The positive obligation of states to provide security under the echr, the Charter, and the Polish Constitution

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To conclude, it must be stated that Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain circumstances. There can be stressed two sides of this statement. First, understanding Article 5 as a right which protects individual from unlawful treatment. Second, understanding Article 5 as a obligation of the state to protect individuals, people in general, to guarantee them security. Considering the provision made by this Article as a positive obligation of a state, the strict criteria must be met. The state can arrest individual, when it is made in a good faith to protect him from possible harm. Another point of view is that the arrest protects others, by deprivation an individual of liberty the states guarantees the security for their all citizens. The problem is how to balance these two values – for this question, in the light of XXI-century’s threats, the European Court of Human Rights will have to find an answer.

  1. Positive obligation to provide security under de Charter

    1. Introduction

Article 6 Charter, Right to liberty and security:
Everyone has the right to liberty and security of person.”
This article is contained within the Chapter II of the Charter of Fundamental Rights of the European Union ( hereafter : the Charter ) which deals with Freedoms. As we can read this article settle the right to security with the right to liberty.

First of all, before trying to go deeper in the study of this article 6 of the Charter, a short summary of the Charter history could be interesting in order to identify clearly the context.33

In 1996, the European Union refuses to join the ECHR. Therefore the European Union will have the idea to gather in a single text, some fundamental Rights which were contained and scattered in the Treaties.

In 1999, on a German initiative, a “body” named “ the European Convention” is setting up. This “Convention” is composed with representatives of the Heads of State, Government and of the President of the Commission, and with members and European and nationals parliaments.

In December 2000 the Charter is proclaimed by the European institutions. The idea was great but the result is controversial, in order to see how the Charter is setting the obligation for the States to provide security, our focus will of course be on the Article 6 of the Charter, but we will also see how this Chapter is suffering and depending of the Charter's limits.

    1. The positive obligation in theory

In the Charter the principle of security is contained within the article 6 as already said. The formulation of the article is based on the article 5 of the ECHR. This was the will of the European Convention, as proof we can quote the official text of the explanations concerning the Charter.

The text says “The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR”.34

The first limit can be observed, the lack of independence of the Charter, instead of creating his own article which would show the will to create a strong text, the European Convention has taken exactly the same formulation which is contained is the ECHR. Moreover the same text adds article 6 of the Charter and article 5 of the ECHR “they have the same meaning and scope” which shows the dependence of the first article on the second.
1) Definition of the principle

In this formulation, not only the principle of security is mentioned but also the principle of liberty.

In order to a better understanding of the article, we can try first, to define those two principles separately and then to observe their interaction.

2) The theory of an independent right

First, the Right to liberty is probably the easiest to define. This Right must not be confused with the general principles of liberty and freedom. In the Charter, the article 6 and its Right to liberty is contained in the general Chapter of Freedoms, that is showing the difference. Here the Right to liberty is narrow, it has to be seen as the freedom of “bodily movement in the narrow sense of arrest and detention”.35

Concerning the Right to security, which is our main topic here, his definition is quite more complex, first in his meaning but also in his scope.

A definition has been given by the Human Rights committee, in the case “Delgado Paéz v. Colombia” in 1990. The committee interpreted the right to security as independent with the corresponding State obligation to take reasonable and appropriates measures in order to protect individuals, who are subject to death threats and others serious threats to their personal safety.

However this definition seems more to correspond with the meaning of old texts inspired directly by the French Revolution like the Declaration of the Rights of Man and of the Citizen, but less with the meaning given by the European Court of Human Rights. So, this first definition is not very convincing.

The second one, which consists in binding the two terms, liberty and security, seems better because in accordance with the will of the Charter founders.

3) The interdependence with the right to liberty

The formulation of the article 6 binds therefore two terms, liberty and security, here the definition can be seen through two points of view, the first one is that the right to security would protect the right to liberty and the second vision would be that a deprivation of liberty would protect the right to security. The fact to bind the two terms is more in accordance with the spirit of the Article 6,and of the Charter in general. When the Charter was written, the authors will, was to write this article with the ECHR as model. As we said before, the article 6 is a copy of the article 5 of the ECHR, the ECtHR define those principles in his jurisprudence by binding them, therefore the article 6 has to be define in the same way, the official explanation confirms this approach by stating: “The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning”.

According to the first point of view, security “denotes prohibition of deprivation of liberty”.36 It means that in order to insure the right to security, individuals are protected by this right to liberty. A question appears here, we said that the definition of article 6 has to be seen through the interpretation given by the European Court of Human Rights, does it mean that as long as the Court will keep this vision, the right to liberty within the article 6 will have to be interpreted in link with the right to security?

Through the second point of view, the fact to deprive someone of his liberty is a mean to protect the security of someone else. From this point of view, right to security and to liberty are once again interdependent, liberty could be used as a tool for the States in order to protect the principle of security.

Finally, it’s interesting to mention that during the draft of the Charter, the right to security was a source of debate, the idea that was raised was to give up this right to security in order to keep only the right to liberty. But they finally decided to keep the same formulation as the article 5 of the ECHR. That show the problematic around this right to security and its definition, in order to insure a right its definition has to be clear otherwise States could interpret differently the right and the security of individuals could be trampled.

However, States are limited by a define scope of limitations.

4) Scope of limitations

The article goes further and establishes the limits of this right, those limitations are directly taken from the article 5 of ECHR which is logic under the rest of the article, ”Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Article 5”.37

The scope of limitations is exhaustive, but only deals with the right to liberty, this show the importance to interpret the right to security in link with the right to liberty. This exhaustive list contains cases in which States are allowed to deprive individuals of their right to liberty.

In its first point the article contains some provisions dealing with criminal law and procedure, as detention on remand and imprisonment after a conviction. It also contains provisions dealing with civil and administrative law, for example detention of minors or detention of aliens before their expulsion, or also the detention of people addicted to drugs or who could spread a disease.

In its second point, it concerns the right to information, the arrested individual has the right to know why he has been arrested.

In the third point, the article mentions the guarantees that the State have to apply in case of a detention of remand.

The fourth point, the article deals with the so-called right to “habeas corpus” proceedings. This is a very old right, the definition of this right is the possibility for individuals to challenge his detention before an independent and impartial Court which guarantees the right to a fair trial.

The last point concerning the limitations of this article 6,is the right to compensation, if the individual

has been detained in conditions which violates principles settle in this article, the individual has the right to ask compensation for this prejudice.

Now we have seen the principle in theory, we are trying to study whether members States respect this obligation or not, and how this obligation apply in Nationals order.

5) The problem of the binding effect

In order to be effective a text has to bind the States, but the problem of the Charter is that its binding effect was limited, but with the Treaty of Lisbon ratification it might change. First we will see how the Charter was binding the States before the Treaty of Lisbon and then which will be the possible evolution due to the ratification.

6) Before the ratification

Before the ratification the Charter was not really considered as a treaty, the text had only been proclaimed twice, first the day before the ratification of the Treaty of Nice and the second time before the signature of Treaty of Lisbon in 2007. Institutions of the EU proclaimed this Charter, but it was more an inter-institutional agreement than a real treaty. The binding effect of the text was more on the horizontal ground than on the vertical. The Charter was more a guideline for the States or a “framework” as the text says, they have to respect principles of the Charter in their domestic legislation or in theirs treaties ratification. It was also a framework for the European institutions.

But concerning horizontal field, binding effect was limited, individuals tried to invoke rights from the Charter and some courts also tried to use the Charter but it was not really satisfactory in order to insure the rights from the text and therefore the principle of security. The jurisprudence is weak, the few cases where the courts used the Charter don't deal with the right to security.

For example we can mention a judgment of the European Court of Human rights in which the court based its judgment on the article 9 of the Charter,38 and one of the ECJ in which the Court said that in the area of legality of criminal offenses and non-discrimination the Charter is the main source, before the ECHR.39

But in opposition, some national courts considered this Charter as a non-binding text, that was the case in France for example, in two judgments, one in 200540 and the other one in 200841, the “Conseil d'Etat” considered that the Charter didn't have any binding effect and therefore it was impossible for individuals to invoke its articles in front of the French courts.

If we consider that the effectiveness of a right is measurable only if it is possible to defend him, therefore if this rights is not evocable before courts, this right is useless for the individuals and they have to find another way to defend their right.

Actually, this is what individuals did and still do because we still don't know the impact of the Treaty of Lisbon on the Charter, individuals are using the article 5 of ECHR instead of the article 6 of the Charter in order to defend this right to security in front of courts. It is therefore possible to say that before the ratification, the obligation on the States concerning the right to security was controversial.
7) After the ratification

As already said, before the ratification the Charter was not addressed to individuals and couldn't be used for claims, it was just a “kind of institutional guideline”.42 But with the ratification, the Charter has now a real binding force and therefore we can expect that the right to security will be better insured. The Charter has now the same value as a treaty according to the article 6 of the Treaty of Lisbon, and should now bind the States. Therefore the horizontal dimension is still present and is stronger, States and institutions will still have to act in the respect of the Charter, but the very interesting aspect with the ratification is the evolution of the vertical dimension.

If the Charter is a binding treaty and the will of the EU is to have his own Charter of Fundamental rights, this could allow individuals to invoke the Charter, and therefore the right to security before the courts. That would be the real evolution, the right to security would be therefore a real positive obligation for States because if they don't respect such a rights they could be punished. Therefore they will have to act in the sense of the right to security in order to enforce the Charter, otherwise they would be exposed to the control of judges.

    1. Summarize

Consider the right to security as define within the Charter as a real obligation for States is quite questionable. First its definition is quite unclear, it seems that under the Charter the right to security cannot exist by itself.

But the ratification of the Treaty of Lisbon might change the situation, now the Charter is a real treaty so we it's logic to expect a real control of this right by courts. This control could lead to a new interpretation, different as the European Court of Human Rights one. A new interpretation would give an independence towards the article 5 of the ECHR. Therefore the possibility to invoke the right before courts seems to be the key in order to settle the right to security as a real positive obligation for States and EU, because for example if ECJ punishes a State for the violation of the right to security, States will have to act positively in order to insure this right.

Unfortunately it is too early to know what will be the real impact of the Lisbon Treaty on the Charter, but expectations are important.

  1. Positive obligation to provide security under de Polish Constitution

    1. Introduction

In this Chapter we will try to review and summarize the way the right to security as an positive obligation of states is being secured by the Polish Constitution. We have tried to show in which way the right to security should function, and does function in the Polish legal society. Within this goal we especially wanted to see how the Polish Constitution obliges the Polish Government to really provide this security, but also in which way the balancing of rights works in Poland.

In the first place we will give a broad introduction to the theoretical aspects of the Constitution in which we will show that the Polish Constitution provides several provisions which oblige the Polish Government to protect this human right. Furthermore we will cover a small political part of this discussion on security, from the view of the Polish President. The last part of this chapter we wanted to deal with a couple of practical examples on the way this right functions in real society. But no major cases could be easily founded and the language barrier did not allow us to give a sincere and exert image of the case-law. This will also show to what extent the Polish Government really does protect this human right. Concluding we will be able to say if the Constitution is merely a codification of European values or if it really provides an added value contrary to Constitutions which do not have the right to security in their Constitution’s text.

    1. The positive obligation in theory

The text of the Constitution

The Polish Constitution and the way human rights are being secured in this Constitution must be seen and analyzed in their context. The Constitution is officially from 2 April 1997. It replaced the temporary amendments put into place in 1992 designed to reverse the effects of communism, establishing the nation as "a democratic state ruled by law and implementing the principles of social justice."

This makes it not strange that human rights and positive obligations for the Polish Government have an important place in the text of this very same Constitution. While reading the Constitution for the first time for this essay, a couple of major differences with other Constitutions came into our minds.

In the first place, the Polish Constitution does not take off with the ‘normal catalogue of fundamental human rights.’ Article 1 to 29 holds general provisions on the Republic (of Poland). These general provisions are important in the context of our essay, because the most important one, article 5 is situated in this category. This general provisions show the general characteristics of the Polish Constitution. This all being said, we can conclude that the positive obligation of the Government of Poland is not only a fundamental human right, secured by the Constitution, but it is one of the essential aspects of the Polish nation for its existence.

The second special feature of the Polish Constitution is that, although the second chapter is being called “THE FREEDOMS, RIGHTS AND OBLIGATIONS OF PERSONS AND CITIZENS”, many of the rights are formulated as a positive obligation to the Polish government. Let’s give an example:
The right to private life in Belgium:

Art. 22 Everyone has the right to the respect of his private and family life, except in the cases and conditions determined by law. The right to free movement in Italy: Art. 16 Every citizen has the right to reside and travel freely in any part of the national territory except for limitations provided by general laws protecting health or security. No restriction may be imposed for political reasons. The right to privacy in the Netherlands: Article 10 Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament.

In the Polish Constitution almost all rights are stated in the following way: Article 38 The Republic of Poland shall ensure the legal protection of the life of every human being.

This brings us to the conclusion that the Republic of Poland has placed itself in a position43 where the human rights like, right to life, privacy, security etc. are not only fundamental, but have attached the characteristics of the social dimension of rights: the government will provide and secure these rights. We will therefore discuss the positive obligation to provide security and the right to security separately, as they are separately mentioned in the convention as well.

Positive obligation of the Republic of Poland to secure its citizens

In this sub-paragraph we would like to summarize the way the positive obligation are defined in the Polish Constitution. The most important article, which is stated in the very first chapter “THE REPUBLIC”, is article 5:

Article 5

The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development.44
The first, and most important thing that has to be mentioned about this article, is to whom it is directed. The English translation speaks about the Republic of Poland. This should be interpreted in a way that the positive obligations of this article must be fulfilled by all the “public authorities” of the Republic of Poland. This means a wide range of officials must take this article into consideration, while carrying out their public tasks. Not only the central government should take care of national security, but also police forces, or officials or all kinds of semi-official institutions.

The second point that has to be made is exactly which positive obligations this article holds. We can extract 5 kinds of obligations:

  • The Republic of Poland shall safeguard the independence and integrity of its territory;

  • The Republic of Poland shall ensure the freedoms and rights of persons and citizens;

  • The Republic of Poland shall ensure the security of the citizens;

  • The Republic of Poland shall safeguard the national heritage;

  • The Republic of Poland shall ensure the protection of the natural environment.

In the context of this essay, we would like to concentrate on the first 3 positive obligations. As

the literature speaks on this article, the first here above mentioned positive obligation binds the public authorities to protect the independence and freedom of the Polish territory as a state. This gives the state an obligation to protect Poland in the event of hostile take-over’s, war and terrorism. Especially this last goal of this article is important while balancing the protection of this right, with the respecting of human rights. This obligation to protect the Polish sovereignty and territorial integrity is not only about military protection, but also about political protection by law.

The second positive obligation, namely the ensuring of freedoms and rights of persons, is important for the theme of our essay, for the following rights: Right to life,45 Right to private life and personal integrity,46 Right to Communication,47 Right to privacy48. This obligation is also stated in other words at the beginning of the second chapter of the Constitution:
Article 30

The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.49
This makes the case interesting; because a part of article 5 states that the Polish authorities have the right to protect all freedoms and rights, but at the same time holds the following obligation:

The third positive obligation of this right, namely the ensuring of the general security of persons is probably the most interesting and has complicating aspects. The traditional view on this general provision is that it secures the Polish citizens from intervention in the public order. We will discuss the balancing of rights and obligations, and the limitation of rights and obligations by the public order, further in this chapter.

In this context we should mention another article, from the first chapter, which holds one of the essential key-values of the Polish republic; namely article 9, which speaks on positive obligation to respect and apply international law (including the Charter and the Convention) in all public actions.
Article 9

The Republic of Poland shall respect international law binding upon it.50
In the theory on this article it is stated that, it provides the legal basis for factual enforcement of the Convention and the Charter. We could conclude that thanks to this article all the rights on security as we have previously described in this essay should be secured by the Polish authorities as well. In the following chapter we will compare the Polish Constitution and the European legal grounds for the positive obligation to security and conclude if the Polish Constitution has an added value.

In the context of the European obligations to provide security to anyone under the authority of the Polish Authorities, it is not strange that there is a specific provision which allows not only citizens, but all inhabitants of Poland to enjoy the security by the Polish authorities:

Article 37

1. Anyone, being under the authority of the Polish State, shall enjoy the freedoms and rights ensured by the Constitution.

2. Exemptions from this principle with respect to foreigners shall be specified by statute.51
We can conclude this sub-paragraph with the conclusion that the Polish Constitution provides enough provisions which hold the legal basis for as well the claiming of rights by individual Polish citizens and inhabitants, as well as the legal basis for the acts and omissions of the Polish Authorities to fulfill its positive obligation to provide state and individual security.
Limitation of human rights

We now know that the Polish constitution provides the general positive obligation for all public authorities to provide security. Moreover the Polish Constitution summarizes certain fundamental human right which can play a role in providing this security. But what if the securing of one human right is intervening in the enjoyment of the other human right? What if the Polish authorities need to limit other human right to fulfill their positive obligation to provide security? And in which situation can human rights of the Polish Constitution be limited in general? These are important questions, especially when we think of the right to security intervening with other people’s rights, like right to privacy or free communication for example.

Article 31 of the Polish Constitution provides the general legal basis and grounds for limitation of the human rights:
Article 31

1. ) Freedom of the person shall receive legal protection.

2. ) Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

3.) Any limitation upon the exercise of Constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.52

As the 3rd paragraph states, there a several conditions to be met before any human right can be limited in general:

      • Any limitation may only be imposed by statute; and

      • When necessary in a democratic state for the protection of its security or public order; or

      • When necessary to protect the natural environment, health or public morals; or

      • When necessary to protect the freedoms and rights of other persons.

To answer the other questions set out above, we can conclude on the basis of this article and of the way the Constitution is constituted that the general positive obligation to provide security as set out in article 5, will be enough reason to limit the human rights as set out in Chapter 2. If another Right is at stake, than the limitation of both rights must be balanced to the extent to what is necessary in a democratic state. To give an example:

The right to privacy can be limited by the provision of article 5, if this is necessary. But if the right to privacy would have to be limited to protect someone else his right to life, that this limitation must first be balanced, and then can take place.
In this paragraph we have shown the very theoretical picture of the positive obligation to provide security and the right to certain types of security. In the next paragraph we would like to point out what the politics see as the biggest point of the agenda coming out of the positive obligation in article 5.

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