HR Cases Revision PDF

Human Rights Cases: ECtHR – European Court of Human Rights. ESC – European Committee of Social Rights. ECJ – European Court of Justice. Zwaan-de Vries and Broeks v. The Netherlands Court: Human Rights Committee, 1984 Facts: unemployed married women shouldn’t have to prove that she was the breadwin...

Human Rights Cases: ECtHR – European Court of Human Rights. ESC – European Committee of Social Rights. ECJ – European Court of Justice. Zwaan-de Vries and Broeks v. The Netherlands Court: Human Rights Committee, 1984 Facts: unemployed married women shouldn’t have to prove that she was the breadwinner of family to receive employment benefits. Held: the legal assumption that the husband was the breadwinner was considered unreasonable and could not justify different treatment of men and women. Did not matter whether a particular subject matter is covered by the ICCPR or some other international instrument – A26 ‘prohibits discrimination in law or in practice in any field regulated and protected by public authorities’. Significance: ICCPR Art 26 – right to equal legal protection without discrimination. Finding confirmed by Committee in General Comment 18 → state parties to the ICCPR have a general obligation to neither enact legislation with a discriminatory content nor to apply laws in a discriminatory way (discrimination doesn’t have to be attached to another convention right in order to be found). DH and others vs Czech Republic Court: ECtHR, 2007. Facts: Roma children places in ‘special schools’ for children with mental challenges; assumption that all from an ethnic group had mental challenges. Held: ‘’indirect discrimination’…does not necessarily require a discriminatory intent’ – held to be discriminatory. Significance: indirect discrimination – ICESCR 2009 defined this as when apparently neutral laws, policies or practices have a disproportionate impact on the exercise of covenant rights. Ground-breaking ruling – came up with an explicit definition of ‘indirect discrimination’. Singh Binder v Canada Court: The Human Rights Committee, 1989. Facts: Sikh dismissed from employment after refusing to comply with legal requirement to wear safety headgear – religion required only wearing a turban. Held: Committee found that it may amount to de facto discrimination – neutral in that it applied to everyone but disproportionately affected Sikh people. No violation of Art 26 ICCPR as safety headgear requirement was based on reasonable and objective grounds. Significance: first time the Committee recognised the possibility of indirect discrimination. Purohit and Moore v The Gambia Court: African Commission on Human and Peoples’ Rights, 2001. Facts: certain legal remedies (e.g. private counsel) were guaranteed to everyone, but in practice was only available to those who could afford it. Held: treatment was indirect formal discrimination. Significance: indirect discrimination. Belgian Linguistic Case Court: ECtHR, 1968. Held: established the two-step test for justification of different treatment or result. 1 – does the state pursue a legitimate aim? 2 – is the different treatment/outcome proportional? SH and others vs Austria Court: ECtHR, 2010. Facts: Austria had restrictions on assisted contraception – allows some treatments e.g. donor insemination but not others e.g. use of donated sperm in IVF. Held: upheld Austria’s restrictions – states had a wide MOA in this field. Significance: example of justification treatment where there is unequal enjoyment of healthcare. Glor v Switzerland Court: ECtHR, 2009. Facts: individual declared unfit for military service due to diabetes. Held: added disability to the list of ‘suspect’ grounds under ‘other status’, states’ MOA is ‘greatly reduced in cases of disability discrimination. Significance: first time court found a violation of Art 14 ECHR (non-discrimination), first time Court referred to UN Convention on the Rights of Persons with Disabilities in a decision. Thlimmenos v Greece Court: ECtHR, 2000. Facts: applicant alleged that authorities refused to appoint him to charted accountant post due to criminal conviction of disobeying to wear military uniform (based on religious beliefs). Held: the right to non-discrimination is violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. Significance: non-discrimination and reasonable accommodation. Price v UK Court: ECtHR, 2001. Facts: severely disabled woman unable to move on her own, about her treatment while in prison, lack of facilities and recognition of her special needs. Held: failure to provide necessary and reasonable accommodation of disabled woman’s basic needs amounted to degrading treatment under ECHR Art 3 → very serious failings can be so bad they can amount to inhuman treatment or even torture. Judge Greve (separate opinion): - ‘the applicant is different from other people to the extent that treating her like others is not only discrimination but brings about a violation of Article 3’. - ‘compensatory measures come to form part of the disabled person’s physical integrity’, such that to deprive Price of these measures was a violation of her right to freedom from degrading treatment. - reference to Thlimmenos, the applicant’s treatment was also discriminatory, due to the lack of compensatory measures, which ‘come to form part of the disabled person’s physical integrity’ Significance: example of reasonable accommodation (reasonable is key – about balance between the parties). Dignity as an absolute requirement under all circumstances – positive rights and services necessary. Marangoupoulus Foundation for Human Rights v Greece Court: ESC, 2007. Facts: alleged that Greek govt was in breach of law due to nature of oversight of coal mines and power plants (e.g. lax enforcement of pollution control measures) – facilities impact on environment and human health. Held: right to healthy living environment and working conditions – Art 11 ESC breach found. Significance: under Art 11 states take responsibility for health and must put measures in place, not done European Roma Rights Centre v Bulgaria Court: ESC, 2008. Facts: access to healthcare services for Roma population in Bulgaria. Held: breach of ESC Art 11 – duty for state to take effective action to the protection of health. INTERIGHTS v Croatia: Court: ESC, 2007 Facts: complaint of discriminatory, gender-biased and medically inaccurate sex education – argument that state is endangering lives of young people through this. Held: breach of ESC Art 11 – in light of non-discrimination clause. Internation Federation for Human Rights v Greece Court: ESC, 2011. Facts: huge environmental pollution and subsequent impact on health of persons Held: ESC 2013 found a violation – notes concern with delay and deficiencies – public information initiatives were insufficient due to the scale of pollution and fact that information was known for a long time. Öneryildiz v Turkey Court: ECtHR, 2004. Facts: accident related death at rubbish dump. Held: Turkey had a positive obligation to take all appropriate steps to safeguard life and put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. Significance: right to life – Art 2 ECHR. Mehmet Şenturk and Bekir Şenturk v. Turkey Court: ECtHR, 2013. Facts: pregnant woman dies after being denied emergency care due to lack of payment. Held: violation of Art 2 due to a ‘a series of misjudgements by medical staff…subsequent failure to provide her with emergency medical treatment when her condition was known to be critical’. Significance: right to life, economic accessibility as relevant to the accessibility requirement of the highest attainable standards of health. Z v Finland: Court: ECtHR, 1997. Facts: disclosure of applicant’s identity and HIV infection revealed in husband’s rape trial – medical information seized but only confidential for 10 years, name put in judgement and disclosed to journalists Held: collection of her medical date was not a violation as it was proportionate – needed to be accessed for husband’s rape trial. Was a violation of private life in that HIV status would only be confidential for 10 years and because there was no reason for her full name to be mentioned in the judgements. Para 95 – confidentiality of health date is a vital principle to respect patient privacy, preserve confidence in medical profession and necessary to receive appropriate treatment. ‘the Court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the interest of publicity of court proceedings…and the interests of a party or a third person in maintaining the confidentiality of such data…The scope of this margin will depend on such factors as the nature and seriousness of the interest at stake and the gravity of interference.’ Significance: privacy in the health field. Art 8 ECHR, Art 17 ICCPR. Jehova´s Witnesses of Moscow v Russia Court: ECtHR, 2010. Held: ‘the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity and impinge on the rights protected under Article 8 of the Convention’. Significance: clearly highlights the principle that medical treatment without consent of a medically competent adult is an infringement. Nuremberg Medical Trail Facts: after WWII (1946-1947) – 23 German physicians and scientists were accused of performing medical experiments in concentration camps (murders, cruelties, tortures). Held: all interference is based on informed consent Significance: lack of trust in the medical profession after WWII resulted in strict regulation of medical research based on informed consent from the human subject. Concept of informed consent is essential which has now been carried forward. Pretty v UK Court: ECtHR, 2002. Facts: woman with motor neurone disease wanted to end her own life with her husband’s assistance. Was mentally competent but disease was a quick progressive cognitive degenerative disease. Wanted husband to be immune from prosecution. Held: there is no right for someone to end your life on privacy grounds. No right to die can be derived from Art 2 ECHR. Art 8 (privacy) dimension – court said the interference might be justified as ‘necessary in a democratic society’ for the protection of the rights of others. Applicant’s Art 14 argument (disability discrimination – argued she was prevented from ending her own life like others because of her disability and she did not fit in ‘vulnerable’ group) – court found no violation as the govt had reasonable justification for not creating different legal regimes about assisted suicide for those physically able and physically unable due to risk of abuse. Significance: court said ‘the very essence of the Convention is respect for human dignity and freedom’, in the modern day ‘people are concerned they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity’. Storck v Germany Court: ECtHR, 2005. Facts: involuntary confinement in psychiatric hospital for two years without a court order Held: no court order = violation of Art 8 (‘in accordance with the law’) and Art 5 liberty. Significance: all compulsory interventions raise serious concern under Art 8 ECHR. Glass v UK Court: ECtHR, 2004. Facts: treatment of child against the will of mother (second applicant) – she had right to give consent on behalf of the child. In terms of free, deliberate and informed, doctors were too aggressive towards the mother. Held: found a violation of Art 8. ‘In cannot be stated with certainty that any consent given was free, express and informed…clearly withdrew consent…should have respected her change of mind and should not have engaged in rather insensitive attempts to overcome her opposition’. Significance: illustrates some of the complexities surrounding concepts conventionally invoked by lawyers e.g. best interests. Jehovah’s Witnesses of Moscow v Russia Court: ECtHR, 2010. Facts: religion does not allow for blood transfusions, even in emergency situations. Previous case had upheld a claim to dissolve the religious organisation. Held: ban on community’s activities was a breach of convention rights, interference was not necessary in a democratic society. The state should not interfere with freedom of choice in relation to healthcare – ‘The very essence of the Convention is respect for human dignity and human freedom and the notions of self-determination and personal autonomy…includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature…the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity…regardless of how irrational, unwise or imprudent such choices may appear to others…although the public interest in preserving the life or health if a patient was undoubtedly legitimate and very strong, it had to yield to the patient’s stronger interest in directing the course of his or her own life.’ Significance: case is about balancing and personal conviction, not about the rights of others. Protecting autonomy is an important way of protecting human dignity. Can contrast to Norwegian regulation where parents can refuse blood treatment for themselves, but not for their children. Articles 9 (freedom of religion) and 11 (peaceful assembly) ECHR. Also said mandatory vaccination in an epidemic would be a violation. Pindo Mulla v Spain Court: ECtHR, 2024. Facts: Jehovah’s witness – received a blood transfusion against her will (2x legal documents and orally reiterated her view), transferred to other hospital during medical emergency where judge authorised blood transfusions due to miscommunications. Held: violation of right to privacy and religious freedom, violations of Art 8 in light of Art 9 ECHR. Drs’ shortcomings in providing incomplete information and failing to conform consent prevented her from exercising self-determination and autonomy. Significance: reaffirmed the primacy of self-determination in healthcare and strengthened the legal protections of religious minorities in medical jurisprudence. HR in conflict. Trocellier v France Court: ECtHR, 2006. Held: contracting states must ‘adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of the planned medical procedures on their patients’ physical integrity and to inform patients of these beforehand in such a way that they are able to give informed consent’. States are required to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of a planned medical procedure and inform their patients beforehand to enable them to give informed consent. Significance: individual autonomy and information. Italy case from UN Document Court: 2009. Facts: undocumented migrant workers in Italy – low wage, delayed payment, long working hours, overcrowded lodgings without electricity or running water. Held: violation of right to fairness and acceptable working conditions. Significance: racial discrimination – ICESCR Art 2.2. and 3. Bilka-Kaufhaus GmbH v Weber von Hartz Court: ECJ, 1986. Facts: woman excluded from company pension scheme as she was part-time, argued this disadvantageously impacted women who were vast majority of part-time employees. Held: an occupational pension scheme that excludes part-time workers is discriminatory against women if it can be shown that the exclusion affects a greater number of women than men. Significance: even if discrimination is not the exclusive intention, it can be a violation if the effect to do so is severe enough. Aishah Azmi v Kirklees Metropolitan Borough Council Court: Employment Tribunal Appeal London, 2005-2006. Facts: teaching assistant suspended after refusing instruction not to wear religious veil. Held: not discrimination – instruction was lawful as it was proportionate in support of a legitimate aim (being able to see facial expressions seen as essential to effective teaching). Significance: example of potential justification for discrimination. Quality of education v autonomy. Olsson v Sweden Court: ECtHR, 1998. Facts: applicant had children removed from their care and placed far away, restrictions visits prevented easy and regular access. Held: violation of Art 8 as the child protection measures were beyond what was seen as necessary for the protection of child (placed far away – less visits – hinders return to biological family as visits essential part of this), ‘…the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other’. Significance: an intervention in Art 8 must be necessary, pressing social need and proportionate. In order for an intervention in private life to fulfil the requirement of necessity, the interference must ‘correspond to a pressing social need, and, in particular that it is proportionate to the legitimate aim pursued’. ECtHR has interpreted Art 8 and the right to respect family life as encompassing contact right between parents and children – reiterated in such cases that mutual enjoyment of company is a fundamental element of family life (Johansen v Norway, Eriksson v Sweden). Karadzic v Croatia: Art 8 imposes a state obligation to aim at reuniting a natural parent with their child. But this must be done with best interests of the child considered. NP v Moldova: considerations to identify child’s best interest 1. is it the child’s best interest to be reunited with family except where family is particularly unfit. 2. It is the child’s best interest to develop in a safe and secure environment. Zawdaka v Poland: positive obligation to ensure an effective respect for family life. Norway home care cases – Josefine and Gunhild: Josefine: froze to death outside her home, did not receive necessary healthcare especially what is needed for a vulnerable person. Deemed as not mentally competent and had previously accepted to be moved into a nursing home. Gunhild: died alone in bed surrounded by rubbish, mentally competent and had previously rejected all kind of home-based care. Had been some coercive intervention to clean flat due to smell affecting other residents. Court held she dies the way she lived in respect of her wishes and autonomy. Have a privacy right not to let people into the home and a right to reject treatment. Significance: human rights conflict: protection of vulnerable people v respect for autonomy. Coercive treatment and adults lacking mental competency. HL v UK Court: ECtHR, 2004. Facts: HL suffered from severe autism and challenging behaviour – lacked capacity to decide where to live. Lived in psychiatric hospital with carers but informally admitted to hospital due to behaviour while at day centre, denied contact with carers, intention to keep him in hospital, assumed that because he was compliant he was not deprived of liberty. Held: deprived of liberty, had no recourse to protections from domestic legislation (MHA 1983). The absence of procedural safeguards and access to court was a breach of Art 5(1) (right to liberty and security) and 4. A mere lack of protest/consent from an incompetent person is not a sufficient legal basis for keeping a person under continued confinement. ‘The right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention…especially when it is not disputed that the person is legally incapable of consenting to, or disagreeing with, the proposed action’. Significance: illustrates the need to be protected by appropriate measures under national law – rule of law. Demonstrates difficulty of balancing the need to be taken care of and the right to individual freedom. K.O. and V.M. v. Norway Court: ECtHR, 2019. Facts: mum placed in family centre after child born due to mental health and substance abuse concerns, withdrew consent to be there, child placed into emergency and eventual foster care, parents unsuccessfully appealed, dad ha previous criminal conviction (violence, threats), decided it was not in the child’s best interest for parents to have extensive contact rights, child eventually returned back to parents after expert reports said they had ability to care for her and had agreed to assistance measures. Held: no violation of Art 8 in placing child in care (were appeal procedures in place) – this interference had not been disproportionate, violation over lack of contact between parents and child (4/6 times a year) – issue was family reunification was not considered as foster placement was viewed to be long-term from the beginning, court emphasis that if there was a prospect of future reunification there could not be intervals of weeks/months between contact sessions. Significance: example of recent cases concerning child protecting in Norway, ECtHR in several cases has stated that the balance of protecting children from harm v rights of parents/children in family life has not been fair/proportionate – violations of right to privacy and family life. DR et al vs Norway, KF et al vs Norway, SS and JH vs Norway. Enhorn v Sweden Court: ECtHR, 2005. Facts: detention of HIV-positive man to prevent spread of virus, total of 1.5 years. Held: violation of Art 5.1 – ‘compulsory isolation…was not a last resort…less severe measures had not been considered and found to be insufficient to safeguard the public interest…the authorities failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty. Significance: proportionality test and question of fair balance. Have to look at less strict interventions before loss of liberty. Uzun v Germany Court: ECtHR, 2010. Facts: alleged surveillance measures, particularly GPS, and use of data obtained in criminal proceedings had violated right to private life and fair trial. Investigation into terrorist activity and bomb. Held: no violation of Art 8 – was not comprehensive surveillance (only at certain times) and surveillance was proportionate to the legitimate aims pursed and necessary in a democratic society. Significance: the state’s margin of appreciation depends on the degree of interference with individual rights and freedoms. Government of the Republic of South Africa and Others v Grootboom and Others Court: Constitutional Court of South Africa, 2000. Facts: homeless people evicted from their homelands so new shelter can be built. Held: housing plan was inadequate in several ways. Violation of right to adequate housing (s.26 of Constitution). Significance: evaluation of state action is not about whether they have taken the best possible measures, it is about whether the measures were reasonable - ‘A court considering reasonableness will not inquire whether other or more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable.’ Soobramoney v Minister of Health Court: Constitutional Court of South Africa, 1998. Facts: scarce health resources, health department has insufficient funds – patient with renal failure claimed that denial of dialysis treatment violated his right to life and health. Held: failure to provide treatment did not violate Bill of Rights, case was not an emergency (even though needed to save life), policy did not include applicant. Court said it couldn’t interfere with good-faith decisions made by political/medical authorities on how to allocate budgets and decide priorities. Significance: first case in SA on constitutional right to health care in context of scarce resources/funding. Khosa & Ors v Minister of Social Development & Ors Court: Constitutional Court of South Africa, 2004. Facts: challenge of legislative provisions, which limited entitlement to social grants based on citizenship-status of parents. Held: was not reasonable to deny non-citizens (with right to stay) access to social services – ‘It is necessary to differentiate between people and groups of people in society by classification in order for the state to allocate rights, duties…to provide efficient and effective delivery of social services. However, those classifications must satisfy the constitutional requirement of “reasonableness”’. Amounted to unfair discrimination. Significance: respect for human dignity – ‘The right of access to social security…for those unable to support themselves and their dependants is entrenched because as a society we value human beings…A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity freedom and equality are foundational’. Badaro, Adolfo Valentín vs. ANSES for several adjustments Court: Argentina Supreme Court, 2006. Facts: social security (pensions) – not raised for some in line with existing legal requirements. Held: SC instructed executive and legislative of need to update social security benefits, but did not specify exactly what should be done – leaves room for governmental discretion and intervention. Beatriz Silva Mendoza and Others v. State of Argentina and Others (Argentina) Court: Argentina Supreme Court, 2008. Facts: inhabitants complained about contamination of River Matanza. Held: 2006 – state had to make a plan to apply environmental law, correct environmental harm of the river and have this open to public via meetings, deliberation and contestation. 2008 – decision ordered the public authority to clean up the court, this (amongst other requirements) had to be monitored by a judge and be in line with public standards imposed by the court.