CYIL vol. 8 (2017)

ALLA TYMOFEYEVA CYIL 8 ȍ2017Ȏ corporate criminal liability, it is possible to conclude that this provision of the Convention may also impose indirect obligations on business entities. Article 5 of the Convention (Right to liberty and security) The Court held that placement in a private clinic without a legal basis led to a violation of Article 5 § 1 of the Convention in the case of Storck v. Germany . 68 It ruled that Germany has breached its existing positive obligation to protect the applicant against interferences with her liberty by private persons. This example demonstrates that private entities may also be involved in the performance of activities related to the deprivation of liberty and they are bound by this provision. Article 6 of the Convention (Right to a fair trial) The applicant in the case of Anatoliy Rudenko v. Ukraine 69 complained of non-enforcement of the decision of the labour disputes commission of the Joint Stock Company “Kupyanskyi Liteinyi Zavod” in which the State held about 41% of the share capital. The Court ruled there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 because the decision of the labour disputes commission remained unenforced for three years and seven months. This case demonstrates that the Convention requires compliance with fair trial guarantees; not only with regard to the state courts, but also private dispute settlement bodies of business entities. Nevertheless, given that justice belongs is the traditional sphere of governmental authorities, it may be questionable for indirect obligations to apply to private legal persons. Moreover, the Convention does not guarantee the right to institute proceedings against third parties and such complaints are incompatible ratione materiae with the provisions of the Convention. 70 Article 7 of the Convention (No punishment without law) It is difficult to imagine a situation when a business entity may legally set up bodies responsible for criminal justice. Laws establishing punishments are also adopted by states; not by private actors. If such criminal laws or judgments would appear, one would expect that the Council of Europe member state would proclaim them unlawful as in the case of the legislation of de facto states. 71 Therefore, for the purposes of the understanding of indirect obligations in the current essay, Article 7 of the Convention can hardly impose them on business entities. Article 8 of the Convention (Right to respect for private and family life) Article 8 of the Convention presents the provision with probably the widest possibility of imposing indirect obligations on business entities. The state was held responsible for breach of its obligations to assess risks and consequences of hazardous industrial processes on a private mining company in the case of Tătar v. Romania . 72 The night-time noise caused by night flights operated by private subjects also led to a violation of the right to respect

68 Storck v. Germany, no. 61603/00, § 108, ECHR 2005-V. 69 Anatoliy Rudenko v. Ukraine , no. 11412/02, 29 November 2005. 70 Chizhov v. Ukraine (dec.) , no. 6962/02, 6 May 2003. 71 Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 26, ECHR 2016. 72 Tătar v. Romania , no. 67021/01, 27 January 2009.

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