1
Opletten of de case van ECHR is of niet!!
Situering case case Relevance
EERSTE DEEL
The function of HR: Wackenheim v. France In this case: concerned the ban on the practice of "dwarf tossing," where a person of short
protection of human dignity (Human Rights Committee) stature is thrown for entertainment in public venues. Mr. Wackenheim, a person of short
=> human dignity is not stature who participated in this activity, argued that the ban violated his right to
unproblematic employment and personal autonomy. the European Commission of Human Rights and the
UNHuman Rights Committee ruled that the ban was justified, as it aimed to protect human
dignity and public order. The case underscores the balance between personal freedom and
the protection of human dignity, affirming that states can impose restrictions to uphold
fundamental values even if it limits individual choices, like choosing your profession
Horizontal application of Khurshid Mustafa & Tarzibachi In this case: immigrants wanted to rent an apartment in SW and they could not get
Human Rights provisions v. Sweden satellite dishes from the housing company. The satellite dishes were needed to
watch television from their home country. It was seen as a violation of freedom of
expression, but on the other hand property rights also play a role
➔ Court: ruled that Sweden had violated Article 10 of the European Convention
on Human Rights (freedom of expression). It held that access to information,
particularly for minorities wishing to stay connected with their cultural and
linguistic roots, outweighed the landlord's aesthetic concerns. The decision
highlighted the importance of proportionality and the need to respect
individuals' access to information as part of their freedom of expression.
->About striking a fair balance
Pla and Pincernau v Andorra
Admissibility – application Bosphorus Airways v Ireland In this case: Bosphorus Airways, a Turkish airline, had leased an aircraft from a Yugoslav
directed against a state party company, which was impounded by Irish authorities under EU regulations implementing UN
sanctions against the former Yugoslavia. The airline argued that this violated its property rights
under Article 1 of Protocol No. 1 to the ECHR.
, 2
Opletten of de case van ECHR is of niet!!
International organizations are not contracting parties to the ECHR, so you cannot bring an
organization before the court. States remain responsible for their actions as members of an
international organization
Admissibility – victim Verein Klimatseniorinnen v. In this case: case brought by Swiss elder ladies ‘our health is affected due to violations of
Switzerland, the Swiss State’ are they direct victims? No signs of illness? + one case brought by
Portuguese youngsters against 33 MS of the Council of Europe complaining about the
future effects of climate change, but are they already victims now?
➔ Applicant must be able to claim to have been personally victimised in order to
bring the case before the ECHR
Admissibility – significant Korolev v russia In this case: a Russian filed a complaint with the Russian authorities about court fees.
disadvantage The applicant was not reimbursed for international court fees payable by the
national authority (state obligation). The court fees amounted to 22 Russian roubles
(less than 1 euro).
In this case, there was no significant disadvantage.
➔ exception : even if the disadvantage you suffered was insignificant, the
court may still decide to hear the case because it was an important HR issue
or because the national authorities did not consider your case from the
perspective of HR protection
the complex relationship Bosphorus Airways v Ireland The court: Ireland had not violated the Convention because it was acting in compliance with its
between the EU and the obligations under EU law.
ECHR The court established the Bosphorus presumption:
- Presumption of equal protection: state action taken in compliance with legal obligations
it has under an international organization is justified as long as the relevant organization
considered to protect fundamental rights at least equivalent to the Convention.
MSS v Belgium & Greece
Obligations on states H.F. and Others v. France, In this case: The applicants, who were part of a larger group of refugees, claimed that their
expulsion violated their rights under the European Convention on Human Rights, specifically
, 3
Opletten of de case van ECHR is of niet!!
the prohibition of inhuman or degrading treatment (Article 3) and the right to family life
(Article 8) The applicants argued that, as they were at risk of being subjected to ill-treatment
Secure human rights to in Afghanistan, their removal would expose them to serious harm.
everyone within the
jurisdiction ➔ Court: their expulsion violated the prohibition of torture and inhuman or degrading
treatment.
Principle: territorial jurisdiction → a state is responsible for ensuring that individuals within its
territory are protected by the rights guaranteed under the ECHR. This responsibility extends to
situations where a state seeks to expel individuals, including refugees or asylum seekers, to a
country where they may face a risk of harm. (this case, France, as a signatory of the ECHR, had
territorial jurisdiction over the applicants while they were within its borders.)
Exception on the principle Al-Skeini v. UK In certain circumstances, the use of force by a State’s agents operating outside its territory
that states only have Hirsi Jamaa v. Italy may bring the individual thereby brought under the control of the State’s authorities into the
obligations in their territorial State’s Article 1 jurisdiction. → extra territorial jurisdiction
jurisdiction Hirsi Jamaa v. Italy: : in this case, the people were not on Italian territory but in the open see,
but people were completely under command of Italian officials so they have the obligation to
respect the convention, as if you were under the jurisdiction.
Infraterritorial jurisdiction Ilasçu v. Moldava and Russia State prevented from exercising authority in part of its territory: jurisdiction, but (possibly)
limited responsibility.
In the case: Transnistria is officially a region of Moldavia but its occupied for over 20 years by
Russia. The question is to what extent can possible violations be addressed by moldovia
➔ Court: if you are de facto in charge of the territory, we are going to look if you are
responsible for what’s happening. => The occupied state can also not say that they
don’t have responsibility at all, we look at both and see who carries the responsibility
Obligations on states: specific decision Bankovic v. Belgium Instantaneous acts/omissions outside territory
situations and Others
, 4
Opletten of de case van ECHR is of niet!!
Obligations on states: specific decision Ben el Mahi v. Effects acts/omissions outside territory
situations Denmark In the case: argued that the Danish government was responsible for the feelings of anger by
the applicant because of the publication of the Mohammed cartoons, Danish argued that it
was perfectly legal in Denmark → court didn’t find it inadmissible
Soering v UK
Obligations on states: specific Soering v. UK In this case: Soering, a German national who was facing extradition from the UK to the United
situations States to stand trial for a double murder. Soering argued that, if extradited, he would be
subjected to the "death row phenomenon" in the U.S., which involves prolonged detention on
death row under harsh conditions, leading to psychological suffering. He claimed that this
Securing HR in their would violate his rights under Article 3, which prohibits torture, inhuman or degrading
jurisdiction treatment or punishment.
➔ Court: UK would violate its obligations under Article 3 by extraditing him to the United
States, where he would face the risk of being subjected to the death row
phenomenon.
Soering exception:
In case if deportation/extradition, a state must check if there isn’t an issue on art 3 and cannot
remove them if it would expose them to issues on these articles
Obligations on states: specific decision M.N. and others. v. Intensity link with jurisdiction
situations Belgium Limits the soering exception
In the case: someone applied for a visa in the Belgian ambassy and argued that with refusing
this visa, the state forced them to leave the ambassy and go home where there is a violation
of the convention.
→The court argued that you cannot establish a link with a council of Europe member state
trough simply going to an ambassy and ask something -> getting a no is not sufficient for
creating a link
Opletten of de case van ECHR is of niet!!
Situering case case Relevance
EERSTE DEEL
The function of HR: Wackenheim v. France In this case: concerned the ban on the practice of "dwarf tossing," where a person of short
protection of human dignity (Human Rights Committee) stature is thrown for entertainment in public venues. Mr. Wackenheim, a person of short
=> human dignity is not stature who participated in this activity, argued that the ban violated his right to
unproblematic employment and personal autonomy. the European Commission of Human Rights and the
UNHuman Rights Committee ruled that the ban was justified, as it aimed to protect human
dignity and public order. The case underscores the balance between personal freedom and
the protection of human dignity, affirming that states can impose restrictions to uphold
fundamental values even if it limits individual choices, like choosing your profession
Horizontal application of Khurshid Mustafa & Tarzibachi In this case: immigrants wanted to rent an apartment in SW and they could not get
Human Rights provisions v. Sweden satellite dishes from the housing company. The satellite dishes were needed to
watch television from their home country. It was seen as a violation of freedom of
expression, but on the other hand property rights also play a role
➔ Court: ruled that Sweden had violated Article 10 of the European Convention
on Human Rights (freedom of expression). It held that access to information,
particularly for minorities wishing to stay connected with their cultural and
linguistic roots, outweighed the landlord's aesthetic concerns. The decision
highlighted the importance of proportionality and the need to respect
individuals' access to information as part of their freedom of expression.
->About striking a fair balance
Pla and Pincernau v Andorra
Admissibility – application Bosphorus Airways v Ireland In this case: Bosphorus Airways, a Turkish airline, had leased an aircraft from a Yugoslav
directed against a state party company, which was impounded by Irish authorities under EU regulations implementing UN
sanctions against the former Yugoslavia. The airline argued that this violated its property rights
under Article 1 of Protocol No. 1 to the ECHR.
, 2
Opletten of de case van ECHR is of niet!!
International organizations are not contracting parties to the ECHR, so you cannot bring an
organization before the court. States remain responsible for their actions as members of an
international organization
Admissibility – victim Verein Klimatseniorinnen v. In this case: case brought by Swiss elder ladies ‘our health is affected due to violations of
Switzerland, the Swiss State’ are they direct victims? No signs of illness? + one case brought by
Portuguese youngsters against 33 MS of the Council of Europe complaining about the
future effects of climate change, but are they already victims now?
➔ Applicant must be able to claim to have been personally victimised in order to
bring the case before the ECHR
Admissibility – significant Korolev v russia In this case: a Russian filed a complaint with the Russian authorities about court fees.
disadvantage The applicant was not reimbursed for international court fees payable by the
national authority (state obligation). The court fees amounted to 22 Russian roubles
(less than 1 euro).
In this case, there was no significant disadvantage.
➔ exception : even if the disadvantage you suffered was insignificant, the
court may still decide to hear the case because it was an important HR issue
or because the national authorities did not consider your case from the
perspective of HR protection
the complex relationship Bosphorus Airways v Ireland The court: Ireland had not violated the Convention because it was acting in compliance with its
between the EU and the obligations under EU law.
ECHR The court established the Bosphorus presumption:
- Presumption of equal protection: state action taken in compliance with legal obligations
it has under an international organization is justified as long as the relevant organization
considered to protect fundamental rights at least equivalent to the Convention.
MSS v Belgium & Greece
Obligations on states H.F. and Others v. France, In this case: The applicants, who were part of a larger group of refugees, claimed that their
expulsion violated their rights under the European Convention on Human Rights, specifically
, 3
Opletten of de case van ECHR is of niet!!
the prohibition of inhuman or degrading treatment (Article 3) and the right to family life
(Article 8) The applicants argued that, as they were at risk of being subjected to ill-treatment
Secure human rights to in Afghanistan, their removal would expose them to serious harm.
everyone within the
jurisdiction ➔ Court: their expulsion violated the prohibition of torture and inhuman or degrading
treatment.
Principle: territorial jurisdiction → a state is responsible for ensuring that individuals within its
territory are protected by the rights guaranteed under the ECHR. This responsibility extends to
situations where a state seeks to expel individuals, including refugees or asylum seekers, to a
country where they may face a risk of harm. (this case, France, as a signatory of the ECHR, had
territorial jurisdiction over the applicants while they were within its borders.)
Exception on the principle Al-Skeini v. UK In certain circumstances, the use of force by a State’s agents operating outside its territory
that states only have Hirsi Jamaa v. Italy may bring the individual thereby brought under the control of the State’s authorities into the
obligations in their territorial State’s Article 1 jurisdiction. → extra territorial jurisdiction
jurisdiction Hirsi Jamaa v. Italy: : in this case, the people were not on Italian territory but in the open see,
but people were completely under command of Italian officials so they have the obligation to
respect the convention, as if you were under the jurisdiction.
Infraterritorial jurisdiction Ilasçu v. Moldava and Russia State prevented from exercising authority in part of its territory: jurisdiction, but (possibly)
limited responsibility.
In the case: Transnistria is officially a region of Moldavia but its occupied for over 20 years by
Russia. The question is to what extent can possible violations be addressed by moldovia
➔ Court: if you are de facto in charge of the territory, we are going to look if you are
responsible for what’s happening. => The occupied state can also not say that they
don’t have responsibility at all, we look at both and see who carries the responsibility
Obligations on states: specific decision Bankovic v. Belgium Instantaneous acts/omissions outside territory
situations and Others
, 4
Opletten of de case van ECHR is of niet!!
Obligations on states: specific decision Ben el Mahi v. Effects acts/omissions outside territory
situations Denmark In the case: argued that the Danish government was responsible for the feelings of anger by
the applicant because of the publication of the Mohammed cartoons, Danish argued that it
was perfectly legal in Denmark → court didn’t find it inadmissible
Soering v UK
Obligations on states: specific Soering v. UK In this case: Soering, a German national who was facing extradition from the UK to the United
situations States to stand trial for a double murder. Soering argued that, if extradited, he would be
subjected to the "death row phenomenon" in the U.S., which involves prolonged detention on
death row under harsh conditions, leading to psychological suffering. He claimed that this
Securing HR in their would violate his rights under Article 3, which prohibits torture, inhuman or degrading
jurisdiction treatment or punishment.
➔ Court: UK would violate its obligations under Article 3 by extraditing him to the United
States, where he would face the risk of being subjected to the death row
phenomenon.
Soering exception:
In case if deportation/extradition, a state must check if there isn’t an issue on art 3 and cannot
remove them if it would expose them to issues on these articles
Obligations on states: specific decision M.N. and others. v. Intensity link with jurisdiction
situations Belgium Limits the soering exception
In the case: someone applied for a visa in the Belgian ambassy and argued that with refusing
this visa, the state forced them to leave the ambassy and go home where there is a violation
of the convention.
→The court argued that you cannot establish a link with a council of Europe member state
trough simply going to an ambassy and ask something -> getting a no is not sufficient for
creating a link
