Clear regulation of requirements for assisted suicide under article 8 ECHR - Gross v Switzerland

In Gross v Switzerland, the European Court of Human Rights has once again dealt with an application alleging that article 8 ECHR implied a right to an assisted suicide. 

The question, whether the right to private life also embraces the right of an individual to end one’s own life has already been brought before the Court before. In Pretty v UK, the applicant was a woman suffering from a terminal disease. At the final stage, this disease was to paralyze muscles of her breathing system, causing her to die of asphyxiation. Since she considered this a painful and undignified death, she sought to put an end to her life. Being physically unable to do so, she had requested an undertaking from the prosecution service that her husband was not going to be criminally prosecuted for assisting her to commit suicide. The prosecution service refused to give the desired undertaking. 

The applicant claimed that the right to private life under article 8 ECHR encompassed a right to end one’s life and that the refusal of the British authorities to give the requested undertaking violated amounted to a violation of this right. The Court pointed out that autonomy is an underlying concept of article 8. It was not prepared to rule out that the fact, that the British legal framework made it impossible for the applicant to end her life constituted an interference with the right to private life. Yet it held that the interference was justified pursuant to article 8 paragraph 2. The legal provisions prohibiting assisted suicide sought to protect the interests of weak or vulnerable persons, which was necessary to safeguard the supremely important right to life. Therefore the Court did not find a violation of article 8 ECHR.

In Haas v Switzerland, the ECtHR did not find a violation of article 8 ECHR either. The applicant had been suffering from a psychiatric disease for more than 20 years.  He wished to end his life. To this end, he requested to be provided with a lethal dose of sodium pentobarbital, which would ensure a death without suffering. In Switzerland, this substance is (in accordance with international agreements Switzerland is party to) available only upon prescription. The applicant had been unable to obtain a prescription and complained that the regulation preventing him from procuring sodium pentobarbital infringed on his right to private life under article 8 ECHR.

The European Court of Human Rights distinguished the case from Pretty v UK. It stated that, other than the applicant in Pretty v UK, the applicant did not suffer from a terminal disease. Also, he did not ask for an assisted suicide without criminal prosecution of the assisting persons. Rather, he alleged that Switzerland was under an obligation to provide him with a lethal dose of the requested substance.  The Court rejected this argument. It referred to Switzerland’s obligation to make sodium pentobarbital available only upon prescription. Also, it pointed out that there was no consensus among Council of Europe member states to the effect that states were to facilitate suicides. Considering the margin of appreciation which contracting states of the ECHR enjoyed, the Court did not find Switzerland in violation of article 8 ECHR.

The case of Gross v Switzerland concerned a similar request. The applicant was born in 1931; while she did not suffer from any terminal disease, her state of health had deteriorated over the years and she had become increasingly frail. She was unable to take long walks and every change of environment frightened her. Since she felt that her life had become more and more monotonous and distressful over the years, she had developed a strong wish to die. Following a suicide attempt she had undergone psychiatric treatment, which had not changed her wish to put an end to her life, though. She was in possession of an expert statement by a psychiatrist confirming that she was fully able to form her own judgment.

She requested from several medical practitioners to be provided with a lethal dose of sodium pentobarbital, which would enable her to commit suicide in a painless fashion. The medical doctors she approached declined her request for ethical reasons or for fear of criminal prosecution.  

Having been turned down by private practitioners, the applicant applied to the health board, a Swiss public entity concerned with health issues, and asked to be provided with sodium pentobarbital.  Her request was rejected. She challenged this decision before Swiss courts. 

The Federal Supreme Court of Switzerland held in last instance that the refusal to make sodium pentobarbital  available to the applicant was lawful. It referred to the judgment the European Court of Human Rights had rendered in Pretty v UK and pointed out that article 8 ECHR did not entail a positive obligation for states to enable citizens to commit suicide.  The Swiss Federal Supreme Court underlined that the requirement of a prescription to obtain sodium pentobarbital  was necessary, because it  prevented individuals from hasty and not well thought-through decisions.

The applicant contended that denying her sodium pentobarbital, which prevented her from committing suicide and a painless and reliable manner, infringed upon her right to private life under article 8 ECHR.

Under Swiss law, assisting in a suicide or inciting to suicide is a criminal offence only if it performed for selfish reasons. According to the case law of the Swiss  Federal Supreme Court,  medical doctors are not prosecuted or held criminally responsible for procuring sodium pentobarbital if they observe certain conditions. The Federal Supreme Court infers these conditions from guidelines issued by an NGO. These guidelines state that doctors may issue a prescription for sodium pentobarbital for patients suffering from a disease which will, according to experience, lead to death

The European Court of Human Rights scrutinized her request from the perspective of positive obligations arising from article 8.  It underlined that the right to autonomy and self-determination was an underlying principle of the right to private life under article 8 ECHR.

It pointed out that the Swiss Federal Supreme Court referred in its jurisdictions to guidelines which had been produce by non-state actors and did not have the quality of a law. It also stated, that these guidelines established a requirement for the prescription of sodium pentobarbital which was not reflected in Swiss law, namely the requirement that patients have a terminal disease. The Court concluded that this was an element of uncertainty, which might well deter medical doctors from issuing prescriptions for sodium pentobarbital;  two doctors had refused to issue the prescription.   

The uncertain situation as to the conditions subject to which medical doctors could issue prescriptions was, according to the Court, likely to cause anguish and insecurity for citizens considering to  put an end to her life. Therefore, the Court found that Switzerland had violated its positive obligation to provide clear guidelines for issuing prescriptions for sodium pentobarbital; it found a violation of article 8.

Anyway, the Court did not rule that the right to private life entails a right to an assisted suicide.

Panteliou-Darne and Blantzouka v Greece

In Panteliou-Darne and Blantzouka v Greece, the European Court on Human Rights has elaborated on the protection which entitlements or receivables enjoy under article 1 of Protocol 1 to the European Convention on Human Rights.

The applicants were former air hostesses, who had worked for the then state owned air company Olympic Airlines. In this position, they were considered public servants.  Greek law provided that public servants with children were entitled to a family allowance under certain conditions. Yet an exception applied to such employees, whose spouse was employed in the public sector as well.

The applicants had children in 1986 and 1996. Since their respective husbands worked in the public sector, they did not receive family allowances in compliance with the aforementioned regulation. Although their pay-slips contained a clause inviting employees to raise objections against the calculation of their salaries if they deemed that it was erroneous, the applicants never questioned the correctness of their remuneration.

In 2001, they filed a civil action against their employer demanding payments of the family allowances starting from the birth of their respective children. Briefly after the submission of the law suit, the Greek Supreme Court declared the provisions which excluded public servants, whose spouses worked in the public sector from the entitlement to a family allowance unconstitutional. Despite this decision, the Greek courts rejected the applicants’ claim. Relying on a provision of the Greek civil code according to which exercising a right was prohibited if it is not exercised in good faith or exercising the right is clearly not in accordance with the social or economic objective of the entitlement, they held that the applicants’ claim amounted to an abuse of law.

The applicants contended that the rejection of their claim violated their right to property under article 1 of Protocol 1 to the ECHR. They stated that they had not complained about the calculation of their salaries earlier because they had not been aware that their statutory exclusion from the family allowance had been illegitimate. In view of the balance, which the European Court of Human Rights strikes between the interests of the general public and the interests of the individual when assessing the justification of an interference with the right to property, they advanced that the sums they claimed were too small to touch upon public interests.

The European Court of Human Rights examined whether the ruling of the Greek courts to reject the applicants’ claim interfered with the applicants’ right to peaceful enjoyment of possessions pursuant to article 1 of Protocol 1 to the ECHR. It reiterated its long standing jurisdiction that entitlements, rights or legitimate expectations fall within the scope of the right to property if they have a sufficient basis in domestic law.

Since all Greek courts concerned with the matter had recognized that the applicants had in principle been entitled to the family allowance, the ECtHR concluded that the claim of the applicants satisfied this requirement and was thus protected by the right to property. Consequently, the denial of the claim had interfered with the right to property.

The Court went on to examine whether this interference had been justified. Satisfied that the interference had been based on a law and pursued a legitimate aim, the ECtHR reiterated that article 1 of Protocol 1 to the ECHR required that a fair balance be struck between the interests of the individual and the interests of the public at large. This implies that the measure taken has to be in reasonable proportion to the aim pursued.

In accordance with its long standing jurisdiction, the Court pointed out that the contracting states enjoy a wide margin of appreciation in the economic and social sphere. It also stressed that it is chiefly for the authorities and courts of the member states to interpret their domestic law and that the ECtHR examines the application of domestic law only with view to their compliance with the European Convention on Human Rights.

The Court stated that all Greek courts concerned with the matter had recognized that the entitlement claimed by the applicants existed in principle, but could not be exercised because the applicants had failed to do so for such a long time. It rejected the argument that the applicants had been unable to complain about their being denied a family allowance earlier since they had been unaware of this right pointing to the fact that numerous other employees of Olympic Airlines had put their demands on record earlier. The ECtHR stated that the procedure followed by Greek courts had given the applicants sufficient opportunity to advance their arguments. With respect to the aim pursued, the Court referred to the economic consequences a ruling in favor of the applicants could have had for Olympic Airlines. The applicants had demanded approximately 14.700 Euros. If similar sums were to be granted to all former employees of Olympic Airlines, this might have had grave repercussions for the air company. On the basis of these considerations, the Court found that the measure had been proportionate to the aim pursued. It ruled that there had been no violation of the right to property.

The European Convention on Human Rights as a tool for justice reform

I have put online a little article on 'The European Convention on Human Rights as a tool for justice reform'

Koch v Germany

In Koch v. Germany, the European Court of Human Rights again has ruled on an application regarding an alleged right to assisted suicide. 

The Court elaborated on some procedural implications of article 8 in cases in which domestic courts are faced with requests to facilitate a suicide. It also stated, as it had already held in the cases Pretty v UK and Haas v Switzerland, that the right to private life under article 8 ECHR does not entail an obligation for states to assist citizens seeking to commit suicide.

Facts

The applicant was the widower of a woman who had been almost completely paralysed and in need of constant care since 2002. Since she wished to put an end to her life, which she perceived as undignified and requested from the Federal Institute for Drugs and Medical Devices to be provided with a lethal dosis of a certain substance. The Institute turned this request down, arguing inter alia that article 8 ECHR, on which the wife of the applicant had relied, did not encompass a right to assisted suicide.

The wife of the applicant lodge an appeal against this decision. Before this appeal was decided upon, she had herself transported more than 700 km to Switzerland, where she committed suicide with the help of the Swiss organization ‘Dignitas’ (an organization advocating for a self-determined and dignified death).

After her death, the Federal Institute for Drugs and Medical Devices rejected her appeal. The applicant as her widower filed an action with the Cologne Administrative Court. He asked the court to rule that the refusal to procure the requested substance to his late wife had been unlawful.

The Administrative Court ruled that the action was inadmissible, because the applicant could not claim that his own rights had been violated and therefore had no standing. It did not deal with the merits, but briefly mentioned in a so called ‘obiter dictum’, that means in a remark that does not form part of the ruling by the Court that the right to private life and family life under article 8 of the European Convention on Human Rights did not encompass a right to an assisted suicide.

The applicant appealed against the judgment without success and submitted an application to the Constitutional Court. In both cases, the Courts found the action inadmissible and did not enter into an examination of the merits of the case.

Judgment

The applicant claimed that his rights to private life and family life had been infringed in two ways: First by the refusal of the German Courts to examine the merits of the action he had submitted, second by the failure to provide his wife with the requested substance to commit suicide.

At the outset, the European Court of Human Rights scrutinized whether the applicant’s rights had been interfered with. Pursuant to article 34 of the Convention, only individuals who are personally affected may submit an application to the Court. Since the applicant’s wife had been the one seeking to put an end to her life, the question arose whether the applicant had been affected in his own rights.

In its jurisdiction, the Court has developed criteria to determine whether close relatives may proceed with a procedure pending before the Court in cases in which the actual victim dies during the procedure. The Court stated that these criteria also were relevant to the question whether rights of the applicant had been interfered with. These criteria are 

• the existence of close family ties
• the existence of a personal or legal interest
• whether the applicant previously expressed interest in the procedure

Since the applicant and his wife had been married for a long time, had had a very close personal relationship with her and had accompanied her over the entire period of her suffering, the Court found that the applicant had been affected personally by the refusal of the Federal Institute for Drugs and Medical Devices to provide the requested substance. 

The Court also stated that the refusal of the German courts to examine the merits of the case had interfered with the applicant’s right to private life under article 8. Even though the European Court of Human Rights had never held that article 8 ECHR encompassed a right to assisted suicide, there was still a right to a judicial review of the legal question.

Having established that there was an interference, the Court turned to the question whether this interference had been justified. It found that this refusal had served no legitimate aim as required by article 8 paragraph 2 ECHR. Therefore, held Germany in violation of article 8 ECHR.

The European Court then briefly dealt with the question whether article 8 ECHR granted a right to receive assistance for a suicide in certain cases. As in prior decision, it pointed out that contracting states of the European Convention on Human Rights enjoy a wide margin of appreciation in this area. The decision whether to grant a right to an assisted suicide is largely up to the member states. Therefore, refusing to grant it does not amount to an infringement of the European Convention on Human Rights. 

Effective investigation of rape allegations - Tyagunova v Russia

In Tyagunova v Russia, the European Court of Human Rights (ECtHR) has scrutinized an investigation of rape allegations in Russia. The Court reiterated its jurisdiction that article 3 and article 8 of the Convention entail a positive obligation to carry out an effective investigation.

Facts

The applicant had attended a small party together with colleagues. On the following day, she reported to the Public Prosecutor’s Office that she had been raped and robbed. According to her account, she had been stopped on her way home from the party by a group of men. These men had threatened her with a knife and raped her. Then they had taken her to a private apartment. In the apartment, there had been a man and a teenage girl. The man had forced her to spend the night in the flat. After she had finally been allowed to leave the flat, she noticed that the jewelry she had worn had disappeared.

The applicant reported the case to the Public Prosecutor’s Office in June 2005. According to Russian law, upon notice of a crime a preliminary investigation is conducted in order to establish whether there are sufficient reasons to start a criminal investigation. In case the perpetrator cannot be identified, the case may be closed. This preliminary investigation is carried out by an investigator. The decision of the investigator as to whether to initiate a criminal procedure or dismiss the case has to be confirmed by the prosecutor.

The investigator questioned the applicant, the man who had taken her to the flat and the applicant’s colleague. He also ordered a medical examination of the applicant. The expert concluded that there were no signs of rape. The investigator dismissed the case due to contradictions in the applicant’s statement, the medical expertise and the fact that the suspect who had been questioned denied the allegations.

The prosecutor quashed the decision to dismiss the case and ordered further investigations. Shortly after, the investigator dismissed the case again. The prosecutor quashed the decision and ordered additional investigations.

The case was dismissed and re-opened several times. In the course of the investigations it turned out that there were traces of sperm on the clothes which the applicant had worn during the night in question. 

However, when the applicant requested a genetic examination, she was informed by the investigator handling the case that the traces had been destroyed during forensic testing.

Finally, the case was dismissed by final decision as far as the rape charges were involved in May 2008.

However, one of the suspects was charged with robbery of the applicant’s jewelry. He pleaded guilty. 

During the trial, the teenage girl, who had been in the flat in which the applicant had been kept for one night, was a witness. She stated that the applicant had been upset and in tears and that she had worn her jeans inside out. She also stated that she realized that the applicant could have been raped. During the investigation, she had never been questioned as a witness.

Assessment by the Court

The European Court of Human Rights scrutinized the facts in light of article 3 ECHR (prohibition of torture) and article 8 ECHR (right to private life and family life) at the same time.

At the outset, the Court summed up the principles regarding the positive obligations to investigate rape allegations which it had set out in M.C v Bulgaria: States are under an obligation to take measures to ensure that persons under their jurisdiction are not ill-treated. As part of this obligation, states have to enact criminal law provisions stipulating adequate punishment for rape and other grave acts affecting the right to private life. 

If there is a suspicion that such a crime has been committed, states which have acceded to the ECHR are obliged to carry out an effective investigation. This obligation may also exist in cases in which state agents have not been involved, because the Convention does not only apply between individuals and states, but to a certain extent also between individuals. However, the scope of positive obligations entailed by the ECHR may differ depending on whether the relationship between individuals is at stake or a state agent is involved.

The Court then applied these principles to the facts of the case: It reiterated that the obligation to conduct an effective investigation is an obligation of means, not of result. This means, for purposes of the ECHR  an investigation is not considered ineffective because it did not yield results. What is important is that steps have been taken which were in principle apt to lead to the identification of the perpetrator. The authorities have to react promptly and available means of evidence such as witness testimony, documents or forensic evidence have to be secured.

The Court pointed out, that the investigation of the rape allegations had not met these requirements: The teenage girl, who had clearly been a possible witness, had never been questioned. While DNA evidence had been found, it had not been analysed. Furthermore, no identity parade for identification of suspects had been conducted.

Due to these shortcoming, the European Court of Human Rights found that Russia as the respondent state had breached its obligation to carry out an effective investigation. The Court found a violation of article 3 and article 8 ECHR.

The length of proceedings in the jurisdiction of the European Court of Human Rights

I have put online a little article on ‘The length of proceedings in the jurisdiction of the European Court of Human Rights’.  

In summary:  Pursuant to article 6 para 1 ECHR, everybody is entitled to a trial within reasonable time. The European Court of Human Rights assesses whether the duration of proceedings has been reasonable considering all circumstances of the case.  

When making this assessment, it undertakes two steps:

• First, it establishes the period to be considered by ascertaining the starting point and the closing point of the proceedings in question.  The starting point is not necessarily the moment when the procedure is considered as initiated under the domestic law in the respondent state, because the Court assesses this autonomously for the purposes of the Convention. The same holds true for the point of time when the procedure is considered finalized.

• Once the ECtHR has established the time period to be taken into account, it assesses whether it is reasonable. 

To this end, it applies four criteria:

• The complexity of the case
•   The conduct of the applicant
• The conduct of the respondent state
• What is at stake for the applicant

The complexity of the case is determined by factors such as the number of documents to be reviewed, the numbers of witnesses, the numbAer of experts to be examined, the difficulty of the legal questions to be decided.

When scrutinizing the conduct of the applicant, the Court has regard to whether the applicant caused delays by asking for postponements of sessions or extensions of deadlines,  whether he delivered necessary documents and followed summonses.

With regard to the conduct of the respondent state, the Court examines if the state has met its obligation to facilitate a speedy trial.  Particular attention is paid to phases in which the proceedings effectively rested and no action was undertaken. Each signatory state to the ECHR is obliged to organize it judicial system in a way which ensures that proceedings can be conducted within reasonable time.

Finally, the Court considers what is at stake for the applicant. It has held that there are matters which call for expedition, such as disputes regarding child custody, pension rights or labor disputes.

Search and seizure in a law office - Robathin v Austria

In Robathin v Austria, the European Court of Human Rights (ECtHR) scrutinized a search and seizure in a law office in light of article 8 of the European Convention on Human Rights.

The applicant was an Austrian lawyer based in Vienna. In 2005, the prosecution conducted an investigation against him on suspicion of grave theft, fraud and embezzlement (later on, the investigation led to an indictment and a trial, but the applicant was finally acquitted of all charges).

In the course of the investigation, an investigative judge issued a warrant for the search of the applicant’s law office and the seizure of documents, personal computers, bank documents, saving books, deeds and will in favor of the applicant and of all files related to Mr R and Mr G.

During the search, the applicant, his defense lawyer and a representative of the bar association were present. The presence of the latter was required according to Austrian law, because the defendant was a lawyer.

The police officers, who conducted the search, copied all files from the applicant’s computer to discs. Upon a request by the representative of the bar association, they stored the files regarding Mr R and Mr G (which were expressly mentioned in the search-and-seizure warrant) on a separate disc.

Since the applicant objected to the data being scrutinized, pursuant to Austrian law a court had to decide whether the files which had been copied could be read by the investigating authorities. The Court approved the screening of all the data – not only the electronic files related to Mr R and Mr G. In the reasoning for this decision, the Court repeated the reasons which had already been given in the search warrant. It stated that the files had been seized in the course of an investigative procedure against the applicant and that the applicant’s duty to confidentiality did not play a role in an investigation targeting the lawyer himself.

The applicant filed an application with the European Court of Human Rights (ECtHR) relying on article 8 ECHR, which protects the right to respect for private life, family life, home and correspondence.

The ECtHR followed the approach it usually takes when dealing with cases involving article 8 ECHR: In a first step, it examined whether there as an interference with one of the rights protected by article 8 ECHR. In the second step, it scrutinized whether the interference had been justified pursuant to article 8 paragraph 2 ECHR.

The Court stated that the search and seizure in the office of the applicant amounted to an interference with the applicant’s rights under article 8 ECHR.

It then turned to the question whether requirements of article 8 paragraph 2 had been met. Pursuant to this provision, an interference with rights enshrined in article 8 paragraph 1 is justified if it is in accordance with the law, serves a legitimate aim and is necessary in a democratic society.

The European Court of Human Rights pointed out that the Austrian Criminal Procedure Code does not contain any provision expressly governing the search and seizure of electronic data; however, according to the standing jurisdiction of Austrian courts, the provisions regarding the seizure of objects and documents are applied to the seizure of electronic files. The European Court of Human Rights stated that the circumstances in which electronic files can be seized are specified in the jurisdiction of Austrian courts in a sufficient manner. Therefore it concluded that there had been a legal basis for the seizure.

The Court stated that the seizure had served a legitimate purpose, namely the fight against crime.

Subsequently, the Court turned to the question whether the search and seizure had been ‘necessary in a democratic society’. When scrutinizing this, the ECtHR establishes whether there are sufficient safeguards against arbitrary actions by the authorities, for example whether the search and seizure is based on a decision by a judge, whether there was a reasonable suspicion and whether the scope and purpose of the search are sufficiently clear. In case of the search of a law office, the ECtHR also scrutinizes whether an independent observer is present who ensure that privileged information is safeguarded.

The European Court of Human Rights pointed out that the search warrant was sufficiently precise regarding the suspicion against the applicant. It contained details on the alleged offences, the time when they allegedly took place and the damage allegedly caused.

However, the Court also stated that the scope and purpose of the warrant had been very broad, since it referred to documents, saving books, wills etc. In order to counterbalance this wide scope, safeguards were required. The ECtHR made clear that safeguards had indeed been in place: A list of all seized items and documents had been compiled, a representative of the bar association had been present during the search and the applicant had had the opportunity to have a court scrutinize whether the examination of the seized electronic data was permissible.

However, the European Court of Human Rights stated that this scrutiny by a court had not been an effective safeguard, because the Austrian court had only given very short, general reasons for its ruling. It had not dealt with the question at all, why it had not been sufficient to scrutinize only the electronic files regarding G. and R. (the persons who had been referred to in the warrant).

For this reason, the ECtHR was unable to examine whether the scrutiny of all electronic files had been proportionate to the aim pursued. Therefore, it considered the search and seizure not ‘necessary in a democratic society’ and found a violation of article 8 ECHR.