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OBJECTIVE FUNCTIONS OF HUMAN RIGHTS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Boštjan Tratar
; Fakultet za državne i europske studije, Republika Slovenija
Sažetak
The author discusses the objective function(s) of the human rights of the European Convention on Human Rights. The constitutional theory refers to objective functions of human rights (objektive Grundrechtsfunktionen) in a case when human rights have the so called secondary function besides their primary defensive function, which means that human rights represent the objective value order (objektive Wertordnung) that should be manifested in the entire legal order. The consequence of such concept of human rights is that human rights enable not only individual claims of individuals against the state, but also that the state is also obliged to guarantee the respect of human rights and to create the necessary institutional conditions therefor by means of positive(active) measures. The conventional rights of the ECHR are first of all the rights of the negative status (defensive rights), however, the judicature of the European Court of Human Rights has expanded the meaning of conventional rights in functional sense. Pursuant to Article 1 of the ECHR the contracting parties are obliged to secure to everyone within their jurisdiction, the rights and freedoms defined in Section I of the Convention. However, the text of the Preamble, the Article 13 of the ECHR ensuring the right to an effective remedy or Article 17 of the ECHR defining prohibition of abuse of rights do not allow the conclusion that the individuals are also the subjects that are (directly) obliged to respect the conventional rights and freedoms. In principle, one may not treat individual subjects as the addressees of conventional rights despite reference to some freedoms in ECHR comprising restraint clauses. The general obligation of individual subjects as regards the (indirect) respect of conventional rights and freedoms is therefore not recognized from the text of the ECHR.
Ključne riječi
European Convention on Human Rights; primary and secondary function of human rights; objective function of human rights; addressee of conventional rights
Hrčak ID:
147828
URI
Datum izdavanja:
30.8.2015.
Posjeta: 2.633 *