Negative and Positive Obligations

Question 1

What is the rationale behind PO?

Answer 1

Principle of effectiveness

Question 2

What is the basis for the creation of PO?

Answer 2

1. Art. 1 - ‘Shall secure’

2. Preamble

Question 3

How does the court deal with NO?

Answer 3

1. Was there an interference? (scope - interpretation)
2. Was this interference justified? (compliance):
   - In accordance with the law
   - Legitimate aim
   - Necessary in a democratic society

Question 4

How does the court deal with PO?

Answer 4

1. Fair balance test:
   - Individual v. community interests
   - Both interpretation and compliance are dealt with together
2. 1st - What are the interests at stake?
3. 2nd - Did the authorities weigh these interests in a reasonable manner?
4. How do you know there is a PO? ‘Reasonable interpretation of the right’ requires action from MS

Question 5

What about the burden of proof?

Answer 5

1. NO:
   - Was there an interference? - Applicant
   - Was it justified? MS
2. PO:
   - Applicant must show that the MS had to take action
   - Court interprets whether there indeed was a PO