Inhoudsopgave
ECHR CASES.......................................................................................................................................2
AL-SKEINI AND OTHERS VS THE UNITED KINGDOM........................................................................................2
GÄFGEN VS GERMANY............................................................................................................................4
HATTON VS. THE UNITED KINGDOM...........................................................................................................7
HANDYSIDE VS THE UNITED KINGDOM......................................................................................................10
M.S.S. VS BELGIUM AND GREECE...........................................................................................................13
STAPPENPLANNEN................................................................................................................................15
MUBILANZILA AND MITUNGA VS BELGIUM (PARTIAL EXAM).........................................................................20
CJEU CASES......................................................................................................................................23
AKERBERG FRANSSON...........................................................................................................................23
BOSPHORUS AIRWAYS..........................................................................................................................26
STAPPENPLANNEN................................................................................................................................29
CASE C-331/16 (PARTIAL EXAM 2).........................................................................................................30
1
,ECHR cases
Al-Skeini and others vs The United Kingdom
Facts
This case is about six Iraqis civilians who were killed by English soldiers, all in different
circumstances. One of them was killed in an English prison. All of the applicants are family
members of the deceased people.
Issue
Is jurisdiction only territorial, or can It be extraterritorial?
Rule
The article invoked by the applicants in this case is article 2 ECHR, the right of life. In
addition, in the case of the sixth applicant article 3 ECHR. The applicants are saying these
articles are violated as a result of the deaths. Moreover, the secretary of State for Defense
refused to order any investigation into the deaths.
This case is mostly about article 1 ECHR. This article says that contracting parties shall secure
to everyone within their jurisdiction the rights and freedoms defined in the Convention. This
means that jurisdiction is necessary to hold a state responsible for the violation of any article
in the Convention. Primarily the jurisdiction is territorial. However, in some special
circumstances the jurisdiction can be extraterritorial. The applicants contended that their
relatives were within the jurisdiction of the United Kingdom under article 1 ECHR at the
moment of their deaths and that the United Kingdom had not complied with its investigative
duty under article 2 ECHR
Case law (niet heel erg belangrijk, kan het wel wat verduidelijken)
In a previous case (Bankovic and others v. Belgium) the Court had decided that jurisdiction
under article 1 ECHR was territorial, but that there were exceptions. One exception applied
where a state party had effective control of an area outside its own territory. This only
applied when a territory of a contracting state was controlled by another contracting state.
However, each case must be determined regarding the particular facts. In the case Öcalan v
Turkey the Court held that directly after being handed over to the Turkish officials by the
Kenyan officials, the applicant was effectively under Turkish authority and therefore within
its jurisdiction, even though it exercised outside its territory. In Al-Saadon v the United
Kingdom the Court held that Iraqi nationals detained in British controlled military prisons in
Iraq fell within their jurisdiction, since the United Kingdom exercised total and exclusive
control over the prisons and the individuals detained in them. (§97-130)
The jurisdiction principles are: §130-142
- Territorial principle: jurisdiction is normally exercised throughout the State’s territory
(§131)
- State agent authority and control: here you look at the facts in particular. It’s really about
the individual agents on the ground. There is jurisdiction whenever, the State through its
agents, exercises control and authority over an individual or a territory that is normally
exercised by the government of that country (§133-137).
2
,- Effective control over an area: there is jurisdiction when, as a consequence of military
action, a State exercises effective control over an area outside their national territory.
This is more looking if the State has control over an whole area. In determining whether
effective control exists, the Court will have to reference to the strength of the State’s
military presence in the area. (§138-140)
- The legal space (espace juridique): when a territory of a State is occupied by the armed
forces of another State, the occupying State should in principle be accountable under the
Convention for breaches of human rights within the occupied territory, because
otherwise the population of that territory would be deprived of the rights and freedoms
that they enjoy (§142).
To find out if there is effective control over an area by any contracting parties, it isn’t
necessary to determine whether the contracting state exercises detailed control over the
policies and actions of the local administration. The fact that the local administration
survives as a result of the contracting state’s military is enough. The Court has emphasised
that, where the territory of one Convention State is occupied by the armed forces of
another, the occupying State should in principle be held accountable under the Convention
for breaches of human rights within the occupied territory, because otherwise the
population of that territory would be deprived of the rights and freedoms that they enjoy.
Application
The UK army was in Iraq to provide security in and for the provisional administration of Iraq
while they were trying to remove the power of the Ba’ath regime. De UK army exercised
some of the public powers that are normally exercised by a sovereign government. The
United Kingdom assumed authority and responsibility for the maintenance of security in
south-east Iraq. In these exceptional circumstances, the Court considers that the United
Kingdom exercised authority and control over individuals killed during such security
operations, so as to establish a jurisdictional link between all the deceased and the United
Kingdom for the purposes of Article 1 of the Convention.
In this case there is exterritorial jurisdiction, both types (state agent and effective control). In
§144 they claimed in a letter to the UN that they were in control of the area and they were
there to keep peace and secure the area so they had power over the entire area. §137 says
they also had state agent control.
Conclusion
Jurisdiction is primarily territorial, but the ECHR applies outside the territory if there are
specific circumstances that require one of the exceptions (§149-150)
3
, Gäfgen vs Germany
Facts
The applicant lured an eleven-year-old child to his flat. He then suffocated him which killed
the boy. He also send a ransom note to the boy his parents saying their kid had been
kidnapped and demanding one million euros. Short after, the applicant got arrested. While
questioning the applicant, he was threatened by an officer with considerable pain to make
him reveal where the boy was. The police said this was because they believe the child’s life
was in danger, so they needed to know where he was quickly. After a while the applicant
told the police men where the body was and they found it.
Issue
Is it allowed for police officers to threaten to torture a suspect in order to save a child’s life?
So is there a breach of article 3 ECHR in this case? Also, does the applicant lost his victim
status?
Rule
Whether the treatment was contrary to article 3 ECHR
This case is about article 3 of the Convention which says that no one shall be subjected to
torture or to inhuman or degrading treatment of punishment. The applicant complained that
he had been subjected to torture contrary to article 3 of the Convention and was therefore a
victim. This article makes no provision for exceptions, even in the event of a public
emergency threatening the life of a nation. So even in the most difficult circumstances, such
as fights against terrorism and organized crime, there is no torture and inhuman or
degrading treatment or punishment allowed (Selmouni vs France, Chahal vs the United
Kingdom and Labita vs Italy).
This means that the nature of the offence committed by the applicant is irrelevant for the
purposes of article 3. There are three types of ill-treatment: §87-90
1. Inhuman treatment: planned, causes actual bodily injury or intense physical and mental
suffering. There is an excessive use of force resulting in injury during detention.
2. Degrading treatment: causes feelings of fear and inferiority, breaks physical or moral
resistance. For example, detention under dirty, unhealthy overcrowded conditions.
3. Torture: this is deliberate treatment which causes cruel suffering with purpose. This is
severe pain, which is higher than it is by inhuman treatment. For example, rape and
mock executions to obtain information.
In order to fall within the scope of article 3, there must be a minimum level of severity. This
depends on all the circumstances of the case, such as duration of the treatment, its physical
or mental effects, sex, age and state of health purpose of the treatment, intention or
motivation behind it and the context in which it takes place §88.
The Court considered treatment to be inhuman because it was premeditated, was applied
for hours at a stretch and caused either actual bodily injury or intense physical and mental
suffering (Labita vs Italy §89). Treatment can also be degrading when it was such as to
arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and
debasing them and possibly breaking their physical or moral resistance, or when it was such
4
