The application of the doctrine of positive obligations in regard to Article 3 and Article 4 of the European Convention of Human Rights

Abstract

How can the State be considered liable in a human rights violation whereby it did not actively interfere? The doctrine of positive obligations has been advanced by the European Court of Human Rights as a tool to safeguard and guarantee the rights purported by the European Convention on Human Rights. The application of this doctrine has made a striking impact on a number of European Court's decisions, as the wanting of States to set adequate protective measures led to a finding of a breach of the Convention. Positive obligations arise throughout the European Convention, and have in particular been identified in situations arising from breaches of the fundamental rights enshrined in Articles 3 and 4. The wide scope of these provisions, promotes the engagement of States to intervene in a number of injustices which happen on a daily basis. Such instances include situations of child abuse, human trafficking, slavery, police brutality and lack of medical treatment to prisoners and detainees. Nonetheless, the Court has been inclined to limit this open ended scope of positive obligations by requiring States to have knowledge of a human rights infringement. This denotes that a State's liability is only in question when it is clear that State authorities were aware or should have been aware that their intervention was paramount. Furthermore, when confronted with such claims, the Court endeavours to consider the particular circumstances of the case and the vulnerability of the injured party. By a thorough examination of the doctrine, this thesis gives ground for its ever growing importance in the European Court's jurisprudence. It shows that the application of this doctrine in relation to future, ongoing and past violations of the Convention is refashioning the manner in which human rights are tackled.