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HC aantekeningen Fundamental Rights in Europe IN EEN KEER GEHAALD!
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Lecture 1: admissibilityAdmissibility: whether a complaint can be accepted for consideration
Article 34 ECHR: The Court may receive applications from any person, non-governmental organization or
group of individuals claiming to be the victim of a violation of the Convention rights by one of the
Contracting States.
Victim status
- No abstract review of national law
- Instead: concrete scenario of violation
- In practice: discretion, effective, protection of rights
Gäfgen v. Germany
He lured a child, police arrested him and the threat him with torture. German courts had expressly
acknowledged that art. 3 ECHR was violated and redress procedure was pending: is he still a victim?
- Compensation should be effective
- German procedure was not effective because of excessive delays: no decision for more than 3
years.
Decision is based on admissibility requirements
Judgement is about a case
, Lecture 2: prohibition of ill-treatment and right to life
Prohibition of ill-treatment
Classification of ill-treatment:
All three are forms of ill-treatment
1. Inhuman treatment: it’s planned, it causes actual bodily injury or intense physical and mental
suffering. Excessive use of force resulting in injury during detention
2. Degrading treatment: causes feelings of fear and inferiority, breaks physical or moral resistance. In
detention conditions, dirty, overcrowded and unhealthy.
3. Torture: causes cruel suffering, severe pain/higher than by inhuman treatment, with purpose.
Careful consideration to torture. Like rape and mock executions to obtain information.
Threat of ill-treatment may be ill-treatment, to threaten with torture may constitute at least inhuman
treatment.
Scope
Application of article 3 ECHR requires that ill-treatment must attain a minimum level of severity
The threshold is higher when a person resists, when a person does not use force or does not resist, the
threshold is lower.
Assessment of minimum level of severity:
It depends on all circumstances such as:
- Duration of treatment
- Physical or mental effects of treatment on the victim
- Sex, age and state of health of the victim
- Purpose of treatment, intention or motivation behind it.
- Context in which it takes place.
application is purely a matter of scope > if treatment falls within the scope > absolutely prohibited
The right to life
Article 2 ECHR
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally
Negative obligation: prohibition of intentional and unlawful deprivation of life
Positive obligation:
- To protect by law the right to life;
- Preventive operational measures
- Effective investigation
Al-Skeini and Others v. the UK
Six Iraqis claimed that UK failed to conduct adequate investigation into death of their family members
during British security operations in Iraq; preliminary inquiry, compensation, but no further investigation.
Effectiveness of investigation (Al-Skeini)
- Depends on circumstances.
- Must act of own motion once matter has come to their attention
- Awarding damages is not sufficient
- Independent investigation from those implicated, in theory and practice
- Prompt response by authorities
- Public scrutiny of investigation to secure accountability
- Victim’s kin must be involved
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