The State’s Positive Obligations

INTRODUCTION

The state’s duty in the field of human rights covers not only refraining from interfering with rights but also protecting them effectively. Putting in place rules that prevent risks, taking the necessary protective measures, investigating serious allegations of violation and providing effective avenues of recourse are parts of this duty. However, not every harm automatically constitutes a rights violation; the measure that could be expected, the knowledge of the authorities and the circumstances of the specific case are examined together. [K1, K2, K4]

This guide explains the duty of protection within the framework of the European Convention on Human Rights (ECHR) and the Constitution of the Republic of Türkiye. It addresses the rights to life, bodily integrity, private life, family, expression, property and education together with evidence, time limits and avenues of recourse. The source review date is October 12, 2026. The text is for general information; in a specific file, the competent authority and the time limit must be determined separately.

A public official not unlawfully harming a person relates to the state’s obligation to refrain from interference. Taking reasonable precautions against a known risk to life, or effectively investigating an allegation of serious ill-treatment, is by contrast an example of a positive obligation. In the same event, these obligations may arise together. [K1: Arts. 2–3; K4: §§ 50–60]

Article 5 of the Constitution lists the removal of obstacles restricting fundamental rights among the duties of the state. Article 17 protects life and the material and spiritual existence of the person. Article 1 of the ECHR requires the contracting states to secure the Convention rights to persons within their jurisdiction. The content of the duty of protection varies according to the nature of the right concerned. [K1, K2]

Substantive protection and procedural protection

The substantive dimension concerns legislation, supervision, enforcement and concrete measures that reduce danger. The procedural dimension is bringing the truth to light after the event, assessing responsibility and providing appropriate redress. Even in an event where a death was not directly caused by the state, the inadequacy of the investigation may give rise to a separate violation. [K4]

The state’s duty in events between private persons

Harm caused by an employer, a hospital, a company, a family member or another person may also concern constitutional protection. The issue here is not that the act of the private person is automatically attributed to the state. What is examined is whether the state has established an appropriate legal order, whether it responded to a known risk, and whether the courts weighed conflicting rights with sufficient reasoning. [K4, K5]

For example, an employer’s examination of an employee’s e-mails, although it is a dispute arising from an employment contract, raises the guarantees of personal data and communication. In constitutional review, whether the courts protected these guarantees matters. [K5]

In assessing protection, the following questions must be made concrete: Which right was in danger? Did the competent authority know, or should it have known, of the risk? What measure could have been taken within its powers? What is the relationship between the failure to take the measure and the harm alleged? What examination was carried out after the event? [K4, K6]

In operational measures aimed at protecting life, a real and immediate risk, the knowledge of the authorities and the measures that could reasonably have been taken are decisive. The assessment is not made solely according to the outcome that emerged later. An impossible or disproportionate burden cannot be placed on public authorities; on the other hand, an abstract explanation of resources or workload is not an answer to a concrete failure of protection. [K4: § 53; K6: §§ 158–190]

Is there a guarantee of result?

It may not be possible to prevent every attack or accident. The legal examination asks whether sufficient care was shown under the conditions known at the time of the event. For this reason, the occurrence of a serious outcome is not alone sufficient for a finding of violation. Nor does the fact that a measure was taken alone show that sufficient protection was provided; the suitability of the measure to the known risk is assessed. [K6]

The right to life concerns, in addition to the use of force by public officials, dangerous activities, certain disaster risks and specific threats that may come from third parties. The state’s regulatory and supervisory system and its response to a concrete risk must be addressed separately. Constitution Art. 17 and ECHR Art. 2 are the basic grounds. [K1, K2, K4]

In allegations of domestic violence, it is important to act without delay and to carry out an independent, comprehensive, forward-looking risk assessment. The risk to children must be assessed separately. With respect to the applicant, earlier complaints, threatening messages, protection orders and the records relating to their enforcement help show what the authorities knew and when. Evidence must be preserved by lawful means. [K6: § 190]

The prohibition of ill-treatment is not a right that can be freely balanced against security or public interest grounds. The state must provide protection not only against the conduct of its own officials but, under certain conditions, also against serious attacks originating from private persons. Constitution Art. 17 and ECHR Art. 3 are assessed together. [K1, K2]

Health services and persons deprived of their liberty

Not every adverse outcome in health care is a constitutional violation. Depending on the nature of the event, the regulation and supervision of health care, meeting an urgent risk and effective judicial avenues capable of establishing responsibility become important. In cases of medical negligence without intent, a criminal proceeding may not always be mandatory; effective civil or administrative law avenues may be sufficient. However, this assessment requires examination of serious negligence and the particulars of the event. [K4: §§ 55–60]

In the conditions of detention or a penal institution, a person’s ability to ensure their own safety and access to health care is limited. For this reason, in assessing the responsibility to protect, the person’s dependent position, known health needs, medical records and the responses given to requests for help are important. The lawfulness of the deprivation of liberty is separately subject to the guarantees of Constitution Art. 19 and ECHR Art. 5. [K1, K2]

Forced labor and human dignity

Constitution Art. 18 and ECHR Art. 4 regulate forced labor and related prohibitions. The need for protection is not limited to the acts of public officials. In an allegation of exploitation by private persons, the actual working conditions of the event and the available effective avenues of recourse are examined. It cannot be accepted that every heavy labor dispute automatically constitutes forced labor; the legal characterization must rest on the specific facts. [K1, K2]

In an allegation concerning the right to life or serious ill-treatment, the aim of the investigation is to conduct an examination capable of establishing the circumstances of the event and those responsible. An investigation does not necessarily have to end in a conviction. However, the mere opening of a file is not enough to show that the investigation was effective. [K4]

The assessment takes into account the independence of the examination, the collection of the necessary evidence, reasonable promptness, the legitimate participation of the victim or their relatives, and the reasoning of the decision. The extent of public scrutiny is determined together with private life, the requirements of the investigation and the particulars of the specific case. [K4: §§ 54–60]

In preparing an application, one should not be content with saying “the investigation was inadequate.” For example, it can be shown why a camera recording that was not examined mattered, what fact a witness who was not heard could have explained, or which problem in the expert report remained unanswered. In this way, the link between the deficiency and the alleged violation becomes visible.

Constitution Arts. 20–22 and ECHR Art. 8 protect a person’s privacy, family life, home and communication. The need for protection in this area may arise through workplace monitoring, the use of personal data, reputation, family relations or serious environmental problems affecting the use of the home. The conditions of each heading differ. [K1, K2, K5]

In an employment relationship, the employer’s need for supervision and the employee’s privacy are assessed together. Prior notification, the purpose of the supervision, the necessity of accessing the content, less intrusive means and the limits of access are important. The expressions “corporate account” or “workplace device” do not automatically eliminate all expectations of privacy. [K5: §§ 53–69]

In family relations, the best interests of the child, the hearing of the persons concerned and the practical enforceability of decisions must be taken into account. Constitution Art. 41 separately regulates the protection of the child and the conditions of the child’s relationship with their parents. The form of the protective measure requires that the child’s safety and other rights be assessed together. [K2]

Which rights are environmental harms related to?

Constitution Art. 56 expressly regulates the right to live in a healthy and balanced environment. Under the ECHR, by contrast, an environmental complaint must be linked to a protected right such as life or private life. In an allegation of pollution, noise or a dangerous facility, the level of impact, the effect on the person, the knowledge of the authorities and the measures taken are important. A right in the Constitution and the subject-matter scope of the individual application are not the same thing. [K1: Arts. 2 and 8; K2: Arts. 56 and 148; K3: Art. 45]

Freedom of expression, thought and belief, and the rights of assembly and association are parts of a pluralist public life. Constitution Arts. 24–26, 28 and 33–34 and ECHR Arts. 9–11 provide the basic guarantees in these areas. A legal environment in which rights can be exercised and effective review of interferences are important together. [K1, K2]

In conflicts between private persons, freedom of expression may come up against reputation or private life. Rather than automatically treating a single right as superior, courts are required to assess the context of the event, the expression used and the consequences of the interference. The measures taken to protect rights must also not restrict the rights of others unnecessarily. [K1: Arts. 8–11; K2: Arts. 13, 20, 26]

The right to vote is regulated in Constitution Art. 67 and, under the ECHR, by the guarantee of free elections in Art. 3 of Protocol No. 1. The international scope is not the same for every election or every election dispute. Trade-union rights also have separate constitutional guarantees under Constitution Arts. 51, 53 and 54. [K1, K2]

The right to property should not be thought of only as a guarantee against direct seizure. The effective examination of a dispute concerning assets and the enforcement of the decision given are also important. On the other hand, not every receivable or expectation is automatically a protected possession; the legal basis and a sufficiently established interest are examined. [K1: Art. 1 of Protocol No. 1; K2: Arts. 35, 36, 138]

The right to education is assessed under Constitution Art. 42 and Art. 2 of Protocol No. 1. Access to education, the functioning of the existing education system and the guarantees concerning parents’ beliefs must be distinguished from one another. Not every request relating to education means that the state necessarily has a duty to establish a particular institution or form of service. [K1, K2]

In a discrimination review, the basis of the different treatment, comparable situations and the justification are explained. The equality guarantee in Constitution Art. 10 and ECHR Art. 14 do not have the same scope: Article 14 of the Convention is tied to the enjoyment of the other rights and freedoms in the Convention. Not every different treatment constitutes discrimination; nor does every identical treatment necessarily produce a result suited to concrete needs. [K1, K2]

That an avenue of recourse exists on paper for a protected right does not alone show that the avenue is effective in practice. It is important that the competent authority be able to examine the complaint and provide the appropriate redress that the event requires. Constitution Arts. 36 and 40 and ECHR Arts. 6 and 13 contain guarantees that have different scopes but are related to one another. It should not be assumed that every administrative or judicial dispute automatically falls within ECHR Art. 6. [K1, K2]

Difficulties that in practice obstruct access to a court, the means of defense and the fairness of the proceedings are assessed separately. A person charged with a criminal offense must have adequate time and facilities to prepare their defense and, once the conditions are met, benefit from the guarantees of legal assistance and an interpreter. These guarantees do not mean that all costs will be covered unconditionally by the state in every dispute. [K1: Art. 6; K2: Arts. 36–38]

The ability of a person deprived of liberty to have the lawfulness of their detention reviewed is separately important under ECHR Art. 5 and Constitution Art. 19. The enforcement of the court decisions given also affects the outcome of seeking justice. Constitution Art. 138 commands compliance with court decisions and that enforcement not be delayed. For this reason, following up a file does not end with obtaining the decision; whether the judgment has been carried out is also monitored. [K1, K2]

Serpil Kerimoğlu and others: effective investigation of a death

In the AYM’s decision of September 17, 2013, No. 2012/752, a death resulting from the collapse of a hotel in the Van earthquake was examined. The Court held that the procedural aspect of the right to life had been violated with respect to the applicants it found admissible. The general principles must be separated from the specific outcome of the violation: the decision does not mean that there is automatic state responsibility for every earthquake harm. For an application, the lesson is to show the concrete deficiencies by which the investigation was rendered ineffective. [K4: §§ 50–60, 95 and the operative part]

E.Ü.: constitutional protection also in a private workplace

In the decision of the AYM Plenary of September 17, 2020, No. 2016/13010, the examination of corporate e-mails and a dismissal dispute were addressed. The conclusion reached was that the right to request protection of personal data and freedom of communication had been violated. It was important that the courts examine the scope and necessity of the supervision. The decision should not be read as meaning that the employer cannot carry out any examination. [K5: §§ 53–69, 76–88 and the operative part]

Kurt v. Austria: a serious outcome is not always a violation

In the ECtHR Grand Chamber decision of June 15, 2021, No. 62903/15, the risk to life in a domestic violence context was assessed. While setting out the criterion of a comprehensive risk assessment for protection, the Court held, by ten votes to seven, that the substantive aspect of the right to life had not been violated. This outcome shows that the duty of protection is assessed together with the knowledge available at the time of the event and the reasonable measures. [K6: §§ 190, 211–212 and the operative part]

The first step is to describe, in chronological order, the act or omission believed to have led to the violation. Then the relevant right, the knowledge of the authority, the measure requested, the response given and the impact suffered are documented. An account built solely on the result of a decision or the amount of the harm may not show the deficiency in the duty of protection.

Documents should not be attached indiscriminately; it should be stated which fact each document proves. Unnecessary personal data should not be shared, and the original records of the file should be preserved. This table does not replace a petition; it is a working tool for organizing the account of the event.

The appropriate domestic avenue first

Depending on the specific case, a protective measure, a criminal investigation, a civil lawsuit or an administrative judicial avenue may come into play. These are not automatic alternatives to one another. For example, the aim of a compensation claim differs from that of a measure intended to stop an ongoing danger. Which avenue is effective and must be exhausted is determined according to the nature of the complaint. [K3: Art. 45; K4]

Keep the AYM and ECtHR time limits apart

In an individual application to the AYM, the general time limit is 30 days from the exhaustion of the remedies; if no remedy is provided, from the date of learning of the violation. Notification and records of actual learning must be assessed together. The valid-excuse rule is not an automatic additional period. For lawyers, applications through UYAP began on October 1, 2025. [K3: Art. 47; K7, K8]

An ECtHR application is a separate procedure. The general rule is to exhaust effective domestic remedies and observe the four-month time limit from the final domestic decision. The form and document requirements of the application must also be fulfilled separately. The six-month period found in older sources should not be used as the current general rule. [K1: Art. 35; K9]

A positive-obligation claim must be built on the link between the right to be protected and the concrete act expected of the state. The foreseeability of the risk, the measure that could have been taken, the nature of the examination carried out and effective redress are assessed together. The most useful preparation is documenting the events, identifying the appropriate avenue and tracking the time limit of each avenue separately. A finding of violation, the form of redress and compensation are separate legal questions.

FAQ

Can the state be brought to account for harm caused by a private person?

Yes, if the conditions are met. It must be shown at what point the state’s duty of prevention, regulation, supervision or judicial protection fell short. The harmful act of a private person alone does not prove that the state is responsible for a violation. [K4, K5]

Is it mandatory to bring a criminal case in every event?

No. The avenues required by allegations of intentional violation of life and serious ill-treatment may differ from those required by cases of unintentional negligence. The adequacy of effective civil or administrative law avenues is assessed according to the nature of the event. [K4: §§ 55–60]

Is a lengthy investigation alone sufficient?

Duration is an important element; however, the examination as a whole is assessed. The reasons for the delay, its effect on the evidence and the care shown by the authorities must be made concrete. The assessment of effectiveness does not consist merely of counting days or years. [K4]

Does the AYM examine every complaint about a constitutional right?

No. The individual application concerns rights that fall within the common sphere of protection of the Constitution, the ECHR and the additional protocols to which Türkiye is a party. Exhaustion of remedies and the other admissibility requirements are also required. [K2: Art. 148; K3: Arts. 45–48]

Does a violation decision necessarily ensure that compensation is awarded?

No. Redress is determined according to the nature of the violation. Retrial, remedying the violation and its consequences, or, if the conditions are met, compensation may come into play; not every violation produces the same result. [K3: Art. 50]

Is this guide an official AYM publication?

No. It is an original work prepared for the explanatory guide section of Güneş & Güneş Law Firm. The initial source, the Akandji-Kombe book, is a Council of Europe publication; its presence on the AYM website does not mean that its authorship belongs to the AYM. [K10]

SOURCES

[K1] European Convention on Human Rights and additional protocols — ECtHR, Turkish text. The relevant articles are indicated in the text.
European Convention on Human Rights and additional protocols — ECtHR, Turkish text

[K2] Constitution of the Republic of Türkiye — the text published by the TBMM. The 2018 in the file name is not the review date of this guide.
Constitution of the Republic of Türkiye — the text published by the TBMM

[K3] Law No. 6216 — Legislation Information System, in particular Arts. 45–50.
Law No. 6216 — Legislation Information System

[K4] AYM, Serpil Kerimoğlu and others, B. No: 2012/752, 17/9/2013, in particular §§ 50–60, 95 and the operative part.
AYM, Serpil Kerimoğlu and others, B. No: 2012/752, 17/9/2013

[K5] AYM, E.Ü. [GK], B. No: 2016/13010, 17/9/2020, in particular §§ 53–69, 76–88 and the operative part.
AYM, E.Ü. [GK], B. No: 2016/13010, 17/9/2020

[K6] ECtHR, Kurt v. Austria [GC], App. No: 62903/15, 15/6/2021, in particular §§ 190, 211–212 and the operative part.
ECtHR, Kurt v. Austria [GC], App. No: 62903/15, 15/6/2021

[K7] AYM, Individual applications began to be accepted through the UYAP Lawyer Portal, start of implementation 1/10/2025.
AYM, Individual applications began to be accepted through the UYAP Lawyer Portal

[K8] AYM, Rules of Procedure, individual application procedure and time limits; also frequently asked questions.
AYM, Rules of Procedure

frequently asked questions

[K9] ECtHR, Notes on completing the application form. An official procedural explanation in English; the current form should be checked separately.
ECtHR, Notes on completing the application form

[K10] Jean-François Akandji-Kombe, Positive Obligations under the European Convention on Human Rights, Human Rights Handbooks No. 7, Council of Europe, 2007; Turkish edition 2008. The AYM link supplied by the user; the accessible copy on the Ministry of Justice server. The historical framework of the book has been assessed together with current legislation and the decisions above.
The AYM link supplied by the user

the accessible copy on the Ministry of Justice server