It is time for the European Court to step into the business and human rights debate: A comment on Özel & Others v. Turkey

By Lieselot Verdonck, doctoral researcher at the Human Rights Centre (Ghent University) and fellow of the Research Foundation – Flanders (Belgium).

Özel & Others v. Turkey neatly fits into established case law of the European Court regarding human rights violations in which companies are involved. This is precisely the reason why the judgment may disappoint business and human rights scholars. In times of vigorous and divisive debates, the Court should shed a light on, instead of ignoring, the “business aspect” of the human rights violation.

Principal facts

In August 1999 Izmit (Turkey) was struck by an earthquake. Because the region is classified as a “major risk zone”, special building requirements apply. The eight applicants in Özel v. Turkey are the relatives of people who died because their apartment collapsed. Expert reports established several construction deficiencies, such as the use of sand and sea gravel, which severely reduced the strength of the concrete and eroded the iron pillars. Following criminal proceedings that lasted more than 12 years, two out of five suspects who worked for the construction company, were convicted. A limited damages award was ordered against the company itself. There was no authorization to prosecute the government officials who failed to enforce the building regulations.

Judgment

In its judgment the Court reiterated that the State’s positive obligations under Article 2 apply to all activities, whether public or not, that are capable of endangering life, including natural catastrophes (§170). Although the claim under the substantive limb of Article 2 was inadmissible, the Court noted that the State must adopt measures that strengthen its capacity to respond to lethal and unexpected natural disasters, for instance through spatial planning (§173-174).

The procedural limb of Article 2 obliges States to prevent any appearance of tolerance of illegal acts or of collusion in such acts (§187). Accordingly, they have to determine the circumstances of the disaster and the possible deficiencies in (implementing) the regulatory framework, and they must identify state actors who might be implicated in the chain of events (§189). In casu, authorities could not be prosecuted, which raised fundamental concerns (§198). Moreover, criminal proceedings against the private parties lasted for more than 12 years and, due to prescription, only two suspects were convicted (§193). Given their length and the limited damages awarded, the civil proceedings were no effective remedy to acquit the State of its obligations under Article 2 either (§199).

Comments

Özel v. Turkey is yet another example of a human rights body adopting the United Nations Guiding Principles’ approach to business and human rights. States have to protect their people, while companies only have a moral responsibility to respect human rights. The State’s obligation should result in a regulatory framework that imposes legally binding duties upon companies under domestic law (preventative), and remedies must be available in case of an interference (remedial).

Nothing new or exciting about Özel v. Turkey, one would thus say. True, but this means that the Court missed yet another opportunity to step into the global debate on business and human rights. In this particular case, two fundamental issues could have been discussed: the extent to which corporate conduct can be denounced as a human rights violation and the way in which corporate accountability can or should be enforced.

Human rights violations by companies

The very practice of speaking in terms of human rights violations when the conduct of companies is at stake, clashes with the traditional idea that human rights protect individuals against the State. However, human rights bodies, such as the European Court, soon faced situations in which private actors had interfered with human rights. They decided to acknowledge such instances as violations by the State of its obligation to protect. Because human rights bodies do not expressly reprove the private actor for violating a human right, this approach can be perceived as quite schizophrenic.

In terms of practical result little would change, if the Court explicitly stated that the company had committed a human rights violation. Nevertheless, one of the reasons why the international legal framework on business and human rights remains obscure and subject to heated debate, is because few authoritative bodies have ruled on the concrete human rights duties of companies.

Accordingly, this comment does not plead for the enforcement of companies’ duties by international or regional human rights bodies, but rather argues that these bodies should not merely contemplate duties (through the obligation to protect), but also specify them. Since the international legal framework burdens States with a tremendous responsibility to enforce corporate accountability, human rights bodies could at least create a level playing field regarding the concrete duties of companies.

Enforcement of corporate accountability for human rights

One of the most topical issues of the business and human rights debate relates to how corporate accountability can or should be enforced at the domestic legal level. The European Court could have explored this issue in Özul v. Turkey. In particular, three enforcement options feature in this case.

First, the applicants could bring both the state authorities and the private perpetrators before the domestic courts. Acting against the State generally entails administrative proceedings that seek the adequate implementation of the regulatory framework. Nevertheless, in Özul v. Turkey the applicants had – unsuccessfully – sought criminal proceedings against the responsible officials because of the irreparable harm caused by non-enforcement. Interestingly, the Court held that, regardless of any criminal liability of the private parties involved, the impossibility to prosecute officials raises serious concerns under the procedural limb of Article 2. It is questionable whether the same would hold true when the collusion of private and public authorities is not as blunt as in this particular case. Therefore, the Court could have provided more guidance on the relationship between state liability and corporate liability at the domestic level. Under which circumstances, if any, does a State acquit its remedial obligation to protect by providing a criminal cause of action against the direct perpetrators?

Second, in Özul v. Turkey both criminal and civil proceedings were available. The Court could thus have discussed the relationship between criminal and civil liability for human rights violations by companies. Arguably, not all corporate misconduct qualifies as a crime. However, are there instances in which the Convention requires penal sanctions? A related question is whether the fact that a State bears vicarious responsibility for corporate abuse entails that more severe penal sanctions or higher damages should be imposed vis-à-vis the company at the domestic level, because of the human rights implications. In this case, the Court only held that the amounts were too modest.

Third, the applicants were confronted with the distinction between corporate and individual liability. Since Turkish criminal law does not provide for corporate criminal liability, only individual suspects were prosecuted. Although some scholars plead in favour of corporate liability in addition to individual liability, the Court is unlikely to oblige States to introduce corporate criminal liability. However, the civil claim for damages could target both the company as a collective and the individual suspects. The applicants were frustrated when only the company was convicted to pay damages. Clarity about the relationship between corporate and individual responsibility for human rights violations by companies is thus desired. Empirical research in South Africa revealed that victims may attach great importance to individuals being convicted. That is even without taking into account legal problems such as a bankrupt company and its shareholders hiding behind a corporate veil.

Conclusion

What at first sight seems to be an ordinary judgment – which, in fact, it is – does touch upon fundamental elements of the global debate on business and human rights. As disagreement reigns amongst scholars, civil society organizations and businesses, any guidance by authoritative human rights bodies, such as the European Court, is more than welcome.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s