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Flashcards in HR Caselaw Deck (31)
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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


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.


Niemietz v. Germany


Facts: A lawyers office was searched by the police and he held this was a breach of art 8. The government held that art 8 was limited to home and inner circle and not the office/professional life
Judgement: The court stated that art 8 also includes the right to establish and develop relationships with other human beings.Therefor places of business can also be included as the goal of the convention is to protect the individual against arbitrary interference by the public authorities
The court found a breach as the warrant was broad and the offence was minor.


Salesi v. Italy


Facts: Mr S. filed a complaint at the Court due to undue delay at is his court case in Italy.
Judgement: the court stated that a breach of art 6 right to fair trial must be analysed based on
1) length of proceedings
2) a assessment of reasonableness of the time based on:
(a) complexity of the case
(b) conduct of applicant
(c) conduct of authorities
and sometimes (d) “what is at stake for the applicant”
a breach was found in this case


Salduz v. Turkey


Facts: protester is arrested by police and confesses in the interrogation. During the trail the protester stated the confession was made under pressure because he had no lawyer.
Judgement: Breach of art 6,access to a lawyer should be
provided as from the first interrogation of a suspect by the police. rights of the defense will be irretrievably prejudiced if confession given without lawyer present.


Senator Lines GmbH v. Austria, Belgium, etc.


Facts: A group of container shipping company get charged by the Commission for pricing agreements. Senator Lines wants to fill a complaint against the EU for this fine. EU is not party to the convention, instead complains against all the Member States
Judgement: Inadmissible because the fine was retracted


Golder v. the United Kingdom


Facts: Mr. G was a prisoner who was accused by a prison guard of starting a riot. He wanted to sue the guard for libel but was refused permission to consult a lawyer. Mr. G complained this was a breach of art 6 and his right to a fair trial.
Judgement: Art 6(1) must be interpreted as also providing the right of access to a judge.


Gazsó v. Hungary


Facts: A lot of identical cases where coming in from Hungary.
Judgement: The court introduced the pilot procedure. I took one case to make an example out of.
frequent violations + systemic character + failure to take effective measures + not attributable to a particular turn of events = “practice incompatible with the Convention”.
Obligation on the member state to introduce a national remedy. similar cases suspended


Kruslin v. France


Facts: Mr K.’s telephone was tapped by the government.
Judgement: French law is heavily based on caselaw, However interference with private life should happen in accordance with the law as art 8 provides protection against arbitrary interference from the government.
This also refers to the quality of the law. The law should be accessible and foreseeable and compatible with rule of law. Therefor the interference could not be justified.


Bosphorus v Ireland


Facts: B. leases a plane from Yugoslavia but the plane is impounded by the Irish state due to sanctions.
Judgement: the EC legal order offers equivalent protection to the convention (substance and procedure). There were no manifest errors, therefor Ireland could presume that EC sanctions did not violate the convention and therefor safely implement them.


Soering v. UK


Facts: Mr. S is convicted for double murder in Virginia (US) and US requests extradition. Argument: death penalty may be imposed and waiting on death-row would be violation of Article 3
Judgement: court introduced the Soering-principle: If there a substantial grounds that the person in question faces a real risk of being subjected to torture or inhuman treatment in the requesting country an issue under art 3 or 6 may arise. the court rules there would be a violation under art 3 of soering was estradited to the usa


Airey v. Ireland


Facts: Ms. A wanted to divorce her husband but divorce was illegal at that time in Ireland. There was also no legal aid available for these sort of matters.
Judgement: the court found a breach of art 6(1) fair trial and Art 8 (private and family life). this case established that the convention also includes positive obligations for states. the right of effective access to the courts may entail providing legal assistance


Pretty v. UK


Diane Pretty was suffering from a disease and was paralyzed from the neck down. She wanted her husband to assist her suicide but was denied.
Judgement: The right to life includes the right to do harmful activities (f.e. smoking) however no right to die could be derived from art 2. No right to right to self determination in art 8 but the underlying principle of personal autonomy. However a right to die would set a wrong precedent as the right to life is designed to protect weak and vulnerable and especially those who are not in a
condition to take informed decisions therefor the blanket ban by the UK is justified.


Issa v. Turkey


Facts: Son of complainant killed by turkish forces in Iraq
Judgement: Case admissible. Article 1 of the Convention cannot be interpreted as to allow a State party to perpetrate violations of
the Convention on the territory of another State, which it could not perpetrate on its own territory


Aksoy v. Turkey


Facts: A Kurdish man was subjected to ‘Palestinian hanging’ by Turkish police. the question during the proceedings was whether this treatment constituted torture under art 3
Judgement: Turkey argued that the complaint was inadmissible because the man had not exhausted national remedies but the court accepted the case due to the severity and the mans fear of the authorities.
Secondly Turkey argued that they suspended the articles due to state of emergency. Court stated that the torture cant be justified.
The court held that “this treatment was of such a serious and cruel nature that it can only be described as torture.”
Moreover, this is the first case where torture was found where the court confirmed that the distinction between torture and inhumane or degrading treatment allows for a special stigma to be attached to torture.
Finnaly effective remedy” entails, in addition to the payment of
compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure.


Loizidou v. Turkey


Facts: Turkey occupies a part of Cyprus and establishes a sovereign state. Mrs I. cant excess her house and complains to the court. Turkey states that she is not within Turkish jurisprudence and her house is also.
Judgement: Turkey may be held responsible for violations in Cyprus. Jurisdiction may extend beyond territory if it exercises effective control of an area outside its national territory.
Fundamental difference in the role and purpose of the respective tribunals provides a compelling basis for distinguishing Convention practice from that of the International Court of Justice.


Handyside v. UK


Facts: Mr. H was fined for publishing a book about sex. He complained to the court that this was a breach of his freedom of expression under art 10
Judgement: No breach, States have a ‘margin of appreciation’ and are in a better position to judge whether something is inappropriate. However this is no unlimited and subject to European supervision


Hirsi Jamaa a.o. v. Italy


Facts: group of persons individuals from Libya aim to reach Italian coast. Intercepted by Italian Coastguard and returned. Problem:
Art 1 within the jurisdiction of Italy?, Soering test. Danger of repatriation to high-risk countries of origin?
Art 4 Protocol 4: collective expulsion of aliens
Judgement: violations on all accounts. migrants where under control of a ship flying the Italian flag therefor within jurisdiction.