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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
respect it and it must, in particular, ensure that
the Convention is complied with by its different
authorities. The fact that the medical institutions
were not judicial in character is immaterial
in this respect. In any event, the examination
in question was to be effected in
the context of judicial proceedings supervised
by the court, which remained responsible for
ensuring the speedy conduct of the trial”. 59
Deriving from this, it is clear that:
First, upon the ratification of a convention
a state undertakes responsibility to implement
it and is responsible for all the violations within
its jurisdiction, notwithstanding whether this
is caused by a court or other state institutions.
A party to the European Convention on Human
Rights is a State and not its separate institutions,
for example, a court. The state institutions
and officials undertake the public
authority and respectively, a State is responsible
for their actions.
Second, the deliberation can go even further.
A state shall fulfill both – negative and
positive obligations. It must not only not violate
the conventional provisions itself, but must
secure to any person within its jurisdiction the
rights protected by the Convention.
In the case Martins Moreira v. Portugal in
which the Court found the State liable for violations
exercised by the medical institution,
considered that the medical institution came
under the administrative authority of the Ministry
of Justice. Accordingly, the Portuguese
State was under a duty to provide them with
appropriate means in relation to the objectives
pursued so as to enable them to comply with
the requirements of Article 6 para. 1. 60
We consider that notwithstanding whether
this medical institute would be a state or a
private establishment, a state responsibility
should have been involved in any case.
A state shall protect its own national not
only from violating the rights by the state bodies,
but also in those cases, when the legal
interests of the former are violated by other
private or legal persons.
Respectively, if a right of a person to an
expedite proceeding is violated, it is surplus
to deliberate on who contributed to this – a
civil servant or a private individual. A state shall
not allow violation of human rights and in case
if this takes place any way, it shall react over
it. In the contrary situation it shall be held responsible,
as first it could not protect a person
from violating the rights and afterwards it
did not provide for recovering the rights violated.
Third, judicial authorities are rightly
charged with a special role in the expeditious
administration of justice. A court is not only
obliged to observe the terms established for
certain procedural obligations itself, but also
to provide for efficient and expeditious holding
of the proceedings. It must undertake the
measures in respect of each of the participants
of the proceedings in order not to give
anyone a possibility to interfere with the swift
administration of justice.
In the case Vernillo v. France the European
Court concluded, that “the national courts
are obliged to create such conditions to states,
which would provide to avoid the unjustifiable
prolongation of the consideration of a case“. 61
“The courts are responsible for ensuring
that cases proceeded satisfactorily in cooperation
with the parties”. 62
One of the most interesting issues within
the measures undertaken by a court is the
unification of cases, which frequently has become
an issue of contention.
For instance, in the case Kemmache v.
France the Court held that the case of the
applicant was unified with the case of Mr.
Klaushofer. His return to France was belatedly
provided by the Swiss state bodies. This
caused the delaying the proceedings for two
years and eight months. The applicant alleged
that if the return of Mr. Klaushofer was impossible,
the State bodies could have separated
proceedings in respect with Mr. Kemmache
and Mr. Ceccio, what did not happen as the
accused were risking very harsh sentence and
Mr. Klaushofer’s statement was one of the
important elements. The European Court did
not accept the argument of the Government,
as to the impossibility of the separation of such
cases. Therefore, the Court found violation of
Article 6(1). 63
Different decision was made in the case
Boddaert v. Belgium. The Court noted that the
applicant and Mr. Piron were charged with the
murder of Jehin. Mr. Piron was also accused
in committing other crimes. One of the crimes
was closely linked with the murder of Jehin.
The investigating judge chose to shelve the
investigation in case and to await the outcome
of the investigation of the “second case” in
order to complete the file of the first and to
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