, X. and Y. v. the Netherlands , para. 27.
Chapter 4. A Critical Appraisal of the Development of Positive Obligations Under the European Convention on Human Rights
also further justifi ed by the principle of eff ective protection of fundamental rights. 74 Providing such more specifi c directions as to the types of measures which can be taken will ultimately help states as well as litigants to fi nd an appropriate way of securing eff ective fundamental rights protection. Th is approach is also visible in the practice of the ECtHR in which it indicates the general and individual measures that states must take to abide by its judgments under Article 46(1) ECHR. Th is provision only contains a very general obligation for states to comply with the judgments of the ECtHR. 75 Th e ECtHR, on occasion, also clarifi es which particular individual as well as general measures need to be taken by the state in order to ensure that similar violations do not take place in the future. 76
In relation to its case-law of positive obligations, it would thus generally help if the ECtHR were to explain why it chooses specifi c types of measures, in view of the fact that courts are frequently not well-placed to take such decisions, and therefore need to provide clear justifi cations.
4.4.2. EMPOWERMENT OF INDIVIDUALS
Th e ECtHR has accepted in its case-law that individuals are entitled to positive action by the state on the basis of its doctrine of positive obligations. Th e development of positive obligations by the ECtHR can be defended on the basis of the empowerment of individuals, as explained in chapter 3. 77
Th ere is some disagreement amongst scholars, however, as to whether the establishment of positive obligations by the judiciary can indeed be legitimated on the basis of this argument. Some argue that the interest of safeguarding the negative value of freedom is more important than empowerment, and this value would be overshadowed if it is also accepted that fundamental rights give rise to the need for positive action by states. In particular, this could be the case if the recognition of positive obligations would lead to interferences with the rights of other individuals. 78 Th e empowerment of individuals could be secured diff erently, namely through the accountability of politically elected parliament. Other scholars have instead proposed an intermediate approach.
Th ey believe that in a democracy governed by majoritarian rule, there is a legitimate role to be played by the judiciary in developing positive obligations. Th e judiciary has
74 See in particular Leach (2006), p. 126.
75 Under general international law, this means that states are required to end the violation (obligation of cessation), restore the situation as far as possible as it existed before the violation took place ( restitutio in integrum ) or, if reparation is not possible, make available appropriate satisfaction, see in particular Chorz ó w Factory (Germany v. Poland) (Indemnity) (Merits) , Permanent Court of International Justice, case PCIJ Rep Series A No 17, para. 47. See also Vande Lanotte & Haeck (2005), p. 704; and Ress (2005), p. 371.
76 See section 2.7.
77 See section 3.4.2.
78 See section 3.4.2.
an important role to play in protecting the rights of vulnerable individuals who are not able to voice their own particular interests under majoritarian rule. Th e recognition of positive obligations in judgments relating to individuals could therefore be necessary, and the judiciary would need to pay respect to certain constitutionally relevant criteria when accepting claims for positive obligations. 79
Fredman, for example, argues that the judiciary can perform a corrective role in democratic societies when individuals cannot validate their fundamental rights claims through the electorate. 80 Judges then are competent to provide input in their judgments for a political discussion on the fulfi lment of positive obligations, as long as they do not claim the power to have the fi nal say as to which particular positive action must be taken. Fredman also fi nds that there are certain standards which must be met for the exercise of such power in the judicial process leading up to the defi nition of fundamental rights. 81 First, accountability is required, which demands that decision-makers should justify openly before courts their choice of particular actions. Standards of participation must also be met, which means that courts have to provide a forum for deliberation on perspectives. Lastly, the principle of equality must be applied, which demands that courts must address inequalities in the democratic process. Fredman considers the judiciary as a competent institution that can provide an appropriate forum for addressing inequalities, especially because judgments on positive obligations frequently concern individuals or groups of individuals who are vulnerable and/or face social inequalities, such as detainees, disabled persons and asylum seekers, who do not have a (majority) voice in the democratic process. 82
Th e political character of positive obligations remains a critical factor in the development of such obligations by courts. Although it may be legitimated to contribute to the development of the fulfi lment of states positive obligations for reasons of empowerment of individuals, it must still abide by democratic standards. Criticism can be raised, and it is therefore important that the ECtHR pays due respect to these points of criticism and sees that the standards developed by Fredman are met.