So welcome to all of you. My name is Mian Feng and I'm a doctoral student at FAU. In the following,
I will present a summary of research on possible human rights holders in the European human rights
system. First, I would like to provide you some historical and political background of the
convention starting with the Council of Europe. The Council of Europe was founded in Strasbourg
as a Cold War initiative to prevent another war between West European states. The member states
wanted to provide a declaration of common values contrasting sharply with Soviet-style communism.
The member states created accounts for political purposes, in particular to promote a European
unity with shared Western values like individual dignity, democracy, and the rule of law.
And for that reason, they also implement the European Convention on Human Rights and Fundamental
Freedoms. And this treaty is based on the United Nations Universal Declaration of Human Rights.
The convention was signed in 1950 and entered into force in 1953 and is legally binding for all 47
member states. And an important body is the European Court of Human Rights, which ensures
the observance of the convention. Next is a quick overview about the different concepts of human
rights holders concerning two companies. The drafters of the convention always intended to
include business entities within the protective ambit of the convention. Article 34 of the convention
regulates the individual application of any person, non-governmental organization,
or group of individuals. And companies fall under the term non-governmental organization.
The term is defined in several case law and I picked one of the latest ones, Slovenia versus
Croatia, an intergovernmental dispute. So non-governmental organizations are governed essentially by
company law, don't enjoy any governmental or other powers, are subject to the jurisdiction of the
ordinary rather than the administrative courts, and they're carrying out commercial activities.
And at this point, it is already to mention that the case law on companies is quite extensive.
In regard to the people, it is first to acknowledge that the court don't talk about collective rights.
So the drafters weren't aware about this issue, weren't in the drafting process,
and yes, and the convention as such does not guarantee rights that are specific to minorities.
Only article 14, which statutes the prohibition of discrimination, mentions national minority.
In addition, there's no definition and scope of the term minority and if indigenous people fall
under the term. In comparison to companies or to the case law on companies, the case law on indigenous
people is quite little intimate because of the little number of indigenous communities in Europe.
But on the other hand, the case law on cultural, ethnic, and religious minority is numerous,
and the court have afforded some protection to minorities, notably the right to family life,
the right to freedom of religion, the right to freedom of expression, and the right to freedom
of association. So from the case law, it can be seen that these were actions of individuals and
not of a collective. Other instruments to protect minorities are the European Charter for a Regional
or Minority Language or the Framework Convention for the Protection of National Minorities.
So one question which still need to be answered is, are these instruments and existing case law
are enough to protect indigenous people? So can indigenous people be understood as minorities like
an ethnic or national minority? Because one issue is that indigenous people don't identify
themselves as minorities. Anyway, it would be interesting, it's interesting to have a look at
the existing case law on indigenous people concerning the access to protection system.
In general, indigenous people have access to the European protection system. They are treated
as a group of individuals under Article 34. But the main issue is that most of the cases were
dismissed because they didn't satisfy the formal admissibility requirements and therefore didn't
reach the merits of the claims. Reasons are, for instance, it is difficult to prove the victim status
in regard to property rights. Question of property rights is decided with a traditional civil law
approach without recognizing the applicant's indigenous status or their historical connection
to the land. So, and another point is that most of the claims don't fulfill the exhaustion of
domestic remedies and the court refers back to the national laws and jurisdiction.
And the mostly claimed rights so far are Article 1, of Protocol 1, the right to property,
the right to fair trial and the respect for home. So in conclusion, you can say that the convention
is not really open to indigenous people in comparison to companies. So can companies
can be treated as human rights holders under the convention and there are some indications
in the convention for the possibility towards corporate human rights. First to mention is the
preamble. The concepts are very general and do not refer to humanity, even though the convention
came into force after the Second World War and the cruel crimes of the Nazi regime. So humanity is
not the main focus in the preamble, but general values like justice and peace and also democracy
and the rule of law. And this can be seen as indications for corporate human rights. The next
three indications are a little bit clearer. The right to property and the right to property.
And the right to property and the freedom of expression can also be enjoyed by legal persons
and enterprises. And as I already mentioned, Article 34 is speaking of non-governmental organization
and covers companies. And last but least, in many provisions, the wording is neutral.
Everyone is broad and does not exclude companies. So as a conclusion, you can see and say that these
are indications that the convention is open for non-human human rights holders such as companies.
Regarding to the access to a protection system, companies can submit an individual application
because they fulfill the victim requirement as non-governmental organization.
So if companies' rights are affected, the general rule is that shareholders can't achieve victim
status under Article 34 for matters that concern the corporate person and not directly the right.
But there are exceptional circumstances conceivable where a shareholder can step in as
applicant. The court considers that the piercing of the corporate rail or the disregarding of a
company's legal personality will be justified only in exceptional circumstances. These exceptional
circumstances are impossibility and the vehicle approach. Impossibility will occur when the
applicant company ceases to be a legal personality altogether. So the company is, for instance,
in liquidation and the shareholder can bring the claim. Otherwise, there is no protection possible
and that would be an indirect infringement of the values of the convention like notably the rule of
law. And the vehicle approach, there the court accepts the disregard of corporate personality
for victim purposes when a company whose rights have been interfered with is the vehicle for the
applicant shareholder's business ventures. So the company is wholly or almost wholly owned by one
shareholder and the vehicle approach is the effective way to protect the shareholder's
investment. And with these exceptions, the impossibility and the vehicle approach,
the court takes a pragmatic approach to ensure an effective protection under the convention.
So there are different approaches to corporate human rights. In principle, companies can claim
protection under many provisions of the convention. But certain convention provisions are exclusively
applicable to human beings and remain inaccessible for companies. For example, the human dignity of
individuals and the prohibition of torture, they can't be applied to companies. Second approach is
the derivative approach. So we look at the people behind the corporation and they are the actual
bearer of human rights. So the court treats companies as a kind of a placeholder, especially
in cases around the freedom of religion. That means, for instance, that a church can rely
on the freedom of religion when the people behind do so. So the first two approaches focuses on the
individual and the third one recognizes corporate human rights. So companies do have original human
rights. That means, for instance, in these three main cases, the first one of Franek versus Switzerland,
the court said that companies enjoyed freedom of expression, even just commercial ones. And the
court also ruled in the light of democracy, pluralism and transparency. And the second case,
Société Collat, the court says that companies' offices fall under the protective embed of
Article 8 and can be protected from arbitrary state interference. And this is also an outgrowth of the
principle of the rule of law. And the third one is Yukos versus Russia. And there the court ruled
that companies do also enjoy procedural rights, like the right to a fair trial. So in summary,
the court recognized following rights for procedural rights, the prohibition of discrimination,
the peaceful enjoyment of possession, the respect for home and the freedom of expression,
even for mere commercial purposes. I already mentioned the case of Franek versus Switzerland.
As a last point, I would like to highlight some particularities. The first one is that the court
treats the convention as a living instrument, which must be interpreted in the light of present day
conditions. And so in recognition of corporate human rights, one most significant development
is awarding moral damages to a company for non-pecuniary damages that suffer due to delayed
judicial proceedings under Article 41 of the convention. The court says that the delays
affect a company's reputation, uncertainty, and decision-making, decision planning, disruption,
and the management of the company. And also added that delays have caused the applicant company
prolonged uncertainty in the conduct of its business and feelings of helplessness and frustration.
So the court established a kind of equivalence between corporate entities and human beings
and stated that companies apply human attributes to companies like the feelings of helplessness
and frustration. And this is quite astonishing ruling and reasoning.
So as a conclusion concerning the people's rights, we can say that they receive little
attention under the convention. The existing case law is quite timid because applications often
don't fulfill the admissibility issues. And for the future, still see how the court will strengthen
these rights and future case law. And in my opinion, it would be important in order to make
a clear distinction between minorities and indigenous people and for the latter one
to recognize their identity and cultural background. And in comparison to the people,
the company's case law is kind of progressive. And the two main approaches are the derivative
rights and the recognition of corporate human rights. And the recognition of corporate human
rights poses actually new questions. Do companies have the same moral status or attributes as humans?
And with this last question, I would like to close my summary on the European system.
I hope you enjoyed it and thanks for your attention.