Kişi hak ve hürriyetlerinde devletin pozitif yükümlülüğü
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Date
2007
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Sosyal Bilimler Enstitüsü
Abstract
As long as the protection of human rights and fundamental freedoms are concerned, it had been thought for a long time that the state always had a ?negative? (namely, avoiding from intervening in, stepping in) obligation and such attitude had been affirmed. In this scope, the state would respect the individual?s rights and freedoms and it would stick to its constitutional commitment of not intervening therein. This classic and dominant comprehension has been radically changed by means of ?Convention for the Protection of Human Rights and Fundamental Freedoms of European Union?, which moved ?protection? to the international law domain. European Court of Human Rights made some decisions to the effect that the states do not only have a negative obligation, but also positive obligations in implementing the Convention for ensuring the effective use of the rights of the individual. In this regard and for the proper protection of the human rights, the designation of the scope of the positive obligations of the state in the negative status rights, provided under the title of Rights and the Freedoms of the Individual of 1982 Constitution arises as an important issue. Even the concept of the positive obligation isn?t sufficient to explain its scope; it is likely to define it in the context of negative status rights. The scope of the positive obligation is tried to be defined below with the examination of certain negative status rights.
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Keywords
Avrupa İnsan Hakları Mahkemesi, European Court Human Rights, Avrupa İnsan Hakları Sözleşmesi, European Convontion on Human Rights