ECJ and ECHR: cases
The ECJ follows the principles of the European Convention on Human Rights of the CoE. As stated by Starmer, the ECJ thus developed the notion that fundamental rights were an integral part of EU law. The relation between the ECHR and EC-law has been mentioned in a number of cases from the ECJ where the consistent line this far of the ECJ has been that the rights protected by the ECHR is an integral part of the legal order of the European Community since ECHR is a part of the common constitutional traditions of the member-states. In the field of EU law, the effect of this development is profound. Fundamental rights which are treated as an integral part of EU law can be used to challenge the validity of EU legislation or the actions of the EU institutions. So, for example, in Ellinki Radiophonia Tileorassi (ERT)  I-2925, the ECJ held that where a Member State seeks to derogate from freedom of establishment and freedom to provide services, its justification for doing so must be compatible with the general principles of EU law, including (on the facts of that case, which concerned exclusive television rights) Article 10 of the ECHR.
The other principal landmarks were:
- International Handelsgesellschaft mbH v Einfuhr etc  ECR 1125, where the ECJ declared that it would protect human rights as an integral part of EU law.
- Rutili  ECR 1219 and Hauer v Land-Rheinland-Pfalz  ECR 321, where the ECJ confirmed that the rights protected by the ECHR form part of community law.
- Wachauf  ECR 2609, where the ECJ held that its review powers extended to acts of the Member States to the extent that they came within the field of EU law.
Nold v Commission  ECR 491, where the ECJ declared that international human rights treaties on which Member States collaborated, or to which they were signatories, also provided guidelines which should be followed within the framework of EU law. No measure could have the force of law unless it was compatible with the fundamental rights recognised and protected by the Member States' constitutions.
According to Francis G. Jacobs, the position as it now stands in EC law is as follows. First, in recent years, there has been a remarkable development in the case-law of the ECJ. It now cites systematically, almost routinely, the case-law of the ECHR. This is remarkable particularly since the ECJe does not systematically cite the case-law of any other Court, and indeed cites any other case-law only very rarely. Indeed the ECJ has even followed the ECHR case-law to the extent of re-considering its own previous case-law in the light of later ECHR case-law: that occurred notably in Roquette (2002) when the ECJ appeared to reconsider its Hoechst (1989) case-law in the light of the ECHR's judgement in Chappell and later Casey concerning the search of business premises under Article 8 of the Convention.
But the traffic is not only in one direction: the ECHR also appears to have reconsidered its case-law in the light of ECJ case-law. That may have occurred in Goodwin v UK, concerning the rights of transsexuals to marry in their assigned gender, where the ECHR referred to the ECJ case of P v S and Cornwall County Council. Most recently there has also been a remarkable development in the case-law of the ECHR. It has acknowledged the extent of review by the ECJ for compliance with the European Convention on Human Rights, and has accepted that review as limiting the need for intensive scrutiny by the ECHR itself.
It should however be noticed that the ECJ explicitly rejected the line of reasoning of AG Werner in Hauer where he argued that the establishment of the European Community by definition could delimit the protection of rights established under the national constitutions and the ECHR and that the protection of rights under EC-law therefore always would have to reach the highest national protection of constitutional and human rights.1 That was regarded as an argument too radical to be adopted, however the ECJ reiterated in a number of cases the position that the rights protected under ECHR was an integral part of the community legal order.2
- C-44/79 Hauer v. Rheinland-Pfalz ECR (1979) 3727.
- Douglas-Scott, supra note, 632-636.
As stated by Jacobs,
This is due to the fact that the EU is a decentralised system in which the exercise of the EU's powers, in relation to individuals and undertakings, is almost always entrusted to Member States.
In most cases the legality of Member State action can be reviewed by the ECJ, either directly at the suit of the European Commission or indirectly on a reference from a national court. In the course of that review the ECJ can examine the conformity of the Member State action, or of the underlying EU measure, with the ECHR. And the conduct of the Member States, when exercising those powers, can in principle be subject to further review by the ECHR, as was demonstrated in its Bosphorus judgment of 30 June 2005
In its judgment of 30 June 2005 in the Bosphorus case, the ECHR had before it a question of possible violation of the Convention which had already been considered by the ECJ in a reference from the Irish Supreme Court. After careful analysis of the system of protection of fundamental rights in the EU, and after reviewing the treatment of the Bosphorus case in the opinion of the Advocate General and by the judgment of the ECJ, the ECHR was satisfied with the system of control of the observance of Convention rights under EC law and concluded on that ground that there was no need for that Court itself to re-examine the issue of a violation.
The special status of the ECHR in EC-law was first affirmed by the ECJ in Nold, even if the ECJ also concluded that the ECHR had not been violated under EC-law. However, the ECJ has also used the ECHR and individual articles of ECHR as a standard for human rights in EC-law, and in developing law it has also used more specifically when analysing the character of protection under ECHR. The EctHR has also consistently regarded the EC-law as an integrated part of the legal system of the state-parties to the ECHR that also are members of the EU. In that respect, the EctHR has also enforced that, national courts in order to fulfil the requirements of procedural fairness set out in art 6 ECHR have to allow so called preliminary references to the ECJ in domestic courts. That also seems to be a part of the quite expansive view that the EctHR has taken on the extent of the legal order for which the state parties are responsible, which includes more or less every legal authority directly or indirectly affecting the rights of the citizens, a view which thus by definition includes also international organisations with any independent power accorded to them. In certain respects, it thus seems as if the EctHR has actually helped to improve effectiveness of EC-law within the national legal orders, by strengthening the procedure of preliminary references in the court. However, the EctHR has also sought to develop a case law designed to make the state parties accountable for the exercise of powers delegated to the EC/EU. The main way for the EctHR to do so has been through the law of state-responsibility.
Earlier case-law on relation between ECHR and EC-law: state-responsibility for acts of international organisations
The issues of the admissibility of claims concerning violations of human rights on the basis of EC-law was first decided by the European Commission of human rights in the case M & Co v. Germany. The German Minister of Justice renounced the claim that Germany would carry any responsibility since the decision which the case concerned was based solely on a regulation from the European Community, which the Minister had no possibility to change and thus no responsibility for. The Commission denounced the argument on the basis that such an interpretation would make it possible for a state being a party to the convention to avoid its duties under it by delegating powers to supranational organisations. The commission thus rejected the possibility that a state could absolve its duties under the ECHR by deciding to delegate powers to a supranational decision. In later cases EctHR has reaf firmed that position, including in Heinz v. Contracting States also Parties to the European Patent Convention as well as Waite v. Germany and Beer and Regan v. Germany with regard to other international organisations than the EU. In the first case where the EctHR considered the issue of state-responsibility of a member-state for a legal act of an institution of the European Community, namely in Cantoni v. France, the court stated:
“The fact, pointed to by the Government, that Article L. 511 of the Public Health Code is based almost word for word on Community Directive 65/65 (see paragraph 12 above) does not remove it from the ambit of Article 7 of the Convention (art. 7)....”
31. As the Court has already had occasion to note, it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see, among other authorities, the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, para 40).”
In the subsequent case of Matthews v. UK decided the court that electoral regulations that barred British citizens resident in Gibraltar from being able to vote in the elections to the European parliament. The reason that the court stated in the Matthews case was that the issue of electoral regulation - also to a European assembly - was a matter of national regulation, and in that sense it was not related to any decision in the European Communities. That was explicitly stated in Matthews whereas it only was implicitly stated in Cantoni. Thus the importance of the Cantoni should not be overstated in the sense that the court by only implicitly dealing with the problems in relations between commitments of international cooperation and human rights. What it said was that what is within the competency of a domestic legislature is something for which the government in question is responsible for. The Cantoni-case also emerged before the ECJ had decided Francovich that made directives “indirectly directly effective” by introducing tort liability for states that were found not to implement directives, in that sense the question of the limits to discretion of the national legislature in implementation did never arise when Cantoni was lodged. The importance of the principle as it was stated in Matthews v. UK seems related to that it makes a very clear link between domestic legislation of the UK as being the basis for the applicability of EC-regulations in British law, and thereby also British obligations to legislate that arise from EC-law. By emphasising the links between the domestic and European legal norms, and the dependence of the latter on the former, the court has clearly developed a case-law where the basic principle seems to be one based on that any international obligation which a party to the convention undertakes, has to be included in the principle of state-responsibility.
The more extensive notion of state-responsibility which the role of the decision in Matthews illustrated very well was however based on the possibility for a domestic institution to be able to make an active choice in making of legal norms.
From the perspective of public international law there has been a number of understandings of the basis for state-responsibility, ranging from territoriality to that the state is responsible for anything that it can actually influence (or which has been the line taken from international courts) that both principles can be said to apply which provides a kind of maximalist model of state-responsibility which means that the state is responsible for what happens on its territory, as far as it controls it, but also for things that happens outside the state's territory that it could have influenced. The more radical approach that the court developed when it comes to issues of state responsibility in relations to actions of other states, notably in the case of Al-Adsani v. UK, which turned on whether a state being a party to the ECHR was able to prevent the breach of human rights (in cases torture) by another government by not extraditing the complainants. In Al-Adsani, the court also stated that despite the principles of sovereign immunity, failure to prosecute such a breach of human rights would at least in certain circumstances constitute a violation of ECHR.
In traditional understandings of international law, the distinction made little sense since states could not influence much outside its territory and could by definition always influence anything within their powers. In all these cases, the test was based upon effective capacity for the government to act as to avoid the violation of human rights, ie the government was supposed to have a responsibility also in cases of passivity. That understanding of effectiveness however becomes problematic when considering that the point of the Cantoni case, as well as the point reaffirmed in Matthews and Bosphorus was that the issue of state discretion is entirely independent from the form in which the state has chosen to exercise or delegate its powers of discretion.
That is an important understanding of the role of state-responsibility in a time when in many cases discretionary powers are delegated to international institutions but exercised through domestic agencies. However it involves a temporal dimension of state-responsibility that seems to start with some kind of assumption of a time of legally uninhibited sovereignty which the state can choose to depart from, and then become also responsible for the effects of such departures. However it is an understanding of sovereign powers which on the other hand seems to go against the grain of the other central tenet of sovereignty and responsibility, namely actual control of a territory. The former understanding seems to lead to a view where at least in principle legal responsibility could remain long after sovereignty in the sense of unlimited legal powers had disappeared since the defining issue of sovereignty would then be the process of delegation, rather than in relation to actual control, hic et nunc.
In subsequent cases such as Pafitis et al and, Pedersen and Pedersen established that the proceedings in courts of the European Community were included in the responsibility of a state-party to provide for a fair trial within reasonable time. The recognition of the lawfulness of the procedure before the European Court as such, means also that the EctHR accepted that in determination of other rights, such judicial functions can be delegated to supranational courts. In relation to EC-law, the EctHR has on some occasions used principles and rules of EC-law as persuasive authority for assessment of rights within the domestic legal orders directly bound by the ECHR. That is interesting since it also means that the EctHR has used EC-law as a source of law for interpretation of ECHR, a view which means that there at a pragmatic level has been a basis for comity between them at the level of persuasion, if not at the level of authority. The possibility of such use of persuasive reasoning of other legal orders is not a matter of recognition of authority of other legal systems, but can be seen as a way to exercise comity towards other international orders, whereas it limits the actual role of such sources of law.
Bosphorus v. Ireland - developing the principle of state-responsibility
Tobias Lock: The present relationship between the European Court of Justice and theEuropean Court of Human Rights is one of comity and mutual respect as can beseen by frequent mutual references and the Bosphorus case-law. The topic ofthe talk will be whether that relationship is going to change once the theTreaty of Lisbon, and with it EU Charter of Fundamental Rights, has enteredinto force. Art. 52 (3) of the Charter prescribes that the ECHR must be theminimum standard of human rights in the EU. One can therefore wonder whetherthis article entails a reference to the ECtHR's case-law, in effect makingit binding on the ECJ. Another question is whether the planned accession of the EU to the ECHR willlead to jurisdictional conflicts between the two courts in inter-state casesand whether the ECtHR is likely to continue its Bosphorus case-law.
The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.
That is illustrated in the present case of Bosphorus v. Ireland concerns the issue of whether Ireland violated its obligations under ECHR when implementing an EC-regulation that was based on a resolution from the UN Security Council. The regulation imposed economic sanctions on all economic subjects that had any kind of economic relations with the former Yugoslavian republics, Serbia and Montenegro. The issue was whether an airline company that had leased aircrafts in good faith from the Yugoslavian national airline, JAT and had had them confiscated under the regulation had had their right to property under art 1, 1st Additional Protocol to ECHR violated. The case thus concerns larger issues of state-responsibility for implementation of acts of inter- and supranational public authorities (such as the UN Security Council and the European Community). The decision of the ECHR referred both to the previous decision of ECJ and to the issue of whether the interference with property-rights was fulfilling a legitimate purpose and whether it was proportionate.
One of the central issues involved in the Bosphorus case was whether the Irish government could be held responsible for an act which they claimed had originated in the UN Security Council and been implemented by the EC Council of Ministers. However, despite the binding character of the provisions of resolutions from the UN Security Council, it is according to the EctHR clear that since such resolutions are not directly applicable (although binding) on the member-states of the UN, they cannot absolve themselves from responsibility by claiming, just to implement the decisions of the Security Council. The EctHR instead argued that the implementation of the relevant UN resolutions through an EC-regulation provided the basis for the implementation in Irish law. The basis for the legality of the action of the Irish government in the context of the Bosphorus case was an EC regulation, which provided a legal obligation for the Irish overnment to act as it did. The EctHR accepted the argument put forward by the European Commission that the duty of loyal cooperation of the member-state made the action of the Irish government impossible to avoid legally. The Irish Supreme Court referred the question of the legality of the impoundment of the aircraft to the ECJ according to (then) art 177 EC-treaty (currently art 234 EC-treaty). The Irish government argued that it did not thus only follow a generally applicable norm, but also a decision on the particular case from the ECJ which eradicated any discretion the government might have had. That was an argument which was also accepted by the court in relation to the responsibility for international acts. The dilemma in that view is of course that although the Irish government according to the law of EC-treaty had no choice but to follow the decisions of the ECJ, it is also clear that the reason for that the decisions of the ECJ are binding in the first case is that Ireland has acceded to the EC/EU. The issue of how actions based on treatybased obligations of the member-states of the EC/EU should be treated in the context of ECHR. The decision of responsibility of this kind of acts that although being based on treaties is in many respects problematic. However, the EctHR strictly distinguished the issue of whether there was a legal duty under international law for the Irish government to act on the decision of the ECJ and whether it was justified to do so. I will discuss EctHR's judgement on whether the Irish government did pursue a legitimate aim below.
Bosphorus seems to reflect the more general stance taken by the EctHR on the responsibility for member-states in relation to actions by international organisations based on some kind of physical control of the circumstances in which action took place. That also means that the EctHR rejects the view of EC-law as a legal order sui generis and instead has chosen to treat it as any other treaty-based form of international law and the EctHR thus has decided that in that respect equalise the concerns of all forms of international law in the courts' treatment of the responsibility of the state-parties to the convention. Some authors have seen the rejection of responsibility for the EU and for international organisations and the choice of the EctHR instead hold states responsible for violations of the ECHR as a clearly political choice. However it can both be seen as an instance of activism and as an attempt to increase the effectiveness of the ECHR, but also to be a limitation in the sense that the ECHR does not claim jurisdiction over organisations or states not parties to the convention. That seems to delimit the incentives for international delegations by the memberstates, since it makes it impossible for states to absolve themselves from responsibility. The EctHR can thus be said to have - as a by-product of the strengthening of the effectiveness of the ECHR - increased the incentives to retain some degree of political accountability, also in contexts of international cooperation.
- C-4/73 Nold KG v. Commission, ECR (1974) 491 C-44/79 Hauer v. Land Rheinland-Pfalz, ECR (1979) 3727, C-136/79 National Panasonic v. Commission, ECR (1980) 2033, C-209-215-218/78 Van Landewyck v. Commission, ECR (1980) 3125, C100-103/80 Musique Diffusion Fran?aise v. Commission, ECR (1983) 1825, T-11/89 Shell v. Commission, ECR (1992) II-757, C-63/83 Kirk, ECR (1984) 2689, C-60-61/84 Cin?th?que v. F?d?ration Nationale des Cin?mas Fran?ais, ECR (1985) 2605, C-222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary, ECR (1986) 1651, C-257/85 Dufay v. Parliament, ECR (1987) 1561, C-12/86 Demirel v. Stadt Schw?bisch Gm?nd, ECR (1987) 3719, C-222/86 Unectef v. Heylens, ECR (1987) 4097, C-46/87 Hoechst v. Commission, ECR (1989) 2859, C-85/87 Dow Benelux v. Commission, ECR (1989) 3137 C-97/87, C-98/87 C- 99/87 Dow Chemical Ib?rica and others v. Commission, ECR (1989) 3165, C-374/87 Orkem v. Commission, ECR (1989) 3283 C-27/88 Solvay v. Commission, ECR (1989) 3355, C-159/90 Society for the Protection of Unborn Children Ireland v. Grogan and others, ECR (1991) I-4685, C-260/89 ERT, ECR (1991) 2925, C-132/91 Konstantinidis, ECR (1992) I-6577, T-107/94 Kik v. Council and Commission, ECR (1995) II-1717, T-273/94 N v. Commission, ECR (1997) II-289, T-348/94 Enso Espa?ola v. Commission, ECR (1998) II-1875, T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v. Commission, ECR (2003) II-2597, T-306/01 Kadi & Al-Yusuf v. Council (not yet reported).
- Arnull, The European Court of Justice (2001) 202-243; de B?rca, Fundamental Rights and the Reach of EC-law, 13 Ox. Jnl. L. St. (1993) 283; Coppel/O'Neill, The European Court of Justice: Taking Rights Seriously? 29 CML Rev. (1992) 669, Hilf, Europ?ische Union und Europ?ische Menschenrechtskonvention, in Beyerlin et al (eds) Recht zwischen Umbruch und Bewahrung (1995) 1193-1210; Iglesias, Zur Stellung der Europ?ischen Menschenrechtskonvention im Europ?ischen Gemeinschaftsrecht, in Beyerlin et al (eds) Recht zwischen Umbruch und Bewahrung (1995) 1269-1281; Mendelson, The European Court of Justice and Human Rights, 1 Yb. Euro. L. (1981) 125-166; Weiler/Lockhart, “Taking rights seriously” seriously: The European Court and its fundamental rights jurisprudence I, 32 CML Rev (1995) 51; id., “Taking rights seriously” seriously: The European Court and its fundamental rights jurisprudence II, 32 CML Rev. (1995) 579; Weiler, The Constitution of Europe (1999).
- C-4/73 Nold KG v. Commission, ECR (1974) 491.
- Costello, The Bosphorus Ruling of the European Court of Human Rights and Blurred Boundaries, in Europe 6 Hum. Rts. L. Rev. 87 (2006) 92, Fritz and Nana v. France, 24 Euro. Hum. Rts. Rep. (1997) 250.
- White/Ovey, supra note, 29-31.
- 18 Euro. Hum. Rts. Rep. CD 168-170.
- Waite v. Germany (2000) 30 Euro. Hum. Rts. Rep. 261.
- Beer and Regan v. Germany (2001) 33 Euro. Hum. Rts. Rep.. 3.
- Cantoni v. France, para 30-31, Spielmann, Comparing ECJ and ECHR Case Law, in Alston et al (eds), The EU and Human Rights (1999) 773, 757ff; Breuer, Offene Fragen im Verh?ltnis von EGMR und EuGH, EuGRZ (2005) 229-234.
- 28 Euro. Hum. Rts. Rep. 361.
- 28 Euro. Hum. Rts. Rep. 361, 395 (para 26-27).
- C-6/90 Francovich and Bonifaci, ECR (1991) I-5357.
- Cohen-Jonathan/Flauss, A propos de l'arret Matthews c/Royaume-Unie 35 Revue Trimestrielle Droit Eur. (1999) 637ff, 643-646; Harmsen, National responsibility for European Community Acts under the European Convention of Human Rights: Recasting the Accession Debate” 7 Euro. Pub. L. (2001) 625ff. Turner, Human Rights Protection in the European Community: Resolving Conflict and Overlap between the European Court of Justice and the European Court of Human Rights, 5
- There are a number of cases from the EctHR on that issue, notably, Al-Adsani v. UK, 24 E.H.R.R. (2002) 11.
- Wilde, The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: It Is Relevant to Extraterritorial State Action, Euro. Hum. Rts. L. Rev. (2005) 115ff.
- Pafitis et al v. Greece (163/1996/782/983) (1998) para 91-96.
- Pedersen and Pedersen v. Denmark (Application no. 68693/01) (2004) para 51.
- Casado Coca v. Spain (Application 8/1993/403/481) (1993) para 54; Pellegrin v. France (Application 28541/95) (1999) para 64-67; Posti and Rakho v. Finland (Application 27824/95) (2002) para 71.
- The ECJ and the ECtHR: The Future Relationship between the Two European Courts
- Douglas-Scott, Bosphorus Hava Youllari Turizm Ve Ticaret Anonim Sirketi v. Ireland, 43 CML Rev (2006) 243; Lavranos, Das So-Lange Prinzip im Verh?ltnis von EGMR und EuGH, Europarecht (2006) 79;
- C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others, ECR (1996) I-3953.
- Bosphorus Airways v. Ireland (2006) 42 Euro. Hum. Rts. Rep. 1 para 144-145.
- Bosphorus Airways v. Ireland (2006) 42 Euro. Hum. Rts. Rep. 1 para 145.
- Bosphorus Airways v. Ireland (2006) 42 Euro. Hum. Rts. Rep. 1 para 146.
- Bosphorus Airways v. Ireland (2006) 42 Euro. Hum. Rts. Rep 1 para 150.
Euro. Pub. L. (1999) 453ff.
The doctrine on the extent and effect of the ECHR was developed furthermore in Bankovic v. Belgium and others (2002) and reaffirmed in Hussein v. 21 states parties to the ECHR (application 23276/04, deemed inadmissible 13.3.2006), which, despite that the EctHR rejected the view that a state-party to the convention was under its jurisdiction in cases of war that do not amount to occupation and effective control of the territory. It assumed as a basis for jurisdiction either territorial sovereignty of the state-party to the ECHR or some kind of effective overall control of a territory, or an action taken on a particular territory leading to a violation of a right protected under the ECHR as a direct consequence of that action. In relation to the Bosphorus-case, it seems instead as if the court reaffirmed and underscored the importance of territoriality in relation to state-responsibility for acts of international organisations. The EctHR did not state any view on the view of the French government that the fact that NATO (organising the military action) has separate legal personality from the national governments was of any importance, and given the previously stated views on the extent of the jurisdiction of EctHR for acts of international organisations of which the state-parties are members, that seems not to be a central issue, and the precedence clearly speaks against using international legal personality as a barrier to responsibility for a state that would otherwise be responsible.
Lock, Tobias The Law and Practice of International Courts and Tribunals, Volume 8,Number 3, 2009, pp. 375-398(24)
Similarly in the case Ilascu v. Moldova and Russia and the case Assanidze v. Georgia concerned whether people had been within the jurisdiction of a state, and thus whether stateresponsibility would ensue. The issue of jurisdiction in the cases mentioned concerned whether actual control could be found when it came to the responsibility of governments, that in all cases were based on control to prevent a breach of human rights to take place, also in cases when there was a real question as to whether the government did actually exercise any