Samenvatting
Summary Case Law European Human Rights
- Instelling
- Universiteit Van Amsterdam (UvA)
Clear, consistent and concise summary of all the mandatory ECHR case law for the course European Human Rights.
[Meer zien]Voorbeeld 4 van de 56 pagina's
Voorbeeld 4 van de 56 pagina's
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Voorbeeld van de inhoud
WEEK 1 - INTRODUCTIONZakharov v. Russia (2015)
● Article 34 ECHR
● Victim-requirement - flexible
● Effectiveness of HR protection (in practice and not just theory)
● Facts:
○ Was about the availability of effective remedies. Article 34, the admissibility
requirement is approached with certain flexibility. The same can be said for the
other admissibility requirements.
○ Russia had a system which allowed covert interception of communications
○ Problem: claimants couldn’t prove the telephone tapping and thus couldn’t prove
they were an actual victim.
○ Communication being intercepted → infringement on the right to privacy. You
can never know afterward if your communication was intercepted and if this law
had applied to you, therefore you could not prove that you were directly affected.
○ Potential victims in case of secret surveillance measures → Every Russian person
was within the scope of this legislation.
● Standing in the absence of proof of being a direct victim depends on the following factors
(par 171):
1. The scope of the legislation: permitting secret surveillance measures: can the applicant be
affected by it? If so:
2. The availability of remedies at the national level: the degree of scrutiny is adjusted
depending on the effectiveness of such remedies:
- If no effective remedy on national level → Court will take it in
- If there is an effective remedy to complain they will still take it in but have to
prove then a potentially at risk due to his personal situation
Sadik v. Greece (1996)
● Article 35 ECHR
● Exhaustion of local remedies - strict interpretation
● Facts:
○ Indirect victim case
○ The applicant was convicted of advancing false information and forging
documents
, ○ He was elected to be an MP
○ He started an action to the Commission but then died in a car accident so his wife
and two minor children wanted to continue proceedings
○ Complaining about the disregard of human rights to Greek Muslims
○ Went to court for admissibility
● Judgment:
● Exhaustion of local remedies requirement ‘must be applied with some degree of
flexibility and without excessive formalism and.. it does not require merely that
applications should be made to the appropriate domestic courts and that use should be
made of remedies designed to challenge decisions already given. It normally requires also
that the complaints intended to be made subsequently at Strasbourg should have been
made to those same courts, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law’ (par. 30)
HOWEVER:
● You have to bring up your violation of human rights in the domestic process, you cannot
just bring it up at the Strasbourg court for the first time.
● The Court is very strict to protect the sovereignty of MS and give the MS a chance to rule
upon Human Rights first.
● In this case: Article 10 was not brought up before the national court
● However, it can be said that the Court was trying to protect human rights more generally,
by forcing victims to bring their claims before national courts.
Aksoy v. Turkey (1996)
● Article 35 ECHR
● Exhaustion of local remedies- not strict
● Court performing its mandate – effective HR protection
● Facts:
○ A man had been assaulted and went to the hospital. He was diagnosed with i.a.
Paralysis. However, the police report stated that he was fine. The public
prosecutor looked the other way. Therefore, he did not feel like he had an
effective remedy.
○ He argued that there was an administrative practice of torture and official
tolerance thereof. This is an exception to the exhaustion of local remedies. If the
officials do not pick up on widespread practices, you don’t have to exhaust the
local remedies first.
, ● Note: even if some remedies are effective in general, you still need to look at the
personal circumstances. For Mr. Aksoy, he had reason to lose faith in the system. He
did everything that was reasonably expected of him and was allowed to go to Strasbourg
right away.
● If there is an unreasonable burden o n a specific person - no need to exhaust
● Para 52: Applicant argued that there was an administrative practice of torture and
official tolerance thereof of such a nature as to make proceedings futile or ineffective
(and hence an exception to the requirement to exhaust domestic remedies)
● Para 53 and 54: Court did not follow that but held instead: ‘it must take realistic account
not only of the existence of formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in which they operate, as
well as the personal circumstances of the applicant’; ‘it must also [be examined]
whether, in all the circumstances of the case, the applicant did everything that could
reasonably be expected of himto exhaust the national channels of redress.’
● Para 57: There existed special circumstances which absolved the applicant from his
obligation to exhaust domestic remedies.
Sheekh v The Netherlands
● Article 35 ECHR
● Exhaustion of local remedies - not strict
● Facts:
○ Applicant was Somalian and claimed asylum in the Netherlands
○ Dutch courts denied
○ He went to ECtHR – arguing his expulsion to Somalia would expose him to a real
risk of being subjected to treatment in breach of Art. 3 ECHR
○ Sister raped; brother killed
● Issue: Had he exhausted domestic remedies?
○ No but didn’t have to – no prospect of success
● ECtHR said highest administrative court provided ineffective remedy
- Because of case-law of administrative case law unlikely to succeed
- If case will be decide in a certain way/ bound to fail = no need to exhaust
remedies.
● Para 121: The obligation to exhaust domestic remedies is, however, limited to making
use of those remedies which are likely to be effective and available in that their existence
is sufficiently certain and they are capable of redressing directly the alleged violation of
the Convention. An applicant cannot be regarded as having failed to exhaust domestic
remedies if he or she can show, by providing relevant domestic case-law or any other
, suitable evidence, that an available remedy which he or she has not used was bound to
fail.’
● Para 123: ‘in practice a further appeal would have had virtually no prospect of success.’
● Difficulty: Effectiveness or activism? Is the court best suited to decide (over elected
officials) what is best practice/best remedy in a state? Overstepping mandate or simply
pursuing mandate in an effective way?
Cases in powerpoint about Interim Measures:
Mamatkulov v Turkey
● ‘A failure by a Contracting State to comply with interim measures is to be regarded as
preventing the Court from effectively examining the applicant's complaint and as
hindering the effective exercise of his or her right and, accordingly, as a violation of
Article 34’
Aoulmi v France
● ‘an interim measure is binding to the extent that noncompliance with it may lead to a
finding of a violation under Article 34 of the Convention.
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