Causation and Breach of Positive Obligations under the ECHR: Correcting the Past, Preventing the Future

Abstract

This chapter explains that the causation inquiry performed by the European Court of Human Rights for determining breach of positive obligations has to be understood in light of the normative structural considerations that underpin state responsibility under the European Convention on Human Rights (ECHR). In particular, the responsibility system is not shaped by the corrective justice rationale that is backward-looking and where correlativity and clarity in the relationship between different actors is key. The ECHR responsibility system is rather outcome-driven where the formulation of standards meant to guide future-state conduct shapes the legal review performed by the Court. The formulation of the mere exposure to risks as the harm (i.e. the undesirable outcome that should have been avoided or mitigated) and the formulation of absence of risk prevention or risk mitigation, as the relevant omissions for the establishment of responsibility, further reveals the normative underpinnings of the system. This reinforces a flexible approach to causation. The approach is guided by the idea that ascribing responsibility to the State for harmful outcomes is not that contentious. It is not perceived as contentious since the State has a functional role. The remedies envisioned by the ECHR responsibility system also pull the system away from the corrective justice rationale and, accordingly, away from stringency in the causation inquiry for the establishment of breach. In particular, even if breach of the positive obligation established (a conclusion facilitated by the flexible causation standard), States have discretion what remedies to choose. Concrete measures as measures to correct the past wrongful conduct (i.e. the wrongful omissions) are not ordered by the Court with the conclusion in the judgment of breach