Public and International Law
Mohammadmehdi Barghi
Abstract
In recent decades, the provision of basic human rights has become one of the most important concerns of human societies. Therefore, the governments try to protect these rights by approving international and regional documents, and they set tasks for the governments in this regard. In the meantime, European ...
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In recent decades, the provision of basic human rights has become one of the most important concerns of human societies. Therefore, the governments try to protect these rights by approving international and regional documents, and they set tasks for the governments in this regard. In the meantime, European countries took the lead in compiling regional human rights documents and in the first years after the Second World War, on November 4, 1950, they approved a document entitled "European Convention for the Protection of Human Rights and Fundamental Freedoms".One of the articles of the "European Convention on Human Rights" that specifically deals with basic human rights is Article 8 of this convention. This article contains two clauses. In the first paragraph, four basic human rights are mentioned and it is emphasized that governments should respect these rights. This is stated in this paragraph: " Everyone has the right to respect for his private and family life, his home and his correspondence ". In the second paragraph of Article 8, the convention prohibits the interference of member states in these four rights of their citizens and only in exceptional circumstances and if the conditions mentioned in this paragraph are met, it has allowed governments to interfere with these rights. It is stated in paragraph two in this regard: " There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "The present study, which has been written in a descriptive manner using library and Internet resources, aims to answer the main question whether the obligation provided for in Article 8 of the European Convention on Human Rights for the member states of this convention is merely a negative obligation in the sense of refraining from any unauthorized interference or, under this article, do governments have positive obligations to ensure that their citizens have access to these rights? In case of acceptance of positive obligations for governments, what are the conditions for applying these obligations? What are the most important challenges that the European Court of Human Rights faces when dealing with complaints related to violations of the positive obligations of governments?In order to answer these questions, we first examined the concept of the four rights that are protected in Article 8 of the European Convention on Human Rights. Then we explained the concept of negative obligations and positive obligations of governments under Article 8. Then we have examined the conditions of applying positive obligations by countries and examined the most important areas that have led to challenges for the European Court of Human Rights in this regard.The research findings show that Article 8 of the European Convention on Human Rights is an article that has two aspects. This article, in addition to providing for a negative commitment to refrain from unauthorized interference with the four rights set forth in this article, also includes a positive commitment by States to take the necessary measures to protect these four rights against unauthorized interference. The identification of positive obligations for states in Article 8 of the European Convention on Human Rights was discussed for the first time in 1979 and in the case of "Marckx v. Belgium" by the European Court of Human Rights. In this case, referring to the word "respect" which was used in the first paragraph of Article 8 of the Convention, the court recognized the existence of positive obligations on the governments. The court decided that considering that the first paragraph of Article 8 obliges governments to "respect" the "private", "family life", "home" and "correspondence" of the citizens, therefore the government Both in approving laws and in the process of dealing with lawsuits, they must take the necessary measures to protect these four rights of citizens. Accordingly, the European Court of Human Rights has convicted member states of violating the Convention in cases where they refuse to fulfill their positive obligations. However, the European Court of Human Rights has faced the challenge of how to strike a balance between the public interest of society and the individual interest of individuals in dealing with cases involving the recognition of positive obligations to governments.
