Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
Touraine has said: “the recognition of fundamental rights would be devoid of substance unless it
helped to provide security for everyone and continually enlarged the domain of legal guarantees
and State intervention that protect the weakest” 106 . That is precisely why at times talk about human
rights becomes intolerable, if not insulting, for some.
As the European Court of Human Rights has often stated, it is important to give the rights their
full scope since the Convention is a living instrument whose interpretation forms one body with
the text and whose aim is to “guarantee rights that are not theoretical or illusory, but practical and
effective”. In other words, the rights enshrined in the Convention cannot remain purely theoretical
or virtual because “the Convention must be interpreted and applied in such a way as to guarantee
rights that are practical and effective”. In the famous Airey v. Ireland judgment of 9 October 1979
(which concerned a woman’s inability, through lack of funds, to seek a divorce), the Court acknowledged
that there was no water-tight division separating the sphere of economic and social rights
from the field of rights covered by the Convention and that “hindrance in fact can contravene the
Convention just like a legal impediment”.
Thus, some judgments of the European Court of Human Rights can be analyzed as
going into the field of social rights. As regards the right to have a home (“droit au logement”),
the Hutten-Czapska v. Poland judgment of 19 June 2006 occurs in the framework
of a rent freezing policy and it is worth quoting. “It is true that (…) the Polish State, which
inherited from the communist regime the acute shortage of flats available for lease at an
affordable level of rent, had to balance the exceptionally difficult and socially sensitive
issues involved in reconciling the conflicting interests of landlords and tenants. It had, on
the one hand, to secure the protection of the property rights of the former and, on the
other, to respect the social rights of the latter, often vulnerable individuals” 107 . Moreover,
in the sight of Article 46 of the Convention, the Court adopts the pilot-judgment procedure
which “is primarily designed to assist the Contracting States in fulfilling their role in
the Convention system by resolving such problems at national level” 108 and consequently
it paves the – dangerous? – way for general measures to be applied by the Polish State
in order to put an end to the systemic violation of the right of property identified in the
present case. “[H]aving regard to its social and economic dimension, including the State’s
duties in relation to the social rights of other persons (…), the Court considers that the respondent
State must above all, through appropriate legal and/or other measures, secure
in its domestic legal order a mechanism maintaining a fair balance between the interests
of landlords, including their entitlement to derive profit from their property, and the general
interest of the community – including the availability of sufficient accommodation
for the less well-off – in accordance with the principles of the protection of property
rights under the Convention” 109 .
106 A. Touraine, Qu’est-ce que la démocratie?, Paris, Fayard,1994, p. 52.
107 ECtHR (GC), Hutten-Czapska v. Poland, judgment of 19 June 2006, § 225.
108 Ibid., § 234.
109 Ibid., § 239.
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