Antwoorden MOCK exam Fundamental rights in Europe
Question 1 (case)
Kate is an unemployed single mother living in Member State X and receives social welfare
benefits. Member State X has a monist system regarding the effect of international law in the
domestic legal order.
In August 2018, the social welfare authorities receive an anonymous letter stating that Kate is
having an affair with her wealthy neighbor and that she has practically moved in with him.
For this reason, the authorities think Kate may not be entitled to social welfare benefits
anymore and they start an official investigation.
The authorities instruct a state official to check twice a day if Kate is at home or staying with
her neighbor by looking through the windows. The official is also instructed to place a digital
camera pointed at the front door of Kate and the neighbor. After two months of observations,
the authorities conclude that Kate is indeed living with her neighbor and they decide to repeal
all benefits granted to Kate. Kate is shocked by this decision and asks her lawyer to make an
appeal to the district court of Member State X. In court, Kate’s lawyer argues that the
investigation of the authorities violates Kate’s right to private life as protected by Article 8 of
the ECHR.
Q1: Assess whether the investigation violates article 8 ECHR.
Be aware that this question is only stated in the workgroup, and not official on this exam!
Thus, here is a right at stake that is being limited, article 8 ECHR. So, you have to look at the
Sunday Times case to determine if it suffices the given criteria to limit such fundamental
right (week 4). Answer:
Using the IRAC-Method here to answer the question.
Issue
Whether the investigation violates article 8 ECHR.
Rule
Article 8 ECHR, everyone has the right to respect for his private and family life, his home
and his correspondence.
Sunday Times case for the proportionality test steps for limitations on ECHR rights.
Analyze
Step 1. Threshold issue, falls the issue within the material scope and is there an interference
with the right?
Well, you read in the casus that there has been an investigation on Kate, an official checks
twice a day if Kate is at home and there is a digital camera pointed at the front door of Kate.
So you can say here the investigation falls within the scope of article 8 ECHR, because it
considers her private life, her home and her correspondence.
So because an official is checking her twice a day and there is a digital camera recording her,
she doesn’t has a private life anymore. People are checking her secretly out her house and
what she is doing so there is an interference with this right.
,Step 2. Is the limitation provided by law? Accessible? Foreseeable?
In the workgroup casus you read that the officials refer to article 53 paragraph 9 of the
Benefits Acts. This foresees in the criteria accessible, because everyone who is looking for it
online can find it. But if it meets the criteria foreseeable is the question, because you can read
there that competent authorities may investigate a person, so may is not a strict obligation.
And also it needs to be determined if there are possible grounds for suspicion, and that also
needs further investigation. Concluded you can say that the provision that is used, is not clear
enough to regulate conduct. And fails on this step 2.
Step 3. Is there a legitimate aim to pursue the limitation?
See here article 8 ECHR sub 2. No interference except as is in such accordance with the
economic well-being of the country. If Kate was living with the wealthy man, it would be not
economic sufficient for the state to also give her extra money to live. They rather can spend
the money on someone who really needs it. They are making extra costs for people who are
not living by the Benefits Acts. So there is a legitimate aim to check and investigate if people
are not lying to the government for extra money.
Step 4. Are the limitations necessary in a democratic society? Is there a pressing social need?
Relevant and sufficient reasons? Proportionate to aim pursued?
There is a pressing social need because if Kate is getting the welfare money, maybe the
neighbor who is a little bit richer than her, want it too and gets jalousie. In order to protect the
state everyone has to follow the same rules.
The given reasons justify the restrictions, because you have to investigate in order to find out
if someone is living with someone else who is rich and is living by the rules. There is no
other way to find out.
It is proportionated because they keep on distance and they don’t really interference with
Kate her life. And also, they first investigate before they take the benefits away.
So, the limitations are necessary in a democratic society.
Conclusion
Following and set out the steps set out in Sunday Times to the facts of the case, it concluded
that the investigation did not violate article 8 ECHR. Because it’s a proportioned limitation.
,Kate’s claims are dismissed. She becomes clinically depressed and the relationship with her
neighbor comes to an end. Since she hasn’t been able to pay the rent for months, she is
evicted from her house and ends up at the street with her 2-year old son. She immediately
applies for welfare benefits again, but the welfare authorities have a six-week time limit to
decide on her application. During these six weeks, she has nowhere to go. She therefore,
applies for temporary emergency benefits to survive during these six weeks, but this
application is rejected, based on her fraudulent behavior in the past.
Q2: Discuss whether the denial of emergency benefits is in violation of Article 3 of the
ECHR. To what extent could possible fraudulent behavior play a role in assessing the
existence of such a violation? (8 points)
Please note that this question partly covers the materials of week 6, subjects you don’t have
to learn for this exam! Furthermore, see here article 3 ECHR, prohibition of torture, an
absolute right (week 3). Answer:
Using the IRAC-Method here to answer the question.
Issue
Whether the denial of emergency benefits is in violation of Article 3 of the ECHR?
To what extent could possible fraudulent behavior play a role in assessing the existence of
such a violation?
Rule
Article 3 ECHR, no one shall be subjected to torture or to inhuman or degrading treatment or
punishment. Is an absolute right, may never be limited.
Scope of application
Article 1 ECHR, the High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section 1 of this Convention.
Social welfare falls within the jurisdiction of State X, their own ruling on it.
Material scope (most important question here!)
Look at article 3 ECHR, what kind of behavior is protected by this right?
Degrading treatment, not getting benefits when you’re homeless causes inhuman treatment.
And thus, falls under the scope of article 3 ECHR. See shopping list Gafgen.
Personal scope
Look at article 3 ECHR, no one, so Kate falls under this protection.
Article 3 ECHR is applicable by:
- Real risk of torture or ill treatment, Soering case, criteria to examine applicable article
3 ECHR.
- Ill treatment is a minimum level of severity to apply the protection of this article, high
threshold, Gafgen v Germany case, also criteria to examine applicable article 3
ECHR.
, Application
Real risk of torture or ill treatment (Soering):
Existence of substantial grounds for believing that the person would face a real risk of being
subjected to torture or to inhuman or degrading treatment or punishment.
Shopping list for relevant factors. Duration, physical and mental effects, sex, age, health,
motivation, purpose.
Ill treatment is a minimum level of severity to apply the protection (Gafgen):
Shopping list for relevant factors. Duration, physical and mental effects, sex, age, health,
motivation, purpose. Compare them to Gafgen.
See here that the motivation of frequently behavior in the past does not play a role in the
question whether the ill treatment was legit or not, article 3 ECHR is absolute, so no
limitaions possible. Gafgen para. 44: In this connection, the Court accepts the
motivation for the police officers’ conduct and that they acted in an attempt to save a child’s
life. However, it is necessary to underline that, having regard to the provision of Article 3 and
to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a
person applies irrespective of the conduct of the victim or the motivation of the authorities.
All is well that ends well: luckily Kate recovers with the help of a homeless charity, and in
due time she even manages to find a job and a house. However, there is still one legal hurdle
to cross. She finds out that while she was ill and living on the street, the authorities have
prosecuted her for fraud. As a result she was condemned to a fine by a criminal court, while
she was not present at the trial. Kate argues that the trial in absentia violates the EU Directive
on the Presumption of Innocence (Directive 2016/343, to be implemented before 1 April
2018). She also argues that she is entitled to a new trial. The Directive provides as follows:
Article 8
2. Member States may provide that a trial which can result in a decision on the guilt or
innocence of a suspect or accused person can be held in his or her absence, provided that:
(a) the suspect or accused person has been informed, in due time, of the trial and of the
consequences of non- appearance; or
(b) the suspect or accused person, having been informed of the trial, is represented by a
mandated lawyer, who was appointed either by the suspect or accused person or by the State.
Article 9
Member States shall ensure that, where suspects or accused persons were not present at their
trial and the conditions laid down in Article 8(2) were not met, they have the right to a new
trial, or to another legal remedy, which allows a fresh determination of the merits of the
case, including examination of new evidence, and which may lead to the original decision
being reversed. In that regard, Member States shall ensure that those suspects and accused
persons have the right to be present, to participate effectively, in accordance with procedures
under national law, and to exercise the rights of the defence.
