Positive obligation to provide security under de Charter – Loic Alves Introduction
The positive obligation in theory
Positive obligation to provide security under de Polish Constitution – Silvia Gawronski Introduction
The positive obligation in theory
The positive obligation in politics
Comparison of the level of protection
Literature / Case-Law
In the context of the seminar European Constitutionalism 2010 “European Integration: enhanced protection or a threat to individual freedom and liberty?” we write this essay on the positive obligation of states to provide security under the European Convention for the protection of Human Rights (hereafter: “The Convention”), The European Charter for the Protection of Human Rights (hereafter: “The Charter”) and the Polish Constitution (hereafter: “The Constitution”).
The right to security will be handled from the view of the States obligation to provide this security and therefore a general chapter on positive obligation will not be redundant. Chapter 2 will handle this theoretical basis.
After this general introduction to positive obligations of states we will focus on the protection of security under the Convention. In this following chapter – chapter 3 – we will try to show the virtues and issues of protection of this right under the Convention. This will be done by the general introduction to the way this right is protected under the Convention, the way legal scientist see the functioning of this right, and the way the European Court of Human Rights (hereafter: “The ECHR”) handles the positive obligation to protect citizens of State Parties.
In chapter 4 we will continue with a short, but exhaustive view on the protection of this same right to security under the Charter. Because there is no case-law on this topic, we will stay with the description of the reach of this right, and the boundaries of this right.
In the following chapter, namely chapter 5, we will discuss the way this right to security has found its way into the Polish Constitution. After a short framework of this right in the Polish Legal system, we will continue to summarize the working and problems of this right. Although it will not be possible to give a full view of the Polish case-law on this right, due to the language problems, we will try to discuss the most important matters on this subject.
The right to security is being protected under all three legislative texts, but the main question remains if the protection is organized in the same way, and if the European Citizens can expect the same level of protection under all three of them. We will try to answer this question in the last chapter, where we will also give a short summarize of our findings.
According to our methodology we will have to make some critical observation as to the sources and language problems we suffered during this writing. We could not consult all the major books on this topic because of the lack of availability of some of them in the library, and although some books and articles could have been referred to, due to the lack of knowledge of the Polish legal language, we could not used them as much as we might have wished for.
We hope to have written a good overview on the comparison of the right to security under the Convention, the Charter and the Constitution.
Loic Alves, Silvia Anna Gawronski & Marcin Stupak
Positive Obligations of States in General Introduction
Neither the Convention, the Charter, nor the Polish Constitution defines what is exactly meant by the positive obligation for States to protect a human right, for example the right to security.1 For this reason, and for the reason that there is no consensus in the literature on the concept,2 it seemed very important to us to give a short general and theoretical framework on de positive obligation for the government. It is commonly recognized3 that human rights can be divided in classical and social rights. When one speaks on the classical rights, this will mean the government will have an obligation to withdrawal itself from any action that might constitute an infringement of this specific right: this is also called the negative obligation. In the case of social rights, the government will have an obligation to perform certain behavior with the goal that the specific right can be enjoyed by the people. This positive obligation will ask some help, or intervention from the State.4 In the case of social human rights the individual can try to force the government to exert, but the individual cannot demand concrete actions.5An example of this kind of social right is the right to work.
But we cannot describe the difference between positive and negative obligations of States just by the difference of, respectively, omission of action and intervention.6 What’s more, there is another problem, which has been recently determined by the legal scientists: when classical rights received the characteristic of social rights, namely that of positive obligation, they also received other characteristics. For example, a positive obligation to secure the right for security will no longer be a mere obligation to exert, but a obligation for result.7 And another aspect of social rights sticks to the classical rights as well, namely the enforcement of the positive obligation. To resolve these kind of problems with the definition of positive obligations, the literature speaks about the social dimension and horizontal dimension of positive obligations of state parties.
This short introduction to the concept of positive obligations has probably made clear that it would be useful to describe this social and horizontal dimension further and to find out what kind of positive obligation of State Parties we will discuss while speaking about the positive obligation of states to provide security under the Convention, The Charter and the Polish Constitution.
The Social and Horizontal Dimension of Positive Obligations
The social dimension of positive obligations of classical human rights, like the right to security has her sources in the positive obligations of social rights, as mentioned above. Because positive obligations in general, should take care that the government takes certain measures and actions that the rights can have true effect in society and that people of the nation can truly enjoy this freedom to the human right.8 The other side of the medal of positive obligations can be seen as individual claim for help and assistance of the government to individual autonomy and freedom while executing the human right.9 This is the social dimension.
Moreover, positive obligations have an horizontal dimension as well. This horizontal dimension should not be confused with the horizontal effect of human rights. The horizontal effect of human rights gives the individual the right to invoke a human right in proceedings against another individual. The horizontal effect is contrary to the vertical effect, in which an individual can invoke a human right against the government.10 The horizontal dimension of positive obligation does have some tangent plane with the horizontal effect. The horizontal dimension – in contrary to vertical – describes the way (or field) in which the risk of breach of the human right operates. To give a specified example of this theoretical sentence: There where the vertical dimension states the danger of interference in the human right comes from the side of the government (for example: the government tortures someone in prison), the horizontal dimension states the danger is coming from the level of the individual it selves (for example: other individuals, dangerous company plants etc.).11
Therefore the positive obligations of State Parties within the horizontal dimension will have to provide a certain level of protection of the effectiveness of the human right against risk factors of the level of individuals, from another private party. In the case of the right to security we can say that this means the government has the positive obligation to protect the individual against the breach of security of individuals by terrorists, dangerous factories, angry neighbors, but also more abstract matters as electronically dangers.
To conclude and to repeat, we can say that the horizontal dimension sees on the relation between the breaching factor and the individual.12We must say though, that there can be a situation that a horizontal breach (by another individual) will be accounted to the State because of lack of supervision for example. This will result in something which is called indirect third party effect.13 This is sometimes also referred to as the subsidiary responsibility of the government.14
The most important handbook of Harris, O'Doyle and Warbrick15 makes the difference between three categories of positive obligations: respect, protect en fulfill/secure.You can see all of these dimensions and effects in the figure below.
Figure I – the dimensions of risk and the effect of human rights
Indirect third party effect
Vertical effect of rights
Horizontal effect of rights
In this essay we will focus on the way the government has to fulfill her obligations to respect, secure and protect the right to security, in the way that everyone has the right to live freely and without fear from horizontal risks.
Positive obligation to provide security under de ECHR Introduction
The European Convention on Human Rights, originally adopted with dictatorship and abuse of a state power largely in mind,16 was drafted primarily to prevent so-called “negative interferences” by state or public authorities – breaches of the obligation not to interfere with the rights of individuals. However, The European Convention on Human Rights has also interpreted the ECHR as to impose “inherent”, positive obligation on the state to secure human rights.17
Within the scope of article 5 the Court has frequently made use of the concept of ‘positive obligation’, the assumptions being that the national authorities may be under the obligation to actively respect the individual’s rights protected under article 5. However, “regard must be had to the fair balance that has to be stuck between the general interests of the community and the interests of the individual”.18
The positive obligation in theory
Article 5 of the Convention guarantees a right to liberty and security:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.” This article provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court.
Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain circumstances, such as arrest on the basis of a suspicion of a crime or imprisonment in fulfillment of a sentence. The article also provides the right to be informed in a language one understands of the reasons for the arrest and any charge against them, the right of prompt access to judicial proceedings to determine the legality of one's arrest or detention and to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.
There are many commentaries concerning this Article, however I would like to focus on some issues which can be linked with the positive obligation of the state.
The positive obligation in case-law
1) General interpretation of the Article 5 and the scope of application
The right to liberty must be understood in its ‘classic sense’, as The Court stressed in the case Engel v. Netherlands:
“In proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion.”19 It is the article which refers directly back to domestic law:
“The scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law.”20 The starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question21.
The application of this Article to people under 18 was mentioned in the Nielsen v. Denmark case:
“It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which clearly is not covered by paragraph 1 of Article 5 (art. 5-1).”22 It applies also to detention of aliens in international zone:
“Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centers for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations.”23 Article 5 is concerning the physical liberty of the person. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question24. However, it does not refer to military service:
“Military service, as encountered in the Contracting States, does not on its own in any way constitute a deprivation of liberty under the Convention.”25 Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.
2) Action taken in good faith to protect individuals
Exercise of police discretionary authority to protect a vulnerable individual may not give rise to Article 5 issue as it was in the “Guenat v. Switzerland”26 application. The applicant claimed that he had been wrongfully admitted to a psychiatric institution after a medical examination instructed by the police. Police officer had invited individual who had been through to be acting abnormally to accompany them from his home to a police station. After various unsuccessful attempts to contact doctor at the clinic where the applicant had been receiving treatment, a psychiatrists had arranged for his compulsory detention in a mental health hospital. The applicant claimed that he had been arbitrary arrested and detained for some 3 hours in the police station without being given any explanation for his arrest, but the majority of the Commission considered that there had been no deprivation of liberty since the police action had been prompted by humanitarian considerations, no physical force had been used, and the applicant remained free to walk about the police station.
Another example is Cf B. v. France27 where the Court did not find violation when the applicant was detained on the police considered mentally ill for an identity check. However such considerations cannot justify the imposition of extensive restrictions which have a real impact upon an individual’s rights. In the Riera Blume and others v. Spain case28 the applicants were members of the religious sect who had been handed over to their families upon their release from custody by a judge who recommended that the families should arrange that they be interned in a psychiatric center on a voluntary basis for treatment. For some ten days they were held against their will in a hotel and subjected to “de-programming”. The domestic court had dismissed a criminal prosecution for false imprisonment on the ground that this action had been for philanthropic and well-intentioned motives. For the European Court of Justice, however, the transfer to and subsequent confinement in the hotel “amounted in fact, on account of the restrictions placed on the applicants, to a deprivation of liberty”. Here, the length of the detention and the fact that the applicants had not been at risk of immediate physical appear to have been of some significance.
3) Detention on reasonable suspicion of having committed an offence
A state must be able to show more than that a suspicion was honestly held to justify any deprivation of liberty. In Fox, Campbell and Hartley judgment, The Court considered that reasonable suspicion “presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.29 What may be regarded as “reasonable” will, however, depend upon all the circumstances.
In the case of Brogan and others, the applicants argued that they had been held under anti-terrorism legislation on suspicion of involvement in unspecified acts of terrorism. The contention was rejected by the Court which found that detention had been with the aim of furthering police investigations “by way of confirming or dispelling the concrete suspicion”.30 4) Detention to prevent the commission of crime
The Court refuses to interpret the sub-paragraph to authorize “a policy of general prevention direct against an individual or a category of individuals who present a danger on account of their continuing propensity to crime. It does no more that afford of preventing a concrete and case specific offence”.31
As the Court noted in the Lawless case, any alternative interpretation could result in the possibility that anyone suspected of harboring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision.32