Evolutive Interpretation: Has the ECtHR Really Gone Too Far? The Case of the Protection of Socio-Economic Rights

Evolutive Interpretation: Has the ECtHR Really Gone Too Far? The Case of the Protection of Socio-Economic Rights

Aristi Volou* PhD Candidate, University of Leicester [i]

  1. Introduction

As is well-known, evolutive interpretation and the notion of ‘effectiveness’ have played a central role in Strasbourg’s case law since its very early days. Some governments, judges and commentators, however, have identified key concerns regarding the legitimacy of the ECtHR in using these interpretive methods.[ii] This paper is motivated by the criticisms of these methods. By looking at the case law of Articles 2, 3, 8 and 14 ECHR on the protection of socio-economic rights, this paper: 1) shows how the ECtHR has utilised the two methods in a specific context; 2) identifies a number of risks arising from the use of these methods; and 3) shows that, although such risks do exist, they are low in the particular context because the ECtHR does not significantly expand its interpretation of the aforementioned provisions.

  1. The ECHR case law on socio-economic rights

By using evolutive interpretation (and by expanding on it) and the notion of ‘effectiveness’, the ECtHR has read into the ECHR rights that are not explicitly mentioned in the text and it has recognised rights that the drafters had intended not to protect. Moreover, the ECtHR has not only imposed positive obligations on States, but also obligations of a socio-economic nature. The case law on the protection of socio-economic rights, which will be explored in this section, exemplifies these trends. However, as we shall also see, the protection of socio-economic rights under the ECHR is still rudimentary. The limited protection of socio-economic rights can be attributed to the ECtHR’s unwillingness to significantly expand its interpretation of the provisions in question.

2.1. Article 2

In Powell v UK[iii] the ECtHR used the notion of ‘effectiveness’ in order to develop positive obligations of a socio-economic nature under Article 2. This case concerned a boy who died due to failure to diagnose his curable disease in time. The ECtHR maintained that States have an obligation under Article 2 to take appropriate steps to safeguard life and that it would not exclude that ‘the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2.’[iv]

Although it may be argued that the ECtHR went too far, in that it imposed on States obligations they had not intended to assume in ratifying the ECHR, the ECtHR was reluctant to offer a general theory of positive obligations in the field of health care. The ECtHR set limits on its interpretation of Article 2 as it declared that:

‘where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2…to protect life.’[v]

2.2. Article 3

Some commentators have observed that a new approach to the interpretation of the ECHR, which extends the evolutive approach, can be discerned from some relatively recent cases.[vi] This is an approach which seeks to interpret traditional protections in the form of civil and political rights in a manner that encompasses violations traditionally considered to be of an economic and social nature.[vii] The case of D v UK, which concerned the planned removal of an AIDS patient to St Kitts where medical treatment was inadequate,[viii] is an illustrative example.

In D the ECtHR maintained that it must reserve to itself sufficient flexibility to address the application of Article 3 beyond ‘traditional’ cases, where the source of the risk in the receiving State stems from factors which cannot engage the responsibility of the State, or which, taken alone, do not in themselves infringe the standards of Article 3.[ix] The ECtHR therefore accepted that the decision to remove an alien who is suffering from a serious illness to a State where the medical facilities are inferior to those available in the Contracting State may raise an issue under Article 3. In D the ECtHR indisputably expanded the ambit of Article 3,[x] and also recognised that Article 3 may have implications of a socio-economic nature.

However, this development did not last long. Possibly as an acknowledgment of its expansive reading of Article 3 in D, in the subsequent case of N v UK[xi] the ECtHR set considerable limits. Although N can be distinguished on the facts from D, in that treatment was available in Uganda in contrast to St Kitts,[xii] in N the ECtHR was at pains to narrow down the scope of application of Article 3 in general. It did so by declaring that the ECHR is ‘essentially directed at the protection of civil and political rights’ and that the decision to remove an ill alien to a State where the medical facilities are inferior to those available in the Contracting State may raise an issue under Article 3 only in very exceptional circumstances.[xiii] The ECtHR also emphasised that the object of Article 3 is not to place an obligation on a State ‘to alleviate…disparities [in medical treatment] through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction.’[xiv] This was seen to impose too great a burden on the Contracting States.[xv]

2.3. Article 8

In Marzari v Italy, which concerned accommodation needs, the ECtHR emphasised that there are positive obligations inherent in effective respect for the rights guaranteed by Article 8.[xvi] It accepted that Article 8 sometimes requires positive measures to effectively respect a person’s enjoyment of his/her home in the concrete physical sense.[xvii] This approach may indicate an inclination on the part of the ECtHR to intrude into a sphere involving the application of social and economic policies.

However, in Marzari and in subsequent cases the ECtHR clarified that Article 8 does not afford a right to a home per se.[xviii] The ECtHR’s statement that it is a matter for political not judicial decision whether the State provides funds to enable everyone to have a home in Chapman v UK,[xix] proves that judicial restraint is at the heart of the ECtHR’s approach to Article 8. Thus, the wide margin of appreciation that is accorded to States in accommodation cases, and in the area of social and economic policy in general,[xx] indicates the ECtHR’s readiness to set limits on how far it can go.

2.4. Article 14

In Sidabras and Džiautas v Lithuania the applicants complained that being banned from finding employment in the private sector for 10 years on the ground that they had been former KGB officers was in breach of Articles 8 and 14.[xxi] Having regard to the notions currently prevailing in democratic States, to the ESC and to the ILO texts, the ECtHR concluded that the ban applicable in the domestic legislation had constituted a disproportionate measure.[xxii]

Sidabras and Džiautas exemplifies the ECtHR’s reliance on evolving trends and common values in international law (‘present-day conditions’) as a justificatory basis for finding a practice to be in breach of the ECHR.[xxiii] A concern then naturally arises as to whether the ECtHR may be imposing on States new obligations which they never intended to undertake, given that the international human rights materials relied on by the ECtHR include non-binding materials of international bodies and human rights treaties to which the respondent States are not parties.[xxiv] However, even without wanting to comment on the legitimacy of such an approach and of evolutive interpretation more generally, due to the fact that the ECtHR accords to States a lot of room for manoeuvre in fulfilling their obligations in relation to socio-economic rights,[xxv] the risk in question is inevitably minimised.

  1. Conclusion

This paper is motivated by the concerns regarding the legitimacy of the ECtHR in using evolutive interpretation and the notion of ‘effectiveness’. Arguably, both methods are necessary ‘to keep European human rights effective and up-to-date.’[xxvi] The blunt application of the law is both impossible and ineffective given that social contexts evolve, calling for a novel interpretation of the legal texts. Consequently, the mere finding that these methods are used by the ECtHR already is not an argument in itself against it. The difficulty lies, not in the use of these methods, but in how far the ECtHR can embark on these methods without losing its legitimacy. As the case law shows, the risks arising from the use of these methods are currently low in the specific context of socio-economic rights because of the ECtHR’s very restrictive approach to their interpretation, which in fact may be considered to be overly limiting the level of protection of these rights. Thus, although the ECtHR has used these methods in order to open the door to claims of a socio-economic nature, it has done so in a relatively restrictive manner.

 

Table of Authorities

Case law  

Golder v UK App no 4451/70 (ECtHR, 21 February 1975)

D v UK App no 30240/96 (ECtHR, 2 May 1997)

Marzari v Italy (dec) App no 36448/97 (ECtHR, 4 May 1999)

Powell v UK (dec) App no 45305/99 (ECtHR, 4 May 2000)

Chapman v UK App no 27238/95 (ECtHR, 18 January 2001)

Connors v UK App no 66746/01 (ECtHR, 27 May 2004)

Sidabras and Džiautas v Lithuania Apps nos 55480/00 and 59330/00 (ECtHR, 27 July 2004)

N v UK App no 26565/05 (ECtHR, 27 May 2008)

SS v UK and FA and Others v UK (dec) Apps nos 40356/10 and 54466/10 (ECtHR, 21 April 2015)

Bibliography

Books

Foster M, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (CUP 2007)

Letsas G, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007)

Palmer E, Judicial Review, Socio-Economic Rights and the Human Rights Act (Hart 2007)

White A C R and Ovey C, The European Convention on Human Rights (5th edn, OUP 2010)

Book chapters

Brems E, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Daphne Barak-Erez and Aeyal M Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart 2007)

Letsas G, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (CUP 2013)

Journal articles

Dzehtsiarou K, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 GermanLJ 1730

Letsas G, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509

Mantouvalou V, ‘Work and Private Life: Sidabras and Džiautas v Lithuania’ (2005) 30 ELRev 573

Mowbray A, ‘The Creativity of the European Court of Human Rights’ (2005) 5 HRLR 57

O’Cinneide C, ‘A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights’ (2008) 5 EHRLR 583

Popović D, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights’ (2009) 42 CreightonLRev 361

Case notes

Kokott J and Berger-Kerkhoff H, ‘HLR v France’ 1997 Reports of Judgments and Decisions 745 / ‘D v United Kingdom’ 1997 Reports of Judgments and Decisions 777 (note) 524

 

[i]* PhD Candidate in Law, University of Leicester. I would like to acknowledge the priceless support of Professor Katja Ziegler (Sir Robert Jennings Professor of International Law, University of Leicester) and Dr Ed Bates (Senior Lecturer, University of Leicester).

[ii] Golder v UK App no 4451/70 (ECtHR, 21 February 1975), para 22, separate opinion of Judge Sir Gerald Fitzmaurice, para 30; See: Kanstantsin Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 GermanLJ 1730, 1734-1735.

[iii] (dec) App no 45305/99 (ECtHR, 4 May 2000).

[iv] ibid 17-18.

[v] Powell (n2) 18.

[vi] See: Robin C A White and Clare Ovey, The European Convention on Human Rights (5th edn, OUP 2010) 75. Virginia Mantouvalou, ‘Work and Private Life: Sidabras and Džiautas v Lithuania’ (2005) 30 ELRev 573, 574.

[vii] ibid.

[viii] App no 30240/96 (ECtHR, 2 May 1997).

[ix] ibid, para 49.

[x] Juliane Kokott and Heike Berger-Kerkhoff, ‘HLR v France’ 1997 Reports of Judgments and Decisions 745 / ‘D v United Kingdom’ 1997 Reports of Judgments and Decisions 777 (note) 524, 527.

[xi] App no 26565/05 (ECtHR, 27 May 2008).

[xii] ibid, paras 42, 48.

[xiii] N (n10), paras 44, 42.

[xiv] N (n10), para 44.

[xv] ibid.

[xvi] (dec) App no 36448/97 (ECtHR, 4 May 1999).

[xvii] ibid; Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Hart 2007) 77.

[xviii] Marzari (n15); Chapman v UK App no 27238/95 (ECtHR, 18 January 2001), para 99.

[xix] Chapman (n17), para 99.

[xx] Colm O’Cinneide, ‘A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights’ (2008) 5 EHRLR 583, 592; Connors v UK App no 66746/01 (ECtHR, 27 May 2004), para 82.

[xxi] Apps nos 55480/00 and 59330/00 (ECtHR, 27 July 2004).

[xxii] ibid, paras 47, 61.

[xxiii] See: George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (CUP 2013) 119.

[xxiv] George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509, 523.

[xxv] SS v UK and FA and Others v UK (dec) Apps nos 40356/10 and 54466/10 (ECtHR, 21 April 2015), para 43.

[xxvi] Dzehtsiarou (n1) 1745.

The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation Doctrine?

The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation Doctrine?

Rachael Ita,  PhD Candidate, University of Derby

Introduction

The interpretation of the European Convention on Human Rights (‘the Convention’) as a ‘living instrument’ by the European Court of Human Rights (‘the Court’) means that the standards of the Convention are not to be regarded as static, rather they should be reflective of social changes.[i] Although there are differing views as to whether this is a good approach,[ii] the Court has continued to adopt an evolutive interpretation of the Convention’s guarantees.[iii] This paper examines the question whether evolutive interpretation of the Convention has led to the demise of another interpretative tool: the margin of appreciation afforded to state parties. Selected case law from the Court will be examined and the theory of restricted correlativity as advocated by Joseph Raz, which highlights the dynamic nature of duties, will be explored in order to show justification for retention of these two interpretative tools in the jurisprudence of the Court.

 

The Living Instrument Doctrine

The genesis of the ‘living instrument’ doctrine may be found in the seminal case of Tyrer v United Kingdom[iv] in which the Court described the Convention as ‘a living instrument, which must be interpreted in the light of present-day conditions’.[v] In the Tyrer case this meant that the practice of corporal punishment in the form of judicial birching of a schoolboy which was considered to be out of sync with developments within other Member States, amounted to degrading treatment contrary to Article 3 of the Convention.[vi] Letsas identifies three key features of the living instrument approach by the Court.[vii] Firstly, the court gives precedence to ‘present-day’ standards when interpreting the Convention rather than what may have been considered acceptable state conduct at the time of drafting the convention or what the drafters intended. Secondly, the present day standards must be common or shared amongst the contracting states. Thirdly, the Court does not give decisive weight to the view of the respondent state on what the right standard should be in the particular case.[viii] As a result of this analysis Letsas identifies a link between evolutive interpretation of the Convention and two other doctrines of the court: autonomous concepts and the margin of appreciation doctrine.[ix] For the purposes of this paper, comments will be restricted to the margin of appreciation doctrine.

 

Impact on the Margin of Appreciation Doctrine

The margin of appreciation is the allowance given by the Court to national authorities to interpret and apply the provisions of the Convention.[x] The Court has justified its use of the margin of appreciation doctrine on the basis that states are in a ‘better position’ than the Court to determine certain issues.[xi] Although the use of the margin of appreciation doctrine by the Court has been the subject of criticism,[xii] it remains one of the important tools of interpretation regularly used by the Court. The interpretation of the Convention as a living instrument is linked to the role that consensus plays in the margin of appreciation doctrine.[xiii] Has this however led to the demise of the margin of appreciation doctrine? One thing is certain; reference to the margin of appreciation doctrine is still within the jurisprudence of the Court and has been the subject of a lot of academic discourse on the Court’s jurisprudence.[xiv] The desire for the continued presence of the doctrine by the member states may also be seen by the drafting of Protocol No 15, which calls for an inclusion of the margin of appreciation doctrine within the Preamble of the Convention.[xv] On the face of it therefore, there does not appear to be demise in the margin of appreciation doctrine.

The impact of the living instrument doctrine on the margin of appreciation doctrine is more nuanced. One of the main areas of impacts is that it is used to determine the ‘width’ of the margin of appreciation given to contracting States.[xvi]  A narrow margin of appreciation is given where the Court finds a European Consensus.[xvii] In early cases such as Tyrer v United Kingdom,[xviii] Marckx v Belgium,[xix] Dudgeon v United Kingdom[xx] the Court relied on the developing standards in other member States of the Council of Europe in determining that the rights of the applicants had been violated. A narrow margin is also given where the matter is related to rights fundamental to democracy, namely freedom of expression and freedom of association and assembly.[xxi] On the other hand, a wide margin of appreciation is given when the Court decides that there is no consensus and therefore finds no violation.[xxii] States enjoy a wide margin of appreciation where morals are at stake.[xxiii]

A shift can be seen in the case law of the Court from 1998 in which the Court has resorted to the concept of ‘common values’ in determining whether there has been evolution in a particular concept and therefore the width of the margin of appreciation to be granted to the State.[xxiv] This may be seen in the area of recognition of new identity of post operative transsexuals,[xxv] freedom of civil servants to form a trade union,[xxvi] identification of human trafficking as modern day slavery,[xxvii] authorization for lesbians to adopt,[xxviii] prohibiting a blanket ban on prisoner’s to vote.[xxix] In all these cases the Court showed a willingness to restrict the margin of appreciation the states enjoyed even though there was no consensus on the issue. The Court rather chose to rely on the evolution of ‘common or shared standards’.[xxx]

In more recent cases such as Pichkur v Ukraine,[xxxi] and Vallianatos and others v Greece[xxxii] the Court has carried on with this approach of relying on evolution in international society. In both cases the Court acknowledged that states have a wide margin of appreciation under Article 14. It however held in Pichkur that the practice of denying pension to those living abroad could not be justified in the light of international trends and in Vallianatos that the ‘Civil Union’ law enacted by Greece which only allowed for relationships between couples who were different sex adults to be registered was discriminatory against same sex couples and in breach Article 14 of the Convention. The width of the margin of appreciation doctrine therefore continues to be subjected to the interpretation of the Convention as a living instrument.

 

Restricted Correlativity and the Living Instrument Approach

A common denominator of the margin of appreciation doctrine and the living instrument doctrine is that they are used by the Court to determine whether a state has a duty in a particular case. For the applicant to enjoy the right in question, a duty has to be imposed on the State. This is linked to the correlativity thesis. Simply put, the correlativity thesis as advocated by Hohfeld is that for every right there is a correlative duty.[xxxiii] Joseph Raz attacked the correlativity thesis on three main points. Firstly, the prominence given to the choice of the right holder, secondly, the failure to recognise that a right is a ground of a duty which only if not counteracted by other prevailing conditions, justifies that other person to have the duty and thirdly, the failure to realize that there is no closed set of duties fixed to any particular right.[xxxiv] Whilst Raz acknowledges a relationship between rights and duties, he argues that a right of one person is not a duty on another but rather, a ground of a duty, a ground which, if not counteracted by conflicting considerations, justifies holding that other person to have the duty’.[xxxv] He also argued that the duties that attach to rights are largely interpreted taking into consideration the society in which they originate or the context in which they originate. [xxxvi] Therefore the same right can be a ground for new duties.

The application of Raz’s restricted correlativity thesis is relevant to the presence of the margin of appreciation doctrine and the living instrument approach. Whereas his position that a right is a ground of a duty if there are no other countervailing circumstances supports the existence of a margin of appreciation doctrine in the area of qualified rights, his position that there is more than one duty with every right and that such duties are dynamic, supports the idea that the interpretation of the convention can evolve to create new duties which give effect to the rights already contained within the Convention.

 

Conclusion

It is clear that the Court has retained both the living instrument approach and the margin of appreciation within its jurisprudence. The continued use of evolutive approach has meant adjustments within the width of the margin of appreciation but has certainly not eradicated the margin of appreciation from the Court’s jurisprudence. Applying the restricted correlativity thesis to the Court’s approach can justify the presence of both within the Court’s jurisprudence. It does not however determine which of these approaches should take precedence.

[i] Pieter Van Dijk, G. J. H. Van (Godefridus J. H.) Hoof, G. J. H. Van Hoof, A. W. Heringa, Theory & Practice of the European Convention on Human Rights (3rd edn, Kluwer Law International 1998) 77; this means that the Convention ‘evolves’ through the interpretation of the Court: see Luzius Wildhaber, ‘The European Court of Human Rights in Action’ (2004) 21 Ritsumeikan Law Review 83,84

[ii] Views have been expressed by both academics and members of the judiciary. For example in Marckx v Belgium (1979) 2 EHRR 330, Sir Gerald Fitzmaurice in his dissenting judgment criticized the application of judge-made law in the realm of international adjudication which relies on state consent. On the other hand, George Letsas has defended the use of the living instrument doctrine by the Court arguing that the Court would lose its legitimacy if it does not interpret the Convention as a living instrument – See Letsas, George, The ECHR as a Living Instrument: Its Meaning and its Legitimacy (March 14, 2012). Available at SSRN: http://ssrn.com/abstract=2021836 or http://dx.doi.org/10.2139/ssrn.2021836  24

[iii] Within this paper, ‘living instrument’ and ‘evolutive interpretation’ will be used interchangeably.

[iv] Tyrer v United Kingdom (1978) 2 EHRR 1

[v] See e.g. Françoise Tulkens, Section President of the European Court of Human Rights. Seminar ‘What are the Limits to the evolutive interpretation of the Convention?’ Dialogue between Judges 2011 page 6, Murat Tümay, ‘The Margin of Appreciation Doctrine Developed by the Case Law of the European Court of Human Rights’ (2008) 5(2) Ankara Law Review 201, 210; Baroness Hale of Richmond, ‘Beanstalk or Living Instrument: How Tall Can the ECHR Grow?’ (2011) Barnard’s Inn Reading page 1; Alastair Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) HRL Rev 57,60;

[vi] Tyrer v United Kingdom (n 4)

[vii] Letsas, (n 2) 2

[viii] Letsas, (n 2) 2

[ix] Letsas, (n 2) 5; a link between the living instrument approach and the margin of appreciation doctrine is also recognised in other literature – e.g. Baroness Hale of Richmond, (n 5) 18

[x] This is in keeping with the fact that the Convention expressly assigns the primary role of application and enforcement of its provisions to the States parties – Article 1 ECHR provides that ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’

[xi] See for example: Handyside v United Kingdom (1976) 1 EHRR 737

[xii] Advocates of the doctrine deem it a justified response to sociological, religious, cultural, moral, political and ideological diversity between the contracting States – For example – Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 3 and K A Kavanaugh, ‘Policing the Margins: Rights Protection and the European Court of Human Rights’ (2006) EHRLR 422; whilst Jeffrey Baruch has called for the margin of appreciation to be abandoned because it is a threat to the rule of law Jeffrey A Baruch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2004) 11 Columbia Journal of European Law 113

[xiii] Letsas (n 2)

[xiv] The proliferation of the use of the margin of appreciation doctrine by the Court is noted in a lot of academic articles. E.g. Jan Kratochvíl, The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights 324

[xv] Article 1 of the new Protocol No 15 inserts within the preamble to the Convention, the requirement that its provisions to be interpreted in line with the margin of appreciation doctrine as developed by the Court. This move to include the margin of appreciation doctrine in the Preamble of the Convention is significant because by virtue of Article 31(2) VCLT 1969, the Preamble to an international Convention can be relied on in order to inform context for the purpose of interpretation of the treaty.

[xvi] This position may be seen within academic literature. For e.g. – Tümay (n 5); Letsas (n 2) 5

[xvii] Letsas (n 2) 5

[xviii] Tyrer (n 6)

[xix] Marckx v Belgium (1979) 2 EHRR 330

[xx] Dudgeon v United Kingdom (1981) 4 EHRR 149

[xxi] Tümay, (n 5) 231

[xxii] Examples of such early cases are Rees v United Kingdom (1986) 9 EHRR 56; Cossey v United Kingdom (1990) 13 EHRR 622; Otto-Preminger-Institut v Austria (1994) 19 EHRR  34 and Sheffield and Horsham v UK (1998) 27 EHRR 163

[xxiii] E.g. Handyside (n 11)

[xxiv] Letsas (n 2) 5

[xxv] Goodwin v United Kingdom (2002) 35 EHRR 18

[xxvi] Demir and Baykara v Turkey (2009) 48 EHRR 54

[xxvii] Rantsev v Cyprus and Russia (App No 25965/04) Judgment of 7 January 2010

[xxviii] EB v France (2008) 47 EHRR 21

[xxix] Hirst v United Kingdom (No.2) (2006) 42 EHRR 41

[xxx] Letsas (n 2)

[xxxi] Pichkur v Ukraine (2013) ECHR 1099

[xxxii] Vallianatos and Others v Greece (2013) ECHR 1110

[xxxiii] Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913-1914) 23 Yale LJ 16, 32; Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1916-1917) 26 Yale LJ 710

[xxxiv] Joseph Raz, The Morality of Freedom (OUP 1986) 171

[xxxv] Raz (n 34)

[xxxvi] Raz (n 34) 170-171

INFORMATION PRIVACY AND THE PUBLIC-PRIVATE DIVIDE IN ARTICLE 8

Information Privacy and the Public-Private Divide in Article 8

Oliver Butler, PhD Candidate, University of Cambridge

”The public-private divide in Article 8 has been overlooked by the literature on positive obligations”

This paper analyses the extent to which a public-private divide has been developed or eroded in the jurisprudence of the European Court of Human Rights in relation to Article 8 of the European Convention on Human Rights (ECHR) in the context of information privacy. Information privacy here refers to controls over the collection, retention and disclosure, for various purposes, of information about individuals. Public-private divide here refers to a difference in treatment between public authorities and private actors. Most straightforwardly, the ECHR imposes obligations on the contracting parties. As such, there is a fundamental public-private divide in that the obligations it imposes are those of the state alone. I am concerned with the conceptual framework and jurisprudence that governs the state’s international obligation and the extent to which that obligation requires contracting parties to regulate public authorities and private actors differently. I argue that, although positive obligations have significantly eroded the public-private divide in Article 8, a remedial and regulatory divide has survived this change and has been overlooked by the literature on positive obligations, which suggests that there has been a more comprehensive erosion of the divide.

Article 8 was originally drafted with a public-private divide and was understood to impose a negative obligation on public authorities with little consideration given to private interference.[i]

The substantive interests protected by Article 8 contain little that is in principle distinctive of the state, save for limited exceptions concerning legislation permitting secret surveillance.[ii] The substantive interests protected, although they have become broader and more inclusive over time, have not manifested a distinctive public-private divide. The Article 8 jurisprudence has developed a doctrine of imputation but its development has been limited.[iii]

”To secure respect for private life even in the sphere of relations of individuals between themselves”

The Court has, however, significantly eroded, but not fully removed, the public-private divide through the development of positive obligations of the state to secure Article 8 rights, even between private individuals. This requires the regulation of private actors. The Court first stated that Article 8 could contain “positive obligations” in Marckx v Belgium.[iv] In X and Y v Netherlands, it held that positive obligations could include “the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves.”[v] The positive obligation considered in relation to information was considered by the Commission in the same year as X and Y v Netherlands in Winer v United Kingdom.[vi] This case decided that the “absence of an actionable right to privacy under English law [did not show] a lack of respect for the applicant’s private life and his home”. The way in which the state met its positive obligations was “largely within its discretion”. This weak obligation was later reconsidered by the Commission in Earl Spencer v United Kingdom, which, although decided on the basis of a failure to exhaust domestic remedies, refused to “exclude that the absence of an actionable remedy in relation to the [publication of personal and family details]… could show a lack of respect for [the applicants’] private lives.”[vii] In Von Hannover v Germany, the Court held that in relation to personal or intimate information the state’s positive obligations may “involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves”, that “regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole”, and that the state enjoyed “a certain margin of appreciation”.[viii] In Mosley v United Kingdom, the Court accepted generally that an ex post facto compensation action is in principle sufficient to discharge the positive obligations of the state in the context of media publication of private information.[ix] This has not been successfully challenged or expanded to date. More recently, the Court, in Von Hannover v Germany (No. 2), reiterated that “the choice of the means calculated to secure compliance with [Article 8] in the sphere of the relations of individuals between themselves is in principle a matter that falls within the contracting states’ margin of appreciation”, subject to “European supervision” to review, and not replace, the decisions of national courts. Where the national courts carried out a balancing exercise in conformity with the criteria laid down in the Court’s case law, only “strong reasons would enable it to substitute its view for that of the domestic courts.”[x]

In relation to medical information, the Court has held that practical and effective protection is required to exclude any possibility of unauthorised access occurring” through “appropriate safeguards”.[xi]

Positive obligations share much in common with negative obligations, especially a concern for balancing substantive interests through a fair balance test or proportionality as part of interference “necessary in a democratic society” respectively.[xii] However, there remain two important distinctions between positive and negative obligations which form the basis of the present public-private divide.

Remedial public-private divide

First, there is a remedial public-private divide. Positive obligations in the context of information privacy have, to date, accepted the adequacy of an ex post facto compensation remedy as discharging the core positive obligation and information security provisions in relation to personal health information. Negative obligations have developed with the assumption of judicial review of whether legislation is, among other things, “in accordance with the law” and says nothing of ex post facto compensation.

Regulatory public-private divide

Secondly, there is a regulatory public-private divide. The requirement that interference by a public authority be “in accordance with the law” has developed to impose a rigid set of legality requirements on public authorities. These do not exist in relation to private actors, which are controlled instead by balancing exercises conducted in the context of the ex post facto compensation action. In particular, the jurisprudence denies or calls seriously into question the validity of reliance on broad discretionary powers,[xiii] implied powers[xiv] or “common law” powers.[xv] This is significantly more onerous and rigid than the adoption of measures required by positive obligations. Discretion, implied power and common law power are three ways in which administrative flexibility can be granted to public authorities under national judicial review standards in the United Kingdom. These are not available in relation to interference with information that falls within the scope of Article 8. Although the scope of the relevant authorities is uncertain, they require a dependence on narrowly drafted express provisions in relation to public authority powers relating to private information. This necessarily makes public authorities less responsive to changing circumstances and demands, due to the pace of the legislative process. By contrast, private bodies may proceed if they are content that the appropriate balance has been struck and so the decision will not be vulnerable to an action for compensation.

Despite the erosion of the public-private divide through the development of a doctrine of positive obligations, the remedial and regulatory public-private divide remains. This is significant because it imposes differing levels of flexibility or rigidity in regulation. In a mixed economy of service provision, characterised by rapid change and increasingly governed by a market logic, these may prove to be important differences in relation to the delivery of modern public services. It makes public authorities more cumbersome in adapting to changing information needs in the context of public procurement and commissioning, and less competitive than more flexible (because less regulated) private bodies. Insufficient attention has been paid in the literature to this surviving divide and its implications.

 

[i] See, for example, Pitkänen, “Fair and Balanced Positive Obligations – Do They Exist?” (2012) EHLR 538, 539

[ii] Contrast Malone v United Kingdom (1985) 7 EHRR 14, paragraph 84 and P.G . and J.H. v United Kingdom (2008) 46 EHRR 51, paragraph 42, although see also Heglas v Czech Republic (2009) 48 EHRR 44, paragraphs 60 to 61 for a narrowing of that contrast. See also Klass and others v Germany (1979-1980) 2 EHRR 214, paragraphs 41 and 42.

[iii] See Storck v Germany (2006) 43 EHRR 6, paragraph 146; M.M. v Netherlands (2004) 39 EHRR 19, paragraphs 36 to 40; Van Vondel v Netherlands (2009) 48 EHRR 12, paragraphs 48 to 49.

[iv] (1979) 2 EHRR 330, paragraph 31

[v] (1985) 8 EHRR 235, paragraph 23

[vi] App. No. 10871/84

[vii] (1998) 25 EHRR CD105

[viii] (2005) 40 EHRR 1, paragraphs 57 and 58

[ix] (2011) 53 EHRR 30, paragraph 120

[x] (2012) 55 EHRR 15, paragraphs 104 to 107

[xi] I v Finland (2009) 48 EHRR 31, paragraphs 38 to 47

[xii] See, for example, Peck v United Kingdom (2003) 36 EHRR 41

[xiii] See Herczegfalvy v Austria (1993) 15 EHRR 437, paragraph 91; Natoli v Italy (2003) 37 EHRR 49, paragraph 44; Gillan and Quinton v United Kingdom (2010) 50 EHRR 45, paragraphs 78 to 87; Shimovolos v Russia (2014) 58 EHRR 26, paragraph 68

[xiv] See Copland v United Kingdom (2007) 44 EHRR 37, paragraph 47

[xv] See Malone v United Kingdom (1985) 7 EHRR 14, paragraphs 79 to 82

Doctoral students from six countries studied human rights in Tampere

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At the end of October, the School of Management and the Public Law Research Group organised an international workshop for doctoral students on the European Court of Human Rights (ECtHR).

Apart from the Finnish participants, the two-day workshop brought to Tampere eleven international doctoral students and two renowned scholars who represented eleven universities in six countries.

“We got the idea for organising this seminar two years ago at another successful seminar Taking the Doctrines the ECtHR seriously. The doctoral students I supervise also wanted to organise an event that would support their dissertation work,” says University Lecturer Jukka Viljanen, Adjunct Professor on human rights law and the person with the main responsibility for the workshop.

“We now have several doctoral students working on their theses on ECtHR so it is very important for them to create contacts with other young researchers who work on similar themes. It is also essential to have international scholars review their research already at early stages.”

Doctoral dissertations from environmental questions to paperless immigrants

The students working on the dissertations related to the ECtHR study public law at the School of Management and they include Heta Heiskanen, Kristiina Honko, Reija Knuutila, Emma Lehtinen, Jaana Palander, Elina Pekkarinen and Elina Todorov.

Their studies are all related to current human rights issues.

Heiskanen’s research deals with environmental questions, Knuutila investigates the rights of vulnerable groups, Honko studies the rules that concern war and the privatisation of military interventions. Todorov examines the legal status of paperless individuals and Palander researches the reunification of families. Lehtinen analyses the Charter of Fundamental Rights of the European Union and the European Court of Human Rights. Pekkarinen has a more theoretical approach to the contextual interpretation of ECtHR.

Tensions between the courts

The lectures given at the seminar dealt with, among other things, the current British administration’s negative stance to ECtHR. Senior Lecturer Ed Bates from the University of Leicester took look at the historical development of the situation and said that euroscepticism is the most important aspect in the current debate. Senior Lecturer Kanstantsin Dzehtsiarou from the University of Liverpool reminded the audience that a European consensus is crucial for the legitimacy of ECtHR.

The second day was opened by Matti Pellonpää, a former judge of the European Court of Human Rights, who concentrated on the tensions between the two European courts. The Court of Justice of the European Union, which is located in Luxembourg, took people by surprise last December by issuing statements that boosted its own position. Finding a solution to this dispute  over the EU’s accession to the ECHR may take a long time.

Pellonpää also emphasised the correspondence between the quality of ECtHR judges and the court’s rulings. He is now a member in a panel of experts appointed by the Council of Europe to examine the new candidates for the position of a judge.

The whole range of ECtHR research was represented in the workshop

“I had decided that the topics of the workshop sessions should be ‘a living instrument’, ‘emerging consensus’ and ‘effective and practical’, which are concepts mentioned in the judgments of ECtHR.”

“We were thus able to include the full range of ECtHR research: the traditional issues of free speech and religion and the margin of appreciation doctrine but also issues that were related to economic, social and educational rights. It was also interesting to analyse the judgments of the Grand Chamber or discuss the significance of the pilot-judgments procedure or inter-state applications.”

“In my own presentation, I systemised the way in which certain legal cases are chosen. Selection of cases and presenting it in the dissertation are essential for the quality of the doctoral thesis,” says Heiskanen who is writing her dissertation on environmental cases.

Young voices were heard

Viljanen thinks that the workshop was a success.

“It is often postdoctoral researchers who hold the floor in international seminars. We were able to bring together a group of young and promising doctoral researchers so young voices were heard. Each researcher also received personal feedback, and everyone had the opportunity to present their research in a poster session.”

“Our aim is to make this network a permanent research community. My doctoral students met the international guests and made contacts they will need in their future careers. They will hopefully remember Kanstantsin Dzehtsiarou’s instruction to authors: it is very important to figure out what one wants to say with one’s research and that all claims must always be diligently grounded. Researchers should not settle for reiterating what someone else has said about the illogicality of the case-law.”

The research group will start a blog on this theme and publish the participants’ papers.