Blog seminar on positive obligations (4): The Responsiveness of a Positive State – Vulnerability and Positive Obligations under the ECHR

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

The concept of vulnerability has had wide-ranging effects for the Strasbourg jurisprudence, although the European Court of Human Rights, in what appears to be a matter of conscious choice,[1] has never defined it. Instead, the Court has opted for a flexible and reactive application of the concept in a broad array of cases under various Convention articles. This approach, which has been employed by the Court in deciding hundreds of cases to date, has recently benefitted from much-needed scholarly attention.[2] It has also enjoyed further exploration in the context of Laurens Lavrysen’s recently-published Ph.D. thesis on Human Rights in a Positive State. Against the backdrop provided by these findings, the following will seek to shed some additional light on the Court’s approach to vulnerability-based positive obligations.

As Laurens noted in his PhD, vulnerability reasoning has been used to require State action in order to prevent human rights violations in cases where applicants are dependent on the State for such protection.[3] It has also been used to require States to take action in order to provide special consideration for the needs and issues facing vulnerable individuals, both in their relationship with the State and, to a more limited extent, also in that with private parties.[4] The following will depart from the style of the previous posts in the current series and instead explore the Court’s use of vulnerability by means of the customary approach of this blog: on the basis of one particular recent case. In the case under discussion, O.M. v. Hungary, the Fourth Section relied on vulnerability-based reasoning to identify a violation of the respondent State’s positive obligations under Article 5 § 1 ECHR.

Summary of the O.M. v. Hungary Case

The applicant in the O.M. case was an Iranian national who sought asylum in Hungary, alleging that he had fled his home country because he faced prosecution in light of his homosexuality. Pending the outcome of the asylum proceedings, the applicant’s detention was ordered in June 2014 – first for 72 hours, and then for an additional 60 days. At an asylum hearing held in July 2014, the applicant argued that he had difficulties coping with his detention given the fact that he felt at risk of harassment due to his sexual orientation. After further proceedings, on 22 August 2014, the applicant was released from detention and provided with a designated place of residence. On 31 October 2014, he was recognised as a refugee.

The Court examined the applicant’s complaints under Article 5 § 1 (b), finding in its judgment that the domestic authorities had not conducted a sufficiently individualized examination of the applicant’s case. This was due to the fact that the authorities had failed to examine whether alternatives to a deprivation of liberty were available and that the reasons given for the detention were not amended over time, even as the situation had evolved.

Up until this point, the Court’s judgment in O.M. was a rather unremarkable, cut-and-dried one. However, after finding that the applicant did not benefit from a sufficiently individualized assessment, the Court concluded its analysis of the merits under Article 5 § 1 with a rather intriguing finding. In § 53 of its judgment, worth reproducing here nearly in full, the Court held that

“in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons. Again, the decisions of the authorities did not contain any adequate reflection on the individual circumstances of the applicant, member of a vulnerable group by virtue of belonging to a sexual minority in Iran”.

Contextualizing the Court’s Approach in O.M.

The Court did not explicitly characterize the obligation to conduct an individualized assessment of the applicant’s case in O.M. as a positive or a negative one. However, given that it required the State to conduct such an assessment in order to comply with Article 5 § 1, it seems artificial to construe its finding as anything but an obligation requiring State action. Indeed, as Laurens has argued in his book, States have special duties of care – in the form of positive obligations – vis-à-vis persons who are vulnerable because they are under the exclusive authority of the State.[5] The way in which the Court has approached the required action, in § 53, represents a jumping-off point for some reflections about the way in which the Court uses vulnerability-based positive obligations to create special protections for some groups and individuals.

First, the judgment’s § 53 provides an example of how the Court approaches some of the special duties of care owed to vulnerable persons who are deprived of their liberty. The placement and style of this finding is emblematic of the approach to vulnerability often taken by the Court, which is wont to slip such considerations into its case-law without further discussion, despite their legal impact. As concerns the content of § 53, the Court displayed concern with the need to prevent the re-victimization of the applicant, thereby requiring the State to take a proactive role and engage with the challenges and risks facing the applicant in detention, and the fears he voiced in this regard. Together, vulnerability and positive obligations have led to an increase in the Court’s responsiveness in other contexts, as well.

One example of vulnerability-mandated responsiveness has come about in sexual violence cases, where – in addition to States’ positive obligations under Articles 3 and 8 ECHR to enact criminal-law provisions that effectively punish such acts and to apply these provisions in practice by effectively investigating and prosecuting alleged cases – the Court has created an especially rigorous standard of protection for vulnerable individuals, for example children and persons with disabilities (M.C. v. Bulgaria, § 150; I.C. v. Romania, § 55). The Court’s references to vulnerability in this context, as Nesa Zimmermann has noted, are not purely rhetorical, but have instead been used to intensify the Court’s scrutiny of domestic legislation.[6]

In addition, vulnerability endows States’ positive obligations to prevent violations of Article 3 ECHR with a certain minimum content. In this regard, the Court has found that the positive obligation to protect requires measures that should, at least, “provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge” (O’Keeffe v. Ireland, § 144). In fact, the Court has found that States owe “a duty to take adequate measures to provide care and protection” to all “highly vulnerable members of society” (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, § 55). This also means ensuring that the domestic framework provides “effective deterrence” against harms inflicted on vulnerable individuals by private parties (A. and Others v. the United Kingdom, § 22).

Secondly, it is noteworthy that, in the relevant paragraph of O.M., the Court requires the particular protection of all asylum seekers who “claim to be a part of a vulnerable group” (emphasis added). The low threshold of proof that this implies seems to mean that applicants must not prove their gender or sexual orientation or any particular risk of harm in order to be removed from a detention context in which those attributes are potentially dangerous. Such a low threshold would be particularly relevant for LGBT persons in a migration context, where the need to prove one’s sexuality can be an invasive and a challenging ordeal that in itself re-victimizes individuals. However, it must be noted that the standards applied in this regard are not homogenous: the Court is less generous where proof of vulnerability is concerned under other provisions of the Convention.[7]

Given these problems of proof, § 53 is notable for the simple fact that it allows for a recognition of and response to LGBT-specific migrant vulnerability at all. It is particularly interesting to contrast the finding on LGBT vulnerability made in this case, although it is not entirely new to the Court’s jurisprudence, with the Strasbourg case-law concerning the return of LGBT people to countries, including Iran, where homosexual conduct is criminalized and potentially punishable by death. In 2004, for example, the Court held that two applications by LGBT individuals contesting their return to Iran under Articles 3 and 8 ECHR were manifestly ill-founded, given that it had not been demonstrated that there was a real risk of vulnerability to ill-treatment upon their return or that there would be a sufficiently substantial impact on their moral integrity.

Juxtaposing the Court’s approaches to vulnerability in the expulsion and the detention contexts highlights the chameleonic nature of the concept in the Strasbourg jurisprudence, and the heterogeneity of the Court’s approach thereto. The finding made in § 53 of O.M. indicates that, in the context of Article 5 § 1 ECHR, the Court is becoming more receptive to the effect of homophobic attitudes on the well-being of LGBT persons. Although only time will tell whether the same sensitivity to the vulnerability of LGBT individuals will be displayed in pending cases concerning expulsion, O.M. at least indicates that the Court is willing to engage with this issue in some contexts, and to require States to become proactive in this regard as well.

In short, as vulnerability and positive obligations have grown more and more symbiotic in the Court’s case-law, these two concepts together have certainly developed the potential to raise the standard of protection afforded to applicants under a number of Convention provisions. While the level of sensitivity displayed in the O.M. case is not automatically applicable under other Convention provisions and arguing that an applicant is vulnerable does not represent a fool-proof way to ensure success in Strasbourg, the O.M. case demonstrates that the concept can, in some cases, lead to State responsiveness[8] in the form of engagement with particular disadvantages, challenges and risks facing individuals.

[1] O’Boyle Michael, ‘The Notion of “Vulnerable Groups” in the Case Law of the European Court of Human Rights’, Conference Paper presented at the Venice Commission Conference on the Constitutional Protection of Vulnerable Groups: A Judicial Dialogue, Santiago, Chile, 4-5 December 2015.

[2] Compare, amongst others, Timmer Alexandra, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in Martha Albertson Fineman and Anna Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013); Peroni Lourdes and Timmer Alexandra, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11 International Journal of Constitutional Law 1056; Truscan Ivona, ‘Considerations of Vulnerability: From Principles to Action in the Case Law of the European Court of Human Rights’ (2013) 36 Retfærd 64; Besson Samantha, ‘La Vulnerabilité et La Structure Des Droits de L’homme: L’exemple de La Jurisprudence de La Cour Européenne Des Droits de L’homme’, La vulnérabilité saisie par les juges en Europe (Bruylant 2014); Ruet Céline, ‘La Vulnérabilité Dans La Jurisprudence de La Cour Européenne Des Droits de L’homme’ (2015) 26 Revue trimestrielle des droits de l’homme 317; Zimmermann Nesa, ‘Legislating for the Vulnerable? Special Duties under the European Convention on Human Rights’, 4 SZIER/RSDIE (2015), 539-562. Thanks go to Nesa for her interesting feedback on this post.

[3] Lavrysen Laurens, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations under the European Convention on Human Rights (Intersentia: Antwerp 2016), 79-80.

[4] Id., 109-110.

[5] Lavrysen Laurens (2016), op. cit., 105.

[6] Zimmermann Nesa (2016), op. cit., 555 et seqq., especially 557.

[7] Compare, instead of many, Moxamed Ismaaciil and Abdirahman Warsame v. Malta, no. 52160/13 and 52165/13, Judgment of 12 January 2016, not reported, § 94, and Sow v. Belgium, no. 27081/13, Judgment of 19 January 2016, not reported, § 68.

[8] Compare Fineman Martha Albertson, ‘The Vulnerable Subject and the Responsive State’, 60 Emory Law Journal (2010), 251-275.