Contents - Constitutional Court of Georgia

18
Françoise Tulkens
after she had attempted to escape, the Court concludes, given the circumstances of this
case, that the applicant was deprived of her liberty within the meaning of Article 5 § 1 56 .
The major contribution of this judgment is the extension of the scope of application of
positive obligations to the right to liberty and security and meeting the necessity of providing
an effective and complete protection of personal liberty in a democratic society. The
national authorities thus bear the obligation to take positive measures in order to ensure
the protection of vulnerable people and, in particular, to prevent deprivation of liberty of
someone who would have had or should have had knowledge of the situation. Moreover,
by the interplay of the “horizontal effect”, such an obligation applies also when interferences
with an individual’s right to liberty are the result of acts by private persons, such as
in the present case. The Court, furthermore, considers that, in the field of health as in that
of education, the State Party cannot absolve itself of its responsibility by delegating its obligations
in this sphere to private bodies or individuals but remains under a duty to exercise
supervision and control over the latter.
Article 6. Right to a fair trial
Today, the main question is perhaps the applicability of Article 6 concerning the determination,
on the one hand, of civil rights and obligations and, on the other hand, of any
criminal charges. The case-law of the Court is experiencing an evolution in this respect.
As far as criminal charges are concerned, two recent different decisions are worth quoting.
In the Dogmoch v. Germany decision of 8 September 2006, concerning the freezing
of assets, the Court noted that the attachment order was a provisional measure taken in
the context of criminal investigations and primarily aimed at safeguarding claims which
might later on be brought out by aggrieved third parties. If such claims did not exist, the order
could, furthermore, safeguard the later forfeiture of the assets. Such forfeiture would,
however, have to be determined in separate proceedings following a criminal conviction.
There was no indication that the attachment order as such had had any impact on the applicant’s
criminal record. In these circumstances, the impugned decisions as such could not
be regarded as a “determination of a criminal charge” against the applicant. Therefore,
Article 6 § 1 under its criminal head did not apply 57 .
By comparison, the admissiblity decision Matyjek v. Poland of 30 May 2006 is an original
one since the Court decided that Article 6 was applicable to a lustration procedure. In
the present case, this procedure aims only at punishing those who have failed to comply
with the obligation to disclose to the public their past collaboration with the communistera
secret services. As regards the degree of severity of the penalty, the Court notes that
56 ECtHR, Storck v. Germany, judgment of 16 June 2005, §§ 76-77.
57 ECtHR, Dogmoch v. Germany, decision of 8 September 2006, p. 7.