HR Caselaw Flashcards
Bankovic v. 17 NATO Member States
Facts: NATO bombed a radio station. Family complained to the court under art 2 and 10. Complained was brought against all member states that are part of NATO. MS argued that the victims where never within their jurisdiction
Judgement: Convention wasn’t desgined throughout the world. convention applies above a certain level of control. No breach because outside the scope
Al-Skeini a.o. v. UK
Facts: applicants: relatives of six Iraqi citizens who died in Iraq. Mr Mousa taken to military base in Basra, beaten to death. art 2 right to life.
Judgement: Only Mr. Mousa within UK jurisdiction. If agents of the state have physical power and control over an individual the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention of that individual. derogation from Bankovic
Xero Flor v. Poland
Facts: there is a dispute between political parties in Poland about the election of High judges. Both parties change the law to adopt more judges.
Judgement: The court can’t rule on national law, however will do so if: 1) manifest breach of domestic law, 2) breach related to fundamental rule. 3) no remedies at the domestic level. Breach of art 6 as the court is not established by the rule of law
Osman v. UK
Facts: A male teacher developed an obsession with a male pupil.
After numerous ignored warnings to the police, the pupil was attacked. He complained the state had failed to protect him.
Judgement: English blanket immunity of police is a breach of article 6 but no breach of art 2 or 8. The police owed no duty of care to the applicants. Article 2(1) may impose a duty on the state to take all reasonable steps to protect a person from a real and immediate risk to his life.
Osman formula:
* if the authoritities knew or ought to have known
* real and immeditate risk
* to a identified individual
* and the state failed to take measures
* with reasonability
Anguelova v. Bulgaria
Facts: A Roma boy died after having spent several hours in police custody. His mother argued that failing to provide timely medical treatment and failing to carry out an effective investigation violated Art 5
Judgement: Court found breaches of art 2, 5 but not of 14. Discrimination couldn’t be proven in such decisions is “beyond reasonable doubt”.
Judge Bonello wrote in a dissenting opinion that if there is structural mistreatment of certain racial groups, the burden of proof should shift to the government to proof the opposite. A failure to investigate allegations should amount to a procedural breach.
Szabó & Vissy v. Hungary
Facts: government gives a lot of power to the secret agency without judicial oversight, only oversight is permission by the minister of justice
Judgement: The mere existence of the legislation violates art 8 for the people that could be subject to it. as there are no minimum safeguards against abuses of power and the menace of surveillance strikes at the freedom of communication.
The advancement of technology amplifies this
the court introduces a minimum of safegaurds. a limited time, procedure for the use and sharing of the information adn when they destroy it.
Tello Lopez v. The Netherlands
Facts?
Judgement: Het opleggen van een eigen bijdrage aan de verdachte die onvermogend is, is echter niet in strijd met artikel 6 EVRM volgens het EHRM
McCann v. UK
Facts: suspects were expected the carry out a terrorist bombing and were shot dead during a police intervention. Family argued that there was a breach of art 2 (right to life)
Judgement: the court found a breach because authorities did not do enough to minimize the use and necessity of lethal force
Berrehab v. Netherlands
Facts: Mr. Berrehab, a citizen from Morocco living in the Netherlands, had divorced a Dutch citizen short before birth of there child. Kept seeing his daughter four times a week. Residence permit was not renewed and he was deported by the Dutch authorities. complaint under art 8
Judgement: Living together is not an requirement for a family live. The state didn’t properly balance the need in a democratic society against the right to family life: violation of art 8.
Khan v. France
Facts: Mr Khan is an unaccompanied minor in a refugee camp in France. Local judge appoints temporary representative to help him. Nothing is done and the camp is demolished.
Judgement: living circumstances and failure to act constitute a breach of the obligation under art 3. France argued Mr khan had not engaged with the proper authorities. but this cannot be expected of a minor with limit knowledge of the language
Fedotova a.o. v. Russia Chamber judgment of 13 July 2021
Facts: Same sex couples could live together, but no legal status. Government held that the majority of Russian don’t approve of gay people.
Judgement: exercise of Convention rights by a minority cannot be made conditional on acceptance by the majority. Protection of the family in the traditional sense is, in principle, a weighty and legitimate interest. State has MoA to choose most appropriate form of legal recognition; does not have to be marriage
Muršić v. Croatia
Facts: There was a complaint against Croatia because of the conditions in the shared jail cells
Judgement: minimum standard: 3 square meters per person. below 3 m2 -> strong presumption violation Art. 3
presumption rebutted if
- “short, occasional and minor” stay
- compensation (outdoor activities etc.)
- no other aggravating circumstances
Tyrer v. UK
Facts: A 15-year old boy was punished with strokes of a tree branch. He complained this was a degrading treatment forbidden by Art 3
Judgement: The punishment was prescribed by law, however the treaty is a ‘living instrument’ and should be interpreted in the light of present-day conditions. The court introduced the consensus principle. A breach of art 3 was found
Ribitsch v. Austria
Facts: Person was arrested for selling drugs to a famous pop star that overdosed afterwards. The during his custody the person sustained heavy bruises. Police denied any mistreatment
Judgement: when a person is deprived of their liberty, any recourse to physical force that is not strictly necessary amounts to a violation of article 3 of the ECHR. The burden of proof for a plausible explanation is on the police when a suspect is in their custody. the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals
Romeo Castaño v. Belgium
Facts: R’s father was shot by a man who belonged to the ETA. The shooter fled to Belgium. Belgium refused to extradite to shooter as they had worries about the human rights protection in Spain.
Judgement: States can take human rights into consideration when extradition but due to the principle of loyal cooperation this has to be based on facts. Belgium missed factual base.
