Tuesday, August 12, 2014

Admissibility of an application lodged by an NGO on behalf of the deceased victim - Centre for Legal Resources on behalf of Valentin Campeanu v. Romania


In Centre for Legal Resources on behalf ofValentin Campeanu v Romania, the Grand Chamber of the European Court of Human Rights has modified the Court’s jurisprudence on the admissibility of applications in an important way. Establishing a new exception from the requirement that the applicants must claim to be a victim of a violation of a right enshrined in the Convention, the ECtHR accepted that a Nongovernmental Organisation may  in very specific circumstances have standing to submit an application on behalf of the person directly affected by a human rights violation, even though this person had not given the NGO power of attorney.

The case concerned Mr Valentin Campeanu, a Romanian citizen of Roma ethnicity who died in a psychiatric hospital.

Mr Campeanu had been abandoned by his mother at birth and had grown up in an orphanage. When he was about five  years old, he had been diagnosed as HIV positive. He was also found to have an IQ of 30, constituting a ‘profound intellectual disability’.

When Mr Campeanu reached the age of 18, the competent Romanian authorities decided that he be placed in a psychiatric hospital. The hospital informed the authorities that it could not admit Mr Campeanu, since it was not equipped to provide care for persons with HIV and a mental disability.
A protracted conflict ensued between various institutions and health care facilities regarding the admission of Mr Campeanu and the treatment he should receive. Mr Campeanu was transferred to different hospitals for short periods of time.  During this period, his state of health and his general condition deteriorated significantly. He was malnourished, lacked proper clothing and necessary medication was not administered.

In February 2004, staff members of the Centre for Legal Resources visited the facilities. They became aware of the condition Mr Campeanu was in and asked for his immediate transferal, which was refused. Shortly after, Mr Campeanu died. Unaware of his death, the Centre for Legal Resources sent urgent letters to various officials (including the Minister of Health) and alerted them to Mr Campeanu’s case.

When the Centre for Legal Resources learned of Mr Campeanu’s death, they filed a criminal complaint. However, the ensuing investigation did not lead to any findings of misbehavior.

The Centre for Legal Resources filed an application with the European Court of Human Rights.

 
Admissibility

An important part of the judgment deals with the admissibility of the application. The Romanian government argued that the applicants did not have standing to submit an application on Mr Campeanu’s behalf.

Article 34 ECHR requires that the applicant has to claim to be a victim of a violation of one of the rights guaranteed by the Convention. The applicant must be directly affected by an action or omission which infringes upon his rights under the Convention. Legal acts or the conduct of a state cannot be challenged before the European Court of Human Rights just on the grounds that the applicant thinks that they are not in compliance with the ECHR, but the applicant has to substantiate that he or she was affected by said conduct.

The Centre for Legal Resources, which had submitted the application, had not been affected by the conduct of the Romanian state. The victim was Mr Campeanu. He had neither filed the application nor given the Centre for Legal Resources power of attorney or otherwise authorized them to act on his behalf.

The European Court of Human Rights has acknowledged a number of exceptions from the rule that only the victim have standing before the Court: Close family members who suffer from effects of a human rights violation directly affecting someone else may in certain circumstances have the right to submit an application as so called indirect victims (see for example Kurt v Turkey in which the Court held that the mother of a young man who was detained illegally and tortured had standing to file an application). In many cases, in which the applicant died before the proceedings before the Court were finalized, the European Court of Human Rights has granted relatives permission to pursue the case. Even in cases where the victim died before he could submit an application, the Court has sometimes accepted that family members could lodge an application if they had an interest in doing so.

However, all these exceptions have in common that the persons who pursued the case had close ties to the (direct) victim and could substantiate on interest in the outcome of the case on their own. None of this applied to the Centre for Legal Resources.

Regarding NGOs, the European Court of Human Right had held on several occasions that they do not have standing to submit an application on behalf of persons or groups they are advocating for – unless they have been expressly authorized by direct victims.

Consequently, the Romanian government argued that the Centre for Legal Resources did not have standing.

The European Court of Human Rights was faced with a difficult decision: Its prior jurisprudence suggested that the application had to be dismissed as inadmissible. While previous judgments and decisions are not formally binding to the Court, it does not deviate from them without strong justification. Also, declaring the application admissible was not easy to reconcile with the express requirement that the applicant had to be a victim. It might entail the risk of softening this criterion and opening the gate to introducing elements of an ‘actio popularis’ into the Convention contrary to its language.

On the other hand, it was the very particularity of Mr Campeanu’s situation that there had been virtually no one to represent his interests. He had been an orphan with no financial means and an intellectual disability, belonging to a marginalized ethnic group and suffering from a disease often giving rise to discrimination.  It is hard to imagine how somebody could be more vulnerable. While he was in obvious need for special care and attention, his situation made it impossible for him to take the initiative to obtain assistance. Rejecting the application as inadmissible on the grounds that the Centre for Legal Resources did not have power of attorney from Mr Campeanu in a way would have meant perpetuating this situation.

The European Court of Human Rights held that the applicants had standing to lodge an application with the Court. The Court pointed out that the rights enshrined in the Convention were to be practical and effective. It also pointed out that its judgments did not only serve the purpose to decide the individual cases brought before it, but also to advance human rights in Europe.

The Court stated that rejecting the application submitted by the Centre for Legal Resources would allow Romania to escape from its accountability in the case of Mr Campeanu. Considering this and given that the Legal Resources Centre had already acted on Mr Campeanu’s behalf on the domestic level, the European Court of Human Rights held that the application was admissible.

Four judges criticized the solution opted for by the majority in their separate opinions. Judge Pinto de Albuquerque protested that the Court should have developed a general approach to cases concerning particularly vulnerable victims rather than basing its ruling on the exceptional circumstances of the individual case. In his view, the case had given rise to important questions of the interpretation of human rights treaties and of the representation of members of vulnerable groups as well as to the limits of judicial powers. The Court had, in his opinion, failed to answer these questions.

 

Merits

The Court found violations of the right to life under article 2 of the ECHR and of the right to an effective legal remedy (article 13 ECHR). It stated that Romania had failed to take necessary precautions to ensure the protection of Mr Campeanu’s life despite his bad condition and vulnerable state. It also held that Romania had not undertaken the effective investigation of the circumstances of Mr Campeanu’s death

 

Wednesday, February 26, 2014

PRISM and TEMPORA before the European Court of Human Rights - Big Brother Watch and others v UK


As was to be expected, a case regarding the mass surveillance of e-mails and other communication by the American NationalSecurity Agency (NSA) and the British Government Communications Headquarters (GCHQ) have reached the European Court of Human Rights. Four applicants have submitted an application against the UK in which they contend that the collection of information on internet based communication by the British intelligence agency and the obtaining of information from the NSA breaches their rights under article 8 ECHR.

The applicants are Big Brother Watch, an organization dedicated to data protection and privacy rights, the British section of the writers’ association PEN, Open Rights Group, which advocates for freedom of expression and Constanze Kurz, a German expert on data protection and internet communication.

Edward Snowden has revealed that the United States National Security Agency has put into place programs (PRISM, UPSTREAM) for the large-scale monitoring of internet based communication such as e-mails, chats, video transmissions etc. The programs allow for the scrutiny of the content of communication as well as the storage and analysis of so called metadata, i.e. information about participants of communication, IP addresses, place and times.

According to the information provided by Edward Snowden, the British intelligence service was granted access to the data which had been obtained by the NSA. In addition to that, it was uncovered following Snowden’s leaks that the British Government Communication Headquarters had run its own surveillance program, called TEMPORA. It had concerned the strategic monitoring of e-mails and other communications over the internet - that means the interception of a large number of e-mails and its analysis and scrutiny on the basis of certain key words and phrases.
The applicants contend that their rights under article 8 ECHR have been infringed upon in two ways:

  • Firstly, according to them, the British intelligence service has monitored their communication without sufficient legal basis.
  • Second, it has obtained information on their communication via the internet from the NSA without sufficient legal basis.

The Court has communicated the case to the British government; it has provided a summary of the main facts of the case and invited the parties to submit their observations on three questions, which the Court considers particularly relevant for the outcome of the case. Two of the questions concern the admissibility, the other  the merits.
With regard to the admissibility, the Court put the question whether the applicants can claim to be victims of violations of their rights under article 8 ECHR.  This refers to the requirement laid down in article 34 ECHR, which sets out that applicants must claim to be a victim of the violation of a right under the European Convention on Human Rights.
Applicants cannot request an abstract scrutiny of legal acts or actions they consider to be contrary to the ECHR; there is no ‘actio popularis’ under the Convention. Applications are only admissible if applicants can substantiate that they are directly affected by an action of the state. However, applying this requirement strictly would put the applicant in a very difficult situation when measures are concerned which are usually applied in secret. The applicant cannot know whether he is subjected to such measures and unable to substantiate his suspicion that he is. As a consequence, secret measures – such as the interception of communication – would in practice be immune to scrutiny by the Court and individuals bereft of protection.
In order to enable control of secret measures by the Court and ensure that the protection afforded by article 8 ECHR is effective, the European Court of Human Rights has lowered the bar for the admissibility of applications in this area.
 ‘to the extent that a law institutes a system of surveillance under which all persons in the country   concerned can potentially have their mail and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification, it directly affects all users or potential users of the postal and telecommunication services in that country. The Court therefore accepted that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting them, without having to allege that such measures were in fact applied to him or her’.

In Iordachi v Moldova, the European Court of Human Rights held that the applicants could claim to be victims of phone interceptions because they were human rights lawyers  and their communication was likely to be incepted due to their regular contacts with persons accused of criminal offences.

All four applicants claim that their communication is likely to be subjected to surveillance, because they are outspoken critics of policies applied in relation to national security, of interference with private communication and civil liberties and because they maintain frequent contacts with persons advocating for individual freedom and critical of governments and security services.

The second question asked by the Court regarding the admissibility concerns the exhaustion of domestic remedies. Prior to submitting an application to the European Court of Human Rights, applicants have to avail themselves of all domestic remedies which are accessible and effective (article 35 ECHR). This reflects the principle that the control by the Court is subsidiary. Before having to answer to an international institution, states shall be given the opportunity to iron out mistakes on their own. But applicants only have to exhaust such legal remedies which are effective, that means which bear the prospect of succeeding.

In the UK, the interception of communication is governed by the Regulation of Investigatory Powers Act. This act provides for a court, the Investigatory Powers Tribunal (section 65 of the act), which is mandated to oversee the interception of communications.

If courts in the UK deem that a legal provision contravenes the Convention, they can in general make a statement of incompatibility (see section 4 of the Human Rights Act), which does not make the provision in question inapplicable, though. The European Court of Human Rights asked the parties whether the Investigatory Powers Tribunal could have made such a statement and whether this would have been an effective domestic remedy.

The next question asked by the European Court of Human Rights concerns the merits of the case. The Court distinguishes between the receipt of data from the US, their storage, analysis etc. on the one hand and the interception of data, their storage etc. by the British intelligence agency on the other hand.

With regard to both measures, the Court invited the parties to submit observations whether they were ‘in accordance with the law’ and ‘necessary in a democratic society’.

The interception of communications interferes with the right to private life and the right to respect for correspondence, which are enshrined in article 8 paragraph 1. As other articles of the Convention, article 8 ECHR provides that interferences with the rights it protects are justified if they are in accordance with the law, serve certain objectives specified in the article and are necessary in a democratic society.

In accordance with a law does not only require the existence of a law, but also refers to the quality of the legal basis of an interference. The European Court of Human Rights has set out in a number of decisions the criteria which legal acts allowing for the interception of communication have to satisfy (e.g. Kennedy v UK, Weber and Saravia v Germany ). For example, the pertinent laws and regulations have to be publicly accessible (Liberty v UK), they have to limit the duration of interceptions, they have to define clearly in which circumstances interceptions are permitted, they have to contain clear regulation regarding the storage, deletion and security of data obtained and they have to provide effective mechanisms for external control (more detailed information can be found here).

Now the parties will submit their observations on these questions for the Court to decide.

Monday, June 24, 2013

Freedom of assembly in Turkey

The crack-down on protesters in Istanbul has prompted much international criticism. Considering Turkey’s track record before the European Court of Human Rights, the Turkish government’s heavy-handed response to the demonstrations does not come as a surprise.

Turkey is one of the ‘main sinners’ with regard to observance of the ECHR, i.e. it belongs to the five countries responsible for 70 % of the cases in which the ECtHR found a violation of the Convention (the others are Russia, Ukraine, Serbia and Italy). From the country’s accession to the ECHR in 1954 until 2012, the European Court of Human handed down 2521 judgments against Turkey in which it found at least one violation of the European Convention on Human Rights (by way of comparison, Germany, whose number of 80 Million inhabitants is roughly comparable to Turkey’s 73 Million was found in violation of the Convention in 257 cases).

While violations of the right to freedom of expression (215 cases) and freedom of assembly (57 cases) do not account for the bulk of judgments against Turkey, they are far from being exceptions. In a 2011 report on ‘Freedom of expression and media freedom in Turkey’, the Council of Europe Commissioner on Human Rights note[d]  that violations of Article 10 of the European Convention on Human Rights (‘ECHR’) on freedom of expression have consistently taken a prominent place in the case-law of the Court concerning Turkey for more than a decade and continue to do ‘. 

As far as the freedom of assembly is concerned, the problem does not appear to lie so much in the legal framework, but rather in the way it is applied, in a lack of appreciation of the importance of the right to peaceful assembly on the part of the Turkish authorities. 

In Özalp Ulusoy v Turkey, for example, the applicant had followed an appeal by Turkish non-governmental organization to demonstrate Istanbul to demonstrate against killings in Syria and to commemorate the victims of a massacre in Halabja. Although Turkish law as it stood at the time required that the authorities be informed officially about the planned demonstration in advance, the organizers had failed to notify the competent bodies.

Members of the security police arrived. They announced that the demonstrations had not been authorized and asked the participants to leave. 32 persons were arrested and placed into a holding cell for a night. After her release, the applicant filed a complaint to the state prosecutor. She stated that she had been mistreated during her arrest; policemen had thrown her on the ground, punched her and kicked her. She submitted a medical certificate describing her injuries, but the prosecution dismissed the case. The applicant brought a case to the European Court of Human Rights contending that her rights under article 11 (freedom of assembly), article 3 (prohibition of torture) had been breached. The Government argued that there was no infringement on the right to freedom of assembly, for the demonstration had been illegal.

The Court rejected this argument. It stated that the applicant had been searched by police on her way to the  place of the demonstration and that a large number of police had been present, both of which rendered it unlikely that the authorities had been unaware of the event. It also reiterated that while the contracting states of the European Convention on Human Rights are entitled to entrench requirements for prior notice of demonstrations in their respective legal frameworks, it was important that they demonstrate a certain tolerance towards peaceful demonstrations in order to ensure that the right to assembly not be rendered meaningless. It stated that the demonstration in which the applicant had participated had not posed any threat to public order and security other than blocking the traffic. In light of these circumstances the Court ruled that the brutal crackdown on the demonstrators could not be justified as necessary in a democratic society. Consequently, it found a violation of the right to assembly. (In addition to that, the European Court of Human Rights held that article 3 enshrining the prohibition of torture and ill-treatment had been breached).

In Disk and Kesk v Turkey, the applicants were trade unions.  Before labor day 2008, they notified the authorities that they intended to hold a gathering at Taksim square to celebrate labor day and to commemorate their friends who had lost their lives during the labor day demonstrations in 1977. The competent governor authorized the gathering of representatives of trade unions, but prohibited at the same time any demonstration on a larger scale. Press releases were issued stating that any kind of demonstration on Taksim square was illegal and unconstitutional and represented a threat to public order.

On 1 May people started gathering in front of DISK headquarter. Police asked them to disperse. The crowd refused, stating that they were merely waiting in front of  the headquarter, a pedestrian zone, which did not violate any law. Police started dispersing the group by using tear gas, pressurized water and paint.


The applicants contended that this violated their rights under article 11 ECHR (right to assembly). The European Court of Human Rights pointed out that states must not only safeguard the right to peaceful assembly, but that it also must refrain from applying unreasonable indirect restrictions upon this right. It reiterated that demonstrations may cause a certain disruption and disturbance to traffic, but that states have to display a certain measure of tolerance towards peaceful gathering to make the right to assembly practical and effective. Although the authorization which had been necessary according to domestic law had not been issued, the Court found the reaction of the state and the measures taken to disperse the crowd disproportionate. It found Turkey in violation of article 11 ECHR. 


Tuesday, May 28, 2013

Documentary on the African Court on Human and Peoples' Rights


The African Court on Human and Peoples’Rights has published a documentary with information on the African Court, its role and mandate. It can be found here


Mandate
The African Court on Human and Peoples’ Rights is mandated to oversee the observance of the African Charter on Humanand Peoples’ Rights (African Charter) and other human rights instruments applicable in Africa, such as the African Charter on the Rights and the Welfare of the Child or the so called Women’s Protocol. It was established in 2006, by a Protocol to the African Charter, which is binding on the states which have signed it. So far, 26 out of the 54 member states of the Africa Union (AU) have ratified the Protocol, thus recognizing the African Court. Rulings by the African Court are binding on the states which have recognized the Court.

The mandate of the African Court complements the mandate of the African Commission on Human and Peoples’ Rights, which is the body established by the African Charter to ensure its observance. Both institutions can refer cases to each other on certain conditions.

Jurisdiction
The jurisdiction of the African Court comprises advisory opinions and contentious matters.

- advisory opinions
Any member state of the AU, the AU or any of its organs as well as any organization recognized by the AU may request the African Court to provide an opinion on legal matters regarding the interpretation of the African Charter or other relevant human rights instrument. The African Court did not have an opportunity yet to examine the notion ‘organization recognized by the AU’ yet.

- contentious matters
In addition to that, the African Court has jurisdiction in individual cases. The African Commission on Human and Peoples’ Rights, states involved in litigation before the African Commission or states whose citizens have been victims of human rights violations or intergovernmental may submit cases to the Court.
States which have ratified the Protocol establishing the African Court may deposit a declaration to the effect that they recognize the Court’s jurisdiction in individual cases. If a state has made this declaration, individuals may initiate a case against this state alleging that it has failed to comply with the African Charter or other human rights instruments applicable in Africa. To date, six member states of the African Union have deposited the declaration allowing individual applications.

Structure and Organisation
The African Court has its seat in Arusha, Tanzania; it comprises of 11 judges. The judges are elected for a term of six years, which may be renewed once. Apart from the President of the Court, who is based in Arusha, judges serve on a part time basis. The African Court has four ordinary sessions per year, which last for two weeks. In addition to this, extra-ordinary session may be scheduled.
The judges are supported by the Registry, which provides administrative support, conducts legal research as requested etc. 

Friday, May 24, 2013

Protocol 15 to the ECHR


On 16 May 2013, the Committee of Ministers of the Council of Europe has adopted Protocol 15 to the European Convention on Human Rights. The Protocol is now open for signature by the Council of Europe member states and will enter into force once all member states have acceded to it.

Background
(Draft) Protocol 15 to the ECHR was drafted following the adoption of the Brighton Declaration. The Brighton Declaration was the result of a number of events – notably three high-level conferences held in Interlaken, Izmir and Brighton – conducted to discuss the challenges facing the Court. Important topics addressed were, inter alia, 

  • the inundation of the Court with applications concerning very similar cases, caused by the reluctance of some member states to undertake structural reforms aimed at ensuring the effective enjoyment of Convention rights;
  • related to this, the duration of proceedings before the ECtHR
  • the quality and consistency of the Court’s jurisdiction and the qualification of the judges elected onto the Court


Protocol 15 is to implement some (but not all) of the measures proposed in the Brighton Declaration to target these problems. While the Brighton Declaration has been criticized for various reasons  (as its alleged failure to address the root causes jeopardizing the European human rights system), the amendments contained in Protocol 15 are widely regarded as ‘technical’ and ‘uncontroversial

Amendments
The protocol will change some aspects of the procedure before the ECtHR, entrenches the principles of subsidiarity and the 'margin of appreciation doctrine' in the Convention and abolishes the compulsory retirement age of 70 years for judges. 

 - Procedural amendments

Time limit
The protocol contains some amendments to the procedure before the European Court of Human Rights. The time period for submission of applications to the Court is shortened. Currently, applications have to be submitted within 6 months, starting with the date of the last decision on an effective legal remedy. The amending protocol sets out that article 34 of the Convention will changed to the effect that it lays down a time limit of four months.

Rejection due to lack of significant damage
The possibility to reject applications is broadened. Currently, article 35 provides that applications are declared inadmissible, if the applicant has not suffered a significant damage. Yet an exception applies in cases in which domestic courts have not duly considered the case. Protocol  15 abolishes this exception, i.e. even cases which have not been given due consideration on a domestic level may now be rejected as inadmissible if the applicant has not suffered significant damage.

No possibility for the parties to object relinquishment in favor of the Grand Chamber
Article 30 ECHR provides that cases may be relinquished in favor of the Grand Chamber,
  • if the case gives rise to an important question  regarding the interpretation of the Convention orone of its protocols
  • if the Chamber competent for the case is considering to deviate from the jurisdiction of the Court

Currently, this is subject to the condition that none of the parties objects. The amending protocol will abolish this requirement. This amendment will expedite the procedure by removing one procedural step and add to the consistency of the Court’s case law by ensuring referral to the Grand Chamber in case a change of jurisdiction is considered. In line with this change, the Court has announced to change Rule 72 of the Rule of Court, which deals with the relinquishment of jurisdiction.

 - Margin of appreciation and principle of subsidiarity
Protocol 15 will include a reference to the margin of appreciation in article 1 of the Convention. When the suggestion to include this principle expressly in the ECHR was tabled during the discussion preceding the ‘Brighton declaration’ , it met with different kinds of misgivings. Critics – notably from the NGO community - feared that the notion ‘margin of appreciation’ might be misused to dilute the control the Court exercised over member states and give them more room to maneuver. 

The language finally chosen met with approval by the Parliamentary Assembly of the Council of Europe as well as ultimately the Court itself, which stated that

The principle of subsidiarity, is in line with long-standing jurisdiction of the Court. The Court has welcomed the language contained in the Protocol as ‘reflecting the Court’s pronouncement on the principle’.
Change of retirement age

 - Retirement age of judges
The compulsory retirement age of 70 years is abolished and at the same time a new rule introduced that candidates put forward as judges have to be less than 65 years old. In view of the nine years’ term judges are serving, the retirement age is thus 74.

Wednesday, May 15, 2013

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.

Thursday, May 9, 2013

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 theEuropean 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.