Positive Obligations of States for the Protection of Prisoners' Rights-Under the Case Law of the Eur Güven Urgan

It can be truly claimed that human rights is one of the basic and most dynamic subjects of contemporary international law thanks to tragic social and political incidents that specifically took place throughout the 20th century. With the contribution of rights theory in general and of human rights theory in particular, today the concept of international human rights law reserves a special position within the realm of law literature. Nonetheless, since various patterns of human rights violations are still prevalent in today’s world, the necessity of questioning analytical borders that human rights theory encompasses and of rethinking over the basic concepts and structures upon which human rights law have been constructed is self-evident.

Acknowledging the importance of widespread concretisation process in contemporary human rights law, this work aims at illustrating the limited nature of positive obligations of States in human rights theory and practice with a special reference to prisoners’ rights. Despite the fact that the concept of positive obligations of States has been widely used as a point of reference, the work posits that its practice has still under the impact of misunderstandings (if not myths) which still do exist within the very fabric of human rights theory and practice. Despite the ostensible emphasis that the margin of appreciation introduced to State Parties by the international human rights protection mechanisms is relatively limited and that human rights standards are the minimum requirements that should be provided for each and every individual in a given State, universal human rights discourse and practice are still being negatively affected from, as the work proclaims under the light of the analysed case law of the European Court of Human Rights, the dichotomised (mis)understanding in human rights theory.

By examining the nature of positive obligations of States expounded under the jurisprudence of the ECtHR within the specific realm of prisoners’ rights, the book, contrary to popular parlance in human rights discourse, tries to unfold that the European level of judicial supervision on prisons and prisoners’ rights does also focus (not specifically on positive but rather) on negative aspects of State obligations in the sense that national authorities should not perform any action to violate prisoners’ rights. As a result of the assumed prominence for such (negatory) kind of obligations prescribed principally in the form of, for example, not to violate prisoner’s right to life, freedom from torture, inhuman or degrading treatment or punishment, positive obligations of States to be fulfilled for securing prisoners’ rights are regarded as issues of a subordinate level.

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