Schutz vor Armut in der EMRK?

The article deals with the question whether, and if so, to what extent the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 does protect the individual against poverty. It is well-known that the Convention has originally been created as an instrument of international law in order to protect civil and political rights. This category of human rights primarily obliges the Contracting States to refrain from action according to a negative concept of human rights. In contrast to that, the Convention hardly guarantees economic, social and cultural rights which principally oblige the State to take positive actions in order to face social and economic problems. Within the framework of the Council of Europe, it is mainly up to the European Social Charter of 1961 (revised in 1996) to guarantee economic and social human rights. But unlike the Convention, the Social Charter does not establish individual rights that could be enforced by a permanent judicial body like the European Court of Human Rights. The Charter merely foresees a periodic monitoring system by a board of experts, the European Committee of Social Rights. A review of the case-law of the European Court of Human Rights reveals, however, that the pre-described concept of different categories of human rights cannot be strictly upheld any longer. An effective protection of civil and political rights necessarily requires a minimum protection of economic and social rights as well. Already in the Airey-case (1979) the Court expressly held that there was no water-tight division separating the rights covered by the Convention from the sphere of economic and social rights. The Convention must be interpreted in the light of present-day conditions and it is designed to safeguard the individual in a real and practical way as it regards those areas with which it deals. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. Furthermore, for approximately the last 25 years, one regularly encounters the formula of general positive obligations in the Court's case-law. This term covers all the cases where the public authorities are not only obliged to refrain from any interference but where the State is obliged to act in order to ensure security, especially by establishing effective legal and organisational structures. In this context, particularly the so-called obligations to fulfil aim at averting danger from the individual by obliging the public authorities to enact positive measures in order to fulfil the commitment inherent in the respective right itself. However, the Convention does not oblige the Contracting States to protect the individual against normal risks of life. It does not create any particular entitlement to social benefits which are largely dependent on the situation – notably financial – reigning in the State in question. The Convention rather leaves it up to the Contracting States to decide on the organisation of their social security regime and welfare system. Only in very singular cases, the Strasbourg Court holds that poverty and ill-treatment which threaten the subsistence of the individual concerned can exceptionally amount to a violation of Article 3 of the Convention. To a similar extent, the principle of non-discrimination as stipulated in Article 14 of the Convention, and read in conjunction with a further substantive provision (i.e. Article 8 of the Convention or Article 1 of Protocol No. 1), aims at safeguarding the minimum social standards of a democratic society. Article 14 therefore protects the individual against any arbitrary treatment when social benefits are granted by the State. But different to the positive obligations arising out from Article 3 of the Convention, the nondiscrimination rule merely encompasses already existing benefits in a Contracting State. The Court constantly underlines that, for example, Article