Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
initiative in lodging a formal complaint or assuming responsibility for investigation proceedings.
Article 2 required that the next-of-kin be automatically involved with the official
investigation opened by the authorities into the cause of death.
What are the major benefits of the procedural approach taken by the Court? To my
mind, the benefits lie in the objectivity and credibility accorded to the control of the Court.
Today more than ever, the Court is involved in very sensitive cases and its distance from
them and the facts renders it less able to resolve them. Whether or not to place a child outside
his family or arbitrating between economics and the environment in the night flights
problem are both questions that, to be resolved, assume a proximity with the facts and the
social reality. In this regard, the proceduralization movement is able to give meaning to the
margin of appreciation in adding a condition: before accepting the assessment of the State,
the Court will check that the State has taken every opportunity to reach the right decision.
In a certain way, the development of the procedural requirement could appear as the natural
and fruitful corollary of the margin of appreciation doctrine.
In this respect, positive obligations extend the scope of control by the European judge,
particularly towards economic, social and cultural rights. In the field of environment, in
the Fadeyeva v. Russia judgment of 9 June 2005, the Court was required to scrutinize the
extent of the positive obligations on the authorities to prevent environmental damage.
The Court defined the test to be applied in this way: “(…) it is not the Court’s task to determine
what exactly should have been done in the present situation to reduce pollution in
a more efficient way. However, it is certainly in the Court’s jurisdiction to assess whether
the Government approached the problem with due diligence and gave consideration to all
the competing interests. In this respect the Court reiterates that the onus is on the State to
justify a situation in which certain individuals bear a heavy burden on behalf of the rest of
the community, using detailed and rigorous data” 11 .
Institute proceedings. In other cases, the procedural positive obligation consists in the
obligation, particularly in the absence of evidence (such as, for instance, in the applications
against Russia concerning extra-judicial killings in Chechnya 12 ), to open an investigation
and to institute proceedings that can lead to the identification and, possibly, punishment of
those responsible 13 . As regards Article 2 protecting the right to life, the leading case is the
McCann and Others v. the United Kingdom judgment of 27 September 1995 since which the
Court now imposes a duty to investigate suspicious deaths in many other cases. As regards
Article 3, in the Labita v. Italy judgment of 6 April 2000, where the applicant complained
inter alia of ill-treatments which were of a psychological nature and thus not leaving marks
11 ECtHR, Fadeyeva v. Russia, judgment of 9 June 2005, § 128. See also, ECtHR, Giacomelli v. Italy, judgment of 2 November 2006, §§ 81,
82, 83, 84.
12 ECtHR, Khachiev and Akaïeva v. Russia, judgment of 24 February 2005 (extra-judicial executions); ECtHR, Issaïeva, Youssoupova and
Bazaïeva v. Russia, judgment of 24 February 2005 (aerial attacks); ECtHR, Issaïeva v. Russia (application no. 57950/00), judgment of 24
February 2005 (missile in the humanitarian corridor).
13 ECtHR, Matko v. Slovenia, judgment of 2 November 2006.
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