CYIL vol. 8 (2017)

ALLA TYMOFEYEVA CYIL 8 ȍ2017Ȏ enterprises, 52 private prisons, 53 state-funded schools 54 and public hospitals. 55 Questionable is the position of private schools 56 and private hospitals in relation to the state. 57 When such institutions are not paid out of public funds and receive no direct instructions from the government, they may not be considered entities exercising governmental powers. Therefore, it is more correct to include these institutions in the first group of autonomous business entities. In addition to the above, there may also be a situation when a business entity files an application to the Court themselves alleging a violation of the Convention and the Court by its ruling decides to dismiss such a submission stating that a certain behaviour of these entities is not in compliance with the Convention This is the case of the conduct of business entities, which could infringe the very spirit of the Convention and the essential values of democracy. The Court in such circumstances has turned to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible. 58 In these instances, indirect obligations for business entities do not arise as the state will not be obliged to amend its legislation and practice. According to Markos Karavias, this ‘abuse of rights’ clause “do[es] not intend to impose an obligation” 59 on legal persons, but only “places a restriction on invocation of human rights by persons”. 60 Therefore, we may not regard this situation as an indication of establishment human rights obligations for business entities. The last part of this manuscript will focus on an analysis of all of the main material provisions of the Convention with regard to the possibility to derive from them indirect human rights obligations of business entities. The corresponding duties will be deliberated on the basis of the judgments and decisions of the Court. Indirect obligations of business entities in the case-law Indirect obligations of business entities under the Convention to respect human rights are closely connected with the notion ‘positive obligations’. 61 The effective exercise of certain human rights does not depend merely on the state’s duty not to interfere but may require positive measures of protection in the sphere of relations between non-state actors. 62 Consequently, this may result in regulating business entities’ conduct to ensure compliance 52 Cooperativa Agricola Slobozia-Hanesei v. Moldova , no. 39745/02, § 8, 3 April 2007 and Gusinskiy v. Russia , no. 70276/01, § 70, ECHR 2004-IV. 53 Dickson v. the United Kingdom , no. 44362/04, § 5, 18 April 2006. 54 O’Keeffe v. Ireland [GC], no. 35810/09, § 14, ECHR 2014 (extracts); Dogru v. France , no. 27058/05, § 6, 4 December 2008. 55 Avilkina and Others v. Russia , no. 1585/09, § 15, 6 June 2013. 56 Costello-Roberts v. the United Kingdom , 25 March 1993, § 7, Series A no. 247-C. 57 Storck v. Germany , no. 61603/00, § 91, ECHR 2005-V. 58 Vona v. Hungary , no. 35943/10, ECHR 2013; Communist Party (KPD) v. Germany , no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222. 59 KARAVIAS, Markos, Corporate Obligations under International Law . OUP, Oxford, 2013, p. 29. 60 Ibid. 61 The concept of positive obligations means that CoE states can be obliged to act and to take active steps to ensure an effective enjoyment of the rights protected by the Convention. See also, e.g. KLATT, Matthias. Positive Obligations under the EuropeanConvention onHumanRights. URL: accessed 21 May 2017. 62 Positive obligations on member States under Article 10 to protect journalists and prevent impunity. The report prepared by the Research Division of the Court. Council of Europe/European Court of Human Rights, December 2011. 3.

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