CYIL vol. 12 (2021)

CYIL 12 (2021) PUBLIC CORPORATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSH Returning to the victim status of public corporations, it is necessary to remember that legal persons have standing before the ECtHR only if they are ‘non-governmental organisations’ within the meaning of Article 34 of the ECHR. The ECtHR has determined that there is a difference between ‘governmental’ and ‘non-governmental’ legal entities. The term ‘governmental organisations’ applies not only to the central organs of the state exercising legislative, executive, or judicial powers, but also to decentralised authorities that exercise public functions. It is of no importance to the ECtHR if the decentralised authorities formally are regarded to be autonomous vis-à-vis central state organs. The case-law of the ECtHR confirms that the complaints submitted by local and regional authorities such as communes, 17 municipalities, 18 or their subdivisions exercising public authority 19 are clearly inadmissible as these subjects are always seen as ‘governmental organisations’ in the meaning of Article 34 of the ECHR. The category of ‘governmental organisation’ also covers other types of public corporations that participate in the exercise of governmental powers or run a public service under government control such as water and sewerage companies established by a municipality. 20 Universities and public schools regardless the fact whether they were established by a state or by a private foundation are considered to be ‘governmental organisations’ for the purposes of the ECHR. 21 According to the ECtHR, even if an educational institution was established in the form of a private commercial entity, it is obligated to strictly comply with state policies in the field of higher education. The administrative authorities have been granted extensive powers in the supervision of its teaching methods and the courses it offers. The provision of education should be in compliance with and in adherence to state rules and requirements. This means that educational institutions are integrated within the structures of the state and enjoy prerogatives outside the orbit of ordinary law. Consequently, they cannot be seen as ‘non-governmental’ institutions. Furthermore, according to the ECtHR case-law, a public law institution founded by the legislature is not an association within the meaning of Article 11 of the ECHR 22 and may not apply to the ECtHR. The ECtHR has explicitly acknowledged that public service broadcasters can be recognised as ‘non-governmental organisations’ with the right to apply to it. 23 Ownership by the state and state funding do not prevent them from claiming protection under the ECHR. 24 For example, in the case of RTBF v. Belgium , an application was submitted by a Belgian autonomous public 17 Sixteen Austrian Communes and some of their Councillors v. Austria , nos. 5767/72, 5922/72, 5929-5931/72, 59535957/72, 5984-5988/73 and 6011/73, Commission decision of 31 May 1974, Yearbook 17, pp. 338–52. 18 Ayuntamiento de M. v. Spain, no. 15090/89, Commission decision of 7 January 1991, Decisions and Reports (DR) 68, p. 209. 19 Municipal Section of Antilly v. France (dec.), no. 45129/98, ECHR 1999-VIII. 20 JKP Vodovod Kraljevo v. Serbia (dec.), nos. 57691/09 and 19719/10, §§ 23–28, 16 October 2018. 21 See e. g. Slavic University in Bulgaria & Others v. Bulgaria , no. 60781/00, 18 November 2004; University of Illinois Foundation v. the Netherlands , no. 12048/86, 2 May 1988; İ hsan Doğramacı Bilkent Üniversitesi v. Turkey (dec.) , no. 40355/14, §§ 35–47, 28 January 2020. 22 Köll v. Austria (dec.), no. 43311/98, 4 July 2002; Sigurður A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, p. 13, § 31; Le Compte, Van Leuven and De Meyere v. Belgium , judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 64–65. 23 Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X (extracts); Österreichischer Rundfunk v. Austria, no. 35841/02, § 53, 7 December 2006. 24 BERKA, Walter, TRETTER, Hannes. Public Service Media Under Article 10 of the European Convention on Human Rights . Study on behalf of the European Broadcasting Union, December 2013, p. 10.

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