Použití Evropské úmluvy na ochranu základních práv a svobod v soukromoprávních vztazích

The application of the European Convention on violations of human rights by private individuals goes seemingly against traditional conceptions of international law which do not recognize individuals as subjects but only objects of international rules. However, a recent history of international law shows several examples of individuals rights and obligations set forth directly in different international instruments. Since the beginning of the twentieth century, individuals have been appearing before international courts and after the World War II they were even sued, and found guilty, for violations of international law. Different international instruments concerning the protection of human rights specifically also mention obligations of individuals toward the society and each other. Scholars examining the jurisprudence of the organs of the European Convention often use the terms “Drittwirkung” and “positive obligation”. The so-called “Drittwirkung” is a concept developed in the German constitutional theory according to which German courts should take in consideration provisions of the Basic Law even when deciding in cases concerning only private parties. Such a concept is obviously inapplicable in proceedings before the European Court and Commission which may only accept petitions against the State parties to the Convention and may thus never decide directly in disputes between private parties. For this reason the use of the term “Drittwirkung” in connection with the European Convention may be misleading. Nevertheless, the organs of the Convention may be concerned by violations of the rights and freedoms guaranteed by the Convention by private individuals under certain conditions. This happens when the Court finds that a State party has violated its so-called “positive obligation” not only to refrain from any acts violating the guaranteed rights and freedoms but also to secure that such rights and freedoms are not violated by other entities, including private parties. The development of this concept can be followed in the jurisprudence concerning mainly Articles 8 and 11 of the European Convention but the State’s positive obligation can be found in other provisions of the Convention too. Another example of situations in which the Strasbourg organs must examine whether a private party violated provisions of the European Convention ensues directly from Article 17 of the Convention. This provision protects against misuse of the Convention by individuals who themselves do not respect others rights and freedoms guaranteed by the Convention. The jurisprudence of the European Court and Commission shows that despite the traditional views of the international law, international rules can be in certain cases applicable directly in the private sphere and that private individuals should be, in a certain extend, regarded as subjects of the international law.