446 Journal of the Spanish Institute for Strategic Studies N. 4 / 2014 Positive obligations involve the duty to ensure the effectiveness of the rights enshrined in the ECHR.81 These obligations stem from a dynamic interpretation of the Convention, and it is the responsibility of the ECtHR to determine their existence and scope.82 The ECtHR holds that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective respect for private and family life.83 In the Case of X and Y v. the Netherlands, the Court recalls that Article 8 does not merely compel the State to abstain from such interference: “in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”.84 However, it is difficult to pinpoint when Article 8 calls for a State’s positive obligation. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.85 In the Gaskin v. United Kingdom case, the ECtHR believes that the question in each case was whether, regard being had to that margin of appreciation, a fair balance was struck between the competing interests, namely the public interest in this case in the efficient functioning of the child-care system, on the one hand, and the applicant’s interest in having access to a coherent record of his personal history.86 It further stated that “in striking this balance the aims mentioned in the second paragraph of Article 8 may be of certain relevance, although this provision refers in terms only to ‘interferences’ with the right protected by the first paragraph - in other words is concerned with the negative obligations flowing therefrom”.87 In practice, most of the cases brought before the ECtHR concern respect for family life, and the general 81 For more information on the contracting states’ positive obligations under the ECHR, see, inter alia, FERNÁNDEZ SÁNCHEZ, P. A. Las obligaciones de los Estados en el marco del Convenio Europeo de Derechos Humanos, Madrid, 1987; PAVAGEAU, S. “Les obligations positives dans les jurisprudences de cours européenne et ineraméricaine des droits de l’homme”, Revista Colombiana de Derecho Internacional, No. 6, julio-diciembre de 2005, pp. 201-246; XENOS, D. The Positive Obligations of the State under the European Convention of Human Rights, London and New York: Routledge, 2012. 82 PAVAGEAU, Stéphanie. “Les obligations positives…”, loc. cit., p. 206. 83 See, inter alia, the Case of Johnston and Others v. Ireland. Judgment of 18 December 1986, paragraph 55; Gaskin v. United Kingdom. Judgment of 7 July 1989, paragraph 38. 84 Case of X and Y v. the Netherlands. Judgment of 26 March 1985, paragraph 23. 85 Case of Kroon and Others v. the Netherlands. Judgment of 27 October 1994, paragraph 31; Keegan v. Ireland. Judgment of 26 May 1994, paragraph 21. 86 Case of Gaskin v. United Kingdom. Judgment of 7 July 1989, paragraph 40. 87 Case of Gaskin v. United Kingdom, paragraph 42.
REVISTA IEEE 4
To see the actual publication please follow the link above