Draft Paper
SEASCA BLIAIN FAOI BHLÁTH: SOCIO-ECONOMIC
RIGHTS AND THE EUROPEAN CONVENTION ON
HUMAN RIGHTS
LIAM THORNTON1
UCD SCHOOL OF LAW & UCD HUMAN RIGHTS NETWORK
A. INTRODUCTION
The European Court of Human Rights has shown some weariness in interpreting
traditional human rights norms protected under the European Convention on Human
Rights (ECHR)2 as encompassing socio-economic rights protections. Issues of
political legitimacy, judicial proprietary and resource allocation would play more
heavily on an internationalised court than may be the case within domestic court
systems.3 In the past 60 years, are we only now seeing a significant shift in the
jurisprudence of the ECtHR in recognising social and economic rights as being
protected by the Convention? There are increasing signs that the ECtHR is now
recognising the interlinked nature of civil and political rights and socio-economic
rights. This paper examines the extent to which the ECHR as interpreted by the
European Court of Human Rights (ECtHR), has led to a more nuanced
understanding and interplay between economic and social rights and civil and
political rights. It is argued that in more recent times, the reluctance of the ECtHR to
Dr Liam Thornton, BCL (International), PhD (NUI, University College Cork), PgCHEP (Ulster) is a
lecturer in law and director of clinical legal education in UCD School of Law, Feedback and comments
are very welcome, email: liam.thornton@ucd.ie.
2 Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), 4 November 1950, E.T.S 5
3 For a discussion on resource allocation and judicial interventions in the context of the United
Kingdom, see Palmer, E. “Resource Allocation, Welfare Rights: mapping the Boundaries of Judicial
Control in Public Administrative Law” [2000] 20(1) Oxford Journal of Legal Studies 63-88.
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adjudicate upon socio-economic rights claims has lessened. Recent substantive (as
opposed to procedural) socio-economic rights jurisprudence suggests that the impact
of the ECHR in this area has yet to be fully realised. This paper firstly provides an
overview of the rights and freedoms contained in the ECHR, before going on to
examine in more detail the protection of socio-economic rights under the ECHR. The
issue of positive obligations, discrimination and socio-economic rights will be briefly
examined, before a sustained review of socio-economic rights and (i) the right to life;
(ii) inhuman and degrading treatment; (iii) family and private life; (iv) property and (v)
education rights.
There has been some engagement amongst academics as to whether the ECHR
protects economic and social rights (at the Strasbourg level). Warbrick argues that
the ECHR does not protect socio-economic rights either explicitly or impliedly.4
Merrills, while acknowledging that there is no water tight division between social and
economic rights and civil and political rights, cautions against the ECtHR from reinterpreting Convention provisions which would result in socio-economic protection.5
While rights should be ‘effective’ rather than ‘illusory’, the ECtHR should not seek to
embellish the substantive content of rights provisions within the Convention.6
However, from the jurisprudence examined below, it appears that these arguments
are no longer fully sustainable.
B. RIGHTS AND FREEDOMS WITHIN THE ECHR
1. The European Convention on Human Rights
Warbrick, C. “Economic and Social Interests and the European Interests and the European
Convention on Human Rights” in Baderin, M.A. & McCorquodale, R. Economic, Social and Cultural
Rights in Action (Oxford; OUP, 2007), pp. 241-256 at 241.
5 Merrills, J.G. The Development of International Law by the European Court of Human Rights (2nd
edition, Sheffield; Manchester University Press, 1993) at p. 102.
6 In a dissent in Airey v Ireland (1979) 2 EHRR 305, Judge Vilhjalmsson stated that “[t]he war on
poverty cannot be won through a broad interpretation of the Convention for the Protection of Human
Rights and Fundamental Freedoms.”
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The European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) was opened for signature and ratification in Rome on the 4th of
November 1950 and entered into force in 1953.7 As an instrument, it has been
associated with the protection of civil and political rights. The Council of Europe was
the body responsible for drafting the ECHR.8 The preamble to the Convention speaks
of the common heritage of political traditions amongst European nations, a common
commitment to similar ideals, recognition of freedom and the rule of law.9 Everybody
within the jurisdiction of a Contracting State enjoys the rights set forth in the
Convention.10 In Austria v Italy it was stated that the Convention “…not only applies to
a States own nationals and those of other High Contracting Parties, but also to
nationals of States not parties to the Convention and to stateless persons.” The
rights and freedoms protected include inter alios the right to life,11 the right to be free
from torture, inhuman and degrading treatment and punishment, 12 freedom from
slavery and forced labour,13 the right to liberty and security,14 the right to a fair trial15
and the right to respect for family and private life.16 In addition to these rights, other
Ireland signed the ECHR in November 1950 and ratified the Convention on 02 February 1953. The
ECHR came into force on 3 September 1953.
8 The Council of Europe was founded by ten states (Belgium, Denmark, France, Ireland, Italy,
Luxembourg, The Netherlands, Norway, Sweden and the United Kingdom) in 1949 (Statute of the
Council of Europe, 5 May 1949). The aims of the Council of Europe are inter alios to discuss
“…questions of common concern and by agreements and common action in economic, social, cultural,
scientific, legal and administrative matters and in the maintenance and further realisation of human
rights and fundamental freedoms” (Article 1). The Council of Europe currently comprises of 47 States.
The Council of Europe has a Committee of Ministers, comprised of each countries Minister for Foreign
Affairs. Its remit is “…to consider the action required to further the aim of the Council of Europe,
including the conclusion of conventions or agreements and the adoption by governments of a common
policy with regard to particular matters.” In addition the Committee of Ministers may make
recommendations to Contracting States on various issues (Article 15). The Council of Europe also
includes a Parliamentary Assembly, which is described as its “deliberative organ” (Article 22). The
Parliamentary Assembly “may discuss and make recommendations upon any matter within the aim
and scope of the Council of Europe… and may make recommendations upon any matter referred to it
by the Committee of Ministers with a request for its opinion.” (Article 23(a)). Members of the
Parliamentary Assembly are elected by national parliaments (Article 25).
9 Preambular paragraph 5 of the ECHR. The extent to which this proposition could be regarded as
correct is questionable given that Europe was still in the midst of post-war construction, see Steiner,
H.J., Alston, P. and Goodman, R. International Human Rights in Context: Law, Politics, Morals (3rd
edition, Oxford; OUP, 2008), p. 933.
10 Article 1 of the ECHR. Austria v Italy, Yearbook IV (1961) as quoted in Zwaak, L. “General Survey
of the European Convention” in van Dijk, P. Theory and Practice of the European Convention on
Human Rights (4th edition, Oxford; Intesentia, 2006), pp. 13-14.
11 Article 2 of the ECHR.
12 Article 3 of the ECHR.
13 Article 4 of the ECHR.
14 Article 5 of the ECHR.
15 Article 6 of the ECHR.
16 Article 8 of the ECHR.
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rights such as freedom of expression17 and freedom to religious practice are also
protected.18 Article 13 guarantees the right to an effective remedy for a breach of
Convention rights, while Article 14 states that there can be no discrimination in the
enjoyment of Convention rights “on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status.”
In addition to the rights agreed within the core human rights document, a number of
other rights were added by means of Protocols which Contracting States are at
liberty to sign and ratify. Some significant rights are protected within these protocols
including the right to property and the right not to be denied an education.19 Further
rights protected by additional protocols include, inter alios, freedom of movement for
those lawfully in a country,20 prohibition of collective expulsions of aliens,21
procedural protection for aliens in the event of expulsion22 and the abolition of the
death penalty.23 Protocol No. 12 is a free-standing prohibition of discrimination on
“…any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other
status.”24 While some of the rights outlined above are absolute,25 other rights are
qualified.26
Article 10 of the ECHR.
Article 11 of the ECHR.
19 Protocol No. 1 of 20 March 1953. With regard to the right to education, Mr. De Valera (Ireland) felt
that the article proposed for inclusion into the main Convention was too secularist in nature, See, Sir
David Maxwell-Fyfe in Collected Edition of the Travaux Preparatoires of the European Convention on
Human Rights (The Hague; Martinus Nijhoff Publishers, 1985) at p. 118.
20 Article 2 of Protocol 4, 16 September 1963.
21 Article 4 of Protocol 4.
22 Article 1 of Protocol 7, 22 November 1984.
23 Article 1 of Protocol 13, 3 May 2002. Protocol No. 6 allowed for the abolition of the death penalty,
save in time of war or where there was an imminent threat of war.
24 Article 1 of Protocol 12, 4 November 2000. Where discrimination is found then there will be
consideration as to whether any objective or reasonable justification in that the discrimination may
pursue a legitimate aim or where there is a ‘reasonable relationship of proportionality between the
means employed and the aims sought to be realised.” See Explanatory Report on Article 12, para.
18.
This
report
can
be
accessed
here:
http://www.humanrights.coe.int/Prot12/Protocol%2012%20and%20Exp%20Rep.htm#EXPLANATORY
%20REPORT (last viewed 17 June 2013).
25 Such absolute rights include inter alia article 2 (right to life), article 3 (prohibition of torture, inhuman
and degrading treatment); article 4(1) (prohibition of slavery and servitude) and article 7 (prohibition of
retroactive offences), Article 13 (right to an effective remedy) and Article 14 (prohibition of
discrimination). In addition, Article 1 of Protocol 13 absolutely prohibits the imposition of the death
penalty.
26 Some of the qualified rights within the Convention include inter alia Article 2(2)(sets down the
limitations on the right to life); article 6 (allows for a trial otherwise than in public where it is the
interests of morals, public order or national security, protection of young people, or where publicity
would prejudice the interests of the parties); Articles 8 to 11 may be subject to restrictions which are
prescribed by law and necessary in a democratic society “in the interests of national security, public
17
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Like much of modern international human rights law, the ECHR was negotiated by
States after the horrors of World War II.27 The rationale behind the ECHR was so to
create human rights which could be enforced in courts of law, to act as a bulwark
against totalitarian regimes; to “be a beacon to our friends who are now in the
darkness of totalitarianism” and finally to act as “a passport for the return of their
countries into our midst.”28 The Convention was seen as a means to prevent States
from hiding behind the shield of State sovereignty, which many States sought to
highlight in the face of accusations of human rights abuses.29
The Convention takes “…the first steps for the collective enforcement of certain of the
rights stated in the Universal Declaration.”30 Unlike the Universal Declaration of
Human Rights (UDHR),31 the ECHR has a mechanism by which, after exhausting
domestic remedies, adjudication on rights abuses within the domestic sphere could
be examined by an internationalised court, the European Court of Human Rights
(ECtHR). Individuals for the first time within international law exercised rights before
an independent human rights court against actions of the State.32 States parties to
the ECHR agreed to limit their sovereignty and abide by the judgement of the Court
where a decision is taken in favour of an applicant. While national human rights
protections offer the best guarantee to individual’s that the State will protect their
human rights; internationalised enforcement mechanisms provide incentives for
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.” The right to
property may be restricted in accordance with the general interest or to secure payment of taxation.
Once an interference with Convention rights is shown, it is for the State to bring itself within the
limitations proscribed. Central to the ECtHR determination of the issue will the proportionality of the
measures introduced by the Contracting State. Exceptions to rights are also construed narrowly, in
general see see Ovey, C. & White, R. Jacobs and White, The European Convention on Human Rights
(Oxford; OUP, 2006), Chapter 10.
27 Ovey and White state that the political philosophy and the human rights agenda of the Allied Powers
in WWII shaped the selection of rights protected within the ECHR and also the machinery for rights
protection, see Ovey, C. & White, R. Jacobs and White, The European Convention on Human Rights
(Oxford; OUP, 2006), p. 1.
28 Sir David Maxwell-Fyfe in Collected Edition of the Travaux Preparatoires of the European
Convention on Human Rights (The Hague; Martinus Nijhoff Publishers, 1985) at p. 82. Concern was
expressed by some delegates when discussing the rights protected by the ECHR that “[h]uman rights
could operate to help the enemy” in both hot and cold wars (p. 14). The spectre of Communism was
never far out of sight when States were discussing the limitations on the exercise of rights.
29 Lester, A. & Pannick, D. (eds.) Human Rights Law & Practice (2nd edition, London; Lexis Nexis,
2004), p. 5, para. 1.14.
30 Preambular paragraph 5 of the ECHR.
31 See generally, Eide, A. et al. The Universal Declaration of Human Rights: A Commentary (Oslo,
Scandinavian U.P., 1992)
32 Lester, A. & Pannick, D. supra. fn. 29 at p. 6, para. 1.15.
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States to comply with their international obligations.33 Mirroring developments
internationally,34 the protection of social and economic rights were siphoned off onto
a sister treaty, the European Social Charter (ESC),35 and since 2001, the European
Committee on Social Rights (ECSR) examines State compliance with their Charter
obligations. The Convention therefore does not explicitly protect the right to certain
social benefits such as a right to food, water, health, social security, an adequate
standard of living.
2. The European Court of Human Rights
Since its foundation in 1959, the European Court of Human Rights (ECtHR) 36 has
been the guardian of the Convention. The ECtHR has played a pivotal role in
developing the key principles of Convention law. Cases may be brought by
individuals and groups37 or by a Contracting State against another Contracting
State.38 States are only obliged to abide by the judgments of the court to which it is a
party.39 The ECtHR has emphasised that the rights protected under the Convention
are to be “practical and effective” and not merely “illusory.”40 In interpreting the
meaning of the Convention, the Court has stated that it will abide by the general
principles of international law which are codified by Articles 31 to 33 of the Vienna
Convention on the Law of Treaties (VCLT).41
The ECtHR appears to follow precedent in relation to its own decisions. 42 However,
the ECtHR has stated that the Convention is a ‘living instrument’ which “…must be
Merrills, J.G. The Development of International Law by the European Court of Human Rights (2nd
edition, Sheffield; Manchester University Press, 1993) at p. 1.
34 See, International Covenant on Civil and Political Rights 1966, (ICCPR) 999 U.N.T.S.171 and
International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 993 U.N.T.S. 3.
35 Council of Europe, European Social Charter (ESC), 18 October 1963, E.T.S 35 and Council of
Europe, European Social Charter (Revised), 03 May 1996, E.T.S 163.
36 Article 19 of the ECHR.
37 Article 34 of the ECHR.
38 Article 33 of the ECHR.
39 Article 46 of the ECHR.
40 See Airey v Ireland (1979) 2 EHRR 305, para. 24.
41 In Golder v UK (1979-80) 1 EHRR 534 (at paras. 32-35) the Court stated it would interpret in ‘good
faith’ and give the ordinary meaning ‘in light of the object and purpose’ of Article 6(1) of the
Convention (Article 31 VCLT). In this case the Court (at para. 36) did not have to utilise the travaux
preparatoires as ‘supplementary’ means of interpretation.
42 One example of previous decisions being followed can be seen with two cases regarding the
criminalisation of homosexuality. In Dudgeon v United Kingdom (1981) 4 EHRR 149, the British
government unsuccessfully argued that the criminalisation of homosexuality between consenting
males was necessary in a democratic society due to its offending of social mores in Northern Ireland.
In the subsequent case of Norris v Ireland (1988) 13 EHRR 186, the Court rejected a similar claim by
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interpreted in light of present day conditions.”43 The ECtHR has noted that while not
formally bound to follow its own decisions in the interests of legal certainty,
foreseeability and equality before the law that it should not depart, without good
reason, from decisions in previous cases.44 In this respect, the ECtHR had for many
years stated that the right to a private life did not include the right to have an acquired
gender recognised by a Contracting State.45 In Goodwin, the ECtHR departed from
its previous transsexual jurisprudence seeking to give the Convention “a dynamic
and evolutive approach.”46 The Court therefore looked at the plight of transsexuals ‘in
present day conditions’ and found that there were no significant issues of public
interest at play in seeking to prevent transpersons from registering their acquired
gender. The ECtHR determined that an Article 8 violation had taken place.47
So how then has the ECtHR approached issues relating to socio-economic rights?
As is examined below, there appears to be a shift taking place as regards the
protection of socio-economic rights.
C. THE ECHR & SOCIO-ECONOMIC RIGHTS
1. Socio-Economic Rights & Drafting the ECHR
the Irish Government, and referring to its earlier decision in Dudgeon stated that the criminalisation of
homosexuality offended against ones right to a private life, which includes a right to a sexual life.
Merrills notes that the ECtHR also distinguishes cases where prima facie they seem similar, but on
closer examination a different result is justified, see Merrills, J.G. The Development of International
Law by the European Court of Human Rights (2nd edition, Sheffield; Manchester University Press,
1993) at p. 13.
43 Tyrer v United Kingdom (1979–80) 2 EHRR 1 at para. 31.
44 See Chapman v. UK (2001) 33 EHRR 18 at para. 70 and Goodwin v UK (2002) 35 EHRR 18 at
para. 74.
45 The Court held that a refusal to alter or amend a birth certificate for an acquired identity did not
violate an individuals respect for family life under Article 8 ( Rees v. United Kingdom (1987) 9 EHRR
56). This was further emphasised in the cases of , Cossey v. United Kingdom (1991) 13 EHRR 622,
and X, Y and Z v. United Kingdom (1997) 24 EHRR 143, where the Court deferred to Britain’s margin
of appreciation in finding against the right to recognition of acquired gender identities.
46 Goodwin v UK (2002) 35 EHRR 18 at para. 74.
47 The Court noted at (2002) 35 EHRR 18, para. 90 that “[i]n the twenty first century the right of
transsexuals to personal development and to physical and moral security in the full sense enjoyed by
others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast
clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative
transsexuals live in an intermediate zone is not quite one gender or the other is no longer
sustainable…” In addition, the ECtHR found that Article 12, the right to marry was also violated.
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The travaux preparatoires show that the plenipotentiaries had decided against
inclusion of socio-economic rights within the Convention. The debate surrounding the
inclusion of property rights brought about some comment on the protection of socioeconomic rights in general. Mr. Roberts for the UK, in refusing to agree on a right to
property within the main Convention document stated that to do so would open the
Council of Europe to “…the charge that the Assembly considers property the most
important of the social rights.”48 This was countered by Mr. Bastid, France, who,
argued about the special nature of the social right to property:
“Property is an expression of the man and man cannot feel safe if he is
exposed to arbitrary dispossession.”49
Examples of social rights provided were “…the right to work, the right to leisure, and
adequate standard of living and social security…” In relation to the right to work, the
then Irish Taoiseach, Mr. De Valera (Ireland) stated that
“[u]ndoubtedly, the right to work and to obtain a livelihood is a fundamental
human right, but also there is a duty to work if suitable work is available…”50
2. Positive Obligations, Discrimination and Socio-Economic Rights
i.
Positive Obligations
The ECHR is traditionally seen as a civil and political document. States must
generally not take action to bring about a Convention violation through their agents.
This argument frames the ECHR in ‘negative’, non-interference terms. However, the
ECtHR has emphasised that certain positive obligations inhere within Convention
rights. Positive obligations have been described as a requirement for Contracting
Supra. fn. 28 at p. 88.
Supra. fn. 28 at p. 118.
50 Supra. fn. 28 at p. 154.
48
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States to take action51 or to regulate certain types of conduct.52 These apply to a
number of Convention articles, and Mowbray gives examples such as the effective
investigation of a killing; the protection of vulnerable persons from serious illtreatment by others and provision of free criminal legal aid to those of little means. 53
In Ilascu54 the Court emphasised that in pronouncing upon the extent of positive
obligations a fair interest has to be struck between an individuals Convention rights,
the general community interest and the choices which elected governments must
make in terms of priorities and resources. Positive obligations must not place an
impossible or disproportionate burden on the State.55 These obligations may differ
depending on the diversity of situations within the Contracting States.56
Starmer’s envisages positive obligations as encapsulating five key duties: 57

The duty to have in place a framework which provides effective protection of
ECHR rights;58

The duty to prevent breaches of Convention rights;59

The duty to provide information and advice relevant to a breach of Convention
rights;60
For a general overview of how positive obligations have developed under the Convention system,
see Mowbray, A. The Development of Positive Obligations under the European Convention on Human
Rights by the European Court of Human Rights (Oxford; Hart Publishing, 2004).
52 Supra. fn. 27 at p. 51.
53 Supra. fn. 51 at p. 2.
54 Ilascu et. al. v Moldova and Russia (2004) 40 EHRR 1030, para. 332.
55 Özgür Gündem v. Turkey (2001) 31 EHRR 1082 at para. 43.
51
56
Ibid.
Starmer, K. “Positive Obligations under the Convention” in Jowell, J. & Cooper, J. Understanding
Human Rights Principles (Oxford; Hart Publishing, 2001), pp. 139-160.
58 Mowbray (supra. fn. 51 at p. 5) provides the example of X and Y v The Netherlands (1985) 8 EHRR
235. In X and Y the ECtHR found that in failing to provide a mechanism by which a mentally disabled
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person could make a complaint of rape the State had breached the applicant’s right to a private life
under Article 8 of the ECHR. The Court stated that “…although the object of Article 8 is essentially that
of protecting the individual against arbitrary interference by the public authorities, it does not merely
compel the State to abstain from such interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect for private or family life…” (para. 23).
This obligation includes the adoption of measures designed to protect a person’s private life within
both the public and private sphere.
59 Mowbray (ibid.) refers to the protection of the right to life by the State (see McCann, discussed
below at fn. 82); the protection of family relations (Marckx v Belgium (1979) 2 EHRR 330, where the
ECtHR stated that a positive obligation arose for the State to protect family life); and, the effective
protection of legal rights which are guaranteed under Article 13 of the ECHR. Article 13 has been
described as “an autonomous principle of effective remedial protection that is subsidiary to the
substantive rights protected by the Convention”, see de la Mare, T. Article 13 in Lester, A. & Pannick,
D., supra. fn. 32 at 395, para. 4.13.1.
60 Mowbray (ibid.) refers to the case of Guerra and Others v. Italy (1998) 26 EHRR. 357 where the
ECtHR stated that individuals had a right to receive and impart information under Article 10 of the
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
Duty to respond to ECHR violations;61 and,

The duty to provide resources to individuals whose Convention rights are at
stake;62
ii.
Discrimination
Article 14 does not prohibit Contracting States from treating groups differently, and in
some instances requires difference to be taken into account.63 Where there is a
difference in enjoyment of the rights under the Convention, it may be discriminatory
where it has no objective and reasonable justification. The Court has said that in
determining this, they will consider ‘whether the measure pursues a legitimate aim’ or
‘if there is a reasonable relationship of proportionality between the means employed
and the aim sought to be realised.’
Ovey and White classify the Courts methodology for Article 14 as follows:64
1. The Court will examine if the complaint of discrimination is on a protected
ground;
2. Whether there is a violation of a substantive provision(s);
3. The Court then examines whether the treatment pursues a legitimate aim
and if the means employed are proportionate to this aim;
4. Finally, the Court will see whether the difference of treatment goes beyond
a Contracting State’s margin of appreciation. 65
Convention, but this does not include a positive obligation on a State to collect and disseminate
information of its own motion.
61 In a number of cases taken by individuals against Turkey, the ECtHR has emphasised the duty on
States parties to investigate and respond to alleged violations of Convention rights in a prompt and
timely manner. For example in Aksoy v Turkey (1997) 23 EHRR 553, at para. 56, the Court noted a
Turkish Prosecutors lack of action in investigating claims of torture constituted a violation of Article 13
of the Convention.
62 Mowbray (supra. fn. 51) refers to the locus classicus in this area, Airey. This case shall be
discussed in more detail below when assessing the degree of protection of socio-economic rights
within the Convention.
63 Case relating to the use of languages in education in Belgium v. Belgium (Merits) (1980) 1 EHRR
252, at para. 10.
64 Supra. fn. 27 at p. 419.
65 Ibid. See also Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at para.
72.
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In all such adjudications, Contracting States enjoy a margin of appreciation in the
application of Article 14. However, certain suspect classifications, such as sex 66 and
nationality67 require very weighty reasons to justify the discrimination.68 A wide
margin is given in the area of general economic measures or where a State adopts a
social strategy. In Stec, relying on previous case law, the ECtHR stated that national
authorities, because of their direct knowledge of the given society and its needs are
principally better placed than an international judge to appreciate what is in the public
interest on social or economic grounds. The Court will generally respect the
legislature’s policy choice unless it is “manifestly without reasonable foundation.”69
iii.
The Emergence of Socio-Economic Rights Jurisprudence
The first significant suggestion that the Convention may be able to protect, to some
degree, socio-economic rights, was made by the ECtHR in Airey.70 Mrs. Airey was an
Irish woman of low means and had little formal education. She sought a judicial
separation from her violent husband. At the time, to receive this separation decree,
Airey would have had to make an application to the High Court. Since Airey did not
have the means to employ legal counsel and believed she lacked the formal
education necessary to engage with intricate legal points of the dispute, it was
argued that Article 6(1) was violated.71
Ireland stated that Airey was seeking to enforce a socio-economic right to legal aid
and the ECHR should not be interpreted “…so as to achieve social and economic
In Abdulaziz (ibid.) the ECtHR held that distinctions on the sole ground of sex require ‘very weighty
reasons’ before such difference of treatment would be regarded as compatible with the Convention
(para. 78).
67 In Gaygusuz v Austria (1996) 23 EHRR 230 (discussed below), at para. 42, the Court stated that
‘very weighty reasons’ would have to be put forward before a difference of treatment based solely on
nationality would be compatible with the Convention. It should be noted that in Moustaquim v Belgium
(1991) 13 EHRR 802, para. 49, the ECtHR held that unequal treatment of foreigners compared with
citizens of the European Union, had an “objective and reasonable justification… as Belgium belongs…
to a special legal order.” Therefore, any discrimination arising between different nationalities from
membership of the European Union is unlikely to succeed. Indeed, this case, revolved around the
issue of deportation of a non-Belgian national due to commission of a crime. Mr. Moustaquim’s
argument that he was treated differently to juvenile delinquents of Belgian nationality and those who
were citizens of Member States of the EU as being contrary to Article 14, in conjunction with Article 8
(right to respect for family life), was rejected.
68 Although not ruled upon, classifications based on race, sexual orientation, membership of a minority
group would also come within the ‘weight reasons’ suspect classifications.
69 Stec and Others v UK, Applications nos. 65731/01 and 65900/01 (12 April 2006), para. 52.
70 Airey v Ireland [1979] 2 EHRR 305.
71 Ireland had argued that Ms. Airey was free to conduct proceedings herself before the High Court,
however the Court stated that the Convention must protect rights which are ‘practical and effective’
and not merely ‘theoretical or illusory’ ([1979] 2 EHRR 305 at para. 24).
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developments in a contracting state…”72 The Court found that in some, but not all,
cases, Article 6(1) obliges a State to provide for the assistance of a lawyer “…when
such assistance proves indispensable for an effective access to the Court.” The
ECtHR stated that “while the realisation of social and economic rights is largely
dependent on the situation-notably financial-reigning in the State …the Convention
must be interpreted in light of present day conditions.”73 Although the Convention
generally protects civil and political rights, many such rights “have implications of a
social or economic nature…”74 There was no obligation for Ireland to adopt a civil
legal aid scheme, simplified procedures could also ensure an applicant’s effective
access to judicial separation. In later cases, the ECtHR made it clear that Airey does
not give a right to legal aid per se,75 in particular where an applicant may be capable
of proceeding with the case in the absence of legal representation or because of a
failure to meet the financial criteria for civil legal aid.76 However, where proceedings
are legally and technically complex and there is an unacceptable inequality of arms
between the parties to the proceedings, legal aid should be granted.77
Warbrick states that the outcome can not in any way be considered a victory for the
upholding of economic and social rights. He points to the fact that simplified
procedures could have easily satisfied a contracting states obligation under Article
6(1).78 There is no positive obligation upon a Member State to provide legal aid
unless the circumstances are exceptional, and it is doubtful whether Article 6(1)
establishes a socio-economic right to civil legal aid. In his dissent in Airey, Judge
Vilhjalmsson stated that there was no provision for civil legal aid within Article 6.
There was, however, provision for criminal legal aid. Such an omission was therefore
purposeful and the ECtHR should not embolden the expressed terms of Article 6(1).
To do so would:
72
[1979] 2 EHRR 305 at para. 26.
Ibid.
Ibid.
75 In Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491, the Court once again emphasised
73
74
that a legal aid scheme was but only one way to satisfy Article 6(1) (para. 199).
76 In Glaser v United Kingdom Application no. 32346/96, (19 September 2000), [2001] 1 FLR 153, the
ECtHR stated that on the facts, Glaser was not entitled to civil legal aid as he fell outside the financial
means test which was imposed by the U.K. for entitlement to free civil legal aid. Furthermore, the
ECtHR stated that “…it does not appear that, where the applicant did appear on his own behalf, that he
was unable to put forward his claims effectively” (para. 99).
77 Steel and Morris v United Kingdom (2005) 41 EHRR 403, paras. 69-72.
78 Supra. fn. 4 at p. 246.
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“…open up problems whose range and complexity cannot be foreseen but which
would doubtless prove to be beyond the power of the Convention and the
institutions set up by it.”79
Until recently, there has been little success in the ECtHR in attempting to find socioeconomic rights as being inherent within substantive Convention provisions. 80 In
Jazvinsky the applicant complained about the bureaucratic workings of the Slovak
social welfare authorities. The applicant stated that his right to work, social security
and health were all violated. This, the applicant argued, was contrary to human
dignity. The ECtHR stated that the Convention does not guarantee against violations
of the rights complained of. The complaint was found to be incompatible ratione
materiae with the Convention.81
3. Substantive Socio-Economic Rights Protection & the ECHR
i.
The right to life and socio-economic rights
Article 2 of the Convention protects a person from the intentional taking of life by the
State82 and, in certain circumstances, from third parties.83 In addition, Contracting
Judge O’Donoghue also dissented in Airey. He emphasised the special nature of Irish family law
and also questioned the way in which the ECtHR took as fact the domestic abuse which Mrs. Airey
suffered. The judge noted that “on one occasion only” did Mr. Airey face any judicial censure for his
actions towards his wife (author’s emphasis).
80 The main exception being the right to property under Article 1 of Protocol 1. Although the right to
education can be considered a socio-economic right, Article 2 of Protocol 1 cannot be regarded as a
substantive socio-economic right within the Convention. Article 2 of Protocol 1 prevents a State from
prohibiting access to education. This does not compel a State to provide education free of charge to
all those within its jurisdiction. However, where education is provided by the Contracting State, it must
be available to all upon the same conditions of qualification, see Case relating to the use of languages
in education in Belgium v. Belgium (Merits) (1980) 1 EHRR 252.
81 Jazvinsky v Slovakia, Application no. 33088/96 (7 September 2000), for a very brief summary of the
case see, Council of Europe, Working Group on Social Rights “Overview of the case-law of European
Court of Human Rights in social matters” GT-DH-SOC (2005)001, paras. 81 and 82, archived here
http://www.coe.int/t/e/human_rights/cddh/3._committees/07.%20other%20committees%20and%20wo
rking%20groups/04.%20social%20rights%20(gt-dh-soc)/working%20documents/2005/GT-DHSOC(2005)001%20E%20Overview%20case%20law%20social%20rights.asp (last viewed 17 June
2013). See also Gomez Heredero, A. Social Security as a Human Right: The Protection Afforded by
the European Convention on Human Rights (Human Rights Files, No. 23) (Strasbourg, COE
Publishing, 2007), at p.46.
82 One of the more well known cases in this area would be McCann v UK (1996) 23 EHRR 97. In this
case, the UK was found to have violated their positive obligation under Article 2 of the Convention.
The UK’s security forces had shot dead three members of the Provisional Irish Republican Army
(PIRA) who were suspected of being involved in terrorist actions in Gibraltar. The Court found that the
operation of the UK’s security forces fell short of what was expected under Article 2 (paras. 202 et
79
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States have an obligation to investigate deaths which are suspicious. 84 For the
positive obligation to protect life to emerge, State authorities must know or ought to
have known of the existence of a ‘real and immediate’ risk to the life of an identified
individual and failed to take reasonable measures to avoid that risk. 85 However, can
there be a violation of Article 2 ECHR where the danger arises from material
deprivation of resources. It is unclear whether any obligation would arise where there
was a ‘real and immediate’ risk to the life of an individual due to a lack of resources.
The Court has not ruled out entirely
“…that protection of physical integrity also comes under this provision, but if
so, then exclusively protection against such injuries as involve a threat to
life.”86
In general, there is no obligation for the State to adopt a course of conduct within the
field of social law and policy which respects the right to life. While the ECtHR has
found that positive duties of States are incurred to ensure the protection of life, it is
likely that States have a broad discretion “given the political and operational choices
seq.) The UK could have prevented the terrorists from travelling to Gibraltar in the first place or have
arrested them upon arrival (para 213). The ECtHR found it was not “…persuaded that the killing of the
three terrorists constituted the use of force which was no more than absolutely necessary in defence
of persons from unlawful violence within the meaning of Article 2 para. 2 (a) of the Convention.” (para.
213).
83 In Osman v UK (1998) 29 EHRR 245, the ECtHR found that in certain circumstances (however not
in this case), Article 2 of the Convention imposes a positive obligation on States to take preventative
measures to protect those whose life is at risk from a criminal. It must be shown that the risk must be
real and immediate and the authorities failed to take reasonable measures so as to avoid the risk.
84 In Askoy v Turkey (1996) 23 EHRR 513, the ECtHR (at para. 26) stated that authorities within
Contracting States are obliged to investigate allegations of serious offences which come to their
attention, regardless of whether a formal complaint is made.
85 Kilic v Turkey (2001) 33 EHRR 1357 at para. 87, as quoted in Taylor, K. “Article 2” in Lester, A. &
Pannick, D., supra. fn. 29 at p. 107, para. 4.2.7. In Osman v UK (1998) 29 EHRR 245, it was argued
that the authorities failed to appreciate the risk to the life of the applicant. In this case, the applicant
was stalked and threatened by a former teacher. The teacher then killed two individuals (Mr. Osman’s
father and a school principle, in addition, Mr. Osman was badly injured by the assailant). The Court
noted the difficulty in policing modern societies, the unpredictability of human conduct and the limited
operation resources placed on the police and security forces, so that Article 2 must not be applied
disproportionately. After an examination of the facts surrounding the case, the ECtHR were satisfied
that the State had not breached Article 2. However, in Edwards v UK (2002) 35 EHRR 487 the Court
did find a violation of Article 2 of the Convention. In this case, the applicant’s son was killed while in
State detention. The ECtHR noted that authorities (medical services, police and judiciary) had amble
information which would have pointed to the risk which Mr. Edwards faced from being placed in a cell
with a person who was mentally ill.
86 X v Austria, Application No 8278/78, 18 DR 154 (1979), as quoted in Zwaak, L. “Right to Life (Article
2)” in van Dijk Theory and Practice of the European Convention on Human Rights (4th edition, Oxford;
Intesentia, 2006), p. 353.
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that must be made in terms of priorities and resources.”87 Where a State does not
intentionally put the life of an individual at risk, the Court must ascertain whether the
State did all it could do to prevent the risk to the applicants life. 88 The mainstay of the
socio-economic cases under Article 2 is within the field of access to medical
treatment. Under Article 2, the Court has established some positive obligations to
provide medical treatment to those within the custody of the State. 89 In Anguelova
Bulgaria was found to have violated Article 2 in that, amongst other things, there was
a delay in the provision of medical treatment to an applicant who had subsequently
died.90 In Cyprus v Turkey, the Cypriots argued inter alia that the lack of adequate
health care available to the Cypriot and Maronite populations within Turkish occupied
Cyprus violated Article 2 of the Convention. The ECtHR stated that an issue may
arise under Article 2 where treatment is denied to a person, where such treatment is
available to the population generally.91 The ECtHR felt that it would be inappropriate
to comment on the extent to which Article 2 imposes on a State an obligation to
provide a certain standard of health care.92
Gomez Heredero has examined a number of cases where applicants have attempted
to rely on Article 2 in seeking to protect explicit socio-economic rights. The ECtHR in
La Parola93 stated that Article 2 could not be relied on in a case regarding a severely
disabled child’s health care or the assistance given to the child’s parents. The ECtHR
noted that the parents already received a permanent social assistance benefit and
“the scale of that benefit showed that Italy was already discharging its positive
obligations.”94 In Nitecki95 the ECtHR found no violation of Article 2 where Poland
agreed to pay 70% of the treatment price of a medical treatment, despite the
evidence that the applicant may not have been able to pay the 30% contribution. In
this case, failure to provide the treatment free of charge or at a more heavily
Taylor, K. Article 2 in Lester, A. and Pannick, D., supra. fn. 32 at p. 106, para. 4.2.6.
LCB v UK (1998) 27 EHRR 212, at para. 36.
89 Anguelova v. Bulgaria (2004), 38 EHHR 31.
90 In addition, the ECtHR found beyond reasonable doubt, that police officers had caused injury to the
applicant and the delay in the provision of medical treatment was to ensure that independent medical
experts could not examine the applicant and ascertain how the injuries came about, (2004), 38 EHHR
31 at paras 125-130.
91 Cyprus v Turkey (2002) 35 EHRR, para. 219. In this particular case, the Court failed to find that
Turkey had deliberately withheld medical treatment from the Cypriot or Maronite minority.
92 Ibid. Turkey were found to have violated the rights of the Cypriot and Maronite minorities in a
number of instances including those in relation to educational rights and property rights.
93 La Parola v Italy, Application no. 39712/98 (30 November 2000), See, Gomez Heredero, A. supra.
fn.81 at p. 38.
87
88
94
95
Ibid.
Nitecki v. Poland, Application No. 65653/01 (21 March 2002), See, Gomez Heredero, A. supra. fn.
81 at p. 39.
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discounted level did not engage or violate Article 2. Taylor submits that it would be
difficult to argue that a general standard of health care should be provided under
Article 2. Taylor refers to the case of X v Ireland96 in support of this contention. In X
the European Commission on Human Rights declared inadmissible an attempt to rely
on Article 2 so as to claim free medical treatment for a severely disabled child.97
One of the only cases to date that relates directly to the right to life and social
provision, is the very recent judgment of Nencheva et al v Bulgaria.
98
In Nencheva,
the applicants were the parents of a number of children and young people who were
cared for (due to their profound disabilities) in a state institution. Due to a significant
recession in Bulgaria, the manager of the state institution did not have sufficient
funds to provide food, light, sanitation or medical treatment for the applicants’
children.99 The fifteen children died, and while it could not be definitively proven, it
was accepted that the lack of food, heat and cleanliness of the institution potentially
contributed to their deaths. Despite attempts by those working in the care home and
the mayor of the locality to gain funding from central government, only limited funding
was made available.100 One of the issues that the ECtHR had to decide on,101 was
whether the failure by Bulgaria to provide adequate food and nourishment, heating
and medical care, was a violation of Article 2. The ECtHR found that the State had
failed to protect the lives of vulnerable children under their care that placed them at
an imminent risk of death, violating Article 2 of the ECHR.102 Throughout the
judgment, the ECtHR noted the exceptional circumstances,103 namely the failure of
the State to respond to requests from assistance from the director of the care home
and the town mayor. The ECtHR noted that the State had “precise knowledge of the
real and imminent risk”104 to the lives of the children and young persons due to the
96
X v Ireland Application 6839/74 (4 October 1976).
The application was declared inadmissible after the patient received the necessary treatment.
Application. No 48609/06, Nencheva and others v Bulgaria (Unreported decision of the ECtHR,
June 18 2013). The decision is available in French only from Hudoc, see http://hudoc.echr.coe.int/
(last accessed, 20 June 2013).
99 Ibid, paras 26-31.
100 Ibid, paras 32-40.
101 The ECtHR also discussed the positive obligation on states to conduct an adequate investigation
where an individual in State care dies in controversial circumstances, see Ibid, paras 126-141. The
Court rejected arguments made under Article 13 ECHR, taken with Article 2 & Article 3 ECHR and
alleged infringement of Article 6 ECHR.
102 The ECtHR awarded damages to two of the parents of €10,000 (as they had maintained a
relationship with their son throughout), with the other applicants receiving ‘just satisfaction’ from the
delivery of the judgment.
103 Ibid. paras, 10-25, 37, 39 and 124.
104 Ibid, para 124, “…alors qu’elles avaient une connaissance précise des risques réels et imminents
pour la vie des personnes concernées.”
97
98
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lack of food, health and medical treatment. In making this finding, the ECtHR went to
great lengths to distinguish this case from issues of force majeure or from isolated
cases of death in such facilities due to medical error.105
ii.
Inhuman and degrading treatment and socio-economic rights
An internal hierarchy exists between ‘torture’, ‘inhuman treatment’ and ‘degrading
treatment’. Torture has been defined by the Convention against Torture as “an act of
severe pain or suffering, whether physical or mental, is intentionally afflicted on a
person for such purposes as obtaining…information or a confession, punishing
him…intimidation…when such pain is inflicted by or at the acquiescence of a public
official…”106 The intensity of the suffering inflicted differentiates torture from the other
prohibitions within Article 3.107 The treatment or punishment complained of must
reach a certain minimum level of severity for Article 3 protection to be triggered.108
Punishment or treatment is said to be degrading where it caused feelings of “…fear,
anguish and inferiority capable of humiliating and debasing” those subjected to such
treatment.109 Past practices, once seen as inhuman and degrading treatment can
now encompassed within the definition of torture.110
See in particular Ibid. paras 117-122.
Article 1 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment U.N. Doc. A/39/51 (1984). The term ‘torture’ was first defined in the Greek Case 12
(1969) Yearbook of the European Convention on Human Rights, 186-510, where at p. 186, the
Commission stated that torture “is often used to describe inhuman treatment, which has a purpose,
such as obtaining of information or confessions, or the infliction of punishment and it is generally an
aggravated form of inhuman treatment…”
107 In Ireland v UK (1978) 2 EHRR 25 at para. 167 the ECtHR stated that a ‘special stigma’ should
attach to torture, which can be distinguished from inhuman and degrading treatment by its aggravated
and deliberate nature.
108 In Tyrer v United Kingdom a juvenile was convicted of an assault before a court in the Isle of Man
and sentenced to three lashes of a birch. This punishment was not viewed as torture or inhumane
punishment, but was found to be degrading. While all punishment will in one form or another be
degrading in that an individual will be humiliated; to come within Article 3, there needs to be more than
the inevitable suffering or humiliation which goes with all forms of punishment ((1978) 2 EHRR 1).
109 Ireland v United Kingdom (1978) 2 EHRR 25 at para. 167
110 The most apt example of this would be to compare the decisions of the ECtHR in Ireland v UK
(1978) 2 EHRR 25 and Selmouni v France (2000) 29 EHRR 403. In Ireland some of the activities
branded as ‘inhuman and degrading’, such as being placed in the ‘stress position’, being hooded,
subjected to noise, deprivation of sleep and deprivation of food and drink (para. 96 and paras. 165168). While in Selmouni actions involved the continued beating and an incident of sexual assault on
the applicant were found to constitute torture (paras. 91-107).
105
106
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Article 3 protects “one of the most fundamental values within democratic society.” 111
When discussing socio-economic rights, the focus will not be placed on torture, but
rather on the terms ‘inhuman and degrading treatment.’ The European Commission
on Human Rights has stated that all torture is in essence inhuman and degrading.
Inhuman treatment includes that which has been deliberately inflicted and causes
sever mental or physical suffering which is unjustifiable.112 While usually Article 3
violations will take place due to the actions of public officials or non-State actors,
given its fundamental nature, the Court has stated that “where the source of the
risk…stems from factors which cannot engage either directly or indirectly, the
responsibility of the public authorities of that country…”113 there may nevertheless be
a violation of Article 3. For treatment to be degrading it must ‘grossly humiliate’ or
require a person to act against will or conscience.114 Although Pretty concerned the
right to assistance in taking ones life where an applicant had a terminal debilitating
illness, the ECtHR nonetheless reemphasised the parameters of Article 3.115
Ill
treatment prohibited by Article 3 must reach a minimum level of severity and involve
‘actual bodily injury or intense physical or mental suffering’ or which ‘humiliates or
debases an individual showing lack of respect for, or diminishing his or her human
dignity or ‘arouses feelings of fear, anguish or inferiority capable of breaking an
individual’s moral or physical resistance’.116 Suffering from a naturally occurring
illness may be covered by Article 3 where “it risks being exacerbated by treatment,
whether flowing from conditions of detention, expulsion or other measures, for which
the authorities can be held responsible.”117
To come within Article 3 the treatment or punishment which a person is subject to
must attain a minimum level of severity. This minimum level of severity is relative and
depends on the circumstances of the particular case including the duration of the
treatment, its effects on the individual and the physical characteristics and turpitude
of the person suffering the treatment.118 The ECtHR has held that when dealing with
vulnerable individuals Contracting States need to provide “effective protection” to
Chahal v United Kingdom [1997] 23 EHRR 413, para. 79.
Ibid.
113 D. v United Kingdom (1997) 24 EHRR 423 at para. 49.
114 Greek Case 12 (1969) Yearbook of the European Convention on Human Rights, 186-510 at p. 186.
115 Pretty v UK (2002) 35 EHRR 1.
111
112
(2002) 35 EHRR 1 at para. 52.
Ibid. (Author’s emphasis).
118 In Soering v United Kingdom (1989) 11 EHRR 439 the ECtHR stated that it would examine the
following factors, “…the duration of the treatment, its physical or mental effects and in some cases, the
sex, age and state of health of the victim.” (para. 100).
116
117
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those who may be at risk from suffering an Article 3 violation.119 The precise nature
of what constitutes a vulnerable group has not yet been established. From the case
law to date, it would certainly include those unable to fend for themselves due to age,
disability, imprisonment. The case law under Article 3 and socio-economic rights has
been developed within three different areas. Firstly, there are the cases wherein
applicants failed to convince the Court that a certain minimum standard of living
should be provided so as to avoid treatment which would be regarded as inhuman or
degrading. There have been some exceptionally limited successes in arguing the
right to medical treatment as being inherent within Article 3 protections. The area
wherein the Strasbourg Court has substantially developed principles which are
inherently socio-economically laden are within their conditions of detention
jurisprudence. The case law under these three heads shall now be examined and
analysed to see whether this jurisprudence indicates a shift towards protection of
socio-economic rights by the ECtHR.
a) Article 3 and minimum standard of living
The former European Commission on Human Rights has rejected an interpretation of
the Convention, that Article 3 required everybody to have the most basic goods to
ensure human dignity.120 In van Volsem the applicant suffered from a number of
ailments which were aggravated by her low means.121 Due to her lack of means, the
applicant was unable to pay her electricity bill when it came due. The applicant had
been disconnected from the main electricity grid for a significant period of time during
a particularly harsh winter. It was argued that Article 3 guarantees the right to certain
basic goods which are “indispensable for ensuring human dignity.”122 The applicant
was not arguing entitlement to free electricity, but simply highlighting the fact that she
could not pay the large bills. The Commission found that the cutting off the electricity,
did not reach the level of humiliation that was necessary so as to engage Article 3. 123
In Z and Others v UK (2002) 34 EHRR 97, the ECtHR held that where children were subject to
severe parental abuse which was known to the authorities, reasonable steps ought to have been
taken to protect the children from a breach of Article 3.
120 Cassese, A. “Can the Notion of Inhuman and Degrading Treatment be applied to Socio-Economic
Conditions” (1991) 2 EJIL 141-145.
121 Van Volsem v Belgium, Application no. 14641/89 (9 May 1990). The full facts and findings of the
case are outline by Cassese, supra. fn. 120.
122 Cassese, supra. fn. 120 at p. 142.
123 Cassese, supra. fn. 120 at p. 143.
119
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In Pancenko124 the applicant had had a deportation order against her, however by
the time she had come to the court, this order was cancelled and she was granted
permanent residency in Latvia. Mrs. Pancenko had also argued that she suffered
socio-economic problems due to the denial of a residence permit from Latvia. In
particular, she suffered from unemployment, lack of free medical care and had no
financial support. The claim was based on article 3 and the ‘inhuman and degrading
punishment’ which arose from her socio-economic difficulties. The ECtHR stated
categorically that:
“The Convention does not guarantee, as such, socio-economic rights,
including the right to charge-free dwelling, the right to work, the right to free
medical assistance, or the right to claim financial assistance from a State to
maintain a certain level of living.”
In this particular case the applicants living conditions did not attain the minimum level
of severity required to amount to inhuman or degrading treatment contrary to Article
3. In Larioshina125 an old age pensioner argued that the amount of her old age
pension was insufficient for her to live on and breached her rights under the ECHR.
This claim however failed. The Court specifically recognised that “a complaint about
a wholly insufficient amount of social benefits may, in principle, raise an issue under
Article 3…” The severity threshold in this case was not reached. Therefore, the
possibility that Article 3 may give rise to potential socio-economic obligations upon
contracting States remains; however, the threshold which applicants would have to
reach seems quite high. However, this threshold was met in the case of M.S.S. v
Belgium and Greece.126
M.S.S was an Afghan asylum seeker. The applicant first entered Greece, where he
was detained for a number of days.127 He was then ordered to leave the state and
made his way to Belgium. The applicant had not applied for asylum in Greece at this
Pančenko v. Latvia, Decision of 28 October 1999, Application No. 40772/98. This is an unreported
admissibility decision, however, the United Nations High Commission for Refugees (UNHCR) has a
summary
of
the
case
at
the
following
link,
http://www.unhcr.org/cgibin/texis/vtx/home/opendoc.pdf?id=3ead2e584&tbl=PUBL, see pp. 17-18, (last viewed, June 17
2013). See also See, Gomez Heredero, A. supra. fn.81 at p. 43.
125 Larioshina v Russia Application no. 56679/00 (23 April 2002),.
126 Application no. 30696/09, M.S.S v Belgium and Greece, Unreported judgement of the ECtHR, 21
January 2011.
127 Ibid., para. 205.
124
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stage. Upon arriving in Belgium, M.S.S made an application for asylum.
Implementing the Dublin Regulation,128 Belgium returned the applicant to Greece
and received assurances that the applicant would be allowed to enter the Greek
asylum process. The applicant was detained for a further seven days when he reentered Greece, and eventually his asylum claim was processed and he was
released with an entitlement to work and medical care. The ECtHR noted that
Greece had transposed the EU Reception Conditions Directive (RCD), 129 after the
Court of Justice of the European Union (CJEU) had ruled that it had not transposed
the RCD within the prescribed transposition period.130 M.S.S lived in extreme poverty
while awaiting the outcome of his asylum claim, which had been lodged in June 2009
and still had not been decided upon on the date of the ECtHR judgment. 131 No
information on accommodation or subsistence was provided to M.S.S.132 The
applicant was living in a park with other Afghan asylum seekers, did not have any
sanitation or opportunities to maintain his appearance or hygiene, and relied on
churches and other individuals and organisations for food.133 Greece argued that the
applicant had a ‘pink card’ which enabled him to work and also to obtain medical
assistance free of charge. Greece stated that had the applicant remained in the
country, rather than going to Belgium (from which he was later returned), he would
have had ample resources to rent accommodation and cater for his needs. 134 Greece
further argued that to find that the applicant’s Article 3 rights were violated by a
failure to provide for material reception conditions, would place an undue burden on
the state in the midst of its worst ever financial crisis.135
The ECtHR began by emphasising that Article 3 does not provide the right to a
home136 or the right to a certain standard of living.137 The ECtHR stated that the
obligation to provide accommodation and decent material conditions to impoverished
Council Regulation No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms
determining the Member State responsible for examining an asylum application lodged in one of the
Member States by a third country national [2003] O.J. L.222/3. Regulation 343/2003 is also known as
Dublin II.
129 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception
of asylum seekers [2003] O.J. L.31/18.
130 Case C-72/06, Commission v Greece, Unreported judgment of the European Court of Justice (19
April 2007).
131 Supra. fn. 126 at para. 235.
132 Ibid., para. 236.
133 Ibid., para. 238.
134 Ibid., paras. 240-243.
135 Ibid., para. 243.
136 Repeating the sentiments expressed in Chapman v UK (2001) 33 EHRR 399 at para. 99.
137 See, Muslim v Turkey (2006) 42 EHRR 16.
128
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asylum seekers is due to “positive law”, namely the RCD.138 The ECtHR also noted
their decision in Budina v Russia,139 where it was stated that in a situation of severe
deprivation, a contracting state may have obligations under Article 3 ECHR. The
ECtHR emphasised that asylum seekers were a particularly vulnerable group 140 and
while the ‘pink card’ gave the applicant the opportunity to work, this was not
realisable due to his poor command of Greek, the administrative hurdles in being
registered as an employee, and the general unfavourable economic climate in
Greece.141
It is important to note that the ECtHR only found such a violation due to Greece’s
legal obligations under the RCD. Judge Roazakis, in a concurring opinion, stated that
the RCD ‘weighed heavily’ on the court.142 The distinctions made between asylum
seekers and other persons, who may not have a legislative right to accommodation
or means of subsistence, was crucial. The ECtHR held that the Greek authorities did
not have due regard to the vulnerability of the applicant who has spent several
months sleeping in a park with no regular or guaranteed access to food. This was
degrading treatment, which violated Article 3 ECHR.143 Belgium was also found liable
for the living conditions of M.S.S in Greece. The ECtHR stated that the expulsion of
an asylum seeker by a contracting state can result in a violation of Article 3, even if
the state is operating under the Dublin Regulation.144 Since Belgium should have
been aware of the general living conditions that M.S.S would be living under,
Belgium had knowingly transferred to Greece, exposing him to living conditions that
amounted to degrading treatment.145 Judge Roazakis emphasised that not
everybody can claim the right to a minimum level of subsistence under the ECHR, as
the RCD provided an “advanced level of protection” to asylum seekers. 146
In a partly dissenting opinion,147 Judge Sajó was of the view that neither Greece nor
Belgium had any obligation as regards the living conditions of M.S.S under the
Supra. fn. 126 at para. 250.
Application No. 45603/05, Budina v Russia, Unreported judgment of the ECtHR, 18 June 2009.
140 Supra. fn. 126 at para. 251, see also Application No. 15766/03, Orsus v Croatia, Unreported
138
139
judgement of the ECtHR, 16 March 2010 at para. 147.
141 Ibid., para. 261.
142 Individual concurring opinion of Judge Roazakis, supra. fn. 126. There are no paragraph numbers
to which direct reference can be made.
143 Supra. fn. 126 at para. 263.
144 Ibid., para. 365.
145 Ibid., para. 367.
146 Supra. fn. 142.
147 Partly concurring and partly dissenting opinion of Judge Sajó, supra. fn. 126. There are no
paragraph numbers to which direct reference can be made.
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ECHR. Rejecting the finding that asylum seekers were a vulnerable group per se,
Judge
Sajó
argued
that
the
majority
within
the
Grand
Chamber
were
constitutionalising welfare rights, something that could only be done by state
legislators or constitutional courts of the contracting states to the ECHR. Judge Sajó
also stated that the obligations of EU member states under the RCD are
‘fundamentally different’ to the positive obligations upon contracting parties under
Article 3 ECHR. In Judge Bratza’s partly dissenting opinion,148 he stated that Belgium
should not be held liable under Article 3 ECHR for returning M.S.S to Greece. 149 In
December 2008, the ECtHR had ruled in K.R.S. v United Kingdom150 that returning
an asylum seeker to Greece under the Dublin II Regulation would not violate Article
3. K.R.S was challenging his return to Greece claiming that the asylum determination
process and reception conditions in Greece violated Article 3.151 In dismissing this
claim, the fourth chamber of the ECtHR stated that Greece had an adequate refugee
status determination system and the EU “… asylum regime so created protects
fundamental rights, as regards both the substantive guarantees offered and the
mechanisms controlling their observance.”152 Judge Bratza noted that the
deficiencies in the Greek asylum and reception system were known to the court in
K.R.S.153 The Grand Chamber was relying on many of the reports from international
organisations and non-governmental organisations that the fourth chamber in K.R.S
had already rejected.154 The Belgian authorities had specifically referenced the
K.R.S. judgment when they decided to transfer M.S.S back to Greece.155 Given the
close proximity in time between the K.R.S decision and the application of M.S.S to
the ECtHR for immediate Rule 39 measures (which were not granted), Belgium was
simply implementing known ECHR law in relation to the transfer of M.S.S. to
Greece.156 Therefore, Belgium should not have, in Judge Bratza’s opinion, been
found liable for the degrading treatment suffered by M.S.S in Greece.
This judgment raises some interesting questions on how the ECtHR reached its
decision that both Belgium and Greece violation Article 3 due to the reception
Partly dissenting opinion of Judge Bratza, supra. fn. 126.
Ibid., para. 1.
150 KRS v United Kingdom (2009) EHRR SE8.
151 Ibid., pp. 129-132.
152 Ibid. pp. 142-143.
153 Supra. fn. 148 at para. 3.
154 Ibid.
155 Ibid., para. 6.
156 Ibid., paras. 9-16.
148
149
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conditions for those seeking asylum in Greece. Prior case law set a very high
threshold before a lack of basic state social supports would engage Article 3 ECHR.
The decision in M.S.S goes some way to dealing with the question of when state
inaction in the field of socio-economic rights protection, can lead to a violation of
Article 3 ECHR. However, this decision also raises important questions regarding the
extent to which Article 3 ECHR can prevent destitution for all persons in a state. The
decision in M.S.S relied heavily on Greece’s membership of the EU and the
obligations upon it due to the requirements of the RCD. The RCD only applies to
those who seek asylum and not other forms of complementary protection. While in
Ireland and the UK, most who seek asylum or protection are provided with reception
conditions that safeguard against destitution, it is unclear whether contracting states,
which do not provide any form of reception for those seeking complementary forms
of protection, will be found to have violated Article 3 ECHR. This raises a more
fundamental issue on the ‘absolute’ nature of Article 3 in relation to socio-economic
rights protections.
Given that a slim majority of contracting states to the ECHR are not members of the
EU (and Ireland is not bound by the RCD), to what extent can asylum seekers in
these states rely on Article 3 ECHR? It is likely, that if asylum seekers and those who
claim subsidiary forms of protection can rely on Article 3, then the most that this
would ensure would be a very basic level of socio-economic protection, extending no
more than to the provision of shelter, food and other basic means of subsistence.
There is no suggestion within M.S.S that there is a requirement to provide a right to
shelter, food, subsistence and social assistance payments at a level enjoyed by
nationals or legal residents within a contracting state. The decision in M.S.S leaves a
lot of questions unanswered in relation to the level of support that must be
maintained. However, given previous decisions in Pancenko, Larioshina and Budina,
it is unlikely that the ECtHR would delve into the modalities of reception or question
the level of monetary payment received by an individual claiming asylum or
subsidiary protection. In Limbuela,157 the House of Lords in the United Kingdom
found that the withdrawal of all form of social supports for an asylum seeker, coupled
with the denial of the right to be self-sufficient would give rise to a violation of Article
3 where
157
R (Limbuela, Tesema & Adam) v Secretary of State for the Home Department [2006] QB 1440.
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“it appears on a fair and objective assessment of all relevant facts … that an
individual applicant faces an imminent prospect of serious suffering caused or
materially aggravated by denial of shelter, food or the most basic necessities of
life…”158
Without substantively discussing Limbuela, both courts relied
on concepts of
positive law,159 however the tenor of Limbuela seems to suggest that providing
reception conditions for those seeking asylum (or subsidiary protection) was inherent
within Article 3 ECHR to ensure that an individual did not suffer inhuman or
degrading treatment due to a states actions or inactions. Nevertheless, the limited
remit of these judgments must be emphasised in that both permit significant
differences in protecting the socio-economic rights of asylum seekers (and potentially
those seeking other forms of protection) in comparison with citizens or legal residents
of a state. In any case, once material conditions for subsistence protect against
destitution, it is likely that the ECtHR would not entertain a challenge arguing that
reception conditions were inadequate for Article 3 ECHR purposes. When discussing
positive obligations, the ECtHR, while wary of interfering with how a government
allocates resources,160 nevertheless has proved willing to intervene where prison
conditions were wholly inadequate. This would have a knock on effect on other
government priorities. However, the Court does not appear to have an appetite to set
down precise degrees of protection for socio-economic rights. In general, the ECtHR
has adopted a cautious approach when assessing the degree to which Article 3
ECHR can be seen as providing individuals with a certain minimum standard of living
as evidenced in M.S.S where the ECtHR noted that the only reason the applicant
was protected was due to Greece violating EU law. Nevertheless, it needs to be
emphasised that states obligations under Article 3 ECHR would not extend to
ensuring equality in the provision of welfare rights to asylum seekers or those
seeking protection.161
[2006] QB 1440 at p. 1441, per Lord Bingham.
In the case of Limbuela, section 95 of the Immigration and Asylum Act 1999.
160 See supra. fn. 54 and accompanying text.
161 For a more substantive discussion on this case and the role of Article 3 ECHR, see: Mackenzie, A.
“Case Analysis: R v Secretary of State for the Home Department, ex parte Limbuela” [2006] 1 EHRLR
67; Billings, P. and Edwards, R.A “R (Adam, Limbuela and Tesema) v Secretary of State for the Home
Department- a case of ‘mountainish inhumanity’” (2006) Journal of Social Security Law 169, Billings,
P. “The Treatment of Asylum Seekers in the United Kingdom” (2007) 29(1) JSWFL 49 and Bosworth,
M. “Border Control and the Sovereign State” (2008) 17(2) Social and Legal Studies 199; O’ Cinneide,
158
159
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b) The medical treatment cases
The ECtHR has not pronounced on a general right to medical treatment. 162 The AIDS
cases may be instructive as to how the ECtHR views socio-economic rights in
general. In D163 it was argued that the withdrawal of medication from a patient in an
advanced stage of the AIDS virus, and removing him to St. Kitts would be a violation
of inter alia Article 2,164 Article 3 and Article 8165 of the Convention. Article 2 and
Article 8 were not considered by the ECtHR. The ECtHR found that, if removed, D
would be subject to inhuman and degrading treatment contrary to Article 3. The fact
that the applicant would suffer in St. Kitts and this suffering could not be attributable
to the British authorities did not mean that Article 3 could not be engaged.166 In
coming to that decision, the ECtHR emphasised that alien ex-prisoners in general do
not have a right to remain in the State in order to benefit from medical, social or other
forms of State assistance.167 However, the Court noted the exceptional
circumstances in this case: the advanced stage of the applicant’s illness and the lack
of any societal or familial support in St Kitts for D. The ECtHR therefore found that to
remove D would be a violation of Article 3.168
C. “A Modest Proposal: Destitution, State Responsibility and the European Convention on Human
Rights” (2008) European Human Rights Law Review 583
162 Supra. fn. 4 at p. 251.
163 D. v United Kingdom (1997) 24 EHRR 423.
164 The applicant argued that the UK government had a positive obligation to protect his right to life.
Since his removal to St. Kitts would bring about a quicker death, there would be a direct causal link
between his expulsion from the UK and his death (para. 56). The UK Government retorted with the
suggestion that the UK could not be held responsible since his death was brought about by his illness
combined with a lack of medical treatment (para. 57).
165 D. argued that his removal would constitute an interference with his private life in that any removal
would result in an attack on his physical integrity (para. 61). The UK in response stated that D could
not claim a violation of Article 8, as any link with the UK was due to D’s committal of a crime. Even if
D could claim to enjoy the right to a private life in the UK, his removal was necessitated due to the
serious nature of the crime committed (drugs offences) and to protect the economic well being of the
UK (para. 62).
166 (1997) 24 EHRR 423 at para. 49.
167 Supra. fn. 163 at para. 54.
168
Ibid.
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However, there is not a general right for those suffering with HIV or AIDS to remain in
a country in which they have no right to be present.169 In S.C.C v Sweden170 the
applicant claimed that she should be entitled to remain in the country given the lack
of treatment for HIV in Zambia. The applicant claimed that if returned to Zambia, her
right to life would be violated. In addition, she stated that she would be subject to
inhuman and degrading treatment and a violation of her respect to private life in that
she would not have access to necessary medications so as to contain her illness.
The Court distinguished between the D and B.B cases in that within both these
cases, the applicants’ illnesses were in an advanced stage and if returned, both
would have no social or moral support from their families or communities. The Court
found as a matter of fact that AIDS treatment was available in Zambia. In addition,
the applicant could rely on familial and other support. The expulsion of the applicant
was provided for by law, and the State party has a legitimate aim in protecting the
countries immigration system and the ‘economic well-being of the country.’ The
ECtHR found that the applicants claim of an article 3 violation were she returned to
Zambia was “manifestly unfounded.”
The Bensaid171 case did not concern a terminal illness like AIDS, but an issue arising
from the applicant’s mental health. The applicant was an Algerian national.
He
argued that if he was returned to Algeria, he would face a real risk of relapse of
psychotic symptoms which would violate his rights inter alia under Article 3 and
Article 8 of the Convention. In relation to Article 3, the ECtHR stated that due to its
fundamental importance, it can examine the applicant’s claim even where the source
of the violation may not be directly or indirectly attributed to the public authorities of
the country to which the applicant is to be returned.172 Otherwise, the absolute nature
of Article 3 would be undermined. However, in this case, the applicant failed to
substantiate a real risk of an Article 3 violation and the facts of the case were not
comparable to the exceptional nature in D.173 While the ECtHR accepted that there
may be difficulties for Bensaid in accessing treatment for his mental illness, these
In 1998, the ECtHR gave judgment in B.B. v France (7 September 1998). This case revolved
around B.B.’s danger of deportation to the Congo, where he alleged he would not have access to antiretroviral drugs. B.B was at a late stage of his illness. Any removal, the applicant argued, would be
contrary to Article 3 and Article 8 of the Convention. The case was however struck out as the ECtHR
accepted that France no longer intended to remove the applicant from the country.
170 S.C.C v Sweden (Unreported Judgment of the European Court of Human Rights, 15 February
2000).
171 Bensaid v United Kingdom (2001) 33 EHRR 205.
172 (2001) 33 EHRR 205 at para. 34.
173 (2001) 33 EHRR 205 at para. 40.
169
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burdens were not so big as to find an Article 3 violation.174 The Court acknowledged
the seriousness of the applicant’s condition, it also emphasised the high threshold
which must be surpassed in finding a violation of Article 3. In Hukic, the ECtHR
stated that there was no Article 3 violation where a Down’s syndrome child was
expelled from Sweden with his parents. The applicants had argued that treatment for
Down’s was much better in Sweden than in their native Bosnia.175
c) Article 3 and detention conditions
In the last decade, the ECtHR have given judgments in a number of cases wherein
applicants successfully complained of Article 3 violations with regard to prison
conditions. The conditions were so poor, that they constituted inhuman and
degrading treatment beyond that which inevitably goes with imprisonment for the
commission of a crime. In general a Contracting State “…must ensure that a person is
detained in conditions which are compatible with respect for his human dignity, that
the manner and method of the execution of the measure [punishment] do not subject
him to distress or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention…”176
In Dougoz the applicant complained of poor conditions within a detention centre.
These conditions included overcrowding, sparse and intermittent hot-water and a
lack of beds and bedding for the inmates. In addition, the applicant claimed that
detainees had little fresh air, no exercise yard and no natural light. The applicant
argued that these conditions violated Article 3 of the Convention. The Greek
Government denied these claims.177 The European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a
report on the particular detention centre which was highly critical of many aspects of
the centre including hygiene, sanitation, the over-crowded conditions and the mixing
of those held under aliens’ legislation and those convicted of criminal offences. 178
The applicant had stated that his family were not very well off; they lived in a two bedroom house
and survived on his fathers pension. In addition, his familial home was 70-80 kilometres from the
nearest acute mental health hospital, (2001) 33 EHRR 205 at para. 30.
175 Hukic v Sweden, Application no. 17416/05 (07 September 2005)
176 Kudla v Poland (2000) 35 EHRR 198 at para. 94.
177 Dougoz v Greece (2002) 34 EHRR 61, paras. 20-23. In the earlier case of Peers v Greece (2001)
33 EHRR 51, the Court had found that the failure to separate remand prisoners from those convicted
of an offence and the poor conditions of detention, including lack of proper ventilation or private toilet
facilities constituted degrading treatment.
178 (2002) 34 EHRR 61, para. 40.
174
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The ECtHR noted that the applicant’s description of the detention centre was
corroborated by the CPT. Given the length of time the applicant was held in these
conditions (18 months), the ECtHR found this to be inhuman and degrading.179
In Kalashnikov the applicant was on remand in very cramped and over-crowded
conditions.180 Russia, while in part acknowledging problems with its detention
facilities, stated that the applicant was not subjected to inhuman or degrading
treatment. The conditions experienced by the applicant did not differ, or were no
worse, than those prevailing within many Russian prisons.181 Furthermore, Russia
pointed to the very difficult economic circumstances it had encountered during the
time of the applicant’s detention.182 The Court however, after examining the effect
which such conditions would have on an individual in detention, concluded that the
applicant suffered from treatment183 which diminished his human dignity and aroused
feelings of humiliation and debasement.184
In Poltoratskiy v Ukraine185 the ECtHR acknowledged that there is no need for the
State to have a positive intention of humiliating or debasing an individual. However,
circumstances may be such that the treatment endured by the applicant comes
within the realm of Article 3. In Poltoratskiy the applicant was found guilty of
murdering four individuals. His conditions of detention included a lack of water, which
came from a pipe attached to the wall, the walls were covered with faeces, there was
no means to flush the toilet and the applicant was kept in a cell where lights were on
twenty four hours a day and the radio was only switched off at night.186 While the
economic difficulties for the Ukraine within this period were acknowledged, the
ECtHR stated that a lack of resources cannot justify prison conditions which are so
poor so as to be contrary to Article 3 of the Convention.187
(2002) 34 EHRR 61, paras. 47-49.
Kalashnikov v Russia (2003) 36 EHRR 34 at paras. 13-30. Some of the issues of detention
included: sharing a small cell with up to 14 other people where prisoners would sleep in shifts of 8
hours each since there was inadequate sleeping facilities, the applicant contracting a number of
diseases, the cell was unsanitary and there was little natural light or fresh air.
181 (2003) 36 EHRR 34 at para. 93.
182 (2003) 36 EHRR 34 at para. 94.
183 Though the Court did note that there was no positive intention on the authorities to violate Article 3
((2003) 36 EHRR 34 at para. 101).
184 (2003) 36 EHRR 34 at para. 101. In addition, the ECtHR found a breach of Article 5(3) and Article
6(1).
185 Poltoratskiy v Ukraine (2004) 39 EHRR 43.
186 (2004) 39 EHRR 43 at paras. 129-139.
187 (2004) 39 EHRR 43 at para. 148. In addition, the ECtHR found a violation of Article 8 (revolving
around the right to respect for correspondence and the interference with family visits) and Article 9
(the applicant was not allowed receive visits from priests) of the Convention.
179
180
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This line of case-law cannot give rise to a certain degree of medical conditions to be
present within the place of detention. In Kudla the applicant was arrested for a
number of criminal offences. He suffered from severe and chronic depression and
attempted to commit suicide on a number of occasions.188 It was argued that the
failure to provide the applicant with adequate psychiatric treatment while waiting for
trial on remand constituted a violation of Article 3.189 Poland in response referred to
the high degree of medical and other supervision provided to the applicant. 190 The
ECtHR found that there was no violation of Article 3 whereby the applicant was
detained and had complained of lack of treatment for mental illness while in custody
of the State. The Court stated that the ill-treatment complained of did not reach the
degree of severity required under Article 3.191 Poland had fulfilled its positive
obligations under Article 3 by putting in place a system of supervision and monitoring
of the applicant’s health status and the Court was unwilling to re-assess the nature
and level of the supports in place.
The cross-applicability of these cases to areas where a State takes responsibility for
the care of an individual outside a detention setting has yet to be fully teased out.
This may the responsibility of States for conditions within an orphanage, a school,
within an elderly care home and may expand to the protection of those who are
unemployed, pensioners, or who are legislatively barred from seeking employment
and being self-sufficient.
In Mayeka and Mitunga v Belgium192 the respondent State was found to have
violated Article 3. In this case, one of the applicant’s was a five year old Congolese
child. She was removed from the DRC by her uncle (a Dutch national) in the hope
that she would then go to her mother in Canada. On arrival in Belgium, the
applicant’s uncle did not have the necessary immigration documentation for the child
and so the child was detained. The child was detained for a period of two months in
an adult detention centre. The applicants’ claimed that this was inhuman and
degrading in that this detention centre was unsuitable for minors (it was an adult
facility). The young child it was claimed had been denied freedom of movement, had
been unable to play or express her feelings, and had been held in precarious
188
Kudla v Poland (2000) 35 EHRR 198.
(2000) 35 EHRR 198 at paras. 82-85.
(2000) 35 EHRR 198 at paras. 86-89.
191 (2000) 35 EHRR 198 at para. 99. The ECtHR did however find a violation of Articles 5(3), 6(1) and
13 of the Convention.
192 Mayeka and Mitunga v Belgium, Application no. 13178/03 (12 October 2006).
189
190
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conditions in an adult world where liberty was restricted.193 Belgium, although
admitting that the centre was unsuitable, justified the detention on the basis that the
child did not have identity documents or necessary entry visa to gain access the
country. Furthermore, the child had regular telephone contact with her mother and
uncle and was integrated into family life by other mothers at the detention centre.
Belgium also stated that staff in the detention centre were attentive to the needs of
the child.194 The ECtHR stated that the child’s rights under Article 3 take precedence
to any issue regarding her legal or immigration status within Belgium. 195 The
applicant was a very vulnerable person to whom “…the Belgian State owed a duty to
take adequate measures to provide care and protection as part of its positive
obligations under Article 3 of the Convention.”196 The Court was satisfied that
Belgium was aware of the plight of the child and demonstrated a lack of humanity to
such a degree that it constituted inhuman treatment in violation of Article 3. 197
d) Conclusion on Article 3 ECHR
It is clear that Contracting States are to have in place certain conditions of detention
and lack of resources cannot generally justify a deviation from these standards. The
jurisprudence on a certain minimum standard of living and access to medical
treatment is developing. However, it seems only the most serious of socio-economic
rights, coupled with pre-existing legislative obligations upon States to meet provide
certain minimium social supports are necessary. It will be interesting to see if the
Strasbourg Court will expand the reaches of Article 3 any further. Since Article 3 is
absolute the judges may be wary of expanding interpretations any further given the
possible resource implications this may have for States. When discussing positive
obligations, the Court while wary of interfering with how a Government allocates
Ibid., para. 42.
Ibid., paras. 43-47.
195 Ibid., para. 55.
196 Ibid.
197 Ibid., para. 58. The ECtHR also found that Article 8 of the Convention was violated as Belgium had
193
194
interfered with the child and mother’s family life by deporting the girl to the Democratic Republic of the
Congo. The Court also found that by detaining the child, Belgium had violated Article 5(4) of the
Convention. See also, M.S.S v Belgium and Greece (discussed above) and Application No. 58164/10,
Bygylashvili v Greece, Unreported judgment of the European Court of Human Rights, 25 September
2012 (available in French only).
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resources,198 nevertheless has proved willing to intervene where conditions of
dentention were wholly inadequate or where States failed to comply with legislative
obligations that they themselves had set down. However, the Court does not appear
to have an appetite in declaring socio-economic principles of general application as
being inherent within Article 3 protections.
iii.
Social and economic rights and Article 8
a) Introduction
De la Mare and Kennelly describe Article 8 as protecting a rag-bag of personal rights
and interests from physical and bodily integrity, to the recognition of an acquired
gender, ability to express ones sexual orientation, protection of communications,
reputation and preservation of family life.199 In Pretty the ECtHR said that the term
private life is
“…not susceptible to an exhaustive definition…it can embrace aspects of an
individual’s physical and social identity….a right to establish and develop
relationships…[and] the notion of personal autonomy is an important principle
underlying the interpretation… [of Article 8]”.200
When dealing with issues of positive obligations (in particular those which may have
a socio-economic tone), the ECtHR has given a wide margin of appreciation to
Contracting States. In particular, as the case law below highlights, the Court has
stated that national authorities are inherently in a better position than an
internationalised court to assess the needs of individuals. The Court has stated that
due to a Government’s “direct and continuous” knowledge of their State, they are in
principle in a better position to evaluate local needs and conditions. 201 The ECtHR
See supra. fn. 54 and accompanying text.
De la Mare, T. & Kennelly, B. “Article 8” in Lester, A. & Pannick, D., supra. fn. 32 at p. 261, para.
4.8.2. Moreham has attempted to categorise the protections offered for ones private life under Article
8 of the ECHR as including: (i) Freedom from interference with physical and psychological integrity; (ii)
Collection and disclosure of information; (iii) Protection of one’s living environment; (iv) Identity and (v)
Personal autonomy, see Moreham, N.A. “The Right to Respect for Private Life in the European
Convention on Human Rights: A Re-examination [2008] EHRLR 44-79.
200 Pretty v UK (2002) 35 EHRR 1 at para. 61.
201 Buckley v United Kingdom (1996) 23 EHRR 101 at para. 75.
198
199
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therefore will only provide the most general principles of application when ruling on
issues which have socio-economic effects. As with Article 3, only in the most extreme
circumstances will the Court acknowledge socio-economic protection as coming
within Article 8. That said, the ECtHR has always stated that Article 8 (and Article 3)
may in exceptional circumstances require positive social provision for individuals who
are particularly vulnerable.
The ECtHR has had to decide cases on issues of social deprivation, social exclusion
and healthcare rights under the Article 8. There are generally three typical arguments
from case law, sometimes intertwined, which emerges from Article 8 case law to
date. Firstly, it has been argued that the positive obligations towards the disabled, ill
or infirm have been violated due to State inaction. The second type of argument is
that individuals are living in such poor conditions that there right to a private and/or
family life is being violated. Thirdly, it is argued that an individual’s right to live a
traditional lifestyle is not being accommodated by the State. However, the Court has
rejected all of these arguments.
b) Health Care and Article 8
The ECtHR has rejected that Article 8 necessitates a State to provide a certain
degree of accessibility for the disabled. In Botta the applicant alleged that a lack of
lavatories and ramps so as to enable him to access a private beach had breached
Article 8.202 The Italian government claimed that to interpret the right to a private life
to include a positive obligation on the State to provide for recreational activities would
render Article 8 unrecognisable from the stated aims of its incorporation into the
Convention. The Court accepted the argument of the Italian government. The ECtHR
noted that the right to gain access to the sea concerns interpersonal relations that
are so broad and indeterminate that there was ‘no conceivable direct link’ between
the applicant’s private life and the failure of the State to force private operators to
make beach access disability friendly.203
The case of Bensaid, which was discussed above, also raised an issue in relation to
the protection of private life under Article 8. The applicant stated204 that since the
National Health Service (NHS) had assumed responsibility for caring for his medical
202
203
204
Botta v. Italy (1998) 26 EHRR 241.
(1998) 26 EHRR 241 at para. 35.
(2001) 33 EHRR 205 at para. 44.
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condition, were this treatment to be withdrawn, it would affect adversely his
psychological integrity. The UK stated that treatment was available in Algeria, and
even if there was an interference with Bensaid’s private life it could be justified under
Article 8(2) on the basis that the State immigration policy was necessary for the
economic well-being of the country and the prevention of disorder and crime. In
addition, if the ECtHR was to rule in favour of Bensaid, “[i]t would have seriously
destabilising effects if the NHS became liable to provide treatment to a potentially
open-ended class of non-European Union citizens.”205 The ECtHR, relying on its
finding that Bensaid would not
face inhuman and degrading treatment and the
hypothetical nature of many of the applicant’s arguments, agreed with the
submissions of the UK, and found that there would be no violation of the applicant’s
private life.206
c) Housing and Article 8
There is no right under Article 8(1) of the Convention to a specified form of
accommodation or housing.207 In Burton, the applicant who had lived in local
authority rented accommodation could not claim that her right to a private or family
life was violated by the local authority’s refusal to provide her a caravan in which she
wished to see out her remaining days.208 In Marzari Italy was found to have fulfilled
(2001) 33 EHRR 205 at para. 45.
(2001) 33 EHRR 205 at para. 48. Judges Bratza, Costa and Greve, while agreeing with the findings
of the majority, said that the case had raised ‘powerful and compelling’ humanitarian issues that may
merit a reassessment by national authorities.
207 This paper is only concerned with this issue in the Strasbourg Court. For a more expansive
interpretation of Article 8 in relation to housing, private and family life and Article 8 at the domestic
level (and in the UK), see, Doherty v Dublin South County Council [2007] IEHC 4 (22 January 2007);
O’Donnell v South Dublin County Council [2007] IEHC 204 (22 May 2007); O’Donnell (minors) &
Others v South Dublin County Council & Others [2008] IEHC 454 (11 January 2008); Dooley & Others
v Killarney Town Council and Another [2008] IEHC 242 (15 July 2008). These cases are discussed in
Thornton, L. “Human Rights in the Republic of Ireland 2007” (2009) 2 Irish Yearbook of International
Law 175 at pp. 184-186 and Thornton, L. “Human Rights in the Republic of Ireland 2008” (2011) 3
Irish Yearbook of International Law 159 at pp. 168-171.
208 Burton v United Kingdom (1996) 22 EHRR CD134 at para. 2. The Commission noted that the
applicant had been living in rented local accommodation for almost 20 years. The Commission further
205
206
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its positive obligations towards the applicant after he was offered, but refused to
accept, an apartment which catered in part for his disability needs. The applicant
suffered from a serious illness and the Court recognised that there was a duty on
Italy to ensure respect for his Article 8 rights. The applicant felt that his old
apartment, with modifications, would have suited his needs. The Court implied that
once offered accommodation, a State fulfils its positive obligations. However, the
Court did leave open the possibility that a refusal by the Contracting States to
provide ‘assistance’ to a person suffering from a serious disease may raise an issue
under the private life aspect of Article 8.209
In O’Rourke the applicant complained that he was being evicted from his local
authority accommodation and being forced to live on the streets.210 The ECtHR has
stated that there is no general obligation to be provided with a home. Any positive
obligation to house the homeless must be limited.211 In this case, the applicant was
deemed to be responsible for his continued homelessness and had rejected
repeated offers of local authority housing.
In Buckley the ECtHR stated that
regulating the use of land whereby Gypsies were prevented from moving their
caravans onto tracts of land without permission, while an interference with family and
private life,212 was ‘in accordance with law’,213 pursued a legitimate aim214 and was
necessary in a democratic society.215 The Court would not assess the merits of the
decision made by the national authorities, but only assess the reasons provided by
the local authority were ‘relevant and sufficient’ to justify an interference with Article
stated that positive obligations under Article 8 do not extend to the provision of accommodation of an
individual’s choosing.
209 Marzari v Italy (1999) 28 EHRR CD 175.
210 O’Rourke v United Kingdom, Application No 39022/97, 26 June 2001.
211 This reasoning reflected an earlier ruling of the ECtHR. In Barreto v Protugal , Application no.
18072/91(21 November 1995), (see also “Housing: home-right to possession” [1996] 2 European
Human Rights Law Review 214-216) the Court said that the social protection of tenants was a
legitimate aim in restricting a person from ‘reclaiming’ a home which they own. Article 8, the Court
said, does not require the Government to provide legal protection to enable everybody to have a
home. In an earlier Commission case of X v Germany (1956) 1 Yearbook 202, it was held that Article
8 does not require the State to provide a home for a refugee, see supra. fn. 27 at p. 249.
212 Buckley v United Kingdom (1996) 23 EHRR 101 at paras. 56-60.
213 (1996) 23 EHRR 101 at para. 61.
214 (1996) 23 EHRR 101 at paras 62-63. The legitimate aims the control of use of land achieved were
within the realms of inter alia planning control, preservation of the environment and public health,
public safety and the economic well being of the country.
215 In relation to this ground, Buckley claimed that while Gypsies should not be immune from planning
controls, giving the lack of ‘official’ quality sites, which would impede her ability to raise her children in
a safe and stable environment, the UK in seeking to remove her was acting disproportionately. The
UK in response stated that planning laws were necessary to ensure the preservation of urban and
rural landscapes. In addition, guidelines had been agreed by whereby local authorities would take the
needs and views of Gypsy populations into account. (1996) 23 EHRR 101 at paras. 64-70.
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8.216 A number of judges issued dissenting or partially dissenting opinions whereby
they disagreed with the opinion of the majority in relation to Article 8. 217 The main
tenor of the dissents came down to the margin of appreciation which States enjoy,
with the minority believing that the actions of the UK in seeking to remove the
Buckley family from their plot of land was not proportionate to the aims to be
achieved (i.e. proper planning and environmental protection).
In Chapman, the ECtHR stated that while it is clearly desirable for every human
being to have a home, whether or not everybody has a home with a roof to live under
is a matter for political, rather than judicial decision.218 There is no violation of Article
8 of the Convention where a State prohibits the unlawful parking of a caravan,
however does not provide enough sites for gypsies to lawfully park a caravan. 219 To
interpret Article 8 as imposing such a requirement would be a “…far-reaching positive
obligation of general social policy.”220 Where a Contracting Party fulfils a positive
obligation to provide housing under the Convention, an applicant cannot claim a right
to a specific type of house or a specified type of support. In addition, an applicant’s
choice of home or lifestyle may be regulated by general planning and policy
concerns. In a joint dissenting opinion, issue was taken with (amongst other things)
the statement that Article 8 does not give rise to a right to be provided with a home.
As in Buckley, there was disagreement surrounding the leeway provided under
margin of appreciation doctrine.221
d) Conclusion
As with Article 3, the Court has shown a reluctance to find positive social rights as
coming within the protection of private and family life. Within the Article 8 cases, the
(1996) 23 EHRR 101 at para. 84. In addition, the Court found that the applicant was no a victim of
discrimination (in the Article 14 sense) while exercising Article 8 rights.
217 Judge Repik, Judge Lohmus and Judge Pettiti all stated that they believed that the applicants
Article 8 rights had been violated.
218 Chapman v UK (2001) 33 EHRR 399 at para. 99. Furthermore, the ECtHR held that while the UK
has a positive obligation to respect gypsies right to practice their cultural life and to accommodate this
as best it can in relation to housing practices; general principles of planning and environmental law,
which apply to all persons, do not violate the right to a private or family life. The Court found that such
laws pursued legitimate aims.
219 Chapman v UK (2001) 33 EHRR 399 at para. 98.
216
220
Ibid.
Joint Dissenting Opinion of Judges Pastor Ridruejo, Bonello, Tulkens, Straznicka, Lorenzen,
Fishbach and Casadeval. In this opinion, the minority noted that the in the earlier case of Marzari, the
ECtHR stated that in certain circumstances, a State may be under an obligation to provide a home i.e.
to those in severe need or suffering a disability. The minority felt that this principle should have been
restated.
221
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Court has rejected various attempts to find socio-economic obligations within
substantive rights provisions. In earlier cases in relation to housing, there seemed to
be a general recognition that in certain, extreme cases dealing with vulnerable
individuals, Contracting States may have an obligation to house. In later cases
however, the Court seemed to draw back from this approach and seemed to
categorically state that it is a political decision as to whether housing is provided or
not.
iv.
Social Security Benefits and the ECHR222
Article 1 of Protocol 1 does not provide any right to a social security or social
assistance benefit that may impact directly upon an individual’s socio-economic
position. Article 1 of Protocol 1 contains three distinct elements; peaceful enjoyment
of property, deprivation subject to conditions and control of property in light of
societal interest.223 In Gaygusuz224 the applicant had applied for an unemployment
benefit as an advance on his pension, however this was rejected on the grounds that
he was not an Austrian national.225 The Court found that the right to emergency
assistance (which comes into effect once specified contributions had been made)
was a pecuniary right for the purposes of Article 1 of Protocol 1. 226 Austria attempted
to justify this discrimination on the grounds of nationality on the basis that “…the State
has special responsibility for its own nationals and must take care of them and
provide for their essential needs.”227 After examining the right to protection of
property in conjunction with the right not to be discriminated, the Court concluded the
following: firstly, Mr. Gaygusuz was legally resident in Austria228 and secondly,
satisfied all other contributory requirements apart from the nationality clause. 229 The
ECtHR found the argument of Austria which sought to exclude the applicant from
entitlement based on nationality to be unpersuasive230 and held that there was a
For a full analysis of social welfare law and the ECHR, see J. Kenny, “European Convention on
Human Rights and Social Welfare Law” (2010) 5 European Human Rights Law Review 486.
223 Sporrong & Lonnroth v Sweden (1983) 5 EHRR 35 at para. 61.
224 Gaygusuz v Austria (1996) 23 EHRR 230.
225 23 EHRR 230 at para. 11.
226 23 EHRR 230 at para. 41.
227 23 EHRR 230 at para. 45.
228 23 EHRR 230 at para. 46
229 23 EHRR 230 at para. 48
230 23 EHRR 230 at para. 51.
222
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breach of Article 1 of Protocol 1 in conjunction with Article 14. The judgment of the
ECtHR very much focused on the applicant’s entitlement due to him meeting the
stated amount of contributions necessary.231
In the more recent judgment of Koua Poirrez the ECtHR has reconfirmed its
approach towards welfare payments and non-nationals.232 In this case, the applicant
was adopted from the Ivory Coast. His (adopted) father was a French national;
however, the applicant did not gain French nationality as he did not make the
necessary declaration within the time period allotted.233 The applicant was disabled
and would have been entitled to a disability payment but for his non-national
status.234 As in Gaygusuz, it was argued that there was a violation of Article 1 of
Protocol 1 in conjunction with Article 14 of the Convention. France argued that noncontributory benefits could not be regarded as property rights within the meaning of
Protocol 1.235
The Court however rejected the line of reasoning of the French authorities: while the
Court noted the contributory nature of the emergency assistance scheme in
Gaygusuz, this did not mean a contrario non-contributory benefits were outside the
scope of Article 1 of Protocol 1. On the issue of distinction on the grounds of
nationality, the Court noted the applicant’s legal residence in France, his receipt of
the minimum welfare payment (which was not subject to a nationality condition), the
satisfaction of other conditions of payment all amounted to a finding of a violation of
Article 1 of Protocol 1 and Article 14 of the Convention.236 In a dissenting judgment,
Judge Mularoni stated that non-contributory social benefit should not be regarded as
a ‘possession’, however stated that he would have found a violation of Article 8 in
conjunction with Article 14. Judge Mularoni concluded that since France had
acknowledge the existence of family life through the recognition of the adoption,
At para. 39, the ECtHR stated that there was no right to the emergency assistance claimed by Mr.
Gaygusuz “…where such contributions have not been made.” Only because it was based on
contributions, did the Court feel it was a pecuniary right arose under Article 1 of Protocol 1.
232 Koua Poirrez v France (2005) 40 EHRR 34.
233 (2005) 40 EHRR 34 at paras. 9-10.
234 (2005) 40 EHRR 34 at para. 14. The French authorities based their findings on a lack of a
reciprocity treaty in relation to disability payments between France and the Ivory Coast. In June 1998,
France abolished the nationality requirement and the applicant had been in receipt of the payment
since that date. Between 1990 and 1998, the applicant was held not to be entitled to the disability
benefit (however, he did receive the minimum welfare benefit).
235 (2005) 40 EHRR 34 at para. 33. France referred the Court to Gaygusuz which they said was proof
that non-contributory payments fell outside the scope of the Convention.
236 (2005) 40 EHRR 34 at paras. 43-50. France had argued (at para. 43) that there was a legitimate
aim in differentiating between French nationals and other (non-European) nationals, as the State had
to balance its income and expenditure. France further noted that the applicant was entitled to some
social protection through the minimum welfare benefit.
231
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coupled with Article 14, there should have been payment to such a lawfully resident
alien.237
In the admissibility stage of the Stec decision, the Grand Chamber stated that where
a social benefit was provided for by legislation, be it contributory or non-contributory,
a proprietary interest arises under Article 1 of Protocol 1.238 The UK had argued that
non-contributory benefits were provided on a discretionary basis, as the Convention
did not provide for such rights. Contributory payments were, the UK stated, ‘different’,
since persons entitled to those benefits had made the requisite contributions so as to
entitle them to proprietary interest.239 Furthermore, the UK argued that the ECHR is a
civil and political, rather than an economic and social document. For the ECtHR to
rule on the legal status of social assistance benefits in light of Article 1 of Protocol 1
and Article 14 would conflict with the purpose and effect of the 1961 European Social
Charter.240 In addition, the UK urged the ECtHR not to expand its case-law beyond
the limits of the cases culminating in Gaygusuz.241
The Grand Chamber justified the application of Article 1 of Protocol 1 to noncontributory benefits as a means of practical protection of Convention rights. 242 In
addition, wanting to ensure consistent protection rights within the ECHR, would merit
the extension of Article 1 of Protocol 1 protection to non-contributory social security
benefits.243 However, the Convention
“places no restriction on the Contracting State’s freedom to decide whether or
not to have in place any form of social security scheme, or to choose the type
or amount of benefits to provide under any such scheme…”244
Subsequently, at the substantive hearing in Stec,245 Judge Borrego Borrego
questioned the placement of welfare benefits on par with property rights.246 The
Judge Mularoni stated that Article 8 could be applicable also in the context of the respect for private
life.
238 Stec and Others v UK, Applications nos. 65731/01 and 65900/01(6 July 2005), para. 54.
239 Ibid. para. 34.
237
Ibid.
Ibid. para. 35.
242 Ibid. para. 48.
240
241
The ECtHR had stated that since Article 6(1) did not distinguish between contributory and noncontributory benefits, it would be ‘in the interests of the coherence of the Convention’ to ensure a
united interpretation of positions in relation to both articles (para. 49). In addition, the ECtHR noted
that given the variety of sources which welfare benefits may be paid from (general taxation,
contribution, mixture of both) any distinction in rights protection would be artificial (para. 50-51).
244 Ibid. para. 54.
243
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Judge examined the historical definition of the right to property in questioning the
decision of the majority. Judge Borrego Borrego noted Article 16 of the Declaration of
the Rights of Man, 23 June 1793. He stated that the notion of property protected by
this document (i.e. the right of the citizen to “dispose at his pleasure of his goods,
income, and of the fruits of his labour and his skill”) was far removed from what the
Court had in mind when speaking about welfare benefits as property entitlements.
Warbrick states that justifying a proprietary interest on the basis that people make
contributions to the tax system is wholly contrary to the intentions of the framers of
the Convention and the Protocol.247 In Federspev, the Commission stated that Article
1 of Protocol 1 cannot be interpreted as “bestowing a right to an income at a
particular level.”248 National authorities, the ECtHR has stated, are in the best
position to decide the level of financial support under social assistance schemes. 249
However, the ECtHR did find that delays in failing to pay monthly pensions where
there was a significant devaluation of a pension was a violation of a persons property
rights.250 The Court has consistently stated that in matters of social and economic
policies, Contracting States have a wide margin of appreciation.251 Refusing social
supports on the basis of suspect classifications (race, gender, nationality), has
resulted in only minimal socio-economic rights protection.
The Court has consistently refused to rule that a level of socio-economic provision is
inadequate solely on the basis that it did not meet the basic needs of the welfare
claimants. The findings of the ECtHR must be viewed in light of their inherent
245
Stec and Others v UK, Applications nos. 65731/01 and 65900/01 (12 April 2006).
Judge Borrego Borrego stated that “[w]ithout any need for a revolution, all Europe’s citizens have
become property owners, protected by Article 1 of Protocol No. 1. Everyone, from a billionaire right
down to the poorest person subsisting on social security, has become a property owner.”
247 Supra. fn. 4 at p. 251.
248 Federspev v Italy, Application no. 22867/93 (6 September 1995), see See, Gomez Heredero, A.
supra. fn.81 at p. 27. See also Cannatella v Switzerland, Application no. 25928/94 (11 April 1996),
where the Commission rejected an argument of the applicant that she should be entitled to an
employment benefit, even though she was not actively seeking employment due to her pregnancy.
The applicant claimed that this requirement that she actively be seeking work was a violation of Article
12 in conjunction with Article 14. Firstly, because it violated her right to found a family and secondly,
discriminated against her on the grounds of sex, since only women could become pregnant. The
Commission once again stated that there is “no right to assistance from the State to maintain a certain
standard of living.” Furthermore, Article 12 did not entitle those who gave up work voluntarily to
financial support, see See, Gomez Heredero, A. supra. fn.81 at pp. 31-32.
249 In Larioshina v Russia, Application no. 56679/00 (23 April 2002) an old age pensioner argued that
the amount of her old age pension was insufficient for her to live on and breached her rights under the
ECHR. This claim however failed.
250 Solodyuk v Russia, Application no. 67099/01 (12 July 2005).
251 In James v UK (1986) 8 ECHR 123 the ECtHR (at para. 46) stated that because of a countries
‘direct knowledge’ of their society, the State is in the best position to determine the public interest.
Only where the assessment of the situation is ‘manifestly without reasonable foundation’ would the
ECtHR examine the situation for potential human rights violations.
246
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limitations. There is no right to the social benefit per se. In relation to the level of
benefit payable, the ECtHR in Asmundsson found a violation of Article 1 of Protocol
1.252 In this case, the applicant was in receipt of disability pension, which due to a
shortfall in the Icelandic pension fund, was discontinued. The Court did not comment
on the level at which the pension was payable, and stated that “changes made to
pension entitlements may legitimately take into account the pension holders
needs….”253 However, a measure which affected a small group of recipients (15%)
through total withdrawal of the pension was unjustified for the purposes of Article 1 of
Protocol 1 in conjunction with Article 14.254 The ECtHR noted that the applicant, who
had been in receipt of the disability pension for twenty years, was “made to bear an
excessive and disproportionate burden which, even having regard to the wide margin
of appreciation…cannot be justified by the legitimate community interests…”255 If such
a withdrawal of pension benefit had taken place in a ‘reasonable and commensurate’
manner, rather than a total deprivation of entitlement, this would have been in line
with Article 1 of Protocol 1.256
v.
The right to receive education
Article 2 of Protocol 1 provides that no person should be denied the right to
education.257 There is no obligation for a Contracting State “…to establish at their own
expense, or to subsidise, education of any particular type or at any particular
level.”258 However, where a State does decide to establish educational institutions,
then States would be bound by other Convention provisions in relation to access to
such educational institutions.259 This does not mean that immigrants can enter a
Asmundsson v Iceland, Application no. 60669/00 (12 October 2004).
Ibid, para. 43.
254 Ibid.
255 Ibid. para. 45.
256 Ibid. Judge Thomassen, while agreeing with the outcome, used a different rationale in coming to
252
253
the same conclusion. Rather than focus on the small group of pensioners effected (15%), the judge
stated that the sudden and hasty withdrawal of the pension which violated Article 1 of Protocol 1. If
there was a proper transitional period to allow a person adjust to the new circumstances, then there
would be no such violation.
257 The ECtHR has noted that Article 2 of Protocol 1 is worded in the same way as Article 2(1), Article
3, Article 4(1) and Article 7(1) (“No one shall….”) as the right to education plays is indispensible within
democratic societies to the furtherance of human rights, see Timishev v Russia Applications nos.
55762/00 and 55974/00 (13 December 2005), para. 64.
258 Case relating to the use of languages in education in Belgium v. Belgium (Merits) (1980) 1 EHRR
252, at para. 3.
259 Sahin v Turkey (2005) 41 EHRR 8 paras. 136-137.
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country so as to access State educational facilities.260 In Timishev a Chechen
migrant’s children were refused entry to a Russian school.261 This was done on the
basis that they did not have in their possession a residence card. Only Chechen
nationals had to produce this card in order for their children to have access to
education.262 This was found to be contrary to Article 2 of Protocol 1.263
D. CONCLUSION
There remains a general reluctance by the Court to enter into a substantive
discourse on the ability of the Convention to protect socio-economic rights. This is
mainly due to concerns regarding usurpation of the inherent powers which
Government have in the field of social law and policy. The Court is aware that the
Convention was drafted with the specific exclusion of socio-economic rights and the
Convention was but the first step to wider human rights protections. 264 Issues
surrounding the socio-economic impact of Article 2 have yet to be developed fully,
although the recent Nencheva decision certainly suggests that the right to life may
impose on a State certain duties of a socio-economic nature. As regards Article 3
there is some willingness to find a violation of where material conditions of life are so
poor that they reach a certain threshold of severity as seen in M.S.S. Through the
creation of then doctrine of positive obligations, the Court has to some extent taken a
more proactive approach in discovering the latent socio-economic nature of some of
the Convention rights. Nevertheless, it is important to note that in both Nencheva and
M.S.S. the ECtHR anchored there decisions in the failure of States to abide by their
domestic legal obligations. The ECtHR has stated that Article 8 protections for family
and private life cannot be indeterminate and broad. The Court has rejected all
attempts to utilise Article 8 to protect socio-economic rights. Indeed, while
Verneulen, B. “Right to Education (Article 2 of Protocol No. 1)” in Van Dijk, P., supra. fn. 10 at p.
908.
261 Timishev v Russia Applications nos. 55762/00 and 55974/00 (13 December 2005).
262 Ibid., at para. 61.
263 Timishev v Russia Applications nos. 55762/00 and 55974/00 (13 December 2005), paras. 64-66. In
this regard, Russia did not seek to argue that this treatment was allowable under the Convention since
Russian domestic law guaranteed all children the right to education, regardless of whether their
parents were in possession of a migrant’s card.
264 Premambular para. 6 of the Convention speaks of the protection of the rights contained therein as
the “first steps for the collective enforcement of the Rights stated in the Universal Declaration.”
260
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suggestions were made in past case law about the Court reserving to see whether
conditions of life and accommodation provided for vulnerable individuals were
adequate,265 more recent case law has failed to restate this general principle. 266 In
the cases discussed above in relation to the right to social security, the Court is at
pains to emphasise that there is no right to receive any type of socio-economic
benefit due to a person’s lack of means. However, has stated that where welfare
rights are granted under law, regardless of their status as contributory or noncontributory payments, they can be regarded as property rights. Nevertheless, any
withdrawal must be assessed within the proportionality of the measures to the aim
which is hoped to be achieved. 60 years ago the ECHR was viewed as a document
that solely protected civil and political rights. The ability of the Convention to protect
socio-economic rights remains limited, however the impact of more recent judgments
in the field of the right to life and inhuman and degrading treatment are significant. It
remains to be seen if and how, the ECtHR will expand upon its current socioeconomic rights jurisprudence.
265
266
Marzari v Italy (1999) 28 EHRR CD 175.
Chapman v UK (2001) 33 EHRR 399.
43