Strenghtening the Protection of Human Rights of Persons Living in Poverty under the ECHR (published...

Poverty and the ECHR

STRENGTHENING THE PROTECTION OF HUMAN RIGHTS OF PERSONS LIVING IN

POVERTY UNDER THE ECHR

LAURENS LAVRYSEN*

ABSTRACT

In recent years, the European Court of Human Rights has developed a significant

jurisprudence which illustrates the added value of the European Convention on Human

Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s

“capability approach”, the article examines the extent to which the Court has grasped

the nature of poverty as “capability deprivation”. It is argued that, due to polycentric

concerns and a reluctance to overcome the negative / positive obligations and civil and

political / social and economic rights dichotomies, the Court has only, to a limited

extent, done so. Subsequently, three approaches are examined that could allow it to

better take into account the findings of the “capability approach” and that could allow

for enhanced protection of the human rights of persons living in poverty under the

ECHR: endorsing a more complex perspective on the responsibility of the state;

analyzing poverty as a failure to provide substantive equality; and recognizing the

vulnerability of persons living in poverty.

* PhD candidate at the Human Rights Centre of Ghent University. He works on a Ph.D. on the concept of Positive Obligations under the European Convention on Human Rights. His research is funded by the Research Foundation Flanders (FWO)and takes place within the framework of the European Research Council funded project ‘Strengthening the European Court of Human Rights: More Accountabilitythrough Better Legal Reasoning’. The author wants to thank Eva Brems, Valeska David, Lourdes Peroni, Wouter Vandenhole and the anonymous referees for their comments on earlier drafts of this paper.

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KEYWORDS

Poverty – Capability approach – European Convention on Human

Rights – European Court of Human Rights – State responsibility –

Substantive equality – Vulnerability – Indivisibility

1. INTRODUCTION

In 1993, with the adoption of the Vienna Declaration and

Programme of Action, adopted by the World Conference on Human

Rights, poverty was put high on the agenda of the human rights

movement. It was held that ‘[t]he existence of widespread extreme

poverty inhibits the full and effective enjoyment of human

rights’ and that ‘extreme poverty and social exclusion constitute

a violation of human dignity’.1 Some have gone even further by

holding that ‘poverty itself is a violation of numerous basic

human rights’.2

Despite the rhetoric, it has proven to be particularly

difficult from a theoretical perspective to connect poverty with

concrete legal obligations.3 In line with Doz Costa and Alston,

1 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993.2 Quote Mary Robinson, Romanes Lecture, Oxford, 11 November 1997, as referred to by Fernanda Doz Costa, ‘Poverty and Human Rights: From Rhetoric to Legal Obligations’ (2008) 5 Sur – International Journal on Human Rights 81, 81.3 For a discussion of the different conceptual frameworks, see Doz Costa (n 1).

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rather than considering poverty as a human rights violation in

itself – which oversimplifies the issue and does not bring us any

closer to defining concrete human rights obligations or

allocating responsibility to concrete duty bearers – in this

article, poverty will be considered as both the cause and the

consequence of particular human rights violations.4 This ties in

well with the conception of poverty adopted for the sake of this

paper, being Sen’s conception of poverty as affecting the

capabilities of individuals to enjoy their basic freedoms.5

From the perspective of human rights law, poverty is often

only considered as giving rise to social and economic rights

issues, affecting specific social and economic rights6 or the

more encompassing right to an adequate standard of living.7 The

extent to which poverty affects the capability of people to enjoy

their civil and political rights is however often neglected. It

is in this respect that this article contributes to the broader

debate on poverty as “capability deprivation” from a human rights

law perspective. This is all the more important for the

protection of human rights of persons living in poverty since,

despite calls for the recognition of the indivisibility of all

4 Doz Costa (n 1) 93-96, and Philip G Alston, ‘Ships Passing in the Night: TheCurrent State of the Human Rights and Development Debate seen through the Lensof the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, 784-788.5 For example Amartya Sen, Inequality Reexamined (Harvard University Press 1992) 107-112.6 For example Alicia Ely Yamin, ‘Reflections on Defining, Understanding, and Measuring Poverty in Terms of Violations of Economic Social Rights under International Law’ (1997) 4 Georgetown Journal on Fighting Poverty 273.7 Doz Costa (n 1) 92-93.

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human rights,8 civil and political rights generally enjoy

stronger institutional protection than social and economic

rights. This article therefore focuses on the current and

potential practice of the European Court of Human Rights (the

Court), arguably the world’s strongest and best functioning

supranational human rights adjudication body, in protecting the

rights of persons living in poverty.

Based on a brief overview of the Court’s practice, it will

be argued that the Court does not fully live up to its potential

to protect the human rights of persons living in poverty (chapter

3). The aim of this article is to remedy this shortcoming by

examining how the Court could develop legal approaches that would

allow it to better grasp the nature of poverty as also affecting

the capability of individuals to enjoy their civil and political

rights. Three such approaches are discussed in chapter 4: the

responsibility approach, substantive equality approach and

vulnerability approach. Before turning to these questions,

however, it is first necessary to discuss the theoretical

relationship between the capability approach and human rights

(chapter 2).

2. THE CAPABILITY APPROACH

8 The indivisible nature of human rights was stressed as an aspiration of the international human rights movement in the Vienna Declaration and Programme ofAction, adopted by the World Conference on Human Rights on 25 June 1993: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’

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The focus of normative evaluations under the “capability

approach” lies with the question as to what people are genuinely

able to be and do.9 The key consideration is whether people have

the “capability” or opportunity to achieve valuable combinations

of human functionings (that is, states of being and doing that a

person achieves).10 In contrast with traditional approaches, Sen

rejects conceptualizing poverty in terms of mere lowness of

income. Instead, the “capability approach” is concerned with the

extent to which a shortage of economic means results in the

deprivation of a person’s capability to inter alia enjoy the freedom

to be adequately nourished, the freedom to enjoy adequate living

conditions, the freedom to lead normal spans of life and the

freedom to read and write.11

According to Sen, ‘[t]he basic failure that poverty implies

is one of having minimally adequate capabilities, even though

poverty is also inter alia a matter of inadequacy of the person’s

economic means’.12 Resources are not seen as an end in themselves

but as a means to prevent capability failure: Sen’s concept of

poverty is not based on lowness but on inadequacy of resources.13

By focusing on capabilities rather than on resources, Sen’s model

recognizes that ‘the adequacy of the economic means cannot be

judged independently of the actual possibilities of “converting”

9 Ingrid Robeyns, ‘Sen’s Capability Approach and Gender Inequality: Selecting the Relevant Capabilities’ (2003) 9 Feminist Economics 61, 62.10 Polly Vizard, Poverty and Human Rights (OUP 2006) 68.11 ibid at 3.12 Sen (n 1) 111.13 ibid.

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incomes and resources into capability to function’.14 To

illustrate this distinction, Sen gives the example of a

physically disabled person: the extent of this person’s

comparative deprivation vis-à-vis others ‘cannot be adequately judged

by looking at his or her income, since the person may be greatly

disadvantaged in concerting income into the achievements he or

she would value’.15

In Vizard’s words, poverty as capability deprivation

recognizes that deprivations in basic freedoms […] are

associated not only with shortfalls in income (i.e., with

income poverty) but also with systematic deprivations in

access to other goods, services, and resources necessary

for human survival and development […] as well as with

interpersonal and contextual variables.16

According to Doz Costa ‘the “capability approach” is widely

recognized as the conceptual “bridge” between poverty and human

rights, since it incorporates new variables to economics that

reflect the intrinsic and instrumental value of fundamental

freedoms and human rights’.17 Similarly, as held by Ely Yamin,

this approach ‘provides us with a way of measuring poverty that

reflects what we care about from a rights perspective’.18

14 ibid 110.15 ibid 28.16 Vizard (n 9) 3.17 Doz Costa (n 1) 85.18 Ely Yamin (n 5) 288.

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However, some theoretical obstacles remain in bridging the

“capability approach” and human rights law. Sen is mainly

concerned with human rights from the perspective of ethics,

economics and political theory. In fact, Sen has ‘often

downplayed the necessity of international human rights law in

codifying and reinforcing human rights’.19 Since the “capability

approach” was not developed as an analytical tool to measure

human rights violations, capability deprivation does not stand in

a one-to-one relation to the latter. As Doz Costa explains

‘poverty is not per se a violation of human rights, since there are

several conceptual steps before naming poverty as a human rights

violation’.20 Moreover, it has been argued that ‘the space of

“capability” (the denial of which constitutes poverty) is much

broader than human rights’.21 Indeed, Sen has not restricted his

“capability approach” to a set of legally recognized human

rights. Instead he has been criticized for applying an open-ended

concept of “capability” and refraining to delimit his “capability

approach” to a list of “basic capabilities”.22

However, the debate on the relationship between the

“capability approach” and human rights law has been pushed

forward by Polly Vizard in her book Poverty and Human Rights. Her

19 Vizard (n 9) 243.20 Doz Costa (n 1) 94.21 ibid 94, with reference to the UNCHR ‘Report of Independent Expert Arjuan Sengupta on the question of human rights and extreme poverty’ (2 March 2006) UN DOC E/CN.4/2006/43.22 See for example Nussbaum’s attempt to construct such a list, for example Martha C. Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9 Feminist Economics 33.

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work can be read as ‘a valuable and useful attempt to justify a

legally binding obligation on states and other actors to

eradicate poverty’.23 Vizard however does more than simply provide

such a normative underpinning. Particularly relevant from the

perspective of this article, is that she illustrates how the

“capability approach” can be useful as an analytical tool to

examine whether a given legally protected human right is violated

or not.

Vizard argues that Sen’s work in ethics ‘has contributed to

the development of a normative framework in which authoritatively

recognized international standards in the field of poverty and

human rights can be meaningfully conceptualized and coherently

understood’.24 She considers ‘the “capability approach” and the

international human rights framework as mutually reinforcing

systems’.25

The way forward, according to Vizard, in interpreting human

rights in the field of poverty from a human rights perspective,

would be to formally represent these rights as “capability-

rights”. In this respect, according to Vizard, ‘a possible

informational focus would be whether or not x has the capability to

achieve valuable states of affairs’.26 She gives the example of

the human right to an adequate standard of living that could be

elucidated as a “capability-right” by focusing the analysis on23 Doz Costa (n 1) 92.24 Vizard (n 9) 14-15.25 ibid 141.26 ibid 226.

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the question whether a person has the capability to achieve an

adequate standard of living (including adequate nutrition,

clothing and shelter).27 In doing so, she builds on the work of

Nussbaum,28 according to whom considering human rights (from a

political theoretical perspective) in terms of capabilities

provides us with benchmarks to determine what it really is to

secure a right for someone.29 Nussbaum has held that the focus on

capabilities adds an important clarification to the idea of human

rights: ‘for it informs us that our goal is not merely “negative

liberty” or absence of interfering state action […] but, instead,

the full ability of people to choose these very important

things’.30

In her book, Vizard mainly focuses on the issue of global

poverty31 – including the issue of international assistance and

cooperation – and the formal representation of the right to an

adequate standard of living as well as the idea of freedom from

poverty as a basic human right.32 This article builds upon

Vizard’s model by applying the concept of human rights as

“capability-rights” to civil and political rights – in particular

those protected by the European Convention on Human Rights (ECHR)

– and purely within the domestic (rather than also the

extraterritorial) context. Indeed, since poverty is not only27 ibid.28 ibid 245.29 Nussbaum, ‘Capabilities as Fundamental Entitlements’ (n 21) 38.30 Martha C Nussbaum, ‘Beyond the Social Contract: Capabilities and Global Justice’ (2004) 32 Oxford Development Studies 3, 1331 Vizard (n 9) 1.32 ibid 226-227 and 233.

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liable to affect the capability of persons to enjoy their social

and economic rights but also their capability to enjoy civil and

political rights, it is necessary to take into account the ways

in which poverty amounts to “capability deprivation” when

examining whether the ECHR rights of persons living in poverty

are violated.

It is unnecessary to push the argument further, for example

by arguing that constructing ECHR rights as “capability-rights”

would be the only adequate way to construct these rights, or that

the analysis of ECHR rights should restrict itself to this

“capability-right” dimension in all cases. Rather, what is

important for the sake of this article is that, when dealing with

persons living in poverty, the dimension of “capability

deprivation” is taken into account by the Court to better grasp

the nature of poverty as a human rights issue. It is also not

argued that it is impossible to adequately protect the ECHR

rights of persons living in poverty based on another theoretical

perspective – indeed part of this article is concerned with

discussing legal-methodological good practices that could also be

compatible with other theoretical frameworks. However, building

upon the “capability approach” in the area of poverty has two

clear advantages. First, it allows the Court to build “bridges”

with other disciplines – that is economics, ethics and political

theory – and to build upon the mature theoretical frameworks

developed in those disciplines. Second, it highlights what one

should care about from a human rights perspective when dealing

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with poverty: the ‘multidimensional approach to poverty focusing

on “capability failure” rather than income’33 gives a clear

direction to the inquiry whether or not the human right of a

person living in poverty has been violated.

3. POVERTY AND THE ECHR: THE STATE OF THE ART

This chapter briefly maps the Court’s case law in the field of

poverty.34 Giving an exhaustive overview would go beyond the scope

of this paper.35 Instead four – not necessarily neatly separated –

“clusters” of cases will be discussed to give a bird’s-eye view

of the Court’s case law in this respect. The first three clusters

are inspired by Eva Brems’ categorization of cases in which the

Court has indirectly protected social and economic rights – a

related but nonetheless distinct issue from the one discussed in

this article: scope of protection,36 procedural protection and

33 ibid 19.34 The cases discussed are selected on the basis of relevant literature and theauthor’s knowledge as “Strasbourg Court watcher”, see for example Strasbourg Observers blog <http://strasbourgobservers.com> accessed 22 July 2015.35 See more exhaustively Ida Elisabeth Koch, Human Rights as Indivisible Rights – The Protection of Socio-Economic Demands under the European Convention on Human Rights (Martinus Nijhoff 2009); Ellie Palmer, ‘Protecting Socio-Economic Rights Through the European Convention on Human Rights: Trends and Developments in the European Court of Human Rights’ (2009) 2 Erasmus Law Review 397; Eva Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Daphne Barak-Erez and Aeyal M Gross (eds), Exploring Social Rights – Between Theory and Practice (Hart Publishing 2007); and Luke Clements and Alan Simmons, ‘European Court ofHuman Rights – Sympathetic Unease’ in Malcolm Langford (ed), Social Rights Jurisprudence – Emerging Trends in International and Comparative Law (CUP 2008).36 Brems labels this “interpretation” rather than “scope of protection”.

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non-discrimination.37 A fourth cluster of cases is added, that is

cases in which the Court has applied a poverty-sensitive approach

to proportionality analysis. Subsequently, the limitations of the

Court’s approach to protecting the human rights of persons living

in poverty, from the perspective of the “capability approach”,

will be briefly explained.

3.1. SCOPE OF PROTECTION

This section gives a brief overview of the kind of claims that

have been brought within the scope of protection of substantive

ECHR provisions. Due to its accessory character, the principle of

non-discrimination is discussed separately below. The main

‘gateways’ for persons living in poverty seeking protection

against destitution have been Articles 2 (the right to life), 3

(the prohibition of torture and of inhuman or degrading treatment

or punishment and 8 ECHR (the right to respect for private life

and home),38 as well as Article 1 Protocol 1 (the right to

property).

Claims under Article 2 ECHR by persons living in poverty

have mainly been brought in the area of health care. According to

the Court, issues under Article 2 arise when an individual’s life37 Brems (n 34) 137.38 Colm O’Cinneide, ‘A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights’ (2008) 5 Human Rights Law Review 583,584.

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is put at risk through the denial by State authorities of health

care that they have undertaken to make available to the

population in general.39 In this respect, the Court’s case law

indicates that financial barriers that deny persons living in

poverty access to basic health care are incompatible with Article

2, at least insofar as this puts their life at risk.40 When basic

health care is available, the Court has however been reluctant to

require States to additionally provide resource-demanding

treatment.41

Under Article 3 ECHR, the Court has accepted ‘in principle’

that persons living in poverty could in certain circumstances

claim to have suffered degrading treatment due to a failure to

provide essential State support,42 in particular in cases

concerning a lack of access to health care,43 shelter44 or social

benefits.45 In such cases, State responsibility would arise ‘where

an applicant in circumstances wholly dependent on State support,

found herself faced with official indifference when in a

39 Cyprus v Turkey App no 25781/94 (ECtHR Grand Chamber, 10 May 2001) para 219.40 Mehmet Şenturk and Bekir Şenturk v Turkey App no 13423/09 (ECtHR, 9 April 2013) paras89 and 97 (a pregnant woman died as a result of a denial of emergency surgery because she was unable to pay a deposit for her hospital admission).41 Nitecki v Poland App no 65653/01 (ECtHR adm, 21 March 2002).42 O’Cinneide (n 37) 589.43 Pentiacova and 48 Others v Moldova App no 14462/03 (ECtHR adm, 4 January 2005). According to Koch, also the protection against expulsion on health grounds in case of ‘compelling humanitarian situations’ as recognized in D. v the United Kingdom App no 30240/96 (ECtHR, 2 May 1997) could be interpreted ‘as an acceptance of the notion of minimum core rights to health care even though it apparently concerned the issue of removal and only indirectly the issue of hospital treatment’ (Koch (n 34) 65).44 O’Rourke v the United Kingdom App no 39022/97 (ECtHR adm, 26 June 2001).45 Larioshina v Russia App no 56869/00 (ECtHR adm, 23 April 2002).

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situation of serious deprivation or want incompatible with human

dignity’.46

The concept of ‘private life’ protected under Article 8 of the

Convention has been interpreted by the Court as being ‘a broad

term not susceptible to exhaustive definition’, encompassing inter

alia aspects of an individual’s physical and psychological

integrity, the right to establish and develop relationships with

other human beings and the outside world and the notion of

personal autonomy.47 Under the right to respect for private life,

many cases have been brought in which vulnerable individuals

claimed that States were under a positive obligations to actively

assist them to enjoy their human rights.48 Such positive

obligations – for example in the context of housing or of

‘reasonable accommodation’ of persons with a disability – will

arise under Article 8 insofar as there is a ‘direct and immediate

link between the measures sought by an applicant and the latter’s

private […] life’.49

The right to respect for home, also protected under Article

8 ECHR, does not encompass a positive obligation to provide

individuals with a home,50 but only protects ‘existing’ homes. In

this respect, this right has been invoked in eviction cases,46 Budina v Russia App no 45603/05 (ECtHR adm, 18 June 2002).47 For example Pretty v the United Kingdom App no 2346/02 (ECtHR, 29 April 2002) para 61.48 See Dimitris Xenos, ‘The Human Rights of the Vulnerable’ (2009) 13 International Journal of Human Rights 591.49 Botta v Italy App no 21439/93 (ECtHR, 24 February 1998) para 34 (reasonable accommodation); Marzari v Italy App no 36448/97 (ECtHR adm, 4 May 1999) (housing).50 Chapman v the United Kingdom App no 27238/95 (ECtHR, 18 January 2001) para 99.

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which is particularly important since vulnerable individuals and

groups suffer disproportionately from forced evictions.51 In such

cases, the Court inter alia requires that States provide procedural

safeguards against evictions and that the risk of the individuals

becoming homeless is given due consideration,52 which may in

exceptional cases result in ‘an obligation to secure shelter to

particularly vulnerable individuals’.53

Both contributory benefits and non-contributory benefits

paid for out of general taxation54 have been interpreted by the

Court as being covered by the notion of ‘possession’55 and

therefore enjoying protection under the right to property

guaranteed by Article 1 Protocol 1. The Court has considered

refusals and withdrawals of or reductions in social benefits56 –

including inter alia pensions, unemployment benefits and social

housing57 – as interferences with the right to peaceful enjoyment

51 UN Committee on Economic, Social and Cultural Rights, ‘General Comment 7 on the right to adequate housing and forced evictions’ (20 May 1997) UN Doc E/1998/22 para 10.52 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) paras 118 and 12653 ibid para 130.54 Stec and Others v the United Kingdom App nos 65731/01 and 65900/01 (ECtHR Grand Chamber adm, 6 July 2005) para 51.55 That is an individual interest that has acquired economic value, see David Harris, Michael O’Boyle, Edward Bates and Carla Buckley, Law of the European Convention on Human Rights (2nd edn, OUP 2009) 657.56 For example Sali v Sweden App no 67070/01 (ECtHR adm, 10 January 2006) (refusal); Moskal v Poland App no 10373/05 (ECtHR, 15 September 2009) (withdrawal); and Maggio and Others v Italy App no 46286/09 and so on (ECtHR, 31 May2011) (reduction).57 For example Goudswaard-Van Der Lans v the Netherlands App no 75255/01 (ECtHR adm, 22September 2005) (pensions); Sali v Sweden App no 67070/01 (ECtHR adm, 10 January 2006) (unemployment benefits); Teteriny v Russia App no 11931/03 (ECtHR, 30 June 2005) (social housing).

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of possessions. Such interference is only justified if it is

lawful, if it is in the public interest and if it strikes a ‘fair

balance’ – that is if the interference is reasonably

proportionate to the aim pursued, and if the individual concerned

does not have to bear an individual and excessive burden.58 As

with the right to respect for home, Article 1 Protocol 1 will

only apply in cases of ‘existing’ possessions: it does not impose

a positive obligation on States to introduce specific social

benefits when these are not provided for by domestic law. 59

3.2. PROCEDURAL PROTECTION

One important avenue of procedural protection has been the

gradual widening of the scope of Article 6 ECHR (the right to a

fair trial) ‘to encompass a right of access to courts or

tribunals in public law disputes over most discretionary socio-

economic entitlements’.60 In the Airey case, the Court has

interpreted Article 6 in such a way that the provision of legal

aid for persons living in poverty in cases concerning ‘civil

rights and obligations’ – whereas such right is only explicitly

guaranteed by Article 6 in criminal proceedings – may be required

58 For example Valkov and Others v Bulgaria App no 2033/04 and so on (ECtHR, 25 October 2011) paras 89-91.59 Stec and Others v the United Kingdom App no 65731/01 and 65900/01 (ECtHR Grand Chamber adm, 6 July 2005) para 54.60 Palmer (n 34) 420. See for example Feldbrugge v the Netherlands App no 8562/79 (ECtHR Grand Chamber, 29 May 1986).

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to facilitate their ‘effective’ access to courts.61 Another avenue

of procedural protection is the Court’s practice of reading

implicit procedural guarantees into explicit substantive rights.62

An example would be the above-mentioned case law of imposing

strong procedural safeguards in eviction cases, including the

requirement to provide a proper justification in writing for the

eviction,63 as well as the possibility to have the proportionality

of an eviction examined by a court.64

3.3. NON-DISCRIMINATION

A third cluster concerns cases in which the Court has protected

the human rights of persons living in poverty through the

principle of non-discrimination. Article 14 ECHR guarantees the

right not to be discriminated against in the enjoyment of the

rights and freedoms guaranteed by the ECHR. This article does not

have an independent existence, but can only be invoked together

with another Convention article. Human rights protection of

persons living in poverty through the principle of non-

discrimination has mainly taken place in the field of social

61 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) paras 24-28.62 Also see Eva Brems, ‘Procedural Protection: An Examination of Procedural Safeguards Read into Substantive Convention Rights’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights (CUP 2013).63 Connors v the United Kingdom App no 66746/01 (ECtHR, 27 May 2004) paras 94-95.64 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) paras 118 and 126

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benefits, in which the Court has considered complaints under

Article 14 in conjunction with Article 1 Protocol 1. Other

complaints have been brought in conjunction with Article 8, if

the benefits in question relate to ‘family life’, such as

parental leave allowances of child benefits.

Mostly, this protection has been ‘indirect’, through a

formal equality approach that tackles underinclusiveness of

social benefits, excluding certain categories of individuals,

often members of groups that are disadvantaged or that are

particularly vulnerable to end up living in poverty. Under

Article 14, a difference of treatment requires an objective and

reasonable justification, that is, it must pursue a legitimate

aim and there must be a reasonable relationship of

proportionality between the means employed and the aim sought to

be realised.65 The Court has, for example, found such an objective

and reasonable justification lacking in cases concerning the

exclusion of a non-national from a disability allowance,66 the

exclusion of aliens lacking a permanent residence title from

child benefits67 and the exclusion of male servicemen from

parental leave and parental leave allowances.68 This formal

equality approach is ‘indirect’ in the sense that the fact that

members of excluded groups can gain access to social benefits

under Article 14 ECHR is dependent on whether the State chooses65 For example Rasmussen v Denmark App no 8777/79 (ECtHR, 28 November 1984) para 38.66 Koua Poirrez v France App no 40892/98 (ECtHR, 30 September 2003).67 Niedzwiecki v Germany App no 58453/00 (ECtHR, 25 October 2005).68 Konstantin Markin v Russia App no 30078/06 (ECtHR Grand Chamber, 22 March 2012).

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to create these benefits in the first place and therefore does

not create a ‘direct’ entitlement to them. In principle,

abolishing such benefits altogether would not violate Article 14,

because everyone would then be ‘equally’ badly off.69

3.4. POVERTY SENSITIVE PROPORTIONALITY

The fourth and final cluster are cases in which the Court takes

the applicant’s poverty into account at the stage of the

proportionality analysis, particularly in cases concerning

negative obligations. In eviction cases, for example, the status

of the individuals concerned as members of an underprivileged

group or the risk of them becoming homeless is taken into account

when determining the proportionality of the eviction.70 In the

case of Wallová and Walla, concerning the taking into public care of

the applicants’ children, the possibility of applying the less

restrictive alternative of assisting parents living in poverty in

overcoming their material difficulties by facilitating their

access to social benefits or social housing is taken into account

when establishing the disproportionality of such interference

with the right to respect for family life (Article 8).71 Material

69 Sandra Fredman, Human Rights Transformed - Positive Rights and Positive Duties (OUP 2008) 208.70 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) paras 126 and 129.71 Wallová and Walla v Czech Republic App no 23848/04 (ECtHR, 26 October 2006) paras 73-74.

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hardship is also taking into account when determining whether the

refusal, withdrawal or reduction of social benefits places an

excessive burden on the individual concerned.72

3.5. LIMITATIONS

The case law discussed above could be constructed as recognizing

the importance of a number of basic capabilities when examining

complaints under specific ECHR rights: the capability of being

able to be healthy (Articles 2 and 3), the capability of being

able to be sheltered (Articles 3 and 8), the capability of being

able to be part of social networks and to give and receive social

support, including personal autonomy and family life (Article 8),

the capability to achieve an adequate standard of living

(Articles 3, 1 Protocol 1 and 14 in combination with 1 Protocol 1

and 8), and the capability of being able to participate in legal

proceedings (Article 6).73 In cases concerning health care,

eviction involving the risk of becoming homeless, fair trial and

the taking into public care of children,74 the Court moreover72 For example Moskal v Poland App no 10373/05 (ECtHR, 15 September 2009) para 74.Also see Ingrid Leijten, ‘From Stec to Valkov: Possessions and Margins in the Social Security Case Law of the European Court of Human Rights’ (2013) 13 Human Rights Law Review 309, 340 and 342.73 The names of these capabilities are inspired by those capabilities selected for discussion in Nussbaum, ‘Capabilities as Fundamental Entitlements’ (n 21) 41-42; and Robeyns (n 8) 71-72; and Vizard (n 9) 226-227.74 For example Mehmet Şenturk and Bekir Şenturk v Turkey App no 13423/09 (ECtHR, 9 April2013) (health); Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April

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seems to have focused on the applicants’ socio-economic barriers

in the enjoyment of their Convention rights, which could be

constructed as a recognition that poverty could result in

“capability deprivation” under the ECHR. Also the use of the

principle of “effectiveness” in the Airey case illustrates a

concern with the persons’ actual capability to effectively access the

courts.

While certain correspondences75 thus clearly exist between

the “capability approach” and the Court’s practice, it would push

the argument too far to hold that the Court has endorsed the

“capability approach” as such. In this respect, the Court has

never accepted the “capability approach” explicitly, so all

traces found in the case law can at best be interpreted as an

implicit recognition of the relevance of the “capability

approach” in concrete cases and of course only insofar these

capabilities relate to the scope of protection of concrete ECHR

rights. Furthermore, the protection of the rights of persons

living in poverty by the Court is subject to a number of

limitations, which are problematic from the viewpoint of the

“capability approach.”

2012) (eviction); Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) (fair trial); and Wallová and Walla v Czech Republic App no 23848/04 (ECtHR, 26 October 2006) (taking into public care).75 To borrow a term from Vizard (n 9) 18-19, discussing key correspondences between the “capability apparoach” and evolving standards in international human rights law and jurisprudence.

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A first limitation is the fact that the ECHR is a civil and

political rights document and that it does not protect social and

economic rights. According to the Court,

the Convention does not guarantee, as such, socio-economic

rights, including the right to charge-free dwelling, the

right to work, the right to free medical assistance, or the

right to claim financial assistance from a State to

maintain a certain level of living.76

Therefore socio-economic deprivation cannot be ‘directly’

challenged as a violation of social and economic rights, but only

‘indirectly’ insofar as it affects the enjoyment of civil and

political rights. In this respect, the Court has held that

the mere fact that an interpretation of the Convention may

extend into the sphere of social and economic rights should

not be a decisive factor against such an interpretation;

there is no water-tight division separating that sphere from

the field covered by the Convention.77

Nonetheless, despite this rejection of a categorical distinction,

it does appear that the more a case could be considered as giving

rise to social and economic rights issues, the less likely it is

that the Court will find a violation of a Convention right. This

is, for example, illustrated by the vast amounts of decisions in

which such complaints were rejected as being manifestly ill-76 Pančenko v Latvia App no 40772/98 (ECtHR adm., 28 October 1999).77 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26.

22


founded, without giving any guidance as to what level of socio-

economic deprivation does give rise to a violation of the

Convention right concerned.78 In certain cases, in particular

under Article 3, the Court has accepted the relevance of basic

capabilities such as the capability of being able to be healthy,

being able to be sheltered and to achieve an adequate standard of

living. The Court has, however, qualified the State’s obligations

in this respect by only considering them ‘in principle’79 to be

imposed under Article 3 and only allowing for State

responsibility under very restrictive conditions,80 thereby

placing these capabilities at the “periphery” rather than at the

centre of the analysis under Article 3. Also, contrary to the

principle from the Airey case, in the admissibility decision of

Zehnalová and Zehnal, the Court held that it was its task ‘to

determine the limits to the applicability of Article 8 and the

boundary between the rights set forth in the Convention and the

social rights guaranteed by the European Social Charter’.81

Similarly in the case of N., concerning an HIV positive woman who

was threatened with expulsion to Nigeria, where her access to

appropriate medical treatment was uncertain, the majority seemed

to base their finding of a non-violation of Article 3 (the

prohibition of inhuman and degrading treatment) at least78 For example Marzari v Italy App no 36448/97 (ECtHR adm., 4 May 1999); Pentiacova and 48 Others v Moldova App no 14462/03 (ECtHR adm., 4 January 2005); and Pančenko v Latvia App no 40772/98 (ECtHR adm, 28 October 1999). 79 For example Larioshina v Russia App no 56869/00 (ECtHR adm, 23 April 2002).80 Such as in the above-discussed case of Budina v Russia App no 45603/05 (ECtHR adm, 18 June 2002).81 Zehnalová and Zehnal v the Czech Republic App no 38621/97 (ECtHR adm, 14 May2002).

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partially, but also implicitly, on the alleged socio-economic

rights dimension of the case.82

Despite its explicit rejection in Airey, it therefore seems

that in practice the Court applies a kind of ‘ceiling effect’ –

defined by Scott as a situation in which an institution refers to

human rights commitments found in a legal instrument other than

its own to limit the scope of protection of a right in that

institution’s own instrument.83 Without arguing that the Court

should rule on violations of social and economic rights as such –

which would clearly be outside its competence ratione materiae – the

presence of such a ‘ceiling effect’ in cases where both

categories of human rights overlap is problematic from the

viewpoint of the indivisibility required by the “capability

approach”’. Indeed, the “capability approach” has been

illustrative in empirically establishing the indivisibility in

practice of both sets of rights. In this respect, Sen has

convincingly shown that political and civil rights are crucial

for the prevention of economic and social disasters, in

particular famines, since they ‘give people the opportunity to

draw attention forcefully to general needs and to demand82 N. v the United Kingdom App no 26565/05 (ECtHR Grand Chamber, 28 May 2008) para 44. This was challenged by the dissenting judges Tulkens, Bonello and Spielmann, holding that it was ‘a case about one of the core fundamental civilrights guaranteed under the Convention, namely that of Article 3.’ This case itself falls outside the scope of this article, see n 42, but is nonetheless mentioned because it illustrates the Court’s ambiguous position with respect to indivisibility. 83 Craig Scott, ‘Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural Rights”’ (1999) 21 Human Rights Quarterly 633, 636.

24


appropriate public action’.84 The other way around, Nussbaum has

argued that ‘all capabilities have an economic aspect: even the

freedom of speech requires education, adequate nutrition, etc.’.85

Jumping from the empirical to the normative, one could argue that

some degree of (normative) indivisibility is theoretically

required under the “capability approach”.

A second limitation is the negative / positive obligations

dichotomy in human rights law, under which human rights have

traditionally been considered as being primarily concerned with

protecting individuals against State action that interferes with

their rights (negative obligations). Positive obligations,

requiring active State intervention to ensure human rights to

individuals on the other hand have only gradually been

recognized.86 While the European Court has principally accepted

that negative and positive obligations deserve equal respect87 and

should be placed on the same footing at the methodological

level,88 in practice the Court exhibits more judicial deference to

the decisions of domestic authorities – by granting a so-called

wide ‘margin of appreciation’ – in cases concerning positive

84 Amartya Sen, ‘Democracy as a Universal Value’ (1999) 10 Journal of Democracy3, 7-8.85 Nussbaum, ‘Beyond the Social Contract’ (n 29) 11.86 With respect to the Court, see Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004).87 Von Hannover v Germany (No. 2) App nos 40660/08 and 60641/08 (ECtHR Grand Chamber,7 February 2012) para 106.88 Aksu v Turkey App nos 4149/04 and 41029/04 (ECtHR Grand Chamber, 15 March 2012)para 62.

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obligations.89 Also some areas of the Court’s case law remain

predominantly ‘negativist’, such as for example in the field of

the right to home (Article 8) and the right to property (Article

1 Protocol 1), in which the Court restricts itself to protecting

‘existing’ homes and possessions. Since many violations of the

human rights of poor individuals are not caused by State action

but rather by State omission, the Court risks marginalizing the

human rights concerns of poor individuals by continuing to favour

negative over positive obligations.

This is also problematic from the viewpoint of the

“capability approach”, which, as mentioned above, is concerned

with the ‘full ability of people to choose […] very important

things’ rather than only with the ‘absence of interfering state

action’.90 According to Nussbaum, the “capability approach” makes

clear that in order to really secure a human right for someone,

this necessarily ‘involves affirmative material and institutional

support, not simply a failure to impede’.91 Nussbaum illustrates

her argument with the example of the right to political

participation, which in order to be effective requires that

positive measures are taken to make people truly capable of

political exercise.92 Discussing the relationship between the

“capability approach” and human rights, Vizard also indicates

that analysing rights in terms of capabilities necessarily89 Women on Waves and Others v Portugal App no 31276/05 (ECtHR, 9 February 2009) para40.90 Nussbaum, ‘Beyond the Social Contract’ (n 29) 13.91 Nussbaum, ‘Capabilities as Fundamental Entitlements’ (n 21) 38.92 ibid.

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corresponds with recognising that these rights ‘are associated

with [both] positive obligations of protection and promotion […]

as well as negative obligations of omission, non-intervention,

and restraint’.93 Analysing rights in terms of capabilities thus

argues against favouring negative over positive obligations.

Thirdly, the Court is very receptive of criticism on the

resource implications raised by positive obligations in general

and obligations to provide in particular. In the Sentges case, the

Court linked this issue with the margin of appreciation doctrine.

According to the Court, the ‘margin of appreciation is even wider

when, as in the present case, the issues involve an assessment of

the priorities in the context of the allocation of limited State

resources’.94 Hereby, the Court goes a long way in accepting the

argument of ‘policentricity’. According to this argument, judges

‘cannot and should not deal with situations in which there are

complex repercussions beyond the parties and factual situation

before the court’.95 The polycentricity argument has been

particularly powerful in the field of social rights litigation.

It has, however, been argued that this is based on an

oversimplification of social rights claims as polycentric

compared to other areas of law,96 whereas polycentricity can93 Vizard (n 9) 167.94 Sentges v the Netherlands App no 27677/02 (ECtHR adm, 8 July 2003).95 Mancolm Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ in Malcolm Langford (ed), Social Rights Jurisprudence – Emerging Trends in International and Comparative Law (CUP 2008) 36.The classic case for the ‘polycentricity’ argument was made by Lon Fuller. SeeLon Fuller, ‘The Forms and Limits of Adjudication’ (1978-79) 92 Harvard Law Review 353.96 Langford (n 94) 36.

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instead be considered as a pervasive feature of the law in

general.97 Rather than using ‘the idea of polycentricity as the

bright line for justiciability’,98 King therefore argues that one

should instead focus on examining how to minimise the negative

impact of adjudicating polycentric issues.99

Again, the “capability approach” provides valuable insights

to overcome this problem. On the one hand, it nuances the problem

by recognizing that issues of socio-economic deprivation cannot

be reduced to mere questions of resource allocation. In dealing

with this problem, Ely Yamin pointed at the necessity to make a

distinction between rights and resources: ‘the right speaks to

the end of having the capability to enjoy benefits [for example

the right to the highest attainable standard of health] and the

resources provide the means to the end’.100 She considers the

provision of “certain commodity bundles” – for example in the

field of food and health – as ‘merely evidence – albeit critical

evidence – of the implementation of the right’.101 The focus

according to Ely Yamin should, however, not merely lie on the

provision of those “commodity bundles”, but rather on ‘empowering

people to transform the oppressive social relations that limit

their choices about life and their capabilities to live lives of

dignity’.102 In order to empower individuals living in poverty, it

97 Jeff King, ‘The Pervasiveness of Polycentricity’ (2008) Public Law 101.98 Langford (n 94) 36.99 King (n 96) 124.100 Ely Yamin (n 5) 284-285.101 ibid 284.102 ibid 274.

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is therefore, for example, also necessary to tackle the

discrimination oppressing them and to enhance their participation

in the making of policies affecting their well-being.103

While, on the one hand, the “capability approach” thus

nuances the problem of resource allocation, on the other hand, it

recognizes that a genuine concern with people’s capabilities will

from time to time indeed require judges to touch upon issues of

resource allocation, since resource expenditure will from time to

time be required to enhance the capabilities of persons living in

poverty. In this respect, as mentioned above, the “capability

approach” recognizes that ‘all capabilities have an economic

aspect’.104 Nonetheless, as shown by Vizard, human rights as

“capability-rights” can be interpreted in such a way as to

delimit the scope of the positive obligations on the State,

allowing the Court to take into account the constraints of

limited resources and polycentricity.105 The “capability approach”

would thus allow the Court to delimit human rights obligations in

this respect, allowing to take into account King’s suggestion to

minimise the negative impact of adjudicating polycentric issues.

On the other hand, however, the “capability approach” clearly

rejects using resource and polycentricity concerns as “bright

103 ibid 284-286.104 Nussbaum, ‘Beyond the Social Contract’ (n 29) 11.105 Vizard (n 9) 226-227. Vizard takes into account a broader category of “feasibility constraints” rather than merely polycentric constraints. In her model, in order to take into account these resource and feasibility constraints, the scope of positive obligations is delimited by the concepts ofreasonableness and adequacy.

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lines” when the capabilities of persons living in poverty to

enjoy their human rights are at stake.

4. THE WAY FORWARD? APPROACHES THAT PRIORITIZE HUMAN RIGHTS

PROTECTION OF PERSONS LIVING IN POVERTY

So far, an overview has been given of the Court’s practice in

protecting the human rights of persons living in poverty. The

previous chapter provided a bird’s-eye view of the Court’s case

law in this respect, discussed by way of four clusters: scope of

interpretation, procedural protection, non-discrimination and a

poverty-sensitive approach to proportionality. All in all, it

does not seem that the Court has fully grasped the nature of

poverty as “capability deprivation”, resulting in a relatively

modest record in the field of the protection of rights of persons

living in poverty. Three particular obstacles that are

problematic from the viewpoint of the “capability approach” have

been identified: the civil and political / social and economic

rights and the negative / positive obligations dichotomies and

the Court’s unconditional endorsement of the polycentricity

argument whenever upholding human rights would impact resource

allocation.

In what follows, this article will proceed on the assumption

that the Court should better take into account the nature of

30


poverty as “capability deprivation” and that there is a need for

the Court to provide enhanced human rights protection of the

least advantaged. With respect to the latter aspect, there are

strong normative reasons to justify such enhanced protection.

First of all, such an approach fits better with a conception of

rights as ideally being representation-reinforcing:106

prioritizing the protection of the least advantaged in the

judicial process compensates for the lack of voice they enjoy in

the political process. The prioritized protection of persons

living in poverty moreover fits well with the nature of the ECHR

as a living instrument which must be interpreted in the light of

present-day conditions.107 In this respect, Tulkens has argued

that in the face of the global financial and economic crisis,

this living instrument principle ‘does not mean sacrificing human

rights in the name of austerity and macro-economic discipline; it

means improving the protection of the most vulnerable and

marginalized segments of the population’.108 Moreover a primary

concern with the protection of the human rights of persons living

in poverty is particularly required when the Court touches upon

polycentric issues and in particular when it enters the domain of

positive obligations to provide. Such concern relates to the risk

identified in the literature that where a better-off minority

enjoys an easier access to courts in polycentric cases, this106 The most well-known representation-reinforcing theory is the one developed in John Hart Ely, Democracy and Distrust – A Theory of Judicial Review (Harvard University Press 1980).107 For example Tyrer v the United Kingdom App no 5856/72 (ECtHR, 25 April 1978).108 Françoise Tulkens, ‘The European Convention on Human Rights and the Economic Crisis: The Issue of Poverty’ (2013) EUI Working Paper 8, 1.

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situation risks resulting in a reinforced protection of an

already well-off litigating minority at the expense of the non-

litigating majority, having detrimental redistributive

consequences for persons living in poverty.109 Another, more

pragmatic consideration, would be that by focusing on the

protection of those for whom it matters most, the Court would be

less vulnerable for challenges to its legitimacy by

governments.110

In what follows, three approaches that could allow for the

enhanced protection of civil and political rights of persons

living in poverty will be discussed: 1) the development of a

broader concept of “responsibility” of the State that better

takes into account the complex interactions of State actions and

omissions that give rise to human rights violations of persons

living in poverty; 2) endorsing a more substantive approach to

equality that allows the Court to more adequately consider the

links between poverty and discrimination under Article 14 ECHR;

and 3) applying the concept of “vulnerability” to prioritize the

human rights protection of persons living in poverty, by

recognizing the fact that poverty renders persons more vulnerable

for human rights violations. The added value of these approaches

will be discussed – in particular the question to what extent109 See for example Ferraz’ discussion of right to health litigation in Brazil,Octavio Luiz Motta Ferraz, ‘Harming the Poor Through Social Rights Litigation:Lessons from Brazil’ (2011) 89 Texas Law Review 1643.110 Similarly, on the ‘prioritization’ concept of vulnerability, see Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) International Journal of Constitutional Law 1056, 1085.

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these approaches better grasp the nature of poverty as

“capability deprivation” – as well as their potential problems

and how they could be integrated into the Court’s legal

reasoning. A constructive approach is adopted, building on

existing lines of legal reasoning that are intuitively appealing

with a view to providing enhanced protection of the rights of

persons living in poverty.

4.1. THE RESPONSIBILITY APPROACH

A first proposal, which will be labelled the “responsibility

approach” – named after the terminology used in the UK House of

Lords’ Limbuela case, and not to be confused with the rules

regarding attribution of state responsibility under international

law – focuses on the degree to which a State can be “responsible”

for “capability deprivation”. In the context of Article 8 ECHR,

O’Cinneide holds that ‘the possibility must exist that State

interference or a failure to discharge positive obligations which

generates or contributes to the creation of conditions of extreme

poverty may infringe the rights recognised in Art. 8 (1)’.111

While not wholly abandoning the negative / positive obligations

dichotomy, these categories are not essential to analyse whether

the State has complied with human rights, since the most

111 O’Cinneide (n 37) 591.33

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important question is whether the actions and/or inactions of the

State can be analysed as ‘generating’ or ‘contributing to’ the

creation of conditions of extreme poverty. Clements and Simmons

go even further by arguing that it is not helpful at all to

examine cases from the perspective of the broad categories ‘State

action demanded’ and ‘State action proscribed’. Instead,

according to Clements and Simmons,

it is more appropriate (although still artificial) to

categorise the Convention’s impact according to context: to

what degree can it be said that the State is culpable and

just how severe is the destitution in issue?112

A clear advantage of the “responsibility approach” is that it

helps overcoming the limitations of the negative/positive

framework. This has been explicitly stressed by Lord Brown of the

UK House of Lords in the case of Limbuela, the most obvious

example of the “responsibility approach” in a judicial setting:

it seems to me generally unhelpful to attempt to analyse

obligations arising under article 3 as negative or

positive, and the state's conduct as active or passive.

Time and again these are shown to be false dichotomies. The

real issue in all these cases is whether the state is

properly to be regarded as responsible for the harm

inflicted (or threatened) upon the victim.113

112 Clements and Simmons (n 34) 412. Similarly Palmer (n 34) 404.113 R. (Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66 para 92.

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According to the Lords, Article 3 ECHR is violated when asylum

seekers are exposed to inhuman and degrading conditions as a

result of the fact that they are not entitled to social support

on the one hand, and because they are prevented from working

while their application is being processed on the other.

The Limbuela case immediately illustrates another potential

advantage of the “responsibility approach”: it allows a court to

take structural factors into account, in this case the legal

regime114 that affected the capability of the asylum seekers

concerned to provide for their basic needs. Other structural

factors that could be taken into account are, for example,

systematic discrimination and social or legal barriers to the

enjoyment of a human right. These factors are often difficult to

fit in the negative/positive framework: structural factors

usually lack the degree of directness of interference that is

required to be considered as involving negative obligations.115

From the perspective of positive obligations, the analysis often

results in merely examining whether the State is obliged to

facilitate the enjoyment of a particular right, while being blind

for the ways in which the State may be responsible for structural

factors that contribute to the lack of enjoyment.

Hence, it is clear that the “responsibility approach” can

bring to light certain ways in which States can affect persons’

capabilities to enjoy their ECHR rights that are left out of the

114 Fredman, Human Rights Transformed (n 68) 237.115 Xenos (n 47) 597-598.

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Laurens Lavrysen

equation under the negative/positive framework. In this respect,

the “responsibility approach” can easily be aligned with the

“capability approach”: instead of focusing on the abstract

categories of State action and State omission, the core of the

analysis would then be the question to what extent the State is

“responsible” for the “capability deprivation” concerned. Since

persons living in poverty are often the victim of more complex

ways of “capability deprivation”, tackling such “capability

deprivation” through the “responsibility approach” clearly has

the potential to benefit the least advantaged, as illustrated by

the Limbuela case. Indeed, as argued by Doz Costa, a great

advantage of the “capability approach” is exactly the fact that

it allows legal practitioners ‘to deal with the complexities of

poverty and its implications for the enjoyment of human

rights’.116 The “responsibility approach” aligned with the

“capability approach” allows the prioritization of the rights of

persons living in poverty regardless of whether the State has

directly or more remotely contributed to their “capability

deprivation”, and allows the Court to take into account the more

structural factors at work. While the “responsibility approach”

thus clearly has some advantages, it also gives rise to some

problems.

First, “responsibility” is clearly a matter of degree:

States can be responsible to a larger or lesser extent for a

“capability deprivation”. For this reason, the crucial question

116 Doz Costa (n 1) 92.36


becomes: where to draw the line between a violation and a non-

violation? While it may not be very difficult to find such

“responsibility” in the Limbuela case, other cases may not be as

straightforward.

Second, the concept of responsibility risks bringing

causality elements into the examination. This is, for example,

exemplified by O’Cinneide, examining “responsibility” in terms of

‘generating’ or ‘contributing to’ human rights violations.

Establishing causality however can be particularly burdensome,

and it may involve a high degree of speculation, especially in

cases of complex chains of causality involving both actions and

omissions, as well as structural factors. Under the

negative/positive framework, on the other hand, causality is not

necessarily required to find a violation. The Court’s right to

life case law for example shows that it is possible to find that

a State did not comply with its obligation to protect an

individual’s life, without establishing whether complying with

this obligation could have averted that individual’s death.117

These cases illustrate that it is clearly not self-evident why

causality should be relevant at all,118 the “responsibility

approach” should therefore avoid the causality pitfall.

117 For example Salkhov and Islyamova v Ukraine App no 28005/08 (ECtHR, 14 March 2013)para 167. 118 In Tătar v Romania App no 67021/01 (ECtHR, 27 January 2009), Judges Zupančič and Gyulumyan held that the mania with causality is a strong characteristic ofa primitive, mystic and prelogical mentality.

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Third, it is unclear what structural factors need to be

taken into account. Only those to which the State has directly

contributed, such as in Limbuela, or also those that the State has

failed to remedy, such as, for example, the failure to remove

social barriers for persons with a disability? If the

“responsibility approach” does not take the latter into account

as well, the action/inaction dichotomy underlying the

positive/negative framework enters the analysis again through the

back door.

Fourth, it is unclear how the concept of responsibility

relates with the principle of proportionality (or fair balance

test), which plays a central role within almost the entire case

law of the Court.119 Under the negative/positive framework, the

most important question of the analysis is whether the action or

omission can be considered proportionate in the light of

competing interests. It is unclear how the “responsibility

approach” would accommodate those competing interests in its

analysis, since not all situations in which States can be held

“responsible” for a lack of “full” enjoyment of an individual’s

human rights can be considered to be human rights violations.

As long as the “responsibility approach” lacks clarity and

cannot overcome these obstacles, it may be preferable to continue

to focus on the issue of proportionality, which fits better with119 For example N. v the United Kingdom App no 26565/05 (ECtHR Grand Chamber, 28 May 2008) para 44: ‘inherent in the whole of the Convention is a search for a fairbalance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.’

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the Court’s practice. Nevertheless, the one approach does not

necessarily have to exclude the other: the Court’s case law would

benefit from accommodating the question of “responsibility” in

its proportionality analysis. The Court could, for instance,

systematically take structural factors into account. A good

example is the Roma case of Yordanova and Others v. Bulgaria, in which

the Court stressed that the applicants’ specificity as members of

an outcast community and socially disadvantaged group is one of

the relevant factors when examining the proportionality of their

evictions.120

The Court could also be more sensitive to the fact that

human rights violations may stem from a complex set of

interactions of State actions and omissions. State action can

rarely only be considered purely ‘negatively’, since actions from

the past can give rise to enhanced responsibility for omissions

in the present. Often this extends further than the simple

obligation to remedy the past wrong, but also requires

facilitating victims from the past in overcoming present barriers

for the enjoyment of their human rights.121 On the other hand,

State omissions can rarely be considered purely ‘positively’.

According to Bandes,

the portrayal of government as passive and uninvolved is

sharply at odds with the reality of government as pervasive120 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) para 129.121 See for example the Court’s recognition of a ‘positive obligations of the State to undo a history of racial segregation in special schools’ in Horváth and Kiss v Hungary App no 11146/11 (ECtHR, 29 January 2013) para 127.

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regulator and architect of a vast web of social, economic,

and political strategies and choices.122

The Court has gone some way in taking into account these complex

interactions of actions and omissions in what can described as

‘hybrid’ cases. These are cases in which the Court does not

examine in isolation whether a positive obligation rests on a

State, but rather integrates aspects of positive obligations into

the examination of negative obligations and vice versa. The Moldovan

case, for example, concerned a pogrom against a group of Roma in

a Romanian village, taking place with the involvement of police

officers, leaving the survivors homeless for several years.

According to the Court, the ‘hindrance and the repeated failure

of the authorities to put a stop to breaches of the applicants’

rights, amount to a serious violation of Article 8 of the

Convention’.123 While the case can essentially be considered as

involving negative obligations – since State actors were involved

in the destruction of the applicants’ homes – the Court thereby

acknowledged that the State was under a positive obligation to

provide housing.124 In the above-mentioned Yordanova case, the Court

required the State to take the risk of the applicants becoming

homeless into account, only barely falling short from recognizing

122 Susan Bandes, ‘The Negative Constitution: A Critique’ (1989-90) 88 MichiganLaw Review 2271, 2285.123 Moldovan and Others v Romania (No. 2) App nos 41138/98 and 64320/01 (ECtHR, 12 July2005) para 109.124 Luke Clements and Alan Simmons characterize this positive obligation to be remedial – that is to compensate for a deprivation of housing. See Clements and Simmons (n 34) 413.

40


a self-standing right to be re-housed.125 In Wallová and Walla, the

Court took the possibility to provide the applicant with social

benefits or housing into account as a less restrictive means in

the proportionality analysis. A final example is the case of Airey

v. Ireland, which concerns both positive – the obligation to

facilitate access to justice – and negative obligations – the

obligation not to hinder access to justice. These cases

illustrate that the Court can take into account the complex

interactions of actions and omissions when examining whether the

“capability deprivation” of persons living in poverty violated

their ECHR rights, an approach which definitely deserves

generalization.

4.2. SUBSTANTIVE EQUALITY

A second approach that could result in stronger human rights

protection of persons living in poverty would be for the Court to

focus more on issues of substantive, rather than merely on formal

equality. Discussing the Court’s Article 14 case law, Palmer has

held that

a formal conception of equality has […] encouraged the

ECtHR to focus more closely on the artificial extension of125 Adélaïde Remiche, ‘Yordanova and Others v. Bulgaria: The Influence of the Social Right to Adequate Housing on the Interpretation of the Civil Right to Respect for One’s Home’ (2012) 12 Human Rights Law Review 787, 798.

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the range of substantive socio-economic rights covered by

the Convention than on efforts to address issues of socio-

economic deprivation more holistically through the

development of a substantive model of equality in the

Convention jurisprudence.126

Formal equality requires that persons placed in a similar

situation must be treated in an equal manner, and that

distinction on the basis of a number of discrimination grounds

requires reasonable justification.127 A major problem with formal

equality is that it ‘lacks a normative commitment to reducing

disparities between groups’.128 Indeed, it has been held that

‘without a positive duty to promote equality, patterns of

discrimination and social exclusion will remain unchanged’.129

Criticizing formal equality from a gender perspective, Brodsky

and Day hold that ‘[w]hereas formal equality is concerned with

treating men and women the same, the whole point of a substantive

equality approach is to achieve equality of results, through

whatever measures may be necessary to overcome women’s

acknowledged inequality’.130

126 Palmer (n 34) 423.127 Alexandra Timmer, ‘Towards an Anti-Stereotyping Approach for the European Court of Human Rights’ (2011) 11 Human Rights Law Review 707, 710.128 Gwen Brodsky and Shelagh Day, ‘Beyond the Social and Economic Rights Debate:Substantive Equality Speaks to Poverty’ (2002) 14 Canadian Journal of Women and the Law 185, 207.129 Fredman, Human Rights Transformed (n 68) 175.130 Brodsky and Day (n 127) 207.

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From a substantive equality approach, ‘it is not colour,

gender or some other group characteristic per se which is in

issue, but the attendant disadvantage, both social and

economic’.131 Instead of focusing on whether formal distinction can

be justified, the focus of substantive equality thus lies on the

impact of discrimination on victims, taking into account the

actual economic, social and political context in which they find

themselves.132 According to O’Connell, ‘substantive conceptions of

equality […] tend to take as their starting point the idea that

some persons, often because of their membership in a particular

group, are systematically subject to disadvantage,

discrimination, exclusion or even oppression’.133

While equal treatment is a procedural principle, substantive

equality is outcome-oriented.134 It is concerned with providing

equality of opportunity and equality of results.135 Therefore

substantive equality is often linked with questions of

distributive justice: ‘it calls for a duty upon the state to take

positive measures to promote equality, including, where

appropriate, allocation of resources’.136 Substantive equality

131 Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ (2005) 21 South African Journal on Human Rights 163, 166.132 Pierre de Vos, ‘Substantive equality after Grootboom: the emergence of social and economic context as a guiding value in equality jurisprudence’ (2001) Acta Juridica 52, 59.133 Rory O’Connell, ‘Cinderella comes to the Ball: Art 14 and the right to non-discrimination in the ECHR’ (2009) 29 Legal Studies 211, 213.134 Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16, 17.135 Fredman, Human Rights Transformed (n 68) 167.136 ibid 163.

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therefore gives rise to obligations to facilitate and obligations

to provide.137

Some models of substantive equality however go further than

equality of opportunity or equality of results.138 Fredman and

Spencer have, for example, developed a multi-dimensional approach

to substantive equality, encompassing four main equality

objectives.139 First, substantive equality ‘should aim to break

the cycle of disadvantage resulting from ongoing discrimination

against a group’, requiring the provision of resources to

facilitate genuine choice (redistribution).140 Second, substantive

equality aims ‘to promote respect for the equal dignity and worth

of all, redressing stigma, stereotyping, humiliation and violence

because of membership of a status group’141 (recognition). Third,

substantive equality aims ‘to accommodate and affirm different

identities, aspirations and needs’142 (transformation). Finally,

substantive equality aims to ‘facilitate full participation in

society’, meaning both ensuring that ‘those whose voice has not

been heard because of previous discrimination and disadvantage

have equal rights to participate in decision-making’ and

‘overcoming marginalisation and social exclusion’ resulting in

137 ibid 166.138 ibid 167.139 Sandra Fredman and Sarah Spencer, ‘Beyond discrimination: it’s time for enforceable duties on public bodies to promote equality outcomes’ (2006) European Human Rights Law Review 598, 603.140 ibid.141 ibid.142 ibid.

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equal participation in society (participation).143 According to

Fredman, ‘[a]n explicit commitment to redressing disadvantage,

combating social exclusion and facilitating positive

participation all require positive provision’.144

While clearly falling short of applying such a multi-

dimensional approach to substantive equality, in recent years,

the Court did take some important steps in the direction of a

substantive equality approach under Article 14 ECHR.145 Not only

did the Court accept that affirmative action to correct ‘factual

inequalities’ is objectively justified under this provision,146 it

also accepted that Article 14 itself requires affirmative

action.147 A first breakthrough was the case of Thlimmenos v. Greece,

in which the Court affirmed that Article 14 ‘is also violated

when States without an objective and reasonable justification

fail to treat differently persons whose situations are

significantly different’.148 Denying the applicant access to the

profession of accountant, based on the fact that he had been

convicted for a serious crime, violated Article 14 in the

applicant’s case, since it failed to take into account that his

offence was based on religious grounds (conscientious objection).

143 ibid at 604. The terms redistribution, recognition, transformation and participation are borrowed from Peroni and Timmer (n 109) 1074-1075, with reference to Sandra Fredman, Discrimination Law (2nd edn, OUP 2011) 25-33.144 Fredman, Human Rights Transformed (n 68) 167.145 Generally, see O’Connell (n 132).146 Stec and Others v the United Kingdom App nos 65731/01 and 65900/01 (ECtHR Grand Chamber, 12 April 2006) para 61.147 O’Connell (n 132) 227.148 Thlimmenos v Greece App no 34369/97 (ECtHR Grand Chamber, 6 April 2000) para 44.

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In a second breakthrough case, D.H. and Others v. the Czech Republic,

the Court found the systematic placement of Roma children in

special schools, based on tests to measure their intellectual

capacity that failed to take into account their cultural

background, to be in violation of Article 14. Building upon

Thlimmenos, the Court acknowledged that ‘in certain circumstances

a failure to attempt to correct inequality through different

treatment may in itself give rise to a breach of [Article 14]’.149

According to O’Connell, this statement ‘could have far-reaching

consequences if further developed by the court, amounting to a

legal duty to promote equality in fact, in at least some

circumstances’.150 In the same case, the Court endorsed the

concept of indirect discrimination, holding that

a general policy or measure that has disproportionately

prejudicial effects on a particular group may be considered

discriminatory notwithstanding that it is not specifically

aimed at that group […], and that discrimination

potentially contrary to the Convention may result from a de

facto situation.151

For the sake of this article, it seems that much can be gained if

the Court would continue to build upon this emerging substantive

equality case law to also address issues of poverty. A first step

149 D.H. and Others v the Czech Republic App no 57325/00 (ECtHR Grand Chamber, 13 November 2007) para 175.150 O’Connell (n 132) 228.151 D.H. and Others v the Czech Republic App no 57325/00 (ECtHR Grand Chamber, 13 November 2007) para 175.

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for the Court in developing its substantive equality case law

would be to recognize the links between poverty and

discrimination. According to Fredman, there is a complex and

multi-directional interaction between poverty and status

inequalities:

On the one hand, it is well established that women, ethnic

minorities, black people, people with disabilities, older

people and children are disproportionately represented

among people in poverty. On the other hand, people in

poverty suffer from many of the elements of discrimination

and substantive inequality experienced by these status

groups. 152

Similarly, the need to link poverty and discrimination has been

stressed by Brodsky and Day, holding that

addressing poverty as though it were a strictly individual,

gender-, race-, and disability-neutral issue of human

security […] overlooks the fact that poverty is socially

and legislatively created and that, for the groups

predominantly affected by it, it is a result of systemic

discrimination.153

They therefore consider that

152 Sandra Fredman, ‘The Potential and Limits of an Equal Rights Paradigm in Addressing Poverty’ (2011) 22 Stellenbosch Law Review 566, 574.153 Brodsky and Day (n 127) 188.

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conceptually ‘delinking’ poverty from its discriminatory

roots, and from the reality of its particular and

disproportionate effects on women and other systematically

disadvantaged groups, narrows our understanding of poverty

and deprives both [the right to life, liberty and security

of the person] and [the right to equality]154 of important

interpretive content.155

It is exactly the fact that substantive equality looks at

discriminatory effects, including socio-economic disadvantage,

rather than only at formal distinctions, that allows it to

analyse poverty in terms of discrimination. Examining poverty

from her multi-dimensional approach to substantive equality,

Fredman holds that ‘viewing poverty through the lens of

substantive equality allows us to illuminate the ways in which

poverty, like status discrimination, generates stigma, social

exclusion and loss of autonomy’.156

A non-discrimination approach that focuses on substantive

equality rather than on merely equal treatment moreover suits

well with the perspective of poverty as “capability deprivation”

adopted in this article.157 Indeed, as held by Vizard, ‘[t]he

“capability approach” was […] partly motivated by the need for a

more adequate analytical space for the characterization and

154 Under the Canadian Charter of Fundamental Rights.155 Brodsky and Day (n 127) 189.156 Fredman, ‘The Potential and Limits’ (n 151) 567.157 Similarly Colm O’Cinneide, ‘The Right to Equality: A Substantive Legal Normor Vacuous Rhetoric?’ (2008) 1 UCL Human Rights Review 80, 96.

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evaluation of gender disparities in situations of power

asymmetries, discrimination, and entrenched disadvantage’.158

Another correspondence between the “capability approach” and

substantive equality, is that the former just like the latter is

sensitive to outcomes and results159 (contrasted with outcome-

independent concepts and theories, such as equal treatment and

libertarian theories of rights). Moreover the “capability

approach” has the potential to give teeth to the concept of

substantive equality, since it provides an answer to the for Sen

primordial question ‘equality of what?’160 According to Sen, ‘the

space of capabilities provides the most fruitful and ethically

satisfactory way of looking at equality as a political goal’.161

Once the Court has recognized the above-discussed links

between discrimination and poverty as “capability deprivation”,

it can move forward by tackling substantive inequality in the

capability to enjoy ECHR rights. First, when examining

traditional cases of status discrimination (such as on the ground

of race or sex), the Court could be more sensitive to

discriminatory effects resulting in “capability deprivation”.

Second, the Court could consider poverty as a separate

discrimination ground under the open-ended concept of “other

status”, allowing it to tackle both formal and substantive

inequality on the ground of poverty. With respect to the latter,158 Vizard (n 9) 113.159 ibid 72-73.160 Sen (n 4) 12-30.161 Nussbaum, ‘Capabilities as Fundamental Entitlements’ (n 21) 35, discussing Sen (n 4).

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it could apply Thlimmenos - or D.H.- like legal reasoning to poverty,

by requiring differential treatment to assist persons living in

poverty in overcoming socio-economic barriers to the enjoyment of

their human rights, raised by de facto discrimination, or to tackle

seemingly neutral policies or measures having disproportionately

prejudicial effects.162 In doing so, the Court could empower

persons living in poverty in such a way as to allow them to

exercise their capability to enjoy their ECHR rights on the same

footing with others.

An important limitation for the Court however remains the

fact that Article 14 – both in its formal as in its substantive

equality dimension – is not a free-standing right, but can only

be applied insofar as the discrimination takes place within the

‘ambit’ of one of the Convention rights.163 A link with a civil

and political right, thus, always needs to be established. This

situation might change when more and more Member States ratify

Protocol 12, of which Article 1 does contain a free-standing,

‘general’ prohibition of discrimination. It has been argued that

Article 1 Protocol 12 ‘may result in large numbers of claims

162 In another case concerning segregation of Roma in education, the Court has broadened up the reasoning from the D.H. case by not only taking into account the cultural differences but also socio-economic disadvantage when examining the indirect discriminatory effect of the intellectual disability tests, see Horváth and Kiss v Hungary App no 11146/11 (ECtHR, 29 January 2013) para 115.163 See Oddný Mjöll Arnardóttir, ‘Discrimination as a magnifying lens: Scope and ambit under Article 14 and Protocol No. 12’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights (CUP 2013).

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being brought before the Court in many “new” areas, including the

entire field of social rights’.164

4.3. VULNERABILITY

Another strategy to the prioritization of the rights of persons

living in poverty may be to link poverty to the concept of

vulnerability, which at its most basic level can be considered as

susceptibility to harm.165 In recent years the Court has

increasingly relied on vulnerability reasoning, which according

to Timmer can be described as ‘a quiet revolution’ taking place

within the Court’s case law.166 The Court has relied upon this

concept to recognize both vulnerability at the individual – for

example the vulnerability of a child or a detainee167 – and at

the group level – for example the vulnerability of Roma or asylum

seekers.168 Peroni and Timmer have shown that the Court takes the

vulnerability of applicants or of the group to which they belong164 Brems (n 34) 162.165 Peroni and Timmer (n 109) 1058. Vulnerability theorists however do not purely see vulnerability as a negative condition, but also as being ‘generative’, in the sense that it forges bonds between human beings and leadsus to create institutions, see Alexandra Timmer, ‘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) 148-149.166 Timmer (n 164) 147. Similarly Samantha Besson, ‘La vulnérabilité et la structure des droits de l’homme : l’exemple de la jurisprudence de la Cour européenne des droits de l’homme’, in Laurence Burgorgue Larsen (ed), La vulnérabilité saisie par les juges en Europe (Pedone 2014) 59-85.167 Timmer (n 164) 147-170.168 Peroni and Timmer (n 109) 1056-1085.

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into account in order to increase the weight attributed to their

harm in the scope and proportionality analysis, as well as to

recognize enhanced positive obligations.169 The concept of

vulnerability thereby operates as a prioritization criterion to

enhance human rights protection for those considered vulnerable

or as a member of a vulnerable group.170

The case of M.S.S. v. Belgium and Greece and the above-discussed

case of Yordanova and Others v. Bulgaria are illustrative of how

vulnerability reasoning could benefit poor individuals. In the

first case, the Court found a violation of Article 3 ECHR (the

prohibition of inhuman and degrading treatment) because of the

poor living circumstances of an Afghani asylum seeker in Greece.

In finding a violation, the Court attached ‘considerable

importance to the applicant’s status as an asylum seeker and, as

such, a member of a particularly underprivileged and vulnerable

population group in need of special protection’.171 One of the

grounds for the Court to find the applicant vulnerable172 was the

fact that he was ‘wholly dependent on State support’173 and ‘unable

to cater for his most basic needs: food hygiene and a place to

live’.174

169 Peroni and Timmer (n 109) 1076-1079; and Timmer (n 164) 165-167.170 Peroni and Timmer (n 109) 1084; Timmer (n 164) 169.171 M.S.S. v Belgium and Greece App no 30696/09 (ECtHR Grand Chamber, 21 January 2011)para 251.172 Peroni and Timmer (n 109) 1069.173 M.S.S. v Belgium and Greece App no 30696/09 (ECtHR Grand Chamber, 21 January 2011)para 253.174 ibid para 254.

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In the second case, concerning the eviction of a Roma

community, the Court held that the authorities failed ‘to

recognise the applicants’ situation as an outcast community and

one of the socially disadvantaged groups’.175 More specifically,

in the context of the right to home, ‘the applicants’ specificity

as a social group and their needs must be one of the relevant

factors in the proportionality assessment that the national

authorities are under a duty to undertake’.176 Since the Court

recognised that ‘an obligation to secure shelter to particularly

vulnerable individuals may flow from Article 8 of the Convention

in exceptional cases’,177 the applicants’ vulnerability came to

the fore when examining the obligation to rehouse evicted

inhabitants. In particular, the Court held that

the disadvantaged position of the social group to which the

applicants belong could and should have been taken into

consideration, for example, in assisting them to obtain

officially the status of persons in need of housing which

would make them eligible for the available social dwellings

on the same footing as others.178

It is clear from both cases that poverty can thus be an element

taken into account by the Court when assessing whether an

applicant is vulnerable. In both cases, however, the applicants’

poverty was not the only factor that prompted the Court to apply175 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) para 129.176 ibid.177 ibid para 130.178 ibid para 132.

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the concept of vulnerability. In M.S.S., the Court, for example,

held that the applicant as an asylum seeker was ‘inherently’

vulnerable, in particular ‘because of everything he had been

through during his migration and the traumatic experiences he was

likely to have endured previously’.179 In Yordanova, the Court

referred back to D.H. and Others in order to label Roma a vulnerable

group.180 In the latter case, the applicants’ vulnerability

stemmed from discrimination and prejudice, rather than from

poverty.181 More specifically, according to the Court, ‘[a]s a

result of their turbulent history and constant uprooting the Roma

have become a specific type of disadvantaged and vulnerable

minority’.182

According to Peroni and Timmer, the Court in M.S.S. has deemed

asylum seekers vulnerable on a series of interacting grounds, one

of them being their extreme poverty.183 While arguing that, in

Yordanova, ‘the focus of the Court’s group vulnerability lies on

poverty rather than on prejudice and discrimination’, Peroni and

Timmer consider the group’s disadvantaged status and the social

prejudices against them to be clearly linked.184 It is not clear

from both cases what the independent contribution of the

applicants’ poverty is to the recognition of their vulnerability.

179 M.S.S. v Belgium and Greece App no 30696/09 (ECtHR Grand Chamber, 21 January 2011)paras 232-233.180 Yordanova and Others v Bulgaria App no 25446/06 (ECtHR, 24 April 2012) para 129.181 Peroni and Timmer (n 109) 1068.182 D.H. and Others v the Czech Republic App no 57325/00 (ECtHR Grand Chamber, 13 November 2007) para 182.183 Peroni and Timmer (n 109) 1069.184 ibid 1068.

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Nor is it clear whether the Court considers poverty to be either

the cause or the consequence of their vulnerability. While

arguably the one reinforces the other, these links are left

unexplored by the Court.185

In a third case, R.M.S. v. Spain, the Court came close to

recognizing poverty as independently giving rise to

vulnerability. The facts of the case are broadly comparable with

those of the above-discussed case of Wallová and Walla. The

applicant’s daughter was placed into public care after she had

visited the social services department seeking financial

assistance. Finding a violation of Article 8 (the right to

respect for family life), the Court ‘considers that, had the

applicant’s vulnerability at the time her daughter was taken into

care been taken into consideration, this might have played an

important role in understanding the situation of the child and

her mother’.186 While not explicitly linking poverty and

vulnerability, the main source of the applicant’s vulnerability

seemed to lie with her financial situation.

The fact that the Court has not yet explicitly recognized

the links between poverty and vulnerability may not be

problematic, since vulnerability theorists would argue against

reducing an individual’s vulnerability to a single dimension.

According to Soulet, vulnerability must be considered as a

relational concept: it arises as a result of certain relations

185 ibid.186 R.M.S. v Spain App no 28775/12 (ECtHR, 9 April 2013) para 90.

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with other social actors within a certain context or

environment.187 Fineman considers vulnerability, on the one hand,

to be universal, that is, a part of the human condition. On the

other hand, she considers it to be particular at the same time:

‘it is experienced uniquely by each of us’.188 Therefore, she

holds, ‘a vulnerability analysis must consider both individual

position and institutional relationships’.189 Moreover,

‘vulnerability is complex and can manifest itself in multiple

forms’.190 This allows for the recognition of accumulated harm, as

well as of the fact that

negative economic and institutional harms may cluster

around members of a socially or culturally determined

grouping who share certain societal positions or have

suffered discrimination based on constructed categories

used to differentiate classes of persons, such as race,

gender, ethnicity, or religious affiliation.191

This complexity and particularity is taken into account by the

Court when it considers vulnerability in M.S.S. and Yordanova to be

the interactional result of poverty on the one hand and group

status on the other, as well as of social background

circumstances such as the failure of the asylum system in Greece.187 Marc-Henry Soulet, ‘La vulnérabilité, une ressource à manier avec prudence’, in Laurence Burgorgue Larsen (ed), La vulnérabilité saisie par les juges en Europe (Pedone 2014) 19.188 Martha Albertson Fineman, ‘The Vulnerable Subject and the Responsive State’(2010) 60 Emory Law Journal 251, 269.189 ibid.190 ibid at 268.191 ibid.

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Nonetheless it is clear that the Court could use the concept

of vulnerability to prioritize the rights of persons living in

poverty by linking poverty more explicitly to vulnerability.192

Two options are possible. First, the Court could recognize ‘the

poor’ as a vulnerable group. This option however seems

problematic since ‘the poor’ is such a heterogeneous group193 that

recognizing them as a vulnerable group in themselves would amount

to essentialism, obscuring significant differences of experiences

within this group.194 Second, and more preferable, the Court could

recognize poverty as giving rise to vulnerability. That way, the

Court avoids the pitfall of essentialising and allows room to

take into account interactions with other factors as well as the

particular experiences of particular poor individuals.

While examining the experiences of persons living in poverty

through the vulnerability lens clearly has potential, the

question remains as to how to link poverty and vulnerability from

a human rights perspective. In order to link both, it is

necessary to explain how poverty increases the susceptibility of

(more severe) human rights violations for those individuals

suffering from it. First of all, poor individuals lack voice in

the political process, which is primarily dominated by the

192 Similarly, but not restricted to the context of the ECHR, see Loïc Azoulai,‘Sensible Droit’ in Laurence Burgorgue Larsen (ed), La vulnérabilité saisie par les juges en Europe (Pedone 2014), 233.193 See similarly Judge Sajó criticizing the recognition of asylum seekers as constituting a vulnerable group in M.S.S. v Belgium and Greece App no 30696/09 (ECtHRGrand Chamber, 21 January 2011): ‘Asylum seekers are far from being homogeneous, if such a group exists at all.’194 Peroni and Timmer (n 109) 1071.

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concerns of the middle classes and of interest groups. Due to

this ‘political vulnerability’,195 poor individuals run a higher

risk that their rights are not sufficiently taken into account in

the political process, resulting in a higher likelihood of human

rights violations. Second, once victims of a human rights

violation, poor individuals have more difficulty to complain

about their situation, either again because of their lack of

political voice, or because they are confronted with obstacles in

seeking access to justice. Considerations about the difficulty or

inability to complain about human rights violations have

similarly been at the heart of the Court’s vulnerability analysis

in cases concerning children and persons with mental

disabilities.196

Third, and most important for the perspective of this

article, poverty itself can be considered as amounting to

“capability deprivation”. In terms of the concept of

vulnerability, one could thus argue that inadequacy of resources

– that is the cause of poverty as “capability deprivation” –

renders persons more vulnerable to being deprived of their

capability to enjoy their ECHR rights. The “capability approach”

and the theory of vulnerability, such as developed by Fineman,

can therefore be conceptually linked: the State needs to be

195 Timmer (n 164) 154.196 ibid 152, with references to inter alia Juppala v Finland App no 18620/03 (ECtHR, 2December 2010) paras 41-42 (child) and Keenan v the United Kingdom App no 27229/95 (ECtHR, 3 April 2011) para 111 (person with a mental disability).

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particularly responsive197 to the vulnerability of persons living

in poverty to be deprived of their basic capabilities to enjoy

their human rights. The Court seems to have applied such an

approach in the case of M.S.S. in which the applicant’s

vulnerability and the State’s responsibility to take care of the

applicant were linked to the fact that his situation of extreme

financial hardship resulted in his lack of capability to cater

for his most basic needs.198

In short, poverty thus renders individuals vulnerable in at

least three ways: by denying them political voice, by creating

obstacles in complaining about their situation and because it

amounts to a deprivation of their capabilities to enjoy their

human rights. Surely this vulnerability can cause, result from,

interact with or exacerbate other ‘markers’ of vulnerability, and

the Court should take into account these effects in recognizing

the ‘compounded’ vulnerability199 of an individual in a particular

case. This approach should, however, not prevent the Court from

recognizing that the inadequacy of resources which causes poverty

as “capability deprivation”, also renders individuals vulnerable.

This would be in line with the South African Constitutional

Court, which has recognized that poverty gives rise to (group)

197 Fineman considers vulnerability to suggest a relationship of responsibilitybetween State and individual, forming the basis for a claim that the State must be more responsive to that vulnerability, see Fineman (187) 255-256.198 M.S.S. v Belgium and Greece App no 30696/09 (ECtHR Grand Chamber, 21 January 2011)para 254.199 Timmer (n 164) 161.

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vulnerability,200 holding that ‘[t]he poor are particularly

vulnerable and their needs require special attention’.201 Once the

Court has linked poverty and vulnerability, it can apply the

concept of vulnerability as a prioritization criterion to provide

enhanced protection of persons living in poverty, for example by

narrowing down the margin of appreciation in poverty cases or by

recognizing extensive positive obligations to protect the human

rights of poor individuals, such as the positive obligations

recognized in the M.S.S. case.202 According to Fineman, States

should be responsive to an individual’s vulnerability by acting

in such a way as to ‘actually [empower] a vulnerable subject by

addressing existing inequalities of circumstances that result

from undue privilege or institutional advantage’.203

Responsiveness to the vulnerability of a person having inadequate

resources to being deprived of his or her capability to enjoy

ECHR rights is exactly what the Court should demand from the

State.

5. CONCLUSION

200 Whereas it has been argued that an individual vulnerability approach is to be preferred.201 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) para 36.202 On the enhancing effect of vulnerability reasoning on human rights protection under the ECHR, see Peroni and Timmer (n 109) 1074-182.203 Fineman (n 187) 274.

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As illustrated in chapter III, the Court has occasionally

demonstrated that the European Convention has the potential to

empower persons living in poverty in addressing their socio-

economic deprivation as well as the related obstacles they face

to the enjoyment of their human rights. Nonetheless, the Court’s

record is relatively modest, demonstrating judicial restraint

based on polycentric concerns and a reluctance to overcome the

negative / positive obligations and civil and political / social

and economic rights dichotomies. In order to make the Convention

more relevant for the experiences of persons living in poverty,

the Court could, on the one hand, better grasp the nature of

poverty as “capability deprivation” and, on the other, prioritize

the protection of their human rights in its case law.

Three approaches which would enable the Court to do so have

been examined. First, the Court could embrace a broader

conception of responsibility, which could take into account the

more complex, indirect or structural ways of “capability

deprivation” to which persons living in poverty often fall victim

to. Second, the Court could develop its Article 14 jurisprudence

in such a way as to tackle the substantive inequality in the

capability to enjoy ECHR rights. Third, the Court could use the

concept of vulnerability to prioritize the protection of persons

living in poverty, by recognizing the fact that inadequacy of

resources, both in itself and in relation to other risk factors,

renders individuals more vulnerable to human rights violations.

It is clear that all these approaches offer potential to

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prioritize the rights of poor individuals. Moreover, one approach

does not have go at the expense of another. Rather, these

approaches could be seen as interconnected and mutually

reinforcing.

Take the example of vulnerability. It has been argued that the

legal system and legal institutions in themselves can be the

source of a person’s vulnerability.204 This fits very well with

the “responsibility approach”, which also allows a court to take

into account the extent to which the legal regime contributes to

a person’s “capability deprivation”, such as illustrated by the

Limbuela case. Peroni and Timmer have moreover demonstrated the

link between vulnerability and substantive equality, arguing that

the Court’s use of the concept of vulnerability ‘addresses and

redresses different aspects of inequality in a more substantive

manner’,205 even when it does not examine complaints under Article

14 but under other Convention provisions. Moreover, vulnerability

and substantive inequality are often linked: structural

conditions and social inequalities can result in certain

individuals or groups being more susceptible to harm or being

unequally protected against this vulnerability.206 Likewise, the

potential of a substantive equality approach can be enhanced if

seen in relation to the other strategies. Both substantive

equality and the “responsibility approach” are anti-formalistic,

204 Besson (n 165) 71.205 Peroni and Timmer (n 109) 1074. Similarly, on the links between vulnerability and substantive equality, see Azoulai (n 191) 231.206 Soulet (n 186) 14-15

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in the sense that they are not organized around formal concepts

such as equal treatment or the action/inaction distinction.

Instead, they require the State to be responsive to the harm

itself, regardless of whether this harm is the direct consequence

of State action.

It is useful to illustrate the interconnected and mutually

reinforcing character of these approaches as well as the way in

which they allow to better grasp the character of poverty as

“capability deprivation” by way of an example. In the above-

discussed case of R.M.S., the applicant’s capability of being able

to enjoy her family life with her daughter was at stake. Indeed,

the applicant herself went to the social services seeking

financial assistance, since her financial means were inadequate

to be able to look after her daughter. Instead of being

responsive to her vulnerability – which was acknowledged by the

Court in its judgment – the domestic authorities decided to take

her daughter away from her. As in the case of Wallová and Walla, the

“responsibility approach” indicates that the human rights

violation at stake here concerns both the omission by the State

to assist the applicant in enhancing her capability to look after

her daughter, and the action by the State to separate her from

her daughter.207 In addition, the perspective of substantive

equality indicates the way in which the applicant has been

stigmatized because of her poverty as being unworthy of looking

after her daughter. The three approaches indicate three different

207 R.M.S. v Spain App no 28775/12 (ECtHR, 9 April 2013) para 86.63

Laurens Lavrysen

ways in which the applicant’s capability to look after her child

was affected: because of the inadequacy of her financial means,

because of reaction of the social services to that situation and

because of societal attitudes towards the capacity of persons

living in poverty to look after their children.

This article has contributed to an emerging body of research

addressing the interplay between the “capability approach” and

human rights from a human rights law perspective. Whereas this

debate so far mainly took place within the field of social and

economic rights, this article has broadened the debate to the

area of civil and political rights. It has been argued that, also

in this area, the “capability approach” is a useful theory to

consider the relationship between poverty and human rights.

Building upon this finding, this article has discussed the extent

to which some legal approaches could better grasp the nature of

poverty as “capability deprivation” in the field of civil and

political rights. In doing so, it has attempted to provide a

constructive contribution to a topical issue. In times of crisis,

one should be even more concerned about the ways in which persons

living in poverty are restricted in genuinely exercising their

human rights on the same footing with others.

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