INTRODUCTION

Among the most effective ways to protect and promote minority rights is for many the introduction of specific legislative or administrative measures imposing a duty of positive action. Yet, an obligation to adopt positive action is still controversial within the system of the European Convention on Human Rights (Convention or ECHR) as it has not yet been formulated in clear terms by the Strasbourg Court (Court, Strasbourg Court or ECtHR), although other organs of the Council of Europe, such as the European Committee of Social Rights and the CoE Parliamentary Assembly, have been much more progressive in this respect. The Court's position in this regard is rather ambiguous and half-hearted: the Convention does not compel the Member States to provide for positive actions in favour of minorities; however, it does not automatically prohibit them as long as the difference in treatment is justified in each case.

Generally, the Strasbourg Court has been reluctant to recognise minority claims and it has thus oft en left a wide margin of appreciation to the states, especially as long as the recognition of these claims amounts to positive actions or additional financial burdens for the Member State and not simply a negative obligation to refrain from performing certain acts or practices. The Court has taken a positive stance toward minority rights only when, under the specific circumstances of the case, a given practice or omission by the state constitutes ‘a clear and disproportionate disadvantage’ or an ‘excessive burden’ for certain groups. Otherwise, the state's margin of appreciation has been broadly recognised.

In light of some recent and innovative judgments of the Strasbourg Court vis-a-vis Roma and Travellers' rights in the field of housing, the present chapter analyses whether and in which circumstances positive actions can be expected on the part of the state. A conceptual differentiation between positive obligations and positive actions will constitute the framework and the starting point of the analysis. The second part of the chapter will examine three major decisions of the Strasbourg Court on housing and Roma and Travellers. This analysis will serve as a basis to discuss whether from these openings of the Strasbourg case law we can derive specific positive action measures or social policy prescriptions that can be imposed on Member States with special reference to Roma and Travellers.