Diplomatic protection in practice of European Court of Human Rights

1950 Convention on human rights and fundamental freedoms does not entail a right to diplomatic protection as such. No single provision of the Convention regulates expressis verbis obligation of state parties to exercise protection towards their nationals against actions of third states. Still, the Convention is a living instrument and one cannot exclude that in future the right to diplomatic protection would be derived from positive obligations of states, as they are understood under Article 1 of the Convention, or deducted from violation of substantive provisions of the Convention, especially of Article 6 (right to a fair trial) or Article 8 (right to respect for private and family life). Furthermore, the Convention contains two special provisions which, in reality, give state parties procedural tools to exercise diplomatic protection towards their nationals before the Court. According to the first provision, Article 33 of the Convention, each state party may refer to the Court any alleged breach of the provisions of the Convention by another state party. This includes taking into protection its own nationals when their human rights are abused. According to the second one, Article 36 (1) of the Convention, each state party one of whose national is an applicant before the Court shall have the right to submit written comments and to take part in hearings. Both provisions, without question, indicate that the state may intervene on the part of its national in order to protect his rights and freedoms enshrined in the Convention. As illustrated in the present article Polish Government decided to intervene in the so-called Katyń massacre case, Janowiec and others v. Russia, brought before the Court by Polish nationals against Russian Federation in connection with ineffectiveness of Russian criminal investigation into the Katyń massacre. The Government's actions taken both, before and after lodging a case before the Tribunal, must be understood as exercising by the Government diplomatic protection towards Polish nationals.