Abstract
“The Positive Obligations of the State Organs.The European Court of Human Rights jurisprudence andthe Greek Constitution”The thesis deals with a new field of human rights interpretation based on Rule of Law and the principle of the effective protection of human rights, the positive obligations of the state organs. It begins with the ECtHR jurisprudence, according which every human right is consisted by two sides, the negative, which imposes negative obligations to the state organs not to harm it, and the positive, which imposes positive obligations to the state organs to act and ensure the efficient protection of the fundamental right. Consequently, the state organs have a “tripartite typology” of obligations; the “obligation to respect” which requires the state actors not to harm the human rights by committing violations themselves, the “obligation to protect” which requires the state to protect the owners of rights against interference by third parties and to punish the perpetrators, ...
“The Positive Obligations of the State Organs.The European Court of Human Rights jurisprudence andthe Greek Constitution”The thesis deals with a new field of human rights interpretation based on Rule of Law and the principle of the effective protection of human rights, the positive obligations of the state organs. It begins with the ECtHR jurisprudence, according which every human right is consisted by two sides, the negative, which imposes negative obligations to the state organs not to harm it, and the positive, which imposes positive obligations to the state organs to act and ensure the efficient protection of the fundamental right. Consequently, the state organs have a “tripartite typology” of obligations; the “obligation to respect” which requires the state actors not to harm the human rights by committing violations themselves, the “obligation to protect” which requires the state to protect the owners of rights against interference by third parties and to punish the perpetrators, and finally the “obligation to implement” in order to give full effect to the right’s content by adopting suitable measures.The originality of this thesis is that it proves that this system of protection of human rights in not combatting the constitutional frame of protection of fundamental rights. To the contrary, it proves that the authentic approach of the ECtHR concerning the human rights established in the ECHR and its Protocols is ascertained through the interpretation of the constitutional provisions and confirms their convergence.At this point a legal basis on the Greek Constitution is provided. Its teleological approach as a living instrument together with its “gramma” creates the suitable framework for the development of content of the positive obligations for state organs so as the unimpeded and effective protection of the fundamental rights to be achieved. Thus, according to the thesis, the principle of Rule of Law (αρχή του κοινωνικού κράτους δικαίου) provided in art. 25 of the Constitution, is featured as a fundamental interpretive principle which defines and regulates the positive side of each fundamental right.The thesis founds the obligation for the organs of the State to know and fulfil their positive obligations, on one hand, on the ECHR’s system, providing the procedure of the execution of the ECtHR’s judgments by the Committee of Ministers and its auxiliary bodies fully updated, on the other hand, on articles 25 par. 1 and 28 par. 2 of the Constitution. Thus, with the constitutional provisions concerning fundamental rights as a starting point, the state organs should take over their positive obligations of protection and implementation of fundamental rights, with a view to the authentic interpretation the ECtHR provides for ECHR and its Protocols, supervising under the principle of subsidiarity to ensure the effective protection of human rights.Moreover, attempting an in-depth processing of even the most recent case law, the thesis elicits the methodological equipment used by the ECtHR’s judges used as they interpret authentically, and detects the positive obligations enshrined in each fundamental right. This means that by virtue of the ECtHR’s case law, the thesis systematise the methods and the criteria of state’s positive obligations detection and sets its ad hoc application to an extended areas of public power exercise. In parallel, the Constitution seen dynamically and constantly evolving, provides adequate background for the diagnosis of positive obligations that have already been accepted by the ECtHR. Thus, the thesis reveals the convergence between the ECHR’s provisions and the Constitutional’s provisions with a regard to the positive side of the respective fundamental rights. In the same time, the thesis intrudes to the “public sector” area so as to connect the positive obligations with the state will. In that way, it expresses various proposals for the shaping and exercise of a complete policy in the field of the positive obligations, not only general ones but also per right. In other words, the thesis “detects” in ECtHR case law, “verifies” in the Constitutional provisions and “demands” exercise of public policy in taking over the detected positive obligations by the state organs.In parallel, a method for positive obligation diagnosis is systematized and shaped by the form of a chart (page 106) in order to help the state actors and the legal practitioners learn the positive obligations and its limits. Specifically, a minimum standard of obligations for a state action (for protection and implementation) is set which is defined by the ECtHR case law in the cases where a “European consensus” is found.In that point, the sense of “margin of appreciation” is approached in the light of the ECtHR’s case law. It is underlined that once spotted, the positive obligations are formed in an absolute way when referred to primordial rights (life, human dignity) in a way that the “knowledge of danger” these rights are exposed to is a sufficient condition for positive interference. Concerning the other human rights that ECHR allows restrictions under certain conditions (in their par. 2), the principle of fair balance between a human right on one hand, and the public interest or other people’s rights on the other hand under the principle of proportionality, specifies their relative content.In any case, the thesis underlines that from the moment the positive obligations are detected or “decoded” and formed (under the suggested method) for a state organ, the latter has a “circumscribed power” (δεσμία αρμοδιότητα) under administrative law which means that a failure to act constitutes “Default of due action” (παράλειψη οφειλόμενης νόμιμης ενέργειας) which can be challenged before the Administrative Courts exercising the relevant legal means. This is very important as the thesis proposes the Constitutional and ECHR provisions as a direct legal base for this “default of due action” in accordance with article 45 par. 4 of the 18/1989 presidential decree and article 63 par. 2 of the Code of Administrative Procedure.The thesis combines in harmony various areas of public law –international, humanitarian, constitutional, administrative, penal law- and public policy while it “invents” ways of deployment of positive obligations per fundamental right within the internal public law. Thus, based in articles 2, 3, 4, 8, 10, 11 of the ECHR, articles 2 and 3 of the First Additional Protocol, as well as in the procedural safeguards of the articles 5, 6 and 13 of the ECHR, systemizes 45 fundamental rights by analyzing the ECtHR case law exploring in the same time a confirmation for each one on the Constitution. Among them:Safeguards for the misuse of powers by the police organs · Activities where human life is exposed in danger · Proprio motu investigation in cases of in purpose life deprivation· Free will in death decision · The substantive positive obligation of detention in conditions respecting human dignity · The health of prisoners · The “presumption of guilt” and the burden of proof for prisoners’ integrity · The ex-officio investigation in penal procedure · Positive obligations in non-refoulement · The domestic violence confrontation · Positive obligations for antenatal pregnancy diagnostics and abortion · Personal freedom and forced labor · Positive obligations in human trafficking · Principle of fair balance · Obligation for protection of private life · Recognition of sex self-determination · The protection of the right to one’s image · Respect of physical and moral integrity · Access to the knowledge of one’s origin · Family life and margin of appreciation of state to marital relationships · Issues of immigration and family reunification · Obligation to domicile respect · The case of “strait dogs” · Right of communication and correspondence of detainees · The execution of judgments relating to parent-child communication · Positive obligations of protection the freedom of expression · Freedom of press and the journalist function · Freedom of assembly and the non-peaceful counter-demonstrations · The recognition of setting association · The protection against dangerous acts by states or third parties · Compensation for property expropriation · Τhe right to access to education · The right to a pluralist education · The right to free elections · Τhe right to an effective legal remedy · The obligation to complete a case within a reasonable time · The obligation to assure the right to access to justice · Assure the right of legal aid · Obligation to the implementation of a national court’s decision · Safeguards while deprived of freedom · The presumption of innocence of a detainee · Free legal aid and the right of silence ·The violation of “fair trial” as a legal base for an application for annulment · Re-examination of a case at second instance.Furthermore, the thesis deals with the issue of implementation of the positive obligations in the domestic legal order giving representative examples of Greek case law in the field of positive obligations and it reveals that the interaction between these two legal orders, ECHR and national/constitutional system is succeeded once any prejudice is overcome. This means that the national judge respecting the res judicata of the ECtHR should seek after solutions which deploy the authentic solutions of ECtHR and at the same time apply a more dynamic interpretation of the Constitution.
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