-
Human dignity
- Wackenheim v France
- Tossing a dwarf
- Is it against human dignity? But he makes a living the way he likes
- It's an open term so we basically give more room to judges
- Judges might become politicians in disguise
-
Recognition of HR
- Bayev and o. v Russia
- R: we have our traditional values + health issues + we protect minors
- C: u cannot say u protect majority from minority, cuz its minority that is in problem here
- C: enforcing more stigma and prejudices
- C: u can have traditional values but those cant undermine the univeral, objectively existing human rights
-
Humanitarian and HR - limiting rights
- Hassan
- He was detained without a proper basis in EUCHR, there are reasons listed but he was deteined for securite reasons, in case
- Court interpreted Convention in a way that it itself allowed for this kind of limitation iplicitly stemming from humanitarian law
- in conflicts Humanitarian law allows for bigger restriction of rights
-
Interpretation of Convention - context
- Bamir v Turkey
- Turks in Union Association said that state didnt give em opportunity to defend their emplyees rights
- They wanted to join collective agreements with Emplyers unions - it was expressly allowed in Euro Social charter - not ratified by Turkey
- ESC binding on Turkey via art. 11 - convention interpreted in the light of other relevant conventions
-
Interpretation of convention - purpose and objective
- Golder
- Prisoner wanted to access court, but he needed minister's permit, but he didnt get one
- Explicitle Convention doesn't provide right to access of court, but the objective is protection of hrHow can HR be protected if one can't go to the court to protect his HR?
- In the light of the purpose, art. 6 provides with access to court
- Also the principle of rule of law - if u have rights, u must have ways to enforce em
-
Horizontal relationship;discrimination
- Swedish Satelite DishLandlord won't let a flat to a person who'd like a dish
- In those days imigrants would like dishes - only way to see tv all the way from home
- Indirect discrimination, resulting from horizontal relationship
-
EU and ECHR
- Bosphorus caseYugoslavian plane leased by Turkish airlines
- War in Yugo > Sanctions on Yugo from UN so EU also imposes > plane stops in Ireland
- Ireland: its Yugo plane, we seize it > a lot of court stuff happening
- Ireland is a signee of ECHR, but EU is not and its EU where the basis for that decision comes from - should they obey EU or ECHR?
- Do they want to answer to Luxembourg or to Strasburg? Both options suck
- Bosphours presumption: we presume that under EU law there is similiar protection as under ECHR; presumption that EU act is compatible with ECHR
-
Asylum; risk of mutual trust princ. generalised
- M.S.S vs Greece and Belgium
- Guilty Greece, cuz they didnt provide good enough conditions
- Guilty Belgium, cuz they sent the guy back to Greece, where they should have known that conditions were bad
- We trust each other but it doesn't mean that u can just say - its EU to so idc
-
Admissibility; acting or not acting
- Climate case vs Netherlands
- Netherlands were to be sued on the basis that they didnt provide needed protection
-
Exhaustion of remedies
- Vuckovic vs Serbia
- ...
- Must invoke the article of the ECHR to the domestic authorities or at least the domestic law realting to the same thing
-
Exhaustion of EFFECTIVE remedies
- Civet vs France
- Long pre-trial detention
- Gotta go to court of cassation cuz it can check that lower court's ruling made sense on the basis of the established facts
-
Significant disadv.
- Korolev v Russia
- Court fees
- In this case it was like 1 euro - rights might have been violated but there were almost no consequences
- inadmissible
-
Filling the application; scope of issue
- Radomilla vs Croatia
- If its filled claiming violation of art. x, court can say that actually art. y fits better
- Can't change the complaint tho
-
State responsib. - jurisdiction
- Bankovich vs Benelux [/]
- Bombing by NATO > endangared right to life in Yugo, but it was not inside defendents' territories so inadmissible
-
Not responsible for bad things on his territory
- Ilascu vs Moldova n Russia
- Occupied zone within Moldova by Russia > M not responsible for those violations
- But they cannot do nothing - they still have to do as much as possible to secure HR
- Not a general waiver
-
Resp. Effects outside territory
- Ben el Mahi v Denmark
- Dannish cartoon, upsetting for Morocco > they try to sue Denmark
- But those are effects outside Denmark, Denmark cant be held responsiblr
-
Exception to territoriality, expulsion
- Soering vs UK
- Guy kills in US > goes to UK > UK asked to give him away > risk of capital punition
- Cant send him to US unless there are proper guaranties that no violation will take place
- But also, even if we accepted death penalty somehow - art. 3 u cant torture and the whole context of the dp constitutes an inhuman treatment
- US accepted and no problem
-
Extreaterritorial responsoib.
- Hirsi Jamaa vs Italy
- Italian boats controling coast > save ppl from drowning > get em to Tunisia or sth
- Italy responsible cuz on their boats
- Not their territory, but their service
-
Legal basis - foreseeability
- RTBF vs Belgium
- There was to be a documentary bout plastic surgen, it was done, but then guy thought its a bad idea
- He said its violation of reputation and won a case
- There was a basis but courts and scholars didnt rly agree in B what the regulation actually implies
- Therefore, not foreseeable, no legal basis, inadmissible
-
Legitimate aim
- S.A.S. Vs France; Burka case
- Cannot wear in public clothes that hide face
- France - argument of living together - accepted by court to go further to the issue of proportionality
- But actually there is not explicitle mentioned the reason of living together in conv
- Margin of apprectiation and no violation , wide margin cuz deeply moral issues
-
Margin of appreciation
- Handyside vs UK
- Boook sold everyone but in UK, cuz they said it corrupts, it was bout maoism, sexuality stuff and sth
- Violation of freedom of expression of author?
- Court says no- we re not making ius commune, there are differences everywhere, so they can ban it
- But to ban they must have previously properly balance interests- court checks if they did the exercise properly!
- Did they respect the minimum?
- Also court doesnt want to replace local authorities
-
Balancing exercise by states
- Hatton vs UK
- Heathrow airport and night fllights issue - it was allowed by state; property rights of citizens etc but also economic growth etc
- Court: okay, there is a wide margin, but u didn't properly consider other party's arguments
- Nightflights = nuisances for private lives of ppl
- Grand chamber > right balance was struck, no violation
-
IHR in national leg. order
- Marcx vs Belgium
- Before this: Kids born outside a wedlock used to have less rights than other ones
- She said its a violation of article 8 of convention and they checked compatibility and she won
-
General obligation of state, fix framework
- Broniewski case
- WW II > relocations > property issues
- Court knows that there will be many cases like that = the problem is systematic
- We put all waiting cases in the fridge and we gave the state 2 yrs to come up with a sufficient resolution
-
General obligation 2, framework fixing
- W.D. vs Belgium
- Mentally ill ppl commiting crimes - they have a right to special care , the situation was bad but minister couldnt change it overnight
- Pilot approach - freezing cases, giving time
-
Indirect control of enforcement
- Von Hannover vs Germany 2(!)
- Journalist - invasion of privacy of a girl
- Court sees that after 1st case, in the 2nd one the german authorities have learned their lesson
-
Interpretation of the conv
- Opuz case
- States have to take into account rights and obligations as interpreted by court
-
What is life? In context of its protection
- V.O. vs France
- Woman pregnant, 6th month, surgery failed baby died, claim that it was unintentional homicide
- Court said it was inadmissible, but didnt say if art. 2 applies lol, to avoid debate
- Court said it was not intentional, no need for criminal prosecution in general
- It'd be sufficient if french law gave VO discipplinary or civil tools
-
Violation of right to life, exception
- McCann vs UK
- IRA using violence in general; info that they will use bomb cars in Gibraltar
- British SS followed car - killed some of the terrorists and turned out there was no bomb
- It was all not sufficiently checked - operation was then based on assumptions
- there should have been due dilligence
-
Death penalty responsibility
- Al Saadoon and Mufdhi vs UK
- Prisoner in british hands - can he be given to other state if there is a threat of capital punition?
- One of protocols corsses out death penalty from the convention for those who ratified it
- For those who did - there is a problem, the shouldnt give him away
- But it can be taken as torture/inhuman punishment
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Link between a risk for life and the state
- LCB vs UK
- Father in army exposed to radiation, maybe cuz of that daughter sick
- State didnt inform him enough or didnt take measures to prevent that
- But we can't really establish a casual relationship between those two! So no violation!
-
Positive obligation of state in context of right to life
- Makaratzis vs Greece
- They were shooting to car
- Old regulations, situation very unclear for the functionaries
-
Natural disaster as a threat
- Seveso vs Italy
- Some industrial plant exploded, if there is some chemicals and stuff, u need to inform people bout the risk, prepare em
- Why could ppl live there? What bout zoning laws?
-
Natural disaster as a threat 2
- Oneryildiz vs Turkey
- Explosion of rubbish, ppl died
- State didnt kill em directly, but where were regulations?
-
Micro preventive measures as a positive obligation of the state in the context of a threat to the right of the article 2
- Opusz vs Turkey
- Violent guy beats wife and m in law
- Mother organizes a move-out for em > psycho killes the m in law
- The authorities knew that a guy was a psycho so where was the due diligence? they should be more active and do sth
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Preventive measures of state in context of art.2
- Mastromatteo vs Italy
- u have to integrate prisoners so sometimes u let em go to the world to not lose sense of reality
- They robbed a bank and killed a person
- But court said we cannot blame state here - if we were so strict, there would be no system of temporarily lees and no reintegration
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Preventing one from oneself
- De Donder and De Clippel v Belgium
- Belt found while showering, accident
- Guy killed himself
- Court - yep, insufficient state's dilligence
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Negative dimension of a right to life?
- Pretty vs UK
- She wanted euthanasia cuz she was in a terrible state
- She wanted her husband to assist her death, he agreed if prosecutor agrees, prosec didnt agree
- Court: no, there is not a right to death stemming from art. 2, too far
-
Negative dimension of life lel once again
- Lambert vs France
- Guy in coma, wife knows he wanted to be turned off in such a case
- His mom doesn't want to let em - strasbourg
- Court said it's about discontinuing treatment wasnt about negative right of state but positive one, so how does state protect life in France?
- They can leave wider margin
- Very well-though procedure in france - team decides + there are remedies against that decision
- so we leave it up to the state
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Right to private life
- Gogh vs UK
- The naked man - walking naked everywhere
- Matter of decency and public morals - there are zones where ppl can be naked
- Difference from burka case is that his ideas are not based on a well-established religion
- Wasn't it really serious tho? Like, he went to jail for that stuff, so for him it was super important
-
Victim status
- Dugdeon vs UK
- Homosexual conduct = a crime in the UK, N.Ir.
- Guy was not punished himself, but it's so important to the person's identity + impact that it might have on a person is too big not to take that into account
- Prohibition of homosexual relation between consenting adults always a violation of art. 8
- Sexual conduct = part of art. 8 = authorities stay away
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Protection of morals in context of art. 8
- Laskey, Jaggard and Brown v UK
- SM of more than 2 ppl
- Why do u prosecute us if we do it in private and we re consenting adults
- Is this protection of morals a legitimate aim here?
- Necessity: there was no serious harm + the consent -> its all fine, but state might intervene to prevent future harm
- Perhaps i was too much of morality? Too much of priest-like approach?
-
Legitimate aim? 2
- K.A vs Belgium ; The SM Judge
- Judge likes SM, it comes to public knowledge in the courtroom cuz party said about it -> fired
- They avoided the morality discussion by focusing on it being dangerous
- They used to be drunk, but u have to be completely sober to cotrol urself and follow the rules
-
Right to abortion?
- A,B and C vs UK
- Abortion only allowed in Ireland when risk for mother's life; 3 girls pregnant
- They went to London > aborted > after came back issues and had to visit doctor in Irl
- Found out, girls sanctioned
- The strict legislation on abortion = a violation of art.8?
- Basis? Constitution. Legitimate aim? Yes, morality. Proportionatej
- Morally sensitive = wide margin
- No violation in A and B, but in C - risk about life = disproportiante for C
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Proportionality; right to private life; morality
- S.H. vs Austria
- Two couples want in vitro, need material from 3rd party - forbidden in Austria
- 1st couple - sperm - Basis? Yes. Aim? Yes, morality. Proportionate?
- Wide margin, cuz no consensus in Europe
- Ovum case - even easier, same thing
- All proportionate
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Right to family life and deportation
- Assem Hassan Ali v Denmark
- Court said it's possible to deport that dangerous for po guy
- Dissenting opinion of prof. Lemmens
- Moral issue, developing families
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Again deportation and family life
- Belkacem v Belgium
- Sent. for terrorism and incitement > belg nationality removed > can be sent to Morocco, but he's married and has family life here
- Shall we send him? He's no real links with Morocco
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PRocessing of personal data
- Leander v Sweden
- Theoret. army man, working in musem; turns out used to be a communist party member - not geven perm. contr.
- no violation then, proportionate, but it was the cold war context
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Protection of personal data 2
- S and Marper v UK
- 11 yo boy accused of sth - took his fingerprints >acquited
- Years later arrested > oh u r in our system
- But they asked after the procedure for fingerprints 2be removed from the system - refusal
- We can keep, legitimate aim for safety but 2 conditions - certain lvl of seriousness of crime + u only have samples for certain period of time
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Processing of personal data 3
- Gardel v France
- Database of sexual offenders - only accesible by certain cat. of ppl among police etc.
- Data could be store there for 30 yrs, but person might ask to remove it, kinda revision procedure
- ^ thanks to that, the proportionality been maintained
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Measures affecting lifestyle or prompting it
- F. Martinez vs Spain
- Priest teaching in a catholic school falls in love > dispention > married
- Now u have a married man teaching in a catholic school
- Right to private life not taken seriously?
- No violation anyway, a lot of debates, no good way
-
Positive aspect of a right to
- Evans vs UK
- Couple wants kids, but the woman needs surgery after which might be infertile
- They make some embryios and freeze em for later
- Later after surgery guy refuses to give consent for continuing
- Wide margin or appreciation - no violation
- If we have a possibility, we should develop a decent legal framework
- But wtf - the nature of the legal system was perfectly unproportionate itself cuz no space for exceptions with due consideration
- father less affected anyways
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Protection against press
- Von Hannover v Germany I
- Freedom of expression vs privacy
- When its about sth important like political debate = narrow margin; not important=wide margin
-
Effective framework against sexual offenders
- Söderman vs Sweden
- Family, stepfather spies on daughter when she showers = not serious enough for sexual assault = acquited
- Not covered by criminal or civil rule = violation of art. 8
-
recognition of transsexualism
- Christine Goodwin vs UK
- Transgenderism seen as a medical issue - more rational and less moral approach than to homosexuals' issues
-
Environment protection under art. 8
- Lopez Ostra vs Spain
- Families living next to potentially dangerous plants - there is risk of serious consequences for the family lives
-
Positive obligations in terms of freedom of expression
- Saviano case
- Talks about mafia - they look for him - state has to provide him with safety
- Some ppl dont like it cuz they say that he should have thought before doing + taxpayers pay for it
- U need a framework to protect whistleblowers, no sorry
-
Facts vs values; freedom of expression
- Lingens vs Austria
- Journalist called politician an idiot > sued
- We can check facts but value judgments (as in case) are not open to prove; we can expect factual basis tho
- + its a political debate, we should be careful, politicians must take more
-
Politicians'freedom of expression
- Warvel v Austria
- weird judgment - sanctioned politician, cuz he used a word nazi, cuz it has terrible connotations in Austria
-
Freedom of expression; disclosure of confid info
- William Goodwin vs UK
- Business plans to save the company > journalist gets em and wants to publish - that would ruin plan
- He didn't tell where he got informations but so what - art. 10 protects that
-
Freedom of express; confidentiality 2
- Guja vs Moldova
- Whistleblowers -inform public about irregularities in procedures
- She did so and was fired
- Disproportionate, duh
-
Degrading treatment, threat
- Gafgen vs Germany
- Tell me whatya know or my less nice colleague will take care of u
- ^ inhuman
-
What is torture, baby dont hurt me, no moo
- Ireland v UK
- Ppl in N.Irl treated badly by brit army
- Court said taht techniques used weren't tortures, but that was an old understeanding of the notion
-
Torture, purpose
- Selmouni v France
- Drug trafficking > guy arrested after coming from Netherlands
- Beaten + peed on him; entered healthy, left in worse state;
- Proven by obduction - state needs to provide plausible explanation
- it was torture indeed, on purpose, to solve the case
- Violation
-
Responsibility indirectly for tortures
- El Masri vs FYROM
- Taken out from the bus cuz suspected of terrorism for no reason tbh, 3 weeks in a hotel room
- Taken to Afghanistan by cia , everything terrible
- Prosecutor from Macedonia said there was no evidence etc
- No EFFECTIVE investigation!
- Macedonia also responsible ,cuz territorium + allowed for his transport out, should have known that there might be ill-treatment
-
Torture 4
- Bouyid v Belgium
- Two boys, provoking etc the police - at interrogations both slapped by a policeman cuz lost patience
- Obduction and complaint, but authorities didnt take it seriously
- Violation
-
Ill treatment of vulnerable persons; art. 3
- M.S.S. v Greece and Belgium
- Dublin - if guy enters through a certain country, that one is responsible for his asylum
- He entered through Greece and went to Belgium
- Belgium sent him to Greece although terrible conditions of reception there - should have known
- He was entitled to minimum care and he didnt get it; had no means to live, couldnt get a jbo etc
- extreme poverty
-
Living conds. of deprived of liberty; art. 3
- W.E. v Belgium
- Mentally ill ppl, criminals but sick so they need treatment
- They were put in the psychiatric wing of the prison, but thats the only difference, nothing was being done to help'em
- That deprivation only legal when consequences are attached to it as a treatment
- Pilot procedure > building of psychiatric centres
-
Conditions in prisons; art. 3
- Mursic vs Croatia
- Overcrowding - u need at least 3sqm per prisoner - otherwise violation
- 3-4 sqm might also be a problem but depents;
- Over 4 it should be fine be still we can argue on basis like smoking ppl,no privacy but then its no longer under art. 3
- Metrical standards for legal certainty
-
Extradiciton in terms of tortures
- J.K vs Sweden
- How far should we examine the risk awaiting for the guy to be extradicted
- No witness often can confirm experiences
- Techniques to check if asylum seeker tells the true -expertises etc
- Take into account conversion christianity, homosexuality itp
-
Sexual violence as a torture
Aydin vs Turkey
-
Minors trial as torture
- Tyrer vs UK
- Kiddo killed different one - trial
- Can we say its a torture? Not realy it depends on the means that were introduced to safeguard his wellbeing
-
Violence in family; safeguards against torture; positive obligation
- A vs UK
- Step-father beats son - he said ya i beat him sometimes but he's difficult and was acquited XD
- Court - ur system is fucked if u acquit someone like that XD
-
State's action after sexual assault
- M.C. v Bulgaria
- Girl met 2 guys, they went out, the had sex, guys said it was consensual
- Prosecutor didnt want to start a prosecution, cuz there were no signs of violence so he thought its impossible to prove rape
- It was inhuman treatment though even without violence, obviously it could be
-
Freedom of expression; fair trial
- Baka vs Hungary
- Guy criticizes new legislation as an exper, ex-judge - this kind of speech should be highly protected - its abput basic institutions
- Then suddenly new legislation and de facto he was fired
-
Political speech mixed with hatred
- Gunduz vs Turkey
- Leader of religious sect - enemies shall be killed - silenced by court > Strasbourg
- It was hatred and incitement to serious crimes - not protected - apply art. 17
-
Freedom of expression vs freedom of association etc
- Lombardi Vallauri v Italy
- Professor at catholic uni
- Holly See needs to give its opinion and it gave negative opinion cuz he had not really catho views -he should not work there
- He could have been sacked etc, BUT no proportionality since they didnt respect his equal rights as a party - no procedure to let him have a say
- Procedural dimension was fd up; he couldnt really defend himself
- Decision might have been good, but they didnt proceed properly
-
Freedom of expression as a teacher
- Vogt vs Germany
- She was in a communist party
- There were concernes that she might be corrupting children and teaching them wrong values etc
- She was sacked - disproportionate, there was no evidence event during wokrin hours
-
Freedom of expression as army etc
- Rekvenyi v Hungary
- All the military etc services could not engage politically
- There were in transition between systems so there was a risk of former communist authority to fight em
- Cuz of that context, court accepted
-
Blosphomeous stuff
- Otto Preminger v Austria
- Obscene movie in Tirol - protests not to air that in cinemas, although ppl were "safe" cuz they'd have to pay to get in and watch
- Court said its ok for Austria - margin
-
Hate speech
- Umbala vs France
- Dieudonne - french comdian, anti-jewish
- Shows allowed in belgium cuz more liberal
- Shows banned in France - he appealed but Strabsbourg said art. 17
-
Hate speech, gay
- Vedgland vs Sweden
- Distributing to kids leaflets gainst homosexuality -banned by court on article 17 cuz he was saying it to kids they had no way to avoid his message
-
Hate speech against immigration
- Feret v Belgium
- Critical bout immigration
- Banned by court by 4 to 3
-
Hate speech - denial
- Perincek vs Switzerland
- Turkish guy was denying armenian genocide - we have our holocaust trauma, we re careful, baned
-
Publishing hate speech? Journalist
- Jersild vs Denmark
- we have to distinguish publishing as an author and as an journalist
- He was only giving floor to express somoeones opinion, he wasnt iven aproving
- No violation
-
Pluralism of media
- DiStefano v Italy
- There must be fair rules of licences
-
Emplyers and employees, hate speech
- Fuentes Bobo v Spain
- Guy from TV, criticised some TV and got fired
- disproportional
-
Right to property
Stec vs UK
-
Right to prop, expropr
- Former king of Greece vs Greece
- took it all with no compensation - not proportionate
-
Forced to sell sth
- James vs uk
- Obligation of owner to sell to tenant
- Reasonable compensation was there - proportionate
-
Changing law to avoid paying for loss
- Pressos Compania Naviera v Belgium
- Pilots of ship as civil servants, something broken - sued pilots
- New law - immunity of state for pilot's actions
- No justificaiton at all
-
Right to possession
- Gasus Dossier vs Neth
- Dutch comp bought a machine from Germans - ownership on them until payed off
- Company bankrupted - Social sec took the machine
- Tax authorities have rights to recover it even if 3rd parties possesion- no violation
-
Pre-emption for state
- Beyeler v Italy
- The painting, varying prices
-
Excessive 2?
- Back vs finland
- Not excessive that it was minimsed from 20k to 300 e
-
Civil obligationjQuery112409270190934033615_1547713388555
- Mennitto vs ITaly
- Father received money as allowance for disabled kid - auth told him to repay
- no subjective obligation in law
-
Criteria to find out if its criminal
Engel v Netherlands
-
When art.6 in prosecution?
- Salduz v Turkey
- Guy had no lawyer at first hearing - serious jeorpardise for fairness of trial
-
Execution of judgment
- Hornsby vs Greece
- Guy wanted to organise a language school
-
Objective partiality
- Piersack v Belgium
- First as a prosecutor and then as a judge xD
-
Impartiality
- Incal v Turkey
- Guy in trobule cuz giving leaflets against army etc - that was supposed to be a menace to integrity
- Judge - military judge
-
What should be in arguments
- Taxquet v Beligum
- Not necessarily formal legal arguments but perosn must know why she was convicted
-
ecosoc rights xd
- Demir and Baykara v turkey
- baka baka Bakajoko
-
Idk at this point housing or some shit
Housing
-
Discrimination xd
- D.H v Czech Republic
- Roma children overly presented in secial schools
- Officialy those schhhols for those with special learning needs, but de facto romas and they haad inferior education
-
Discrimination, inheritence
- Burden v UK
- Inheritance taxes - lower for family
- 2 siblings living together forever, over 80 yrs
- High tax, but whats the difference from a married couple living togerher?
-
Discrimination, women
- Staatkundig Gereformeerde Partij v Netherlands
- Conserv. christians - a woman cant join
- is it freedom not to want em or not?
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