CYIL vol. 12 (2021)

alla tymofeyeva CYIL 12 (2021) The cases, where the acts of public corporations were attributable to the state, may be of relevance for determining their subjectivity under ECHR. In these disputes, the responsibility of the state ratione personae was acknowledged by this fact and the ECtHR recognised that some public corporations should be seen as ‘governmental organisations’ within the meaning of Article 34 of the ECHR. These cases will be discussed in the next part of the paper. 3. Attribution of the acts of public corporations to the states A state may be held responsible for the acts and omissions of a public corporation; even if the company is a separate legal entity, provided that it does not enjoy sufficient institutional and operational independence from the state to absolve the latter from its responsibility under the ECHR. 37 Accordingly, the conduct of a public corporation will be attributable to the state and the ECtHR will recognise the responsibility of the state for human rights violations and its own jurisdiction ratione personae 38 over the case. The concept of attribution has to be distinguished from due diligence of the state under the ECHR. Attribution refer to a link between an entity (author of the conduct leading to a breach of human rights) and the state party to the ECHR. 39 In the case of due diligence, the state was found liable not for the acts of an exact entity but for failure to comply with its positive obligations under the ECHR. 40 In the following part of the paper the author will discuss the issue of state responsibility for the conduct of public corporations from the point of view of attribution. The theory of public international law on attribution is extensively discussed in Chapter II of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) adopted by the International Law Commission (ILC) in 2001. 41 The most relevant for the current study are the provisions of Articles 4, 5, and 8 of the ARSIWA with related commentaries. Article 4 titled “Conduct of organs of a State” stipulates that the conduct of any state organ shall be considered an act of that state under international law whether the organ exercises legislative, executive, judicial, or any other functions. Paragraph 6 of the commentary to this provision specifies that it “is irrelevant for the purposes of attribution that the conduct of a State organ may be classified as ‘commercial’ or as acta iure gestionis ”. 42 In para. 11 of the commentary, the ILC adds that “a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law”. 43 This means that; even if a public corporation according to national legislation 37 Kuzhelev and Others v. Russia , nos. 64098/09 and 6 others, §§ 93-100, 117, 15 October 2019; Mykhaylenky and Others v. Ukraine , nos. 35091/02 and 9 others, §§ 43–45 ECHR 2004-XII; Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, §§ 114–115, ECHR 2014. 38 Liseytseva and Maslov v. Russia , nos. 39483/05 and 40527/10, § 214, 9 October 2014. 39 ŠTURMA, Pavel. The European Convention on Human Rights and issues of State responsibility. In ŠTURMA, Pavel, TYMOFEYEVA, Alla. 70th Anniversary of the European Convention on Human Rights , RWW, 2021, p. 34. 40 Ibid., p. 35. 41 Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001. Yearbook of the International Law Commission , 2001, vol. II, Part Two.

42 Ibid., para. 6 of the commentary to Article 4 of the ARSIWA. 43 Ibid., para. 11 of the commentary to Article 4 of the ARSIWA.

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