ARTICLES 2, 3 and 8 Positive obligations
Recent case law has established that the state has a positive obligation to ensure that systems of legal protection—such as the criminal justice system—operate in such a way as to guarantee equal protection of the law to specific groups, such as women or racial minorities. Where the evidence suggests inadequate domestic remedies, and a system which betrays an overall unresponsiveness to gender or racially based aggression, failure to investigate in a specific case may amount to violation of Article 14, read with Articles 2 or 3.
For instance, in Eremia v Moldova the state’s inadequate approach to domestic violence amounted to condoning discrimination against women and was held to breach Article 14. This developing approach to positive obligations may mean more focus on the obligation upon signatory states to ‘secure’ equal enjoyment of the other Convention rights.
Key principles of human rights law:
- states have an obligation to protect people from human rights violations;
- this obligation particularly applies to the most vulnerable and must be complied with without discrimination;
- any serious human rights abuses must always be effectively investigated; and
- the state must ensure that the people responsible for upholding the law including police officers and other law enforcement officials are themselves held to account if they have violated the rights of others.
Obligation to respect Human Rights
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
This provision imposes a positive duty on all member states to ensure that the substantive rights in the ECHR are properly respected. This requires the state to ensure that all public bodies and government agencies comply with the rights in the ECHR and that there are laws, institutions and processes to protect people from the actions of third parties.
The Committee of Ministers of the Council of Europe has produced guidelines for ensuring respect for human rights and for eradicating impunity for serious human rights violations.
The right to life (Article 2 of the Convention)
The obligation to protect the right to life requires, inter alia, that there should be an effective investigation when individuals have been killed, whether by state agents or private persons, and in all cases of suspicious death. This duty also arises in situations in which it is uncertain whether or not the victim has died, and there is reason to believe the circumstances are suspicious, such as in the case of enforced disappearances.
The prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention)
States are under a procedural obligation arising under Article 3 of the Convention to carry out an effective investigation into credible claims that a person has been seriously ill-treated, or when the authorities have reasonable grounds to suspect that such treatment has occurred.
The prohibition of slavery and forced labour (Article 4 of the Convention)
The prohibition of slavery and forced labour entails a procedural obligation to carry out an effective investigation into situations of potential trafficking in human beings.
The right to liberty and security (Article 5 of the Convention)
Procedural safeguards derived, inter alia, from the right to liberty and security require that states conduct effective investigations into credible claims that a person has been deprived of his or her liberty and has not been seen since.
The right to respect for private and family life (Article 8 of the Convention)
States have a duty to effectively investigate credible claims of serious violations of the rights enshrined in Article 8 of the Convention where the nature and gravity of the alleged violation so requires, in accordance with the case law of the Court.”
Articles 2, 3, 4 and 8 of the European Convention on Human Rights impose positive obligations to protect the substantive rights – whoever is the likely perpetrator. This positive duty particularly requires states to investigate allegations of torture, inhuman or degrading treatment or punishment or deaths that may have occurred in breach of the Convention even where such treatment may have been caused by the police or other law enforcement officials and a duty to investigate will occur when police officers use excessive force or unnecessarily inflict serious injuries.
The duty to protect people from violations of human rights and to investigate any harm done is not always properly respected and, historically, law enforcement officials have too often failed to protect vulnerable groups. The state’s obligations obviously extends to women subjected to domestic violence and sexual assaults, children abused by their carers or others, people with disabilities (especially those with learning difficulties and those resident in institutions), ethnic minorities (especially Roma people), lesbian, gay, bisexual and transgendered people and others. These failures by the state violate the rights in ECHR and the discriminatory nature of these failures breaches Article 14.
ARTICLE 2 ECHR
Article 2 (the right to life) has, not surprisingly, been described by the ECtHR as ‘one of the most fundamental provisions in the Convention’. Article 2 is comprehensive, imposing a substantive obligation to protect the right to life, a substantive prohibition on the taking of life, and a procedural obligation to investigate the taking of life. The first sentence of Article 2 imposes a positive obligation on states to protect the right to life. This obliges states to ‘take appropriate steps to safeguard the lives of those within [their] jurisdiction’. The principal specific duty arising from this positive obligation is to provide effective criminal legislation supported by law enforcement machinery. However, this also requires the state to have in place a legislative and administrative framework to effectively deter against threats to life more broadly. In the context of dangerous activities, it may require state regulation to ensure the effective protection of citizens whose lives might be endangered by the inherent risks of the activities in question.
In addition to the general positive duty, the ECtHR has affirmed that, in certain circumstances, the state will be obliged ‘to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’. This obligation is enhanced in respect of individuals in a particularly vulnerable position, such as persons in state custody, persons detained under mental health legislation, or persons conscripted into armed service.
One situation in which this positive obligation arises concerns the duty of the police to protect members of the public. In the case of Osman v UK, the applicant argued that the police had violated Article 2 by failing to protect him and his father from a schoolteacher known to have been obsessed with the applicant. The police in Osman had done all they reasonably could and there was therefore no violation of Article 2.
The broad scope of the Article 2 positive obligation is demonstrated by the case of Öneryildiz v Turkey. The Grand Chamber unanimously held that the state had violated Article 2 by failing to take appropriate steps to prevent the accidental death of the applicant’s relatives, slum dwellers at a rubbish tip, due to a landslide there, either by implementing appropriate measures for waste storage or providing information to people living on slum land regarding the dangers they faced.
The ECtHR has also extended the scope of the positive obligation to encompass failure by the state to take action to prevent domestic violence. In Opuz v Turkey the state failed to prosecute a husband who had repeatedly attacked his wife and daughter, eventually killing his wife. The ECtHR held that prosecutions should have been pursued despite the withdrawal of the victim’s complaints.
Duty to protect
As well as refraining from inflicting treatment violating Article 3, states also have a positive obligation to prevent it. This obligation means that states must take certain steps to ensure that individuals within their jurisdiction are not subjected to torture or other forms of ill-treatment, including that administered by private individuals.
In both Z v UK and E v UK the ECtHR found that the United Kingdom had breached Article 3 in failing to protect children from prolonged abuse and neglect which the authorities knew about. In E, they had failed to monitor the family after a stepfather had been convicted of sexual abuse. The ECtHR held that ‘a failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state’. In O’Keeffe v Ireland the Grand Chamber held that the Irish authorities had failed to protect primary school children from sexual abuse.
The ECtHR has recently considered state obligations in relation to domestic violence. It held in Eremia v Moldova held that failure properly to investigate or to support a complainant of domestic violence amounted to condoning the discriminatory attitudes which underlay it, contrary to Articles 3 and 14.
The prohibition on slavery and forced labour also creates its own positive duty to ensure that the national law bans slavery and forced labour and protects victims of it. The Article also creates its own “procedural duty” and consequently the necessity to investigate alleged violations of this provision.
The notion of ‘respect’ for private life in Article 8 combined with the effect of Article 1 encompasses both a positive and a negative aspect. As the ECtHR explained:
[It] does not merely compel the state to abstain from interference: in addition to this, there may be positive obligations inherent in an effective respect for private and family life even in the sphere of the relations of individuals between themselves.
The positive aspect of Article 8 now accounts for a very significant part of the ECtHR’s jurisprudence. In X and Y v Netherlands the state was held to have a positive duty to provide an effective criminal remedy to deter sexual assaults on a person with learning difficulties. In MC v Bulgaria the failure of the national law to provide effective remedies against rape and sexual abuse was a violation of Article 8. In Stubbings v UK the ECtHR reiterated the need for the protection of the criminal law:
“Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives.”
The Grand Chamber has also held that a failure to have in place certain criminal laws, such as suitable laws criminalizing child pornography, will breach the State’s positive obligations under Article 8.
‘Physical and mental integrity’ are also aspects of private life that the state is obliged to protect. This has led to findings of violations for failure to obtain consent for medical treatment and failure to protect women from domestic violence.