CONCURRING OPINION OF JUDGE SERGHIDES

1. The present judgment finds that the respondent State failed to comply with its substantive and procedural obligations under Article 2 of the Convention to protect the life of the applicant’s daughter, who was suffering from schizophrenia and eventually died (see paragraph 87 and point 2 of the operative part of the judgment).

2. The purpose of this concurring opinion is to venture deeper into the conceptual and operational frameworks of positive obligations in relation to the principle of effectiveness, in order to show the origin of positive obligations, in the Court’s case-law, and the extent to which they protect the right to life under Article 2. Most importantly, it argues that one cannot deal with positive obligations without examining them in the context of the principle of effectiveness, to which the judgment makes no reference.

3. In my view, “[t]he relationship between positive obligations and the principle of effectiveness can be said to resemble the affinity between offspring and their forebears” [1] . The principle of effectiveness is both a significant method of interpretation and a norm of international law inherent in each Convention provision, including Article 2 [2] . As a method of interpretation, the said principle requires that Convention provisions and the rights secured therein be interpreted in a practical and effective manner and be given “their fullest wight and effect consistent with their text and object” [3] . As a norm of international law, the said principle maintains that international legal rules, including Convention provisions, must be effective and treated as such. The doctrine of positive obligations springs from the principle of effectiveness [4] , being a sub-capacity thereof, and, as such, it is both a sub ‑ method of interpretation and a sub-norm of international law. There is an intimate interrelationship between the two capacities and sub-capacities of the principle of effectiveness and it is also mutually enriching [5] . In my view, the principle of effectiveness and the doctrine of positive obligations have the same DNA and that is why I submit that the degree and extent of protection of a right, either directly through the principle or indirectly through the doctrine of positive obligations, should be the same; thus, a full and broad protection, as the applicant has indeed been offered by the Court in the present case.

4. As rightly pointed out by the former President of the Court, Linos-Alexander Sicilianos, “as a whole the case-law of the Court in respect of positive obligations under the substantive limb of Article 2 constitutes an important development in the field of prevention of human rights violations” [6] . Indeed, the doctrine of positive obligations of member States constitutes one of the most significant developments in the fields of human rights protection and one of the best demonstrations of the application of the doctrine that the Convention is a living instrument that has to be adapted and interpreted according to present-day conditions [7] .

5. Though finding a violation of either the substantive or procedural limbs would be sufficient for a breach of Article 2 in the present case, the judgment rightly examines and finds a violation of both the substantive and procedural limbs of that Article. This is in order to ensure the full, complete and effective protection of the life of the applicant’s daughter and to prevent any perforation of or leakage from the protective shield of that right, and, at the same time, demonstrating the overall or holistic responsibility of the respondent State to practically and effectively protect the right of the applicant’s daughter.

6. Although, as has been said above, the judgment rightly deals with and finds a non-fulfilment of positive obligations, both substantively and procedurally, and also correctly reiterates that these obligations are not exhaustive (see paragraph 72), it regrettably, however, omits to refer directly to the principle of effectiveness as an overarching and ubiquitous Convention principle and as the foundation stone, source or matrix of positive obligations. Such a direct reference to the principle of effectiveness by the Court would ensure that it does not divert its attention away from the need to protect the core of the right or from the central issues surrounding it or stemming from it, such as that of positive obligations. This would also help the Court to be constantly mindful of the raison d’être of the Convention and indeed of its mission, namely the practical and effective protection of human rights [8] and of why it is dealing with positive obligations. It is not, in my humble view, sufficient to say, as the judgment confines itself to saying (see paragraphs 73, 81, 85 and 87), that the substantive and procedural obligations should be fulfilled effectively, without explaining, at the same time, that this should be so in order for the right in question to be practical and effective, as required by the principle of effectiveness.

7. The vulnerability of the applicant’s daughter, who is suffering from schizophrenia, is an even more significant element to consider when dealing with the practical and effective interpretation, application and safeguarding of her rights. As such, it is imperative to make a direct reference to the principle of effectiveness. A direct reference to this principle was thus made in my opinion in Savran v. Denmark [9] , regarding an impugned violation of the Article 3 right of a person who was suffering from schizophrenia and who was eventually expelled to another country with the risk of a deterioration in his mental condition. In that case, contrary to the decision of the majority, concluding that there had been no violation of Article 3, I based my partly concurring and partly dissenting opinion on the principle of effectiveness, which assisted me in finding a violation of that provision. Fortunately, in the present case, the Court not only acknowledged the seriousness of schizophrenia as a mental condition which might lead to death, but also found a violation of Article 2, rendering the respondent State responsible for not fulfilling its positive obligation to protect the life of the applicant’s daughter. But for the death of the applicant’s daughter, however, it is uncertain whether the Court in the present case would have come to the same conclusion and have found a violation of Article 2, unless it had focussed its examination on the principle of effectiveness.

[1] See my concurring opinion in Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, 29 January 2019, at § 7 of the opinion.

[2] See on the dual capacity of the principle of effectiveness in Georgios A. Serghides, The Principle of Effectiveness and its Overarching Role in the Interpretation and Application of the ECHR: The Norm of all Norms and the Method of All Methods, Strasbourg, 2022, pp. 33-144.

[3] See proposed Article 72 by Sir Humphrey Waldock, special rapporteur of the first draft of what became the Vienna Convention on the Law of Treaties; J. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn., Manchester, 1996; Serghides, op. cit. , pp. 97-98.

[4] Serghides, op. cit. , pp. 329-334, 583-584.

[5] Ibid., pp. 126-129, 326-329, 584.

[6] See Linos-Alexander Sicilianos, “Out of harm’s way: positive obligations under Article 2 of the European Convention on Human Rights”, Lawrence Early, Anna Austin, Clare Ovey and Olga Chernishova (eds), The Right to Life under Article 2 of the European Convention on Human Rights: Twenty Years of Legal Developments since McCann v. the United Kingdom: In Honour of Michael O’Boyle, Oisterwijk, 2016, 29, at p. 44.

[7] Interestingly, it was in 1978, in Tyrer v. the United Kingdom (25 April 1978, Series A no. 26) , a judgment prohibiting judicial corporal punishment, that the Court held for the first time that the Convention was a living instrument to be interpreted in the light of present-day conditions; and ever since, this has been repeatedly applied in the case-law of the Court. It is to be noted, however, that the doctrine of positive obligations was first enunciated by the Court, about 10 years before the first explicit reference to the living instrument doctrine, namely in 1968 in the “ Belgian linguistic case ” ( Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, Series A no. 6). If one considers that the establishment and development of positive obligations in the case-law of the Court is an example of the application of the living instrument doctrine, then one could interestingly remark that positive obligations had appeared first, and many years before the living instrument doctrine was crystallised by the Court. See Serghides, op. cit. , pp. 594-595.

[8] See also § 6 of my concurring opinion in Mihalache v. Romania [GC], no. 54012/10 , 8 July 2019.

[9] [GC], no. 57467/15, 7 December 2021.