Coercive Human Rights

Positive Duties to Mobilise the Criminal Law under the ECHR

Laurens Lavrysen, Natasa Mavronicola, Laurens Lavrysen, Natasa Mavronicola

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509937882
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). The collection explores four interlocking themes surrounding the issue of coercive human rights: First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection. Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. Thirdly, the most pressing challenges for the ECtHR's coercive duties doctrine, including: - how it relates to theories and rationales of criminalisation and criminal punishment;
- its implications for the fundamental tenets of human rights law itself;
- its relationship to transitional justice objectives; and
- how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations. Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.

1

Coercive Human Rights

Introducing the Sharp Edge of the European Convention on Human Rights

NATASA MAVRONICOLA AND LAURENS LAVRYSEN

I.INTRODUCTION

In the context of the criminal justice system, human rights law has traditionally been associated with the protection of the rights of suspects and defendants against the exercise of coercive and carceral state power.¹ Under the European Convention on Human Rights (ECHR), criminal investigations must comply with human rights, including the right not to be subjected to torture or ill-treatment (Article 3) and the right to respect for private life (Article 8), safeguards must be in place against arbitrary deprivations of liberty (Article 5) and criminal trials must comply with the right to a fair trial (Article 6), encompassing, inter alia, the presumption of innocence and the right to legal assistance. In addition to this function, which can be referred to as the ‘shield’ function of human rights in the application of criminal law, human rights law has increasingly also acquired a ‘sword’ function.² The European Court of Human Rights (ECtHR) has developed coercive duties,³ requiring states to mobilise the criminal law in order to protect against or provide redress for human rights violations. In particular, the ECtHR has established that states are under obligations to criminalise certain human rights violations, such as human trafficking, torture and rape, and may be under an obligation to criminally investigate human rights violations, to prosecute offenders and to impose criminal sanctions.⁴ These strands of case law have now crystallised into what could properly be described as the ECtHR’s coercive human rights doctrine, which is the focus of the present collection.

This evolution raises a whole range of challenges that go to the heart of the purpose and function of human rights law. In a landmark article on the subject, former ECtHR Judge Françoise Tulkens has described the relationship between the ‘shield’ and ‘sword’ functions of human rights law in the criminal justice system as a paradox that one must come to terms with.⁵ The ECtHR’s emerging coercive human rights doctrine gives rise to a range of questions, such as: how to properly balance the ‘shield’ and ‘sword’ functions, and how to address potential tensions between the human rights of (potential) victims and those of suspects and defendants; what may be the dangers (if any) of mobilising the criminal law through coercive human rights doctrine; and what are the limitations (if any) of a criminal law approach from the viewpoint of (prospective) victims’ human rights and broader interests. It also raises the question as to whether it is feasible, desirable and institutionally appropriate for the ECtHR in particular to make such demands – sometimes referred to as the exercise of ‘quasi-criminal jurisdiction’⁶ – and, if so, to what extent.

While similar questions have already been the subject of extensive debate in the context of other jurisdictions,⁷ the ECtHR’s coercive human rights doctrine has only relatively recently attracted growing academic attention.⁸ This can be explained by the fact that the development of the doctrine is itself a relatively recent phenomenon.⁹ Two monographs, both adopting a doctrinal approach, have been written on the subject by Anja Seibert-Fohr (2009) and Krešimir Kamber (2017). In her study, Seibert-Fohr explores the most prominent dimensions of the obligation to prosecute serious human rights violations under international law, focusing on different branches of international law, including the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (ACHR), customary international law, as well as the ECHR.¹⁰ Being primarily concerned with examining the extent to which international human rights law in its coercive dimension is able to complement international criminal law, her doctrinal analysis takes stock of the state of international law in the area. Kamber, in turn, provides an overview of the ECtHR’s coercive human rights doctrine and focuses on assessing how the ‘sword’ and ‘shield’ functions of human rights law ought to be reconciled in the ECtHR’s legal reasoning.¹¹

In addition to these monographs, in recent years, the ECtHR’s coercive human rights doctrine has also been the subject of a number of articles that have begun to address some of the more critical questions set out above.¹² There has been a particular concern regarding the risk that the coercive human rights doctrine could lead to what Liora Lazarus has labelled ‘coercive overreach’.¹³ Such risk would materialise if coercive duties were developed ‘in a way which demands the penalisation of acts or omissions which might, as a matter of principle or policy, not necessarily warrant penal sanction’.¹⁴ Authors have warned that coercive human rights may lead courts to downplay their traditional commitment to due process rights of defendants¹⁵ or that they may even foster a ‘culture of conviction’.¹⁶ In addition, there has been a preoccupation regarding the extra-legal implications of coercive human rights doctrine, in particular the risk that it may permeate political rhetoric orientated at legitimising the expansion of coercive measures,¹⁷ or that it may serve to cover authoritarian tendencies with a human rights veil.¹⁸ On the other hand, there has also been a concern that the ECtHR’s coercive human rights doctrine may result in the conflation of standards to determine state liability for human rights violations and the narrower parameters of wrongs attracting individual criminal liability, which may ultimately lead to the dilution of the substance of ECHR rights.¹⁹

The present volume tackles the ECtHR’s coercive human rights doctrine in a concerted manner through a selection of expert analyses of the content, promises and pitfalls of the doctrine. It combines theoretically informed reflections, from a variety of perspectives, with rigorous analysis and critical assessment of the doctrine and its operation in national jurisdictions. The ultimate aim of the collection is to allow for a meaningful re-assessment of the doctrine and of the supportive and critical discourses surrounding it.

This volume has been developed out of a seminar on ‘Positive Obligations under the ECHR and the Criminal Law: Towards a Coercive Human Rights Law?’, which took place on 25 May 2018 at Ghent University, Belgium. Afterwards, further papers were sought to complement those presented at the seminar, with a view to securing the coherent exploration of key issues arising out of the ECtHR’s coercive human rights doctrine.

This chapter first discusses the development of the ECtHR’s coercive human rights doctrine in context, adopting a historical and international perspective (section II). Next, it introduces the different chapters (section III) and identifies the central themes that emerge from this collection (section IV), both in terms of the critical approaches adopted and the suggestions made to re-orient coercive human rights. Finally, it proposes directions for future research in the area (section V).

II.COERCIVE HUMAN RIGHTS IN CONTEXT

The debate surrounding coercive human rights under the ECHR did not arise overnight, nor does it take place in isolation from similar discussions regarding coercive human rights in other jurisdictions. To better grasp the significance of the debate(s) taking place within the present volume, it is therefore necessary to place the ECtHR’s coercive human rights doctrine in its (a) historical and (b) international context.

A.Historical Context: The Legacy of X and Y v The Netherlands

The text of the ECHR, which was adopted in 1950, makes no mention of obligations to mobilise the criminal law with a view to protecting against or providing redress for human rights violations. The development of coercive human rights has thus exclusively taken place via the ECtHR’s jurisprudence, starting from the X and Y v The Netherlands case of 1985. This case concerned the failure to hold the perpetrator of the rape of a girl with a mental disability criminally liable. Her father had lodged a criminal complaint, which had been dismissed because Dutch law required such a complaint to be lodged by the victim herself, which had been impossible since the law at the same time rendered her legally incapable of doing so based on her disability. According to the Court, this amounted to a violation of Article 8 (the right to respect for private life).²⁰

The significance of the case must be considered against the background of the academic debate that had raged since the early days of the Convention system on the relevance of the ECHR in the context of horizontal relations between individuals. While only states are formally party to the Convention and applications before the Convention system can only formally be directed against states,²¹ a number of proposals were made in the literature to defend the extension of the scope of the ECHR to horizontal relations. A first proposal to purposively interpret the Convention to also impose obligations on individuals was notably defended by Marc-André Eissen, Deputy Registrar and later Registrar of the European Commission on Human Rights, from the early 1960s onwards. Eissen argued that it does not necessarily follow from the aforementioned formal limitations that individuals do not have obligations under the Convention, which may be binding at the domestic level.²² A second proposal, discussed by Andrew Drzemczewski in an influential article from 1979, was to draw inspiration from the doctrine of Drittwirkung or third-party effect, which had been developed within the context of German constitutional law theory and which requires courts to apply fundamental rights to horizontal relations.²³ In the context of the ECHR, Drzemczewski, unlike Eissen, considered that the Convention can only create ‘indirect obligations for individuals in that it may oblige the legislature or the courts to protect individuals from one another’.²⁴ Notably, he already contemplated that legislative measures could be required to safeguard ECHR rights in horizontal relations, referring explicitly to criminal law, alongside civil and administrative law.²⁵

The route taken by the Court in X and Y in substance boils down to Drzemczewski’s narrow version of the Drittwirkung doctrine. Instead of using the notion of Drittwirkung, the Court chose to build further on the concept of positive obligations, which requires states to take action to ensure human rights rather than merely abstaining from interfering with them.²⁶ This concept achieved a breakthrough in the 1979 Marckx case,²⁷ in which the Court found, among other things, that Belgium had violated its positive obligation under the right to respect for family life (Article 8 ECHR) because its family law did not ensure that the legal bond between a mother and a child born out of wedlock was established from the mere fact of birth.²⁸ Building upon the Marckx case, in X and Y, the Court held that positive obligations ‘may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’ (emphasis added).²⁹ The Court then found that the case concerned ‘fundamental ...

Table of contents

• Cover
• Title Page
• Foreword
• Contents
• Notes on Contributors
• 1. Coercive Human Rights: Introducing the Sharp Edge of the European Convention on Human Rights
• PART I: KEY THREADS IN ECtHR DOCTRINE
• PART II: PERSPECTIVES ON VICTIMS’ PROTECTION AND REDRESS
• PART III: CRITICAL REFLECTIONS: THEORY, IMPACT, LIMITATIONS
• PART IV: UNCHARTED WATERS FOR THE ECtHR’S COERCIVE DUTIES DOCTRINE
• Postscript: Coercive Human Rights in Times of Coronavirus
• Index
• Copyright Page