Cross-cutting issues arising under civil and political rights Autonomous concepts Certain specific human rights terms are autonomous concepts. This means that the concept is fixed regardless of how a state may choose to define it in particular cases. The definition of “criminal charge” is, for example, an autonomous concept, as are notions of civil rights and obligations.168 Therefore, a state cannot simply redefine detention as an administrative matter and non-criminal, thereby escaping the international human rights obligations applicable to criminal law. The courts must look behind the definition asserted by the state and decide for itself whether the matter in issue is criminal and whether criminal safeguards ought to apply. This issue of autonomous concepts has therefore to be considered carefully in the context of counter-terrorism. Positive obligations Human rights treaties impose a negative duty — that is for states not to interfere with rights — but they can also impose positive obligations to secure and guarantee rights. The extent of this obligation will vary according to such factors as the nature of the right at issue, the importance of the right for the individual and the nature of the activities involved.169 A targeted and proportionate counter-terrorism strategy could be explained as satisfying a state’s positive obligation to protect against terrorism. The Council of Europe’s Guidelines emphasize that “States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines.”170 Positive obligations tend to require the provision of resources. Positive obligations also impose a duty on the state to put in place a legal framework that provides effective protection for human rights. In certain circumstances, a positive obligation may require the authorities to take proactive steps to prevent breaches of human rights. This is particularly the case where rights such as the right to life or protection from torture are at stake. 168 “If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention”, ECtHR, Öztürk v. Germany, Application no. 8544/79, 21 February 1984, para. 49 (but see more generally paras. 46-58). The Court had already clarified the concept in Engel and Others v. The Netherlands, Applications nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, 8 June 1976, paras. 80-85. 169 For instance the Court, elaborating on the right to peaceful assembly, stated that “in a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11. Like Article 8, Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be […]”, ECtHR, Plattform “Ärzte für das Leben” v. Austria, Application no. 10126/82, 21 June 1988, para. 32. 170 Op. cit., note 11, CoE, Guidelines on Human Rights and the Fight against Terrorism, Guideline I. Cf. also op. cit., note 28, ECtHR, Osman v. UK, para. 115 and ECtHR, Kiliç v. Turkey, Application no. 22492/93, 28 March 2000, paras. 62 (“The Court recalls that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction […] This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual”) and 76. Countering Terrorism, Protecting Human Rights 73