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Relevance of the case Relevance of the case
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I. Facts I. Facts
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II. The legal question II. The legal question
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III. Excerpts III. Excerpts
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IV. Commentary IV. Commentary
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A. Application of the Bosphorus case-law A. Application of the Bosphorus case-law
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B. The requirement of state involvement B. The requirement of state involvement
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7.6 Prewitt Enterprises, Inc. v Org. of Petroleum Exporting Countries, 353 F.3d 916 (11th Cir. 2003)
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6.7 Gasparini v Italy and Belgium, App. No. 10750/03, Admissibility Decision, European Court of Human Rights, 12 May 2009
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Published:March 2016
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Abstract
The significance of Gasparini lies in the manner in which it applies the Bosphorus presumption to an organization (NATO) that is not the European Union. Furthermore it introduces important distinctions regarding the requirement of state involvement as a precondition for an alleged violation to have arisen within the jurisdiction of the respondent state. Refining some of its earlier case law (Connolly and Boivin), the ECtHR drew a line between actual decisions by the organization and deficiencies in the protection of fundamental rights, rooted in a structural lacuna of the internal mechanism for conflict resolution. Where a structural lacuna exists, the violation is attributable to the member state even though organs of the respondent member state were not immediately involved in the violation.
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