human rights handbooks, no. 7

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Positive obligations

under the European

Convention

on Human Rights

A guide to the implementation

of the European Convention

on Human Rights

Jean-François Akandji-Kombe

Human rights handbooks, No. 7OUNCILOF EUROPE

CONSEILDE L’EUROPE



Positive obligation

under the Europea

on Human Rights

A guide

of th



In the “Human rights handbooks” series

No. 1: The right to respect for private

and family life. A guide to the implemen-tation of Article 8 of the European Con- vention on Human Rights (2001)

No. 2: Freedom of expression. A guide tothe implementation of Article 10 of theEuropean Convention on Human Rights(2001)

No. 3: The right to a fair trial. A guide to

the implementation of Article 6 of theEuropean Convention on Human Rights(2001; 2nd edition, 2006)

No. 4: The right to property. A guide tothe implementation of Article 1 of Proto-col No. 1 to the European Convention on

No. 5: The right to liberty and security

of the person. A guide to the implemen-tation of Article 5 of the European Con- vention on Human Rights (2002)

No. 6: The prohibition of torture. Aguide to the implementation of Article 3of the European Convention on HumanRights (2003)

No. 7: Positive obligations under the

European Convention on Human

Rights. A guide to the implementation of the European Convention on HumanRights (2007)

No. 9: Freedom of thought, conscience

and religion. A guide to the implementa-tion of Article 9 of the European Conven-



Introduction . . . . . . . . . . . . . . . . . . . . . . . . .5

I. The general issues . . . . . . . . . . . . . . . . . .7

The concepts surrounding the notion of

positive obligations . . . . . . . . . . . . . . . . . . .7

Positi ve and negative obligations. . . . . . .10

Positi ve obligations and the horizontal

effect of the Con vention . . . . . . . . . . . . . .14

Types of positive obligation: the

“procedural” and the “substantive” . . . . .16

Ensuring compliance with positi ve

obligations . . . . . . . . . . . . . . . . . . . . . . . . . .17

II. Protection of personal life and

integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Substanti ve obligations . . . . . . . . . . . . . . .21

Procedural obligations . . . . . . . . . . . . . . . 32

III. Protection of private and family life

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

General issues . . . . . . . . . . . . . . . . . . . . . . 36

The positive aspect of respect for private

life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

The positive aspect of respect for family life

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

The positive aspect of respect for the home

and correspondence . . . . . . . . . . . . . . . . . 45

The right to a healthy environment . . . . 47

IV. Protection of pluralism . . . . . . . . . . 48

The holding of free elections . . . . . . . . . . 48

Freedom of expression . . . . . . . . . . . . . . . 50

Frereli

Fre

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V. Re

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VII. P

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Contents



COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS SERIES

Notice

This booklet is aimed at legal practitioners who may be

required to implement the European Convention on Human

Rights (“the Convention”), to cite its provisions or to train

others to do so. Unlike the other booklets in this series, it

does not deal with an individual right or article. Rather, it

covers a specific category of obligations which result from

the substantive provisions

whole. These are the positi

obligations, they form part

observing these rights goes h

Convention. It is therefore e

obligations and what they in



to induce employees to surrender important union rights, the

respondent State has failed in its positive obligation to secure the

enjoyment of the rights under Article 11 of the Convention”.

The same reasoning applies

clauses which aim to force

union.245

V. Respect for economic, social and cultural rights

As the Court has often pointed out, the Convention aims to

protect civil and political rights. Nonetheless, it does directly

secure some rights that are rather economic, social and cultural in

kind. The prohibition of forced labour and trade union freedom

are among them, although the issues they raise fall into the

freedom category. To these must be added those covered by Arti-cles 1 and 2 of Protocol No. 1, namely the right to possessions and

the right to education. Each of these two articles sets out the right

and the conditions in which domestic law must secure it. For our

present purpose, the most important aspect is the manner of its

wording According to Article 1 paragraph 1 first sentence

Right to property

Compensation for expro

The first positive requireme

European Court in the conte

obligation to compensate vicpossessions in the public inte

The Court has been at pains

right in question. As it stress

judgment:

the protection of the righ

245. See, mutatis mutandis, the Sigurj



COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS SERIES



execute its judgments. The nature of this obligation was made

clear in full measure for the first time in the Scozzari and Giunta v.

Italy judgment, in the following terms:

It follows [from Article 46], inter alia, that a judgment in which

the Court finds a breach imposes on the respondent State a

legal obligation not just to pay those concerned the sums

awarded by way of just satisfaction, but also to choose, subject

to supervision by the Committee of Ministers, the general and/ or, if appropriate, individual measures to be adopted in their

domestic legal order to put an end to the violation found by the

Court and to redress so far as possible the effects.290

Thus payment of just satisfaction, individual measures and

general measures are the three requirements which states have to

satisfy.

Specific guarantees

Requisite safeguards in ca

(Article 5)

The general economy of Artic

The purpose of Article 5 is to

and wrongful arrest and detent

first paragraph, that “Everyone

of person” and that “No one s

same paragraph, however, set

exhaustively, and in principle

authorises:

lawful detention after con

cle 5 §1a);

lawful arrest or detention

provided it is lawful, hassecure the fulfilment of a

arrest and detention of pe

picion that they have com

offence, in order to bring

authority (Article 5 §1c);



Directorate General of Human Rights

Council of Europe

F-67075 Strasbourg Cedex

http://www.coe.int/human_rights/

These human rights handbooks are intended as a very practical

guide to how particular articles of the European Convention on

Human Rights have been applied and interpreted by the European

Court of Human Rights in Strasbourg. They were written with legal

practitioners, and especially judges, in mind, but are accessible also

to other interested readers.

human rights handbooks, no. 7

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