Exam (elaborations)
Exam questions and elaborations Fundamental rights in Europe, figure 7.7.
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Elaboration of the online examination of the course Fundamental Rights in Europe, completed the course with a 7.7.
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Tentamen deel 1Zidane is an Algerian citizen who joined the Algerian army in 2019. He was
one of the gendarmes in charge of the protection of a French nuclear
power plant located in Algeria. The city in which this plant is located was
under the control of French troops who, under command of the American
army, assumed responsibility for providing security in that area.
In February 2020, Zidane was injured by gunfire. He was immediately
transported to the military hospital. Zidane died shortly after arrival at the
hospital. A few hours later, the French military prosecutor and a team of
investigators went to the hospital. An autopsy was carried out and
fingerprints were taken from Zidane and other gendarmes.
Simultaneously, the military prosecutor instructed a team of experts to
investigate the incident’s place. They interrogated many gendarmes and
collected other witnesses. Based on this, the military prosecutor examined
three possible scenarios: suicide; accident; and intentional use of lethal
force by other gendarmes. He found that there were no grounds for finding
that one of the gendarmes had been responsible for Zidane’s death. In
June 2020, the military prosecutor decided not to bring a prosecution and
immediately sent Zidane’s family a copy of the decision as well as the
entire investigation’s file.
Zidane’s family appealed against this decision. In October 2020, the
military court accepted some of their arguments and ordered the military
prosecutor to carry out additional investigations. In December 2020, he
submitted the additional investigations. Shortly after, the military court
dismissed the appeal and sent a letter to Zidane’s relatives. In January
2021 the family brought a higher appeal before the Supreme Military
Court, but it was dismissed.
Zidane’s family was unsatisfied and submitted a complaint with
the European Court on Human Rights (ECtHR) arguing that the positive
obligation to investigate under Article 2 of the European Convention on
Human Rights (ECHR) has been violated. In response, France advanced
two arguments. Argument 1: because the incident took place outside the
French territory, and French security troops were under American
command, Zidane was not within the jurisdiction of France and the
application should thus be declared inadmissible. Argument 2: if the ECtHR
considers the application admissible, the facts of the case show that the
authorities complied with their positive obligation to investigate under
Article 2 ECHR.
Question:
Write a legal plea (350-400 words) in which you argue that
the first argument is not correct, and that
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