1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November, 1950, E.T.S. 5, 213 U.N.T.S. 221 (as amended by Protocol No. 11, adopted on 11 May 1994, entered into force on 1 November 1998).Google Scholar

2 The first clear statement of the European Court of Human Rights on the state's positive obligations was made under the right to respect for private and family life (Article 8), as follows: “Nevertheless it [Article 8–1] 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 family life.” Eur. Court H.R., Marckx v. Belgium, Judgement of 13 June 1979, Series A, No. 31, at 31. See also Dröge Cordula, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (2003).Google Scholar

3 Eur. Court H.R., Öneryildiz v. Turkey, Judgment of 30 November 2004, App. No. 48939/99, 2004-XII, (hereinafter Öneryildiz [GC], (2004)).Google Scholar

4 On the topic of constitutionalisation of the legal relationships of individuals see Scheuner, Ulrich, Fundamental Rights and the Protection of the Individual against Social Groups and Powers in the Constitutional System of the Federal Republic of Germany, in Amicorum Discipulorumque Liber 253 (René Cassin ed., 1971); Raday, Frances, The Constitutionalization of Labour Law, in The Changing Face of Labour Law and Industrial Relations, Liber Amicorum for Clyde W. Summers 83 (Roger Blanpain & Manfred Weiss eds., 1993); Simitis, Spiros, The Rediscovery of the Individual in Labour Law, in Reflexive Labour Law 183 (Ralf Rogowski & Ton Wilthagen eds., 1994); Dawn Oliver, Common Values and the Public-Private Divide (1999); Kumm, Mattias, Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law, 7 German Law Journal (GLJ) 341 (2006).Google Scholar

5 Eur. Court H.R., Öneryildiz v. Turkey, Judgment of 18 June 2002, App. No. 48939/99 (hereinafter Öneryildiz, (2002)).Google Scholar

6 Öneryildiz [GC], (2004).Google Scholar

7 Öneryildiz, (2002), at para. 59.Google Scholar

8 Öneryildiz [GC], (2004), at para. 66.Google Scholar

9 Eur. Court H.R, Mastromatteo v. Italy, Judgment of 24 October 2002, App. No. 37703/97, 2002-VIII.Google Scholar

10 Eur. Court H.R, Osman v. the United Kingdom, Judgment of 28 October 1998, App. No. 87/1997/871/1083, Reports of Judgments and Decisions, 1998-VIII.Google Scholar

11 Eur. Court H.R, Calvelli and Ciglio v. Italy [GC], Judgment of 17 January 2002, App. No. 32967/96, ECHR 2002-I.Google Scholar

12 Eur. Court H.R, L.C.B. v. the United Kingdom, Judgment of 9 June 1998, App. No. 14/1997/798/1001, Reports of Judgments and Decisions, 1998-III.Google Scholar

13 Id. at para. 36.Google Scholar

14 Öneryildiz [GC], (2004), at para. 71.Google Scholar

15 The relevant part of the first paragraph of Article 2 is its first sentence, which reads: “Everyone's right to life shall be protected by law.”Google Scholar

16 Öneryildiz [GC], (2004), at para. 72.Google Scholar

17 Fawcett, James, The Application of the European Convention on Human Rights 37 (2^nd ed. 1987).Google Scholar

18 Öneryildiz [GC], (2004), at para. 71.Google Scholar

19 Öneryildiz, (2002), at para. 64.Google Scholar

20 In L.C.B., the fact that the industrial activities (nuclear tests) were state-sponsored had no bearing on the Court's reasoning. The same applies to the case of Guerra and Others v. Italy, in which the factory whose activities gave rise to an Article 8 complaint belonged to private interests, Eur. Court H.R., Guerra and Others v. Italy, Judgment of 19 February 1998, App. No. 116/1996/735/932, Reports of Judgments and Decisions, 1998-I.Google Scholar

21 Öneryildiz, (2002), at para. 60.Google Scholar

22 Such European standards are cited in the “Relevant Law” section of both judgments. See Öneryildiz, (2002), at para. 53–56 and 64 and Öneryildiz [GC], (2004), at para. 59–61.Google Scholar

23 The Chamber explained that “European standards…merely confirm an increased awareness.” Öneryildiz, (2002), at para. 64.Google Scholar

24 Öneryildiz [GC], (2004), at para. 71. See also supra note 18, for the relevant passage.Google Scholar

25 Id. at para. 71.Google Scholar

26 Öneryildiz [GC], (2004), at para. 107.Google Scholar

27 Öneryildiz, (2002), at para. 67. See also Öneryildiz [GC], (2004), at para. 70 and before para. 89.Google Scholar

28 Öneryildiz, (2002), at para. 63.Google Scholar

29 Id. at para. 64.Google Scholar

30 Öneryildiz [GC], (2004), at para. 77.Google Scholar

31 “General Principles” refer to the structure of the Court's judgments.Google Scholar

32 Restraints can legitimately be placed on police powers due to the competing human rights interests guaranteed by other Convention provisions, such as Articles 5 and 8. See Osman v. the United Kingdom, (cited supra note 10) at para. 116.Google Scholar

33 Öneryildiz [GC], (2004), at para. 90.Google Scholar

34 Id.Google Scholar

35 Id. at para. 109.Google Scholar

36 Öneryildiz [GC], (2004), at para. 90.Google Scholar

37 Eur. Court H.R., Guerra and Others v. Italy, Judgment of 19 February 1998, App. No. 116/1996/735/932, Reports of Judgments and Decisions, 1998-I. In that case, the Court found “the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.” Guerra and Others, at para. 60. This passage was quoted by the Chamber, Öneryildiz, (2002), at para. 84 and was also referred to by the Grand Chamber, Öneryildiz [GC], (2004), at para. 90.Google Scholar

38 The Chamber devoted a separate heading in its judgment to examine the “Respect for the public's right to information.” Öneryildiz, (2002), before para. 82. Equally, the Grand Chamber also examined the public's right to information, Öneryildiz [GC], (2004), at para. 90,108.Google Scholar

39 Öneryildiz, (2002), at para. 85.Google Scholar

40 For the threshold of liability under Article 8 see Eur. Court H.R., López Ostra v. Spain, Judgment of 9 December 1994, App. No. 16798/90, Series A, No. 303-C, at para. 51. In his concurring opinion in Guerra and Others v. Italy, Judge Walsh concluded that “While bearing in mind that a breach of the Convention can frequently have implications for Articles other than the Article claimed to have been violated…The Convention and its Articles must be construed harmoniously. While the Court in its judgment has briefly mentioned Article 2, but has not ruled on it, I am of the opinion that this provision has also been violated. In my view Article 2 also guarantees the protection of the bodily integrity of the applicants…there was a violation of Article 2 in the present case and in the circumstances it is not necessary to go beyond this provision in finding a violation.”, Guerra and Others v. Italy, (cited supra note 37).Google Scholar

41 Öneryildiz [GC], (2004), at para. 108.Google Scholar

42 Id. at para. 58.Google Scholar

⁴³ Eur. Court H.R., López Ostra v. Spain, (cited supra note 40).Google Scholar

44 Id. at para. 51. See also supra note 40.Google Scholar

45 Öneryildiz [GC], (2004), before para. 91; Öneryildiz, (2002), before para. 89.Google Scholar

46 Eur. Court H.R., Ergi v. Turkey, Judgment of 28 July 1998, App. No. 66/1997/850/1057, Reports of Judgments and Decisions, 1998-IV, at para. 82.Google Scholar

47 Öneryildiz, (2002), at para. 91.Google Scholar

48 See, e.g., Eur. Court H.R., McKerr v. the United Kingdom, Judgment of 4 May 2001, App. No. 28883/95, 2001-III, at para. 157–161.Google Scholar

49 Öneryildiz [GC], (2004), at para. 93.Google Scholar

50 Öneryildiz, (2002), at para. 104.Google Scholar

51 Öneryildiz [GC], (2004), at para. 115, 116; Öneryildiz, (2002), at para. 109.Google Scholar

52 Öneryildiz [GC], (2004), at para. 92.Google Scholar

53 Öneryildiz, (2002), at para. 90.Google Scholar

54 Eur. Court H.R., Calvelli and Ciglio v. Italy, (cited supra note 11). See also the dissenting opinion of Judge Rozakis joined by Judge Bonello.Google Scholar

55 Öneryildiz, (2002), at para. 93.Google Scholar

56 Öneryildiz [GC], (2004), at para. 93.Google Scholar

57 Id. at para. 118.Google Scholar

58 Eur. Court H.R., Bone v. France, Decision of 1 March 2005, App. No. 69869/01 (Available in French only).Google Scholar

59 Id. p. 8, para. 3.Google Scholar

60 Id. p. 10, para. 5 & 6.Google Scholar

61 Eur. Court H.R., Pereira Henriques v. Luxembourg, Judgment of 9 May 2006, App. No. 60255/00 (Available in French only).Google Scholar

62 See, e.g., Eur. Court H.R., Klass and Others v. Germany, Judgment of 6 September 1978, Series A, No. 28, at 34. In the case of Guerra and Others v. Italy (cited supra note 37) the applicants had not suffered any actual harm. Their complaints concerned precautionary measures in the event of an industrial accident and the failure of the state's administrative authorities to reduce the risk of pollution. The preliminary objection of the Government was not on the applicants’ victim status, but rather on the alleged failure to exhaust domestic remedies, a fact, which suggests that there is an element of obviousness in pursuing an action before harm occurs.Google Scholar