The ECtHR's Response to Fundamental Rights Issues Related to Financial and Economic Difficulties the Problem of Compartmentalisation
| Author | Janneke Gerards |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| DOI | 10.1177/016934411503300302 |
| Subject Matter | Part B: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3, 274–292, 2015.
274 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
PART B : ART ICLE S
THE ECtHR’S RESPONSE TO FUNDAMENTAL
RIGHTS ISSUES RELATED TO FINANCIAL
AND ECONOMIC DIFFICULTIES
THE PROBLEM OF COMPARTMENTALISATION
J G*
Abstract
is pape r presents an analysis of the case law of the European Cour t of Human
Rights (ECtHR) on fundamental rights limitations for which the States have advanced
‘economic’ or nancial justi cations. e analysis discloses important di erence s in the
ECtHR’s approach to such cases, which depend on the way they are framed and on which
Convention articles they are based. It is submitted that such di erences are di cult to
maintain if they are not based on the substance and importance of the inte rests at stake.
is paper therefore argue s that the Court should develop a more uniform, ‘core rights’
based approach towards all rights claims which are related to the use of resources by
States.
Keywords: core rig hts approach; European Court of Human R ights; ‘ nancial/
economic’ justi cation; s ocio-economic rights
1. IN TRODUCT ION
Current debates on the economic crisis tend to focus on t he consequences of budgetary
cuts, austerity mea sures and changes in economic policies for soc ial and economic
rights. Indeed, t here is great impact of ec onomic developments on the extent to which
individuals c an e ectively exercise and enjoy such fundamental rig hts as those to
minimum subsistence, employment, hea lth care and housing.1 Nevert heless, soci al and
economic rights should not be the only focus. Perhaps just a s important, and giving at
least as muc h reason for concern, is the impact of t he economic cris is on the exercise of
classic, politica l and civil rights. I n his 2012 annual activities rep ort, for example, the
* Prof. dr. J.H. (Janne ke) Gera rds is professor of European law, Radboud Universit y Nijmegen, e
Netherlands , j.gerards@jur.ru.n l.
1 For an overview, see e. g. Fundamental Ri ghts Agency, Fundamental r ights: challenges an d
achievements in 2012 (Annual Re port 2012), 14–17.
e ECtHR’s Response to Funda mental Rights Issue s
Related to Financi al and Economic Di culties
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3 (2015) 275
Human Rights Comm issioner of the Council of Europe has pointed at the deteriorat ion
of prison conditions in many Council of Europe States as a result of expenditure cuts
on prison budgets, which puts the basic rig ht to human dignity at risk. 2 Moreover, he
indicated that in many States t he economic crisis has severely a ected the rig ht to access
to justice, since many governments have cut the budgets of nat ional courts, raised cour t
fees and reduced the possibilit ies for subsidised lega l assistance.3 In democratic States
governed by the rule of law, where access to court is of great importance to e ectuate
one’s rights and judicial review is essent ial to control the exercise of legislative and
administr ative discretion, clearly these are crit ical developments.
Taking such a wider perspect ive of the consequences of the economic crisis for
fundamental r ights is particul arly important for the European C ourt of Human
Rights (ECtHR or Cour t). Indeed, in Ja nuary 2013, the Court organised a conference
on the Convention and the economic crisis, where not only t he e ects for social
and economic rights were discusse d, but also those for political a nd civil rights.4 In
relation to this conference, the quest ion was raised if, how and to what extent the
Court could help protect all Convention rights e ectively in times of crisis.5 is is
also the question t hat is central to this paper.
To h elp nd an answer to this question, the paper rst provides an analysis of the
Court’s case law on funda mental rights limitations for which t he States have advanced
‘econo mic’ o r nancia l justi cations . Strictly speak ing, of course, the Europea n
it is well known that over time t he Court has extended the reach of t hese rights
to many (aspects of) socio-economic f undamental rights.6 e cas e-law analysis
presented herea er will help to further illuminate that Convention issues related to
the economic crisis real ly cut through the trad itional distinctions bet ween socio-
economic and civil rig hts. More importantly, however, the ana lysis will demonstrate
that there are importa nt di erences in the Eu ropean Court’s response to these
cases. It wil l be shown that the Court’s case law is, to a la rge extent, fragmented and
compartmental ised, to the consequence that it is in fac t the applicability of a certain
Convention article or a certa in line of case law that determi nes whether the Court
2 Nils Muižnieks , Annual Activities Report 2012 (Commi ssioner for Human Rights of t he Council of
Europe, Stras bourg, 2013), CommDH(2013)5, 15 c.jsp?id=2102463>,
accessed 26June 2 015.
3 Ibid, 16.
4 Dialogue bet ween judges – Implement ing the European Convention on Hum an Rights in times of
economic crisis (Strasbou rg, European Cour t of Human Rights 2013).
5 Ibid, 6.
6 See eg Eva Brems, ‘Ind irect protection of social rig hts by the European Court of Huma n Rights’
in Daphne Bara k-Erez and Aeyal M Gross (eds) Explo ring Social Rights : Between eory and
Practice (Oxford, Hart 2007) 135–167; Ingrid Leijten, ‘De ning t he scope of economic and social
guarante es in the case law of the ECtHR’ i n Eva Brems and Janneke Gerard s (eds), Shaping r ights
in the ECHR. e Role of the European C ourt of Human Rights in Deter mining the Scope of Human
Rights (Cambridge, CUP 2014), 109–136.
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