IDS Assignment week 4

i. Does the ECtHR have jurisdiction to hear a case brought by a Canadian national?

Article 34, since Belgium and the Netherlands are party to this convention so individual
can lodge the case against In principal, any party to the Convention may bring the court a
case against any other state party, which is alleged to have breached the provisions of the
Convention or the protocols. Individuals, NGO, and groups of Individuals who claim to
have been victims of a human rights violation may also bring a case against the state party
which has committed the alleged violations.

ii. What criteria need to be met in order for Johns case to be admissible?
Art 35, John should exhaust all the possible remedies in the Netherlands before bring this
case to ECtHR, and he must ensure that the case time limit is within 6 months from the

final judgement. determine the responden

iii. Which human rights from the ECHR have been potentially violated and by which state?

Art 2 Denial access to health care, art 2 potentially deprived right to life, art 8 by Belgium,
*different between extradition and expulsion
Art 3 prohibition of torture, and art 5 right to liberty and security. Violated by the
Netherlands because such act was done by Dutch officials therefore it is attributable to the
act of Netherlands

iv. Can John bring a case against both Belgium and the Netherlands?

Yes potentially with different Rule 42 Rules of Court regarding joinder application, Rules
47 (1) D Rules of Court: The name of the contracting party or parties against which the
application is made.

v. Now assume that John has exhausted all remedies he had available in Belgium to avert his
deportation. Assume also that his case is admissible. John is afraid that he would be
 deported before the ECtHR even hears his case. What can he do?

Using Rule 39 Interim Measure,In the majority of cases, the applicant requests the suspension of
an expulsion or an extradition. Nevertheless The Court grants such requests for an interim measure
only on an exceptional basis, when the applicant would otherwise face a real risk of serious and
irreversible harm. Such measures are then indicated to the respondent Government. However, it is
also possible for the Court to indicate measures under Rule 39 to applicants. This interim measures
are binding(see mamatkulev vs Turkey). See last sentence of art 34 . See also provisional measures
under ICJ statutes (article 41)

vi. John has heard that there has been a backlog of cases before the ECtHR and that it might take long
time before he gets satisfaction. Which reforms have been recently introduced in order to make

the work of the Court more efficient?

Major reform to address considerable increase in the number of applications and the courts
backlog was brought about by the entry in to force of Protocol no 14 introduced new judicial
formations for the simplest cases and established a new admissibility criterion, it also extended the
judges term of office to 9 years (thus more efficient, more effective). See also article 35 (3) b, art
26 (single judge), protocol 15 (reduce 6 to 4 months,->propose to reduce time limit)
*What is the margin appreciation? Protocol 15 article 1 give court more discretion. Article 35 (3)
b applicant , you wouldnt have

vii. Assume that John seeks financial compensation from the Netherlands because the police officer
refused to offer him first aid that had adverse effects on his health. Assume also that he has
exhausted all remedies available in the Netherlands and that the admissibility criteria are generally

met. On the basis of which Convention right could he base such claim?

According to article 13 potentially of ECHR everyone whose rights and freedoms as set forth in
this convention are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been commited by persons acting in an official capacity. Art
41 just satisfaction, see->rules 16, article 75 (ruling on just satisfaction)

viii. The Netherlands Government argues that it is not responsible for any alleged violation of the
Convention. They claim that the accident happened in Belgium in any case. The Netherlands
cannot be responsible for any breaches that happen in the territory of another state. Thus, if
there was any wrongdoing, the respondent state should have been Belgium. What
counterarguments could be made by John?

The violation was done by dutch state official therefore such act is attributable to the state of
the Netherlands. The act has been fulfilled the provisions of ECHR thus the case is should be
brought against the Netherlands, moreover no violations has been made by Belgium
government. Effective control of the Netherlands,

Did the Netherlands exercise effective control of john? yes

Note that not all occurrence happened in Belgium (the rest happen in Belgium)

Extraterritorial application be relevant when: the conduct that happened not in the territorial of
respondens state. 2 scenario when it can be conclude as extraterritorial application. 1 state
have control over territorial of cases : 1 effective control over territory (Lazidou vs Turkey) ,2
authority control over individual.

2. Read: the European Court of Human Rights communicates to Russia new inter-State case

concerning events in Crimea and Eastern Ukraine ECtHR Press Release Read also: Ukraine,

Russia and Crimea in the European Court of Human Rights EJIL Talk!
Now consider the following questions:

i. What is the legal basis for the ECtHRs jurisdiction in this case?

Art 33 of ECHR between 2 states parties

ii. What is the dispute at stake?

Ukrainian Government maintain that Russia has exercised and continues to exercise effective
control over Crimea and by controlling separatists and armed groups there de facto control
over the regions of Donetsk and Luhansk.

iii. Why do you think Ukraine chose to bring this case to the ECtHR and not to the ICJ or

international arbitration?

Because Russias actions in Crimea and Eastern Ukraine have also resulted in individual cases
brought against Russia at the international level under international human rights law and
international foreign investment law. As of October 2015, more than 1,400 applications seemingly
related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or
against one of those States, are pending before the ECtHR. And Because compulsory jurisdiction

Read also: MH17 crash: Victims' families sue Putin and Russia, BBC News

iv. Does the ECtHR have jurisdiction in this case?

Against putin no, against rusia yes. seeAksoy vs Turkey

Yes, Under article 33-34 provision of Jurisdiction, Individuals, NGOs, and Group of Individuals
who claim to have been victims of a human rights violation may also bring a case against the state
party which committed the alleged violation. Morover, the case is clearly breach Article 2 ECHR
prohibits arbitrary killing or deprivation of life that is not prescribed by law or absolutely necessary
for the purposes mentioned in the second paragraph of the article. The shooting down of a civilian
airliner, whether deliberate or accidental, constitutes a violation of the right to life under Article 2
ECHR. Failure to investigate the killings constitutes a further breach of Article 2. The ECtHRs
jurisprudence has established a strong legal framework for the assessment of lethal force by state
agents, including in cases of internal and international armed conflict. The following sections
explore responsibility regarding two scenarios: (a) state- agents fired the missile; and (b)
separatists (or any non-state actor) fired the missile. In both situations, and depending on the results
of the investigation and available evidence, the ECtHR may hold a state responsible for
Convention violations.
v. Is the case admissible?

For such a case to be heard by the ECtHR, the applicants would have to show that the respondent
state(s) had jurisdiction over the alleged human rights violations under Article 1 of the ECHR. For
example, Russia may have had jurisdiction over any human rights violations if it exercised
effective authority over the relevant area in eastern Ukraine, subject to the findings of the
ongoing investigations At the same time, Ukraine may also have had jurisdiction over any
violations, as the state on whose territory the violations occurred, regardless of whether it lacked de
facto control of the area (Ilacu, para 333). However, some have expressed doubt about the likely
success of such claims before the ECtHR, inter alia due to difficulties in showing causation, given
that the details of the incident, and therefore the foreseeable risk to civil aviation at the time, are
still unclear. These impediments may be easier to overcome once investigations into the incident
have been concluded.

It should also be noted that, under Article 35(1) of the ECHR, the victims families would first
have to exhaust any available local remedies against the state in question, before bringing the case
to the ECtHR. In practice, this means bringing claims against states in the relevant national courts
first, regardless of whether the applicants live outside of the forum state If, as a result of such
domestic proceedings, the victims families are granted the redress they are seeking, ECtHR
proceedings may become unnecessary. In light of this requirement under the ECHR, it is doubtful
whether the claim brought in Ioppa will be heard by the ECtHR, as it is unclear whether the
applicants exhausted local remedies in Ukraine before lodging the claim with the ECtHR.

Furthermore, even if a case was successfully brought by the complainants and the ECtHR ruled in
their favor, recent developments and proposed changes in Russias constitutional law may threaten
compliance with any potential judgments against Russia. In any event, there are no claims related
to MH17 currently lodged with the ECtHR against Russia. Min 1.41
To be admissible, Rusia has to be attributed, does this convention