CYIL vol. 8 (2017)

ALLA TYMOFEYEVA CYIL 8 ȍ2017Ȏ Convention do not lend themselves to precise definition. It concluded that Denmark has failed to protect the applicants’ negative right to trade union freedom in respect of both applicants. 82 Article 12 of the Convention (Right to marry) Examples of breaches to this provision are: undue delays in providing a prisoner with a divorce certificate required for remarriage; 83 barring a transsexual from enjoying the right to marry since domestic law did not permit a marriage with a person of his or her original sex; 84 and the requirement for a certificate of approval for immigrants wishing to marry other than in the Church of England. 85 However, none of these issues could be seen as related to the activities of business entities. Even if a private company would engage in the process of Regarding effective remedies, it must be stated that these should be provided by the state. The state may not be liable for unsatisfactory functioning of private institutions unless it empowers them to exercise governmental functions. Moreover, given that in many cases Article 6 § 1 of the Convention is a lex specialis in relation to Article 13, 86 the situation with regard to the obligations of business entities is very similar under both provisions. Therefore, the conclusion is that this norm does not impose indirect human rights obligations on businesses. Article 14 of the Convention (Prohibition of discrimination) This provision of the Convention envisions an indirect obligation for the companies not to discriminate against their employees. As an example, we refer to the case of Danilenkov and Others v. Russia . 87 The applicants’ rights had been breached because their employer had acted with the intention of deterring and penalising trade union membership through a sharp decrease in their earnings and working hours. Given the status of the employer, the Kaliningrad seaport company, which was partly owned by a state, the parties disagreed as to whether the circumstances of this case involved direct intervention by the state. The Court concluded that it is not necessary to rule on this issue, since the responsibility of the Russian Federation is engaged if the matters complained of resulted from a failure on its part to secure the rights set forth in the Convention. In the end, the Court held that there had been a violation of Article 14 of the Convention taken together with Article 11 in view of the fact that the state failed to fulfil its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. In summary, it is possible to state that according to the author’s current knowledge, indirect obligations of business entities may arise under Article 2, Article 3, Article 4, Article 5, Article 8, Article 9, Article 10, Article 11 and Article 14 of the Convention. The 82 Ibid ., § 76. 83 Chernetskiy v. Ukraine , no. 44316/07, 8 December 2016. 84 Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI and I. v. the United Kingdom [GC], no. 25680/94, 11 July 2002. 85 O’Donoghue and Others v. the United Kingdom , no. 34848/07, ECHR 2010(extracts). 86 Menesheva v. Russia , no. 59261/00, § 105, ECHR 2006-III. 87 Danilenkov and Others v. Russia , no. 67336/01, ECHR 2009 (extracts). issuing marriage documentation, it would be acting as a state agent. Article 13 of the Convention (Right to an effective remedy)

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