Nature of positive obligations in the jurisprudence of the European Court of Human Rights

Abstract

The thesis commences with a review of the concept of positive obligations. This does not only involve the defining and identification of the general issues, but it equally entails the clarification of the implications of the positive obligations, explaining their relationship to the negative obligations, as well as expounding on their possible connection with the so-called horizontal effect of the Convention. In this regard I made an attemt to create a typology of these obligations and analyse the ways in which the European Court exercises them. This is done with the intent of harmonizing the dogmatic structure and evaluation procedure of positive obligations, so as to try and infuse them with a greater sense of uniformity and transparency. The tendency of the European Court of Human Rights is to put emphasis on a specific circumstance and the individuality of the case, which will eventually lead to a situation where the national courts will not allow themselves to be guided by the Court's jurisprudence. In order for the member states to adopt the European Court's jurisprudence, it is imperative that it has a certain degree of continuity which would inevitably result in a more predictable jurisprudence. Therefore, this thesis also aspires to systematise positive obligations into a normative category. This normative grouping sheds light on a more general scheme of the way in which rights 4 must be protected by the state. The thesis discusses whether the Court's jurisprudence on positive obligations still fits within the confines of legitimate treaty interpretation or whether the Court has gone beyond its interpretative authority by developing an extremely wide-ranging jurisprudence on positive obligations. Ultimately, the thesis endeavours to give an overall understanding of the doctrine in the hope of providing the necessary tools to a better comprehension of the relevant case-law and its internal application.