100 ISSN 1608-960X + 1608-9618 100 H/Inf (2007) 5 95 95 75 75 25 25 5 5 0 0 71 o ’homme, n ,No.71 The European Convention on Human Rights ’information sur les droits de l and national case-law, 2006 La Convention européenne des Droits de l’Homme dans la jurisprudence 100 100 COUNCIL CONSEIL OF EUROPE DE L’EUROPE Supplement to Human rights information bulletin 95 Supplément au Bulletin d nationale, 2006 95 75 75 25 25 5 5 0 0 H/Inf (2007) 5 The European Convention on Human Rights and national case-law Supplement to Human rights information bulletin, No. 71 La Convention européenne des Droits de l’Homme dans la jurisprudence nationale Supplément au Bulletin d’information sur les droits de l’homme, no 71 Directorate General of Human Rights and Legal Affairs, Council of Europe Direction générale des droits de l’homme et des affaires juridiques, Conseil de l’Europe August/Août 2007 Supplement to Human rights information bulletin, No. 71, August 2007, ISSN 1608-9618 Supplément au Bulletin d’information sur les droits de l’homme, no 71, Août 2007, ISSN 1608-960X Cover: Belgian Arbitration Court Couverture : Cour d’arbitrage belge © Council of Europe/Conseil de l’Europe, 2007 Printed at the Council of Europe/Imprimé dans les ateliers du Conseil de l’Europe First printing August 2007/Première impression août 2007 Supplément au Bulletin d’information sur les droits de l’homme no 71 Preface Préface This supplement to the Human rights informa- Ce Supplément au Bulletin d’information sur tion bulletin contains a selection of decisions les droits de l’homme présente une sélection de of national courts where the question of décisions de tribunaux nationaux dans les- implementing provisions of the European quelles s’est posée la question de l’applica- Convention on Human Rights arises. tion des dispositions de la Convention européenne des Droits de l’Homme. They are extracted from a wide range of ele- ments of legislation, case-law and publica- Elles sont extraites d’un ensemble plus large tions relating to the Convention within d’éléments de législation, de jurisprudence et de doctrine relatives à la Convention dans certain member states of the Council of Eur- l’ordre interne de certains Etats membres du ope, which appear in the Yearbook of the Euro- Conseil de l’Europe qui figurent dans pean Convention on Human Rights, published l’Annuaire de la Convention européenne des by Martinus Nijhoff Publishers in the Neth- Droits de l’Homme, publié par les Editions erlands. Martinus Nijhoff, aux Pays-Bas. The following information has been drafted Les informations ci-après ont été rédigées in the member states by contributors of vari- dans les pays membres par des contribu- ous nationalities who are also, in some cases, teurs de différentes nationalités, qui en ont, responsible for the translations into English pour certains, assumé la traduction en fran- or French. Some distinctive linguistic or legal çais ou en anglais. Il peut subsister des parti- features may be encountered. cularismes linguistiques ou juridiques. Contents Table des matières Austria/Autriche. page 5 Belgium/Belgique . page 22 Czech Republic/République tchèque . page 32 Denmark/Danemark . page 36 Finland/Finlande . page 43 Iceland/Islande. page 53 Italy/Italie. page 56 Luxembourg . page 74 Spain/Espagne . page 83 Switzerland/Suisse . page 98 United Kingdom/Royaume-Uni . page 105 Preface Préface 3 Supplément au Bulletin d’information sur les droits de l’homme no 71 Austria/Autriche Articles 2, 6, 8 and 13 of the Convention Concerns: Mobile communications and health hazards Administrative Court 28 March 2006 Principal facts and complaints respondent authority thus cannot be Ref.: http:// opposed when arguing that the applicant www.ris.bka.gv.at /vwgh/ – 2002/ By ruling of 26 February 2002, the appellate lacked the competence to observe, in con- 06/0165 commission of the Lauterach municipality struction proceedings, the aspect of a poten- (Land Vorarlberg) denied a request of the M. tial endangerment of the health of AG & Co. KG company to give planning per- neighbours living in the vicinity of mobile mission for the construction of a mobile phone base stations, since this very aspect is phone base station. It gave as reasons that it comprised by the provisions of the 1997 Tele- was established technical knowledge that communications Act. certain doses of microwaves had a fatal impact on human beings. As long as there Besides, the argument forwarded by the existed no sufficient legal regulations nor applicant, namely that concerning the pro- value limits fixed by the law nor a common tection of neighbours against electromag- practice under the telecommunication auth- netic pollution the lawmaker had hitherto orities capable of binding the construction authorities, it was bound to prevent every been completely inactive and that the munic- endangerment of neighbours within the ipal organs were entitled by the law to (re)act meaning of para. 6 (10) of the 1972 Vorarl- and intervene immediately for the protection berg Construction Act. In view of the inade- of neighbours (in this connection the appli- quate enforcement of Article 8 of the cant refers to Articles 2, 6, 8 and 13 ECHR), European Convention on Human Rights may not substitute, against the background (ECHR) by Austria, the domestic authorities of the “principle of legality” embodied in were under a duty to act provided that an Article 18 (1) of the Federal Constitutional obligation existed under human rights to Law, the existence of a legal basis for a refusal respond to immediate health hazards. The of the requested planning permission. ruling was subsequently set aside by the Bregenz district authority on the grounds The applicant’s reference to the municipal- that the appellate commission had ignored ity’s “competence of local defence of haz- provisions of constitutional law, laying down ards” is neither capable of constituting a legal the competences of federal and provincial basis for the refusal of planning permission authorities in health matters. Against this (the applicant had alleged that the European decision, the Lauterach municipality (appli- Convention comprised, under certain cir- cant) filed a complaint with the Administra- cumstances, a right to “self-intervention”, tive Court. and that the municipalities in their capacity as territorial authority of the lowest level of Findings of the court state administration stood under a “duty of guarantee” towards its citizens to prevent The Administrative Court has repeatedly them from imminent danger). The responsi- held that with regard to mobile phone base stations the construction authorities are not ble authority set out in detail with the appli- allowed to check health matters as this very cant’s concerns regarding potential health aspect comes within the competence of fed- hazards through electromagnetic radiation eral law laid down in Article 10 (1) No. 9 of emanating from mobile phone stations. the Federal Constitutional Law (cf. judgment There is no evidence that the applicant was of 19 March 2002, No. 2001/05/0031). These required to seek a kind of “emergency compe- observations apply also to para. 6 (10) of the tence”, in order to arrive to its decision. The 1972 Vorarlberg Construction Act. The complaint was therefore rejected. Articles 2, 6, 8 and 13 of the Convention 5 Supplement to Human rights information Bulletin No. 71 Article 3 of the Convention Concerns: Death of a deportee during a hunger strike Independent Administrative Panel for Upper Austria Principal facts and complaints feeding ordered (in case Y.C. refused to 13 February 2006 undergo such a treatment, he could have Ref.: http:// The complaint was filed by the brother of www.ris.bka.gv.at Y.C., who died in Oct. 2005 in the Linz police been provided with information about his /uvs/ – UVS serious medical state) to be able to prevent VwSen-400740/ detention centre in the course of a hunger 38/Gf/Mu/Ga u.a. strike. According to an expert opinion, the the collapse of blood cells. Since precaution- deceased did not show any signs of acute ary measures were taken neither by the law- malnutrition and none of a classic dehydra- maker nor by the administration, the Panel tion nor could there be ascertained a life- comes to the conclusion that Y.C. was vio- threatening situation. A clinical laboratory lated in his constitutionally guaranteed right test showed, however, an inherited distur- to protection against inhuman treatment bance of the blood-forming system (known pursuant to Article 3 of the European Con- as sickle-cell anaemia) which had existed vention on Human Rights. only latently (as is very often the case with In the present case it is undisputed between persons of black skin) while the deceased was the parties that Y.C. had been formally still alive. The only way to discover it would expelled by final decision of 5 July 2005. In have been the performance of a “sickle-cell the case of refusal to leave state territory, he anaemia test”, which had not been done. The should have been aware of the risk of being interplay between pre-disposition towards expelled by coercive means. This does not sickle-cell anaemia and lack of liquid led to a mean, however, that he was in any event permanent disturbance of the electrolytic subject to be taken into detention with a balance which eventually caused the death of view to deportation. The reason is that the Y.C. by acute heart failure. imposition of detention with a view to Findings of the Panel deportation proves to be illegal if the alien authorities could have resorted to more leni- According to the medical expertise, the ent means within the meaning of para.