In the Lopes de Sousa Fernandes v. Portugal judgment of 19 December, the Grand Chamber made an attempt to clarify the Court’s case law in the area of medical negligence. Traditionally, the Court has examined cases of death resulting from alleged medical negligence almost exclusively from the viewpoint of the procedural obligations under Article 2. Those obligations require the State to set up an effective judicial system to determine the cause of death and to hold those responsible accountable (e.g. Calvelli and Ciglio v. Italy). In recent years, the Court seemed more and more willing to also examine such cases from the viewpoint of the substantive obligations under this provision. Particularly in the Chamber judgment in the Lopes de Sousa Fernandes case, the Court interpreted these substantive obligations in an expansive manner, which arguably would have turned the Court into “a first- and last-instance medical malpractice court” (joint dissenting opinion of Judges Sajó and Tsotsoria). The Grand Chamber, however, didn’t feel like opening the floodgates and decided to overturn the Chamber judgment, severely limiting the scope of the State’s substantive obligations in this area. Continue reading
Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights. Continue reading
By Malu Beijer, researcher Radboud University Nijmegen
The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.
In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research. Continue reading
Guest post written by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University
Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017). Currently working on a postdoctoral project entitled ‘Positive Obligations under the ECHR’
I certainly agree with Dr. Laurens Lavrysen’s assessment that the concept of positive obligations has remained undertheorized in the existing literature and in this respect, his book constitutes an invaluable contribution aimed at filling the gap. There is much in Lavrysen’s Human Rights in a Positive State for human rights scholars, lawyers, students and both national and international judges to engage with and enjoy. The book offers an impressive review of recent judgments and demonstrates an excellent analytical rigor in its efforts to extract relevant principles and structure these in a clearer analytical framework. In this contribution, I would like rather focus on two issues: the analytical distinction between qualified and unqualified rights and, as related to the above, the proximity requirement, namely the proximity between State conduct and the harm sustained by the individual. Continue reading
I am proud to announce the publication of my PhD “Human Rights in a Positive State – Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights”. In my PhD, I have exhaustively studied the concept of positive obligations in the case law of the European Court of Human Rights, on the basis of a corpus of 2618 cases in which the Court used the notion of positive obligations, identified through the Court’s HUDOC database. During my PhD research, I was particularly interested in how the Court distinguishes between the respective concepts of positive and negative obligations and how the choice to examine a case from the one or the other perspective influences the Court’s legal reasoning. Continue reading
The Human Rights Centre of Ghent University has submitted a third party intervention in the cases of Nikolay Alekseyev and Movement for Marriage Equality v. Russia and Nikolay Alekseyev and Others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. The full text of the third party intervention can be found here, the main arguments are summarized hereunder.
Last year, the Court issued the judgment of Oliari and Others v. Italy, described on this blog as “a stepping stone towards full legal recognition of same-sex relationships in Europe.” In this judgment the Court recognized that Article 8 ECHR encompasses a positive obligation on States to put in place a legal framework providing for the legal recognition and protection of same-sex relationships. The Court in particular emphasised that such legal framework must at least provide for the “core rights relevant to a couple in a stable and committed relationship” – as opposed to supposedly “supplementary” rights, such as for example the question whether such legal framework should allow same-sex couples to marry, a question which the Court in its Schalk and Kopf judgment considered to fall within the State’s margin of appreciation. The Court however failed to provide any guidance on what should be understood under those enigmatic “core rights”.
In the recent case of Aldeguer Tomás v. Spain, the Court however fails to build upon the Oliari judgment in order to provide more guidance in the area of the legal recognition of same-sex relationships. The case concerns the inability of the surviving partner of a same-sex relationship to receive a survivor’s pension. Continue reading