Contents - Constitutional Court of Georgia

8
Françoise Tulkens
on the body, the Court found that there had been a violation of this provision in that no effective
official investigation into the allegations had been held. The Paul & Audrey Edwards
v. the United Kingdom judgment of 14 March 2002 – where the applicant alleged that the
authorities had failed to protect the life of their son who had been killed by another detainee
while held in prison on remand – is of particular interest since the Court found both
a substantial violation of Article 2 concerning the positive obligation to protect life and a
procedural violation of Article 2 concerning the obligation to carry out effective investigation
and explained what an effective investigation should be (independent, prompt, complete,
involvement of all the parties, and so on).
In some recent cases, such as the Okkali v. Turkey judgment of 17 October 2006 concerning
the ill-treatment of a twelve-year-old boy while in police custody and the Zeynep Özcan
v. Turkey judgment of 20 February 2007 concerning the ill-treatment of a young woman at
the police station, the Court considered that the criminal-law system, as applied in the applicant’s
case, had proved to be far from rigorous and had had no dissuasive effect capable
of ensuring the effective prevention of unlawful acts such as those complained of by the
applicant. The Court accordingly found that the impugned criminal proceedings, in view of
their outcome, had failed to provide appropriate redress for an infringement of the principle
enshrined in Article 3 14 . Here there is, in my view, a substantial problem: in principle or,
better, historically, human rights are supposed to protect against the machinery of criminal
law; today, the protection of human rights seems to require the intervention of criminal
control. We have numerous examples of that. This said, one cannot fail to underline the
profound effects of this movement within the general theory of human rights. In a word,
rights would appear today to present both a defensive and an offensive facet. From that
perspective, it is no longer the use of criminal proceedings that should be justified by the
State but the absence of that use.
Finally, more generally, the duty of member States to set in place procedures at national
level derives not only from their obligation under Article 1 of the Convention to secure the
rights and freedoms set out in the Convention, but also from the underlying subsidiary
character of the Convention system. States ratifying the Convention are not only undertaking
to refrain from certain conduct and in some cases to take positive action to protect
rights and freedoms, they are also undertaking to provide the legal framework to allow
prevention of or redress for Convention violations at national level.
14 ECtHR, Okkali v. Turkey, judgment of 17 October 2006; ECtHR, Zeynep Özcan v. Turkey, judgment of 20 February 2007.