Justiciability of Economic, Social and Cultural Rights: Theory and Practice The Institute for Human Rights Åbo Akademi University 2011 The European Court of Human Rights Professor Luke Clements Cardiff Law School
The European Court of Human Rights Opened for signature 4 November 1950 Entered into force 3 September 1953 47 judges Sit in 5 sections Chambers of 7 judges Grand chamber 17 judges Judicial term 9 years
The European Court of Human Rights First judgment Lawless v Ireland 1961 Delivered over 15,000 judgments 2010 ~ 1,499 judgments & dealt with 41,183 applications Backlog 139,000 cases of which ½ against Four countries
The European Court of Human Rights 1950 ~ intended to be purely civil & political reflecting: An Anglo-Saxon view of the role of law; A desire to guard against a return of Fascism; Tensions with the communist block
The European Court of Human Rights Socio-economic tendencies: European affinity with socialism Continental view of Liberté being associated with égalité and fraternité Philosophical realisation that there needed to be positive (as well as negative) obligations on states.
The Court & socio-economic rights The Convention not phrased as negative: Article 3 ~ no one shall be subjected to torture or to.. Article 5 ~ everyone has the right to liberty and security of person. Article 8 ~ does not require state noninterference, but rather obliges it to show respect for individual privacy:
The Court & socio-economic rights Fear of floodgates Fear of losing legitimacy Margin of appreciation Identifying European consensuses Encouraging comments Violations (generally) only in extreme fact cases which are attributable to State action
The Court & socio-economic rights Gross violations ~ exemplar case Moldovan & others v. Romania (2005) 110. It furthermore considers that the applicants living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants health and wellbeing, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.
Housing Gross Moldovan (above) Dulas v Turkey (2001). Complex Gillow v UK (1986) Marzari v Italy (1999); Buckley v UK (1996) Blĕcić v Croatia (2004)
Health care Osman v UK (1997) Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention
Health care Osman v UK (1997) Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention the extent of the obligation to take preventive steps may however increase in relation to the immediacy of the risk to life. Where there is a real and imminent risk to life to an identified person or group of persons, a failure by State authorities to take appropriate steps may disclose a violation of the right to protection of life by law
Health care Gross Oyal v Turkey (2010) Complex Passannante v Italy (1998) Pentiacova v Moldova (2005) [Soobramoney v. Minister of Health (1997) ] Nitecki v Poland (2002)
Health care Palliative care Pretty v UK (2002) Detained persons McGlinchey v UK (2003) [Estelle v Gamble (1976) ] Aerts v Belgium (1998) Storck v. Germany (2005)
Social Security Case law largely turns on notion of possessions, but: Larioshina v Russia (2002) German Basic Law (Grundgesetz) the obligation to guarantee the minimum conditions for a citizen s existence in dignity which includes essential foodstuff, clothing, housing and health services Existenzminimum BVerfGE 82, 60 (80), 1990
Social Security R v Home Department ex p. Adam (2005) State duty engaged where an individual: faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
Disabled people War & Philosophy USA ~ Rehabilitation Act 1973; Social model of disability
Disabled people Article 8 and private life Botta v Italy (1998) Article 8 protects a person s physical and psychological integrity for which respect is due in order to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.
Disabled people Zehnalová & Zehnal v Czech Republic (2002) Article 8 cannot be taken to be generally applicable each time the applicant s everyday life is disrupted; it applies only in exceptional cases where her lack of access to public buildings and buildings open to the public affects her life in such a way as to interfere with her right to personal development and her right to establish and develop relationships with other human beings and the outside world Farcas v. Romania (2010)
Disabled people Emerging cases / issues Safeguarding - Ðorđević v Croatia (pending) Independent living Kedzior v Poland (pending) Standing - Malacu v Romania (pending) Basic aids Sentges v Netherlands (2003) Application of CRPD (particularly nondiscrimination) Glor v. Switzerland (2009) Bagenstos, S, R. (2004) The future of disability law Yale Law Journal (2004) 114.
Roma ~ UNHCR (1993) for the most part, an 'underclass'; uneducated, unskilled, unemployed, in poor health, primitively housed, and subject to both passive and active ethnic prejudice... a 'third-world' people, living under 'third-world' conditions... They are Europe's 'Untouchables'. If the Roma were citizens of a third-world nation they would be eligible for international aid
Buckley v UK (1996) First claim ~ difficult facts refused permission to live on land she owned the same rules applied to everyone Dissenting opinion Judge Pettiti Layer upon layer of restrictions The cumulative nature of this type of discrimination
Chapman v UK (2001) the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life
Chapman v UK (2001) Dissenting opinion ~ Judge Bonello [the obligations on a public authority are] eminently more than that of individuals belonging to vulnerable classes who are virtually forced to disregard the law in order to be able to exercise their fundamental right to a private and family life individuals who have to contravene the law due to the operation of the prior failures of the public authorities
Thlimmenos v Greece (2000) Facts Discrimination in treating similar people differently for non-relevant reason Discrimination in treating dissimilar people the same differently for nonrelevant reason
Meaning of equality Connors v UK (2004) The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases there is thus a positive obligation imposed on the Contracting States to facilitate the gypsy way of life
DH v Czech (2006-2007) The facts The problem (1) indirect discrimination; (2) only evidence statistical; (3) Strasbourg had not accepted reversed onus of proof
DH v Czech (2007) Grand Chamber (13:4) violation the relevant legislation as applied in practice had a disproportionately prejudicial effect on the Roma community the Court is not satisfied that the difference in treatment between Roma children and non- Roma children was objectively and reasonably justified