Author Archives: Daria Sartori

About Daria Sartori

PhD & Doctor Europaeus in Comparative and European Legal Studies

Gard and Others v. UK. Passive euthanasia of a minor patient and the limits to parental authority

Introduction

The case of Charles Gard (better known as “Charlie”) originates in the unfortunate conditions of a baby boy suffering from an incurable disease, whose life-sustaining treatment have been withdrawn on 28 July 2017 in accordance with UK law, notwithstanding his parents’ contrary will and after a legal dispute conducted before UK Courts and at European level.

The last stage of the dispute has been the decision issued by the European Court of Human Rights, First Section (“ECtRH”, or “Court”) on 27 June 2017, declaring inadmissible the application lodged against the United Kingdom by Charles’s parents, also on behalf of their son, for alleged violations of Articles 2 (right to life), 5 (right to liberty and security), 6 (right to fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”, or “Convention”).

The Court’s declaration of inadmissibility forms part of the developing body of European decisions on end-of-life situations. The present post describes the facts of the case and the ECtHR’s assessment on the complaints raised under Article 2 and 8 ECHR, focusing on two aspects of the decision: the use of the criteria developed in the recent Lambert judgment to assess whether domestic law regulating passive euthanasia is compatible with the Convention; the choice of expressly dealing with the issue of limits to parental authority in end-of-life choices concerning minors – issue which is likely to animate future debates on end-of-life situations.

 The case

Charles Gard was a baby boy suffering from a very rare and severe disease determining a progressive deterioration of his health since the age of two months and severely affecting his brain, muscles and ability to breath, so to require, inter alia, artificial ventilation.

In January 2017, the possibility of treating Charles with a form of therapy previously used on patients with a similar disease was being evaluated. In the meanwhile, the baby suffered from a severe epileptic crisis. In the light of the irreversible damages suffered by Charles’ brain, clinicians agreed that the therapy would be futile and that it would only prolong the baby’s suffering. They informed Charles’ parents of this conclusion and applied the UK High Court for an order stating that it would be lawful, and in the patient’s best interests, for artificial ventilation to be withdrawn and palliative care provided.

The High Court, noting the medical experts’ consensus on the fact that the treatment would have been futile and potentially painful for the patient, declared it lawful and in the patient’s best interest for artificial ventilation to be withdrawn.

Charles’ parents appealed on several grounds. Among them, it is worth recalling their argument according to which the ‘best interest of the child‘ criterion may be used only in cases whereby parents opposing a course of treatment do not have a viable alternative therapeutic option.[1]

The Court of Appeal dismissed this and the other arguments. Subsequently, the Supreme Court rejected the applicants’ request for permission to appeal on point of law. Charles’ parents applied the European Court of Human Rights, complaining, inter alia:

– on Charles’ behalf and on their own, of a violation of Article 2 ECHR (right to life), arguing that the hospital was blocking life-sustaining treatments and, thus, state authorities were violating their positive obligations to protect life;

– on their own behalf, of a violation of Article 8 ECHR (private and family life), alleging that there had been a disproportionate interference with their parental rights.

 The Court’s assessment on the complaints under Articles 2 and 8 ECHR.

Article 2 ECHR (right to life)

When analysing whether the applicants had locus standi on behalf of their son, the Court took the opportunity to point out that in end-of-life situations involving minors the parents’ role ‘is […] arguably to be accorded greater weight’ than in cases (such as Lambert) whereby the unconscious patient had had the opportunity to lead an adult life and express his views on end-of-life situations.

As to the substantive issue raised under Article 2, the Court examined not only the applicants’ complaint that the hospital was blocking access to life-sustaining treatment, but also the complaint (raised only at domestic level) that Charles’ right to life would be violated if treating clinicians were to withdraw artificial ventilation against his parents’ will.

With reference to the first complaint, the Court recalled its previous case-law, according to which positive obligations under Article 2 may include the duty for the State to put in place an appropriate legal framework to deal with access to experimental treatment; However, this cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way (Hristozov and Others v Bulgaria 2012). As the United Kingdom has a regulatory framework to deal with access to experimental treatment, which ‘is derived from the relevant European Directives’, the Court concluded that the applicants’ complaint under this head was manifestly ill founded.

As to the complaint concerning the withdrawal of life-sustaining treatment (or ‘passive euthanasia’), the Court made use of the criteria elaborated by the Grand Chamber in Lambert and Others v France (GC 2015), according to which it should be assessed whether:

– A regulatory framework compatible with the requirements of Article 2 exists in domestic law and practice;

– The patient’s previously expressed wishes were considered, together with those of the persons close to him and the opinions of other medical personnel;

– There is the possibility to approach the courts in the event of doubts as to the best decision to be taken in the patient’s interests.

The Court concluded that the second complaint under Article 2 was also manifestly ill founded, considering the following reasons:

– The regulatory framework in place in the UK to deal with passive euthanasia is compatible with the requirements of Article 2 (as assessed in Glass v UK (dec) 2003, first case involving, inter alia, the withdrawal of life-sustaining treatment in a minor patient whose parents oppose the treating clinicians’ choices);

– A guardian had been appointed expressly for ensuring that Charles’ wishes were taken into account, and the opinions of all medical personnel and parties involved (including the parents) had been adequately considered;

– UK domestic rules do impose a duty on clinicians to apply to courts in the event of doubts.

Article 8 ECHR (right to respect for private and family life)

Under Article 8, the applicants complained that the alleged lack of respect for their parental will constituted a violation of their right to private and family life.

The Court acknowledged that there had been an interference with the applicants’ rights under Article 8. However, this would not constitute a violation of Article 8 if: it was “in accordance with the law”, it pursued a legitimate aim (or aims), and it could be regarded as “necessary in a democratic society”.

With regard to the first two criteria, the Court found that the interference was lawful and that it pursued a legitimate aim (i.e. the protection of “health and morals” and “rights and freedoms” of a minor). As for the necessity test, the Court recalled the applicants’ argument that interference with their parental rights based on the ‘best interest of the child‘ test was unnecessary. In response to that, on the one hand,the Court pointed out that ‘there is a broad consensus – including in international law- in support of the idea that in all decisions concerning children, their best interest must be paramount‘; on the other hand, it clarified that, according to its case law, the necessity test requires ‘consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures are “relevant and sufficient”’. Also in consideration of the margin of appreciation doctrine (according to which, the less consensus among the Member States, the wider their margin of appreciation) the Court concluded that the decisions taken by the domestic courts did not show any element of arbitrariness and dismissed the complaint as manifestly ill-founded.

Final remarks

This is the first occasion in which the Court has applied the criteria developed in Lambert v. France to evaluate the compatibility of domestic laws regulating passive euthanasia with the Convention.

The body of Court’s decisions on end-of-life situations cannot be considered, yet, as case law. Still, the choice of applying to the Gard case the conclusions reached in Lambert can be regarded as a wilful development in that direction. In fact, the Court analysed the complaint relating to the withdrawal of life-sustaining treatment even though this had been raised by Charles’ parents only before UK Courts: The choice of expressly dealing with this argument can be considered as an opportunity to apply the Lambert conclusions to a new case, thus reinforcing their ‘general criteria’ nature. Thanks to this choice, in future decisions on passive euthanasia cases the Lambert criteria might gain a more authoritative dimension.

In the Gard decision, the Court also considered the issue of limits to parental authority in end-of-life choices concerning minors. In analysing the applicants’ locus standi to raise a complaint under Article 2 on their son’s behalf, the ECtHR clarified that, in cases involving minors, the very early age of the patient is a factor that can be taken into consideration when determining the weight to be attributed to parents’ choices. At the same time, in analysing the complaint raised under Article 8, the Court pointed out that the ‘best interest of the child‘ criterion must always be paramount.

These clarifications are particularly welcome, if one considers that in the only previous comparable case (Glass v UK 2004) the Court had not explicitly confronted the issue of limits to parental authority in end-of-life choices concerning minors. Quite understandably, in the light of the context (i.e., a decision of admissibility, and not a judgment) the issue was approached with caution in Gard: however, it is now more likely that, in the future, other cases of this kind will be brought to the attention of the Court, when arguments concerning the limits to parental authority could play an even more relevant role.

[1] See par. 58 of the Court of Appeal decision

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The Hutchinson and Hammerton cases. The Human Rights Act within the case law of the European Court of Human Rights

Introduction.

The Human Rights Act 1998 (HRA) is a piece of legislation incorporating the rights set out in the European Convention on Human Rights (ECHR) into UK law. The Act allows individuals to challenge a decision of a public authority within UK Courts, on the grounds that it violates their rights under the ECHR. It places upon domestic courts the duty to interpret all existing legislation in a manner that it is compatible with the ECHR. Whenever this is not possible, the Act allows for a ‘declaration of incompatibility’ to be issued by the UK Supreme Court; however, this declaration does not affect the validity of the legislation contested. This remains exclusive competence of the Parliarment.

The Act was passed into law in 1998 with overwhelming cross-party support and the backing of the then Conservative Party leadership. However, today, the same Act is at the centre of a hot debate originating in the Conservative Party’s intention to repeal this piece of legislation. The Conservative Manifesto 2015 promised to “scrap the Human Rights Act, and introduce a British Bill of Rights” and statements have been made by Prime Minister David Cameron and Home Secretary Theresa May to the effect that the Act constitutes an unbearable intrusion by a foreign Court into UK politics and affairs. Furthermore, Prime Minister David Cameron has declared that the UK may even consider withdrawing from the European Convention system. The upcoming referendum on ‘Brexit’, althought formally unrelated, will probably revive the debate on both issues.

The present post wishes to contribute to the debate on the possibility of repealing the Human Rights Act by discussing its role in relation to the case law of the European Court of Human Rights (EctHR), with specific reference to two recent judgments in which the HRA has played a substantial role.

Hutchinson and Hammerton

Only a very small percentage of the applications lodged against the UK before the ECtHR passes the initial threshold of admissibility: between 1999 and 2010, the estimated number was around three per cent.1 Among inadmissibility decisions, many are motivated by the non-exhaustion of domestic remedies. The exhaustion rule, set forth in Article 35 of the European Convention, expresses a general principle of international law2 and is grounded in the principle of subsidiarity, according to the notion that “it falls, firstly, to the national authorities to redress any violation of the Convention.”3 The rationale behind the rule is to grant national authorities the opportunity to prevent or put right the alleged violations of the Convention.4 Thus, the ECtHR declares inadmissible applications which are not preceded by the activation of available and effective domestic remedies designed to redress the violation(s) contested.

The case law of the ECtHR demonstrates that non-exhaustion of remedies provided by the Human Rights Act often constitutes the ground for the inadmissibility of complaints lodged against the UK.5 Whenever claimants lodge an application against the UK, they must have relied, at least in substance, on the Human Rights Act before British courts in order for their application to be admissible. Accordingly, the Human Rights Act represents an important “filter”, which is capable of preventing the European Court of Human Rights from finding against the UK. British courts, well-aware of the importance of this filter, make use of their powers to interpret domestic law in accordance with the Human Rights Act so as to prevent the possibility that a certain piece of legislation gives rise to a violation of the European Convention.

This happened, for instance, in the recent Hutchinson case, whereby the European Court of Human Rights found no violation of the Convention thanks to the interpretative developments achieved at the domestic level by the Court of Appeal.6 The issue at stake was the indefinite duration of life sentences which, according to the European Court of Human Rights’ case law, is compatible with Article 3 of the Convention (prohibition of torture and inhuman and degrading treatments) only where there is both a prospect of release and a possibility of review.7 In the UK, the Secretary of State has the discretion to release a whole-life prisoner under Section 30 of the Crime (Sentences) Act 1997. However, chapter 12 of the so-called Lifer Manual provides that release can be only ordered if a prisoner is terminally ill or physically incapacitated.8 This restrictive provision has been at the centre of a debate between UK Courts and the European Court of Human Rights.9 Eventually, in R v. Newell; R v. McLoughlin, the Court of Appeal supported a wide interpretation of Section 30, allowing the Secretary of State to exercise his power of release outside the strict limits of the Lifer Manual.10 Acknowledging the importance of such an interpretation, the European Court of Human Rights concluded, in Hutchinson, that “the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3”.11

The case law of the ECtHR also demonstrates that flaws in the system delineated by the Human Rights Act may result in adverse judgments against the UK. An example can be found in the recent Hammerton case, which originated in a violation of the due process of law: the applicant had been sentenced for contempt of court after a committal hearing where he had not benefitted from the assistance of a lawyer.12 The Court of Appeal acknowledged that the lack of legal representation constituted a violation of the right to legal assistance set out in Article 6 § 3 c ECHR. However, the High Court dismissed the applicant’s claims for damages under common law, noting the lack of malice of the County Court. Furthermore, it refused the applicant’s claim for damages under the Human Rights Act 1998, noting that section 9(3) precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention, which was deemed not to be applicable in the applicant’s case because the irregularity was not so gross or obvious as to be not in accordance with the law.13 Thus, the applicant had not been afforded appropriate redress, nor it was possible for him to argue that the relevant legislation ought to be read in a manner compatible with Article 13 ECHR (right to an effective remedy) or to seek a declaration of incompatibility, because the Human Rights Act excludes from the scope of “Convention rights” the right guaranteed by Article 13 ECHR. Because of this lacuna in the British system of protection for human rights, the ECtHR dismissed the Government’s objection as to non-exhaustion of domestic remedies and eventually found a violation of Article 6 ECHR (fair trial), because “the domestic remedies available to the applicant in relation to his complaint under Article 6 were not fully “effective” for the purposes of Article 13, since they were not capable of affording adequate redress for the prejudice suffered by him in the form of the lengthened deprivation of liberty”.14

The Human Rights Act and the case law of the ECtHR.

The above mentioned decisions demonstrate the by the Human Rights Act: on the one hand, it represents a valuable tool for adjusting the British legal system to the values enshrined in the European Convention on Human Rights, thereby avoiding adverse judgments by the European Court; on the other hand, it encourages domestic authorities to step in to protect citizens where a lacuna in the domestic law endangers their rights.

A recent study has underlined that the number of adverse judgments against the UK has shown a slight downward trend since 2005, possibly motivated by the entry into force of the Human Rights Act.15 Even though the same study warns that the annual figures are so low that it is not possible to discern a clear trend pre- and post- Human Rights Act, the figures for the years following the release of this study appear to confirm the existence of such a trend. Indeed, in 2011, only eight adverse judgments were released, against 1,553 applications allocated to a judicial formation; in 2012, there were ten adverse judgments against 1,732 allocated applications; in 2013, eight adverse judgments against 912 allocated applications; in 2014 four adverse judgments against 720 allocated applications; and in 2015, four adverse judgments against 575 allocated applications. These numbers confirm the downward trend noted by the study, and also a slight downward trend in the number of allocated applications. It would be beyond the limits of the present contribution to investigate elements such as the number of inadmissibility decisions grounded on the presence of an effective remedy provided by the Human Rights Act: however, the two judgements analysed above clearly demonstrate the relevance that the Act plays in the determinations reached by the European Court of Human Rights.

On a general note, it is worth reiterating that the Human Rights Act was adopted by the UK Parliaments with an overwhelming cross-party majority and that the same European Convention on Human Rights has been the result of the work of prominent British lawyers, such as Sir David Patrick Maxwell Fyfe, a Conservative politician who was the Chair of the Committee on Legal and Administrative Questions of the Council of Europe’s Consultative Assembly from 1949 to 1952. Repealing the Human Rights Act might risk not only increasing the number of adverse judgments by the ECtHR, but also undermining the prominent position established by the UK within the Council of Europe and taint its international reputation as a pioneer in the protection of human rights. Using the words of human rights lawyer Jonathan Cooper, “there is nothing more British than the Human Rights Act. And through it, our values are being woven into human rights law across the globe.

1

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights,Equality and Human Rights Commission Research report 83, 2012, p 34

2

ICJ, Interhandel (Switzerland v Unted States) Judgment of 21 March 1959; Article 41(1)(c) ICCPR; Article 46 American Convention on Human Rights; Articles 50 and 56(5) African Charter of Human and People’s Rights

3

Gafgen v Germany (GC), App no 22978/05, 1 June 2010; Siliadin v France, App no 73316/01, 26 July 2005

5

Amongst many others, see: Peacock v UK (Decision), App no 52335/12, 5 January 2016; Bahmanzadeh v UK (Decision), App no 35752/13, 5 January 2016; Roberts v UK (Decision), App no 59703/13, 5 January 2016

6

Hutchinson v. UK, App no 57592/08, 3 February 2015

7

Kafkaris v Cyprus [GC] Application no. 21906/04, 12 February 2008

8

Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700

9

R v Bieber [2009] 1 WLR 223; R v David Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22; Vinter and others v UK [GC], Apps nos 66069/09, 130/10, 3896/10, 9 July 2013

11

Hutchinson v. UK, App no 57592/08, 3 February 2015

12

Hammerton v UK, App no 6287/10, 17 March 2016, paras 6-15

13

Hammerton v UK, paras 26-35

14

Hammerton v UK, paras 146-147

15

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission Research report 83, 2012, p 36

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Time and definitions in the interpretation of the ECHR. ‘Private life’ and the legal recognition of post-operative transsexuals

Introduction

The European Court of Human Rights (ECtHR) has jurisdiction over all matters concerning the interpretation of the European Convention of Human Rights (ECHR) and its Protocols,1 but neither the ECHR nor its Protocols give any indication as to the appropriate interpretative techniques. In principle, being an international treaty, the ECHR should be interpreted in accordance with the Vienna Convention on the Law of Treaties 1969 (VCLT).2 However, it has been rightly pointed out that the ECtHR pays only ‘lip-service’ to the interpretative tools of the VCLT.3 The reason lies in the peculiar nature of the European Convention of Human Rights, a law-making, human rights treaty,4 that can hardly be interpreted with the traditional tools of International Law (mainly borrowed by the private law of contracts).5 Therefore, the Court has autonomously developed its own interpretative methodology.

Within this methodology, a central role is played by the principle of evolutive interpretation, according to which ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions’.6 For this reason, the Court’s evaluation of the infringement of human rights develops in accordance with the changes occurring in the domestic law of the member States and in society.7 The present contribution aims at providing a better understanding of how time significantly impacts evolutive interpretation, and how the latter relates to other interpretative principles.

The analysis focuses on the extension of the notion of ‘private life’ (Article 8 ECHR) to cover certain rights pertaining not only to sexuality, but also to the legal recognition of post-operative transsexualism. The ECtHR’s case law on this topic is an interesting example of evolutive interpretation, because the inclusion of the rights of transsexuals came as a result of a progressive shift in the European judges’ attitude. Furthermore, the extension has been facilitated by the peculiar notion of ‘private life’, thus demonstrating the connection of evolutive interpretation with the autonomous notion principle.

Private life and sexuality

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. Each element of the right has an autonomous meaning under the ECtHR’s case law, because the definition of the legal terms within the European Convention is held to be independent from that in use among State Parties (‘autonomous notions’ principle).8

With regard to the notion of ‘private life’, the ECtHR has established that this concept ‘is a broad term not susceptible to exhaustive definition”.9 Furthermore, it has held that ‘it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses’, and that ‘respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’10 Accordingly, the Court acknowledges that ‘private life’ is a notion encompassing not only rights relating to the personal identity of individuals (e.g.: name, honour, reputation)11 but also those pertaining to their social identity. On this basis, the Court recognised the rights associated with the free manifestation of sexual orientation relatively early.12 On the other hand, the extension of ‘private life’ to include the legal recognition of post-operative transsexualism occurred at a much later stage.

Rights of post-operative transsexuals

One of the very first cases in which the Court was faced with a request to protect the rights of transsexuals was the 1986 case concerning Rees, a British citizen who had undergone a female-to-male operation.13 He complained that no provision under British law allowed transsexuals to obtain a modification of their birth certificate in accordance with their new sex. This had certain implications e.g., on their right to marry and on their pension rights. Therefore, in the applicant’s opinion, the lacuna in the British law had infringed upon his right to respect for private life, protected by Article 8 ECHR.

The Court pointed out that the notion of ‘respect’ for private life was not ‘clear-cut’ and that there was little common ground among the Contracting States with regard to the rights of transsexuals, since the domestic law of most States was still ‘in a transitional stage’.14 As a consequence, the Court held that Article 8 ECHR could not be extended so far as to require the United Kingdom to adopt ‘detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest’, at least ‘for the time being’.15 At the same time, the Court pointed out that the Convention ‘has always to be interpreted and applied in the light of current circumstances’. On this basis, the Court declared that appropriate legal measures should ‘be kept under review, having regard particularly to scientific and societal developments’.16

In the subsequent case of Cossey (a male-to-female transsexual, complaining about the same lacuna in British law) in 1990, the Court noted that there had been no significant developments since the Rees case. There was still the same ‘diversity of practice’ among Member States, and a departure from the Court’s earlier decision was not justified since there was no change in the ‘present-day conditions’.17 This conclusion, however, was coupled with many dissenting opinions which pointed out the ‘clear developments’ in the law of some Member States, or expressed a desire for a stronger activism by the Court.18

In the 1998 Sheffield & Horshman case, the Court recognized an increased social acceptance of transsexualism, and an increased recognition of the problems which postoperative transsexuals encounter.19 However, the majority of the Court’s judges were still not convinced that the legislative European trends were sufficient to establish the existence of any common European approach to the recognition, at law, of postoperative gender status.20 The rejection of the applicants’ claims was accompanied, again, by dissenting opinions.

The slow, but evident, evolution in the Court’s attitude towards the rights of transsexuals culminated in 2002, with its judgement in the Goodwin case.21 Here, the Court recognized ‘the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals’. The consequence was that the unsatisfactory situation in which postoperative transsexuals lived was considered to be ‘no longer sustainable’, and a violation of Article 8 ECHR was finally declared.22

Conclusion

The right to legal recognition of post-operative transsexualism took twenty years to be established. It is worth noting that the extension of the protection afforded by Article 8 ECHR has been favoured by the ‘undefined’ nature of the notion of private life. Indeed, the evolutive interpretation of the Convention is more easily achieved when legal concepts lack a clear definition. From this point of view, it can well be said that the autonomous notion principle allows the Court to retain a power of non-definition of certain notions, facilitating the extension of those notions to the changing needs of society. Accordingly, one should never look at the developments of the Court’s case law without examining, first, the extent to which the Convention notions are (un)defined; the principle of evolutive interpretation should always be considered together with the autonomous notions principle.

To conclude, time manifests the limits of a historically determined text such as the European Convention of Human Rights. The ECtHR reacts to these limitations by adapting the text to the changing needs of society. The result is assisted by the margin of discretion retained by the Court on the limits of the Convention notions, which, in turn, is strengthened by the autonomous notion principle.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as emended) (ECHR), Art 32

2 United Nations, Vienna Convention on the Law of Treaties (VCLT) 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

3 I SINCLAIR, The Vienna Convention on the Law of Treaties (Manchester, 2nd ed, MUP 1984) 140

4 Wemhoff v Germany (1968) Series A no 7

5 LG LOUCAIDES, The European Convention on Human Rights. Collected Essays (Leiden, 2007) 10

6 Tyrer v United Kingdom (1978), Series A no 26, par 31; Marckx v Belgium (1979), Series A no 31, par 41

7 Dudgeon v United Kingdom (1981), Series A no 45, par 23

8 Marckx v Belgium (1979) Series A no 31, para 31; Engel And Others v The Netherlands (1976) Series A no 22, para 81. On this topic, see eg: G. Letsas, The Truth in Autonomous Concepts: how to interpret the ECHR, in European Journal of International Law, 15, 2004, p 279

9 Niemietz v Germany (1992) Series A no 251-B, par 29

10 Niemietz v Germany (1992) Series A no 251-B, par 29

11 Burghartz v Switzerland (1994), Serie A n 280-B; Sanchez Cardenas v Norway, App no 12148/03, ECHR 2007; Pfeiffer v Austria, App no 12556/03, ECHR 2007 ; Schussel v Austria (dec), App no 42409/98, ECHR 2002

12 Niemietz v Germany (1992) Series A no 251-B; Dudgeon v UK (1981) Series A no 45

13 Rees v United Kingdom (1986) Series A no 106

14 Rees, par 37

15 Rees, par 44

16 Rees, par 47

17 Cossey v United Kingdom (1990) Series A no 184, par 40

18 Cossey, (1990) Series A no 184 (Judges Macdonald & Spielmann) (Judge Martens)

19 Sheffield & Horshman v United Kingdom, ECHR 1998-V

20 Sheffield & Horshman, par 57-60

21 Goodwin v United Kingdom, ECHR 2002-VI

22 Goodwin, par 84-90

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Grand Chamber judgment in Lambert v France. Personal autonomy within the right to life opens the door to the ‘right to die’

Introduction

On the 5th of June 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) has released its judgment in the case of Lambert v France. The judgment’s core lies in the decision, taken by twelve votes to five, that the withdrawal of Mr Lambert’s artificial nutrition and hydration under the procedure prescribed by French law would not (if implemented) constitute a violation of Article 2 ECHR (right to life).

The facts of the Lambert case and the relevant domestic legislation have been described by this Author in this same blog. Therefore, the present contribution focuses only on the legal reasoning developed by the Grand Chamber. It is worth reminding that the judgment is a unicum in the panorama of the Strasbourg case law, being the first occasion in which the Court has been called to rule on the withdrawal of medical treatments from an adult patient unable to express his will.

The applicants’ standing before the ECtHR

The applicants were the parents and two siblings of Mr Lambert. They alleged that the domestic authorities’ decision to withdraw Mr Lambert’s nutrition and hydration would violate Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to private and family life) of the Convention. The applicants acted both on Mr Lambert’s behalf and on their own. As a general rule, applications can be brought to the ECtHR only by the victims of an alleged violation of the Convention rights.1 The Court’s case law allows exceptions in two cases: when the violation is ‘closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State’, or when the victims are vulnerable subjects, unable to personally lodge a complaint. In this second case, the Court applies two criteria: the risk that, otherwise, the victim would be deprived of effective protection, and the absence of a conflict of interest between victim and applicant. Having verified that none of these exceptions applied to the case, the Grand Chamber did not admit the applicants’ standing to act in the name and on behalf of Mr Lambert. Conversely, it admitted the application they had made on their own behalf.

The legal reasoning

On the basis of a distinction between ‘euthanasia’ and ‘therapeutic abstention’, the Grand Chamber decided that the case of Mr Lambert involved only the positive obligations deriving from Article 2 ECHR. In other words, the issue at stake was declared to be whether the French State had taken the appropriate steps to safeguard Mr Lambert’s life (positive obligation), and not whether it had the intention of causing Mr Lambert’s death (negative obligation).

The Court recalled its previous case law on ‘related issues’, highlighting the evolution on the relationship between Articles 2 and 8 ECHR. It then referred to the only two previous cases involving the administering or withdrawal of medical treatments2, assessing that the factors taken into account on those occasions were: the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and of those of the persons close to him, as well as the opinions of other medical personnel; the possibility to approach the courts in the events of doubts as to the best decision to take in the patient’s interest.

The Court acknowledged the absence of a consensus among the Council of Europe member States as to whether the withdrawal of ‘artificial life-sustaining treatment’ should be allowed (par 147). Accordingly, it declared that ‘in this sphere concerning the end of life (…) States must be afforded a margin of appreciation (…) as regards the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy’ (par 148).

After having thus defined the context, the Grand Chamber analysed the applicants’ claims. In the first place, they argued that the domestic legislative framework lacked precision and clarity as to its scope of application, and as to the notions of ‘medical treatment’ and ‘unreasonable obstinacy’. The Court considered the relevant legislative provisions and the interpretation given to them by the Conseil d’État, coming to the conclusion that the legal framework thus defined ‘is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decision taken by doctors’. As for the decision itself, the applicants alleged that it was vitiated, because the doctors had not tried to compose the contrast between the different positions expressed by Mr Lambert’s family. The Court assessed that the organisation of the decision-making process (including the designation of the person who takes the final decision, and the arrangements for the final taking of the decision) falls within the margin of appreciation of the State (par 168). It pointed out that the process had taken into consideration all points of view (including the presumed wish of Mr Lambert’s himself), and that effective domestic remedies had been available to the applicants.

To conclude, the Grand Chamber assessed that the legislative framework laid down by French law, and the decision taken by the doctors of Mr Lambert on this basis, were compatible with the positive obligations flowing from Article 2 ECHR, in view of the margin of appreciation left to the State in this case (par 181). The complaint raised by the applicants with regard to Article 8 (right to respect for private life) was declared to be absorbed by the one under Article 2. The complaint raised under Article 6 (fair trial) was declared to be manifestly ill-founded.

Analysis

In previous posts on the Lambert case, this Author had anticipated the Grand Chamber’s focus on Article 2 ECHR and on the respect for legal certaintyA closer look at the final judgment reveals that, in addition to these, somehow predictable, choices, hides an interesting mix of parameters, apparently causing a contradiction in the Court’s reasoning, but actually pushing further than ever the ECtHR’s position on end-of-life situations.

In motivating the refusal to accept the applicants’ standing in the name and behalf of Mr Lambert, the Grand Chamber declared that it ‘does not consider it established that there is a convergence of interest between the applicants’ assertion and what Vincent Lambert would have wished’. In addition, it declared that there was no risk for Mr Lambert to be deprived of effective protection, because ‘it is open to the applicants (..) to invoke before the Court on their own behalf the right to life’. Such motivation oddly mixes arguments concerning Articles 2 and 8. If the focus were on Mr Lambert’s right to life, no argument could be brought to assess that he and his parents had different ‘interests’. As correctly pointed out by the partly dissenting opinion of Judges Hajiyev, Šikuta, Tsotsoria, De Gaetano and Gritco, obviously Mr Lambert and his parents had similar concerns as regard the protection of his physical integrity. A different conclusion can be reached only if the focus is on the right to private life (Art. 8), hence on Mr Lambert’s right to freely determine the extent of his own life. However, if this were the case, one cannot see how this right would be ‘effectively protected’ by allowing his parents to invoke a different right, namely the right to life (Art. 2). 

It is this Author’s belief that behind this apparent contradiction in the Court’s reasoning there is actually a conscious choice, grounded on the following assertion:

‘[I]n a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses (par 142).

The Court’s previous case law connected Article 8 to Article 2, in order to reach the conclusion that the right to private life entails the right to freely determine the extent of one’s own life.3 What is new in Lambert, is that this connection is reversed, allowing the Court to establish the extent and scope of Article 2 in the light of Article 8. In other words, the previous case law on end-of-life situations is used in Lambert to justify that the content of the right to life is partly determined by the right to private life and by personal autonomy. Even if not evident, this is a considerable opening by the Strasbourg Court to reverse its previous position, according to which the right to life ‘cannot entail, without a distortion of language, the right to die’.4

1 Article 34 ECHR

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Detention of asylum-seekers in the UK: a continuous violation of human rights

Introduction

Immigration detention is the detention of migrants who are seeking entry to a territory, or awaiting deportation, removal, or return from a territory.1 It might affect, inter alia, asylum-seekers; for this reason, EU law and international law have developed standards of protection for the human rights involved, with a special focus on applicants for international protection.

In the UK, immigration detention concerns, in the majority of cases, persons who have sought asylum at some stage during their immigration processes.2 The present post explores how the UK legal system deals with their detention and concludes that the current UK regime infringes the standards of protection set out by EU law and international law on many grounds, and it is in urgent need of reformation.

EU law

The main instruments of EU law regulating the detention of third-country nationals (TCN) applying for international protection are the Reception Conditions Directives3 and the recast Reception Conditions Directives.4 The recast Directives provide detailed rules, allowing for the detention of asylum-seekers only in a limited number of case,5 and only when other, less coercive measures cannot be effectively applied instead.6 They impose specific procedural guarantees on the decision to detain,7 and they require detention to be applied ‘only for as short a period as possible’.8 The UK has not opted in: thus, it is only bound by the less detailed regime provided by the Reception Directives.

Under the Reception Directives, TCNs applying for international protection cannot be considered as ‘illegally staying’ in the EU.9 Limitation to their freedom of movement is allowed only in exceptional circumstances.10 Member States have the duty to provide them with living conditions that are ‘adequate for the health of applicants and capable of ensuring their subsistence’.11 They must also ensure that applicants receive the necessary health care,12 and that persons who have been subjected to torture, rape or other serious acts of violence are granted the necessary treatment.13

It is to be noted that, in implementing EU directives, member states should be guided by the relevant principles enshrined in the Charter of Fundamental Rights.14 The Charter acknowledges the right to asylum:15 however, the European Court of Justice has not pronounced itself, yet, on the implications of this right.

International law

The most important international instrument regulating asylum is the UN Convention relating to the Status of Refugee (RC).16 The Convention precludes the imposition of penalties against refugees coming directly from a territory where their life or freedom was threatened, on the mere account of their illegal entry or presence in the State Party.17 More generally, international law is inspired by the principle that ‘seeking asylum is not an unlawful act’.18 Accordingly, the restriction of asylum-seekers’ right to liberty cannot be arbitrary, and must have a ‘legitimate purpose’ (namely: protection of public order, public health, and national security).19 The decision to detain must be taken on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.20 Furthermore, national laws must establish a temporal limit for detention.21

In terms of regional Human Rights law applicable to the UK, it is noteworthy that the right to asylum is not enshrined in the European Convention on Human Rights and Fundamental Freedoms (ECHR)22or its Protocols, and no specific provision regulates the detention of asylum seekers.23 However, even if States Parties have the ‘right to control the entry, residence and expulsion of aliens’,24 they must still exercise this right in compliance with their human rights obligations.25 This includes Article 3 ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.26 When assessing which conditions of detention amount to ill-treatment, the European Court of Human Rights (ECtHR) generally applies greater protection to ‘extremely vulnerable’ persons (such as asylum-seekers).27 Thus, applicants for international protection benefit from additional guarantees under the ECHR system.

UK law

In the UK, the detention of an asylum-seeker can be either criminal or administrative in nature. Under Section 24 of the Immigration Act 1971, any foreigner who ‘knowingly enters the United Kingdom in breach of a deportation order or without leave’ has committed a criminal offence. The Immigration Act also gives immigration authorities the discretional power to decide whether to detain migrants pending an examination of their qualification for entry or their removal or departure from the UK.28

The wide discretionary powers conferred upon UK administrative authorities on immigration detention are partly limited by the ‘Hardial Singh’ common law principles.29 However, there are still other issues, such as the absence of a fixed limit on the time that a person (even an asylum-seeker) may be held in immigration detention.30 In the absence of such a limit, the High Court has found that detention for a significant number of years was not unlawful.31 Moreover, there is no automatic or independent review of the appropriateness, lawfulness, or length of detention,32 and migrants subjected to administrative detention are not automatically brought to court with the opportunity to apply for bail.33

After the 1990s, successive Governments have applied a restrictive immigration regime.34 In the 2000s, the Labour Government expressly declared its intention to ‘introduce a new asylum process, detaining more people’,35 and launched the use of a ‘detained fast-track’ for asylum procedures, targeting ‘failed’ asylum seekers.36 The fast track procedure has now been extended to all claimants for asylum whenever ‘it appears that a quick decision is possible’.37 Obviously, this has radically increased the number of detention cases. 38 Indeed, since this extension, the UK has detained more asylum seekers and for longer periods than any other European State, except Greece.39

UK law and EU/international standards

Although the UK is the European country with the highest number of claimants for asylum protection, its legal system does not comply with many obligations under EU law and international law.

The first issue is the qualification of illegal entry as a criminal offence: all migrants, including applicants for international protection, can be held criminally responsible simply for entering the UK without leave. This provision clearly violates the UN Refugee Convention, which prohibits the imposition of penalties against asylum-seekers on the mere account of their illegal entry or presence in a State Party.40 It also runs counter to EU law, under which applicants for international protection cannot be considered as illegally staying in the territory of the EU, until the end of the procedure examining their application.41

The second issue is the indiscriminate detention of all illegal migrants under the immigration authorities’ wide discretionary powers. The ECtHR has held that the UK policy of assimilating the detention of asylum-seekers to the detention of all other migrants does not, per se, constitute a violation of their right to liberty and security.42 Furthermore, since the UK has not opted in to the recast Reception Directives, it is not bound by the EU provisions requiring Member States to use immigration detention only as a measure of ‘last resort’.43 However, the indiscriminate detention of asylum-seekers under the ‘fast-track’ procedure runs counter to the EU provisions requiring Member States to provide asylum-seekers with adequate living conditions.44 It also violates international law, under which the decision to detain should always be made on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.45 In fact, the Council of Europe Commissioner for Human Rights has condemned the UK practice of approving detention for the sole purpose of processing asylum applications.46

A third issue relates to the conditions of detention, which are suspected of being degrading and inappropriate.47 International and domestic NGOs have reported that, at the time of being detained, migrants were not told whether there was judicial scrutiny of their detention48 and were not given adequate access to legal representation or funding.49 Additionally, the use of gender-mixed accommodation puts women at risk of sexual violence, and creates distinct problems for children. 50

A fourth issue is that in the UK there is no fixed limit to the time a person may be held in immigration detention. The United Nations Committee Against Torture has urged the UK to ‘introduce a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention’.51 However, no limit has been introduced, either in statute or in case law.

Conclusion

The current UK regime on the detention of asylum-seekers is very poor. Despite clear European and international standards, there is an absence of minimum procedural and substantive safeguards for asylum-seekers. In addition, the State’s unwillingness to opt in to the recast Reception Directives allows situations which, in most EU member states, would be regarded as violations of EU law.

This year, a cross party-group of MPs has ‘called for an end to the indefinite detention of migrants, warning that too many people are being unnecessarily detained, under a system they deemed to be “expensive, ineffective and unjust”’.52 One cannot but share this opinion and hope that future UK governments will work concretely to guarantee better compliance with EU and international obligations. At the same time, the UK should opt in the recast Reception Directives, and bring its regime in line with current EU standards.

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Effective reparation for breaches of fair trial (Article 6 ECHR): The Italian experience

Res iudicata and effective reparation

 The system of protection set for by the European Convention on Human Rights (ECHR) is based on subsidiarity.[1] Domestic authorities have the primary responsibility for guaranteeing the rights and freedoms enshrined in the Convention, while the European Court of Human Rights (ECtHR) is meant to exercise a ‘supplementary and subsidiary’ role. [2] Accordingly, when a breach of the Convention is found, it is primarily for the State concerned to choose how to repair for the violation.[3] However, subsidiarity cannot justify a diminished protection for the Convention rights and freedoms: therefore, the State must ‘put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before’.[4]

The duty thus imposed on State Parties can generates issues, particularly when the breach derives from a violation of fair trial (Article 6 ECHR). Indeed, appeals to the European Court of Human Rights are admissible only when all domestic remedies have been exhausted.[5] This usually means that the domestic proceedings are over, and the principle of res iudicata (a feature of legal certainty) prevents their reopening.[6] However, such a reopening might be the only way to grant reparation for a violation of fair trial.

The Committee of Ministers of the Council of Europe has called upon States Parties to introduce mechanisms for re-examining a case following the finding of a violation of the Convention by the Court.[7] Some of the States have introduced specific legislative provisions to this purpose: [8] Ukraine, for instance, has modified its Code of Civil Procedure so as to allow appeals of final decisions when ‘a finding by an international judicial authority’ determines that the decision ‘violated the international commitments of Ukraine’.[9] Other countries have not modified their legislation: Italy, for instance, has been stigmatized twice by the Committee of Ministers for not providing a legislative answer.[10]

It is this Author’s belief that the effectiveness of reparation should not be measured on the presence or absence of a legislative provision allowing to overcome res iudicata, but on the concrete will of domestic courts to grant a new and fair trial. Notwithstanding the presence of a legislative provision, Ukraine has recently been held responsible for a violation of the Convention, due to the fact that its Supreme Court has refused to conform to a judgment released by the ECtHR (Bochan v Ukraine).[11] On the other hand, in those States lacking a legislative solution (such as Italy) domestic courts have sometimes developed and applied effective remedies for reopening the domestic proceedings.[12]

 The Italian experience

The Italian Code of Civil Procedure allows a final judgment to be ‘revoked’ only in exceptional circumstances, not including the finding of a violation by the Strasbourg Court.[13] Article 630 of the Italian Code of Criminal Procedure (C.P.P.) allows the ‘review’ of final judgments only in four cases, not including a decision by the European Court of Human Rights.[14] With regard to criminal proceedings, however, the situation has now evolved.

Between 2005 and 2006, the criminal sections of the Italian Corte di Cassazione started to be confronted with final domestic judgments released in violation of the Convention rights, and particularly in violation of the right to fair trial.[15] In the absence of any action by the legislative body, the Corte di Cassazione tried to solve the problem by using other procedural remedies by analogy.[16] The solutions thus found, however, did not have general application.[17] The problem was then referred to the Italian Constitutional Court, in connection with the case of Dorigo v Italy.[18]

Mr Dorigo had been the victim of a violation of Article 6 ECHR, assessed by the European Commission of Human Rights.[19] He had asked to the Corte di Appello of Bologna to review his (final) conviction in accordance with the international decision. The Corte di Appello, lacking any remedies, raised two constitutionality claims before the Italian Constitutional Court, both focusing on Article 630 C.P.P.[20] The Constitutional Court agreed with the reasoning developed in the second claim, according to which the provision at issue violates the international obligations undertaken by Italy to which Article 117, par. 1, of the Constitution makes reference. Accordingly, the Court declared the partial unconstitutionality of Article 630 C.P.P.[21]

This decision, a typical case of ‘manipulative’ judgment, has voided Article 630 C.P.P. insofar as it does not include Strasbourg decisions assessing human right violations among the exceptional circumstances allowing the review of a final conviction.[22] While it is unclear how the remedy will work,[23] according to the Italian Constitution, the void of legislative provisions by the Constitutional Court has erga omnes effects.[24] Thus, Article 630 C.P.P. should now be read as including Strasbourg decisions assessing the violation of a Convention right among the exceptional cases for review.

 Conclusive remarks

In the absence of a legislative intervention, Italian courts have been looking for a way to grant the reopening of domestic proceedings when a decision of the ECtHR ascertains that a violation of fair trial has occurred. This is not an isolated case: in other State Parties to the Convention, domestic courts have created effective remedies of the same kind.[25] On the other hand, the presence of an express legislative provision allowing the reopening does not always imply an effective remedy, as demonstrated by the case of Bocham v Ukraine. A legislative provision is not, in itself, sufficient to repair for breaches of Article 6 ECHR, whereas the will of domestic courts to provide a new and fair trial is essential.

 

 

[1] Subsidiarity is not an express principle of the ECHR: however, it is commonly acknowledged as a principle informing the Convention. E.g.: LR Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 EJIL 128, 129

[2] Y Arai-Takahashi, ‘The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR’ (2001) Intersentia, 236

[3] Assanidze v Georgia, ECHR 2004-II

[4] Scoppola v Italy (No 2) App n 10249/03 (ECtHR, 17 September 2009); Assanidze v Georgia, ECHR 2004-II

[5] Article 35 par 1 ECHR

[6] Res iudicata is a principle informing both common law and civil law jurisdictions. E.g.:  Y Sinai, ‘Reconsidering Res Judicata: A Comparative Perspective’ (2011) 21 Duke Journal of International and Comparative Law 352, 353 ff

[7] Recommendation No R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights

[8] Cfr. the comparative survey of national legislation and practice in thirty-eight of the Member States of the Council of Europe cited in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, 5 February 2015, par 46

[9] Ukrainian Code of Civil Procedure, Artt 353-354, as amended by Law 16.03.2006, N 3570-IV

[10] ResDH (2005) 82; CM/ResDH (2007) 83

[11] Bochan v Ukraine (no. 2) [GC], no 22251/08, 5 February 2015

[12] V Sciarabba, ‘La riapertura del giudicato a seguito di sentenze della Corte di Strasburgo: il ruolo della comparazione’ (2014) Europeanrights Newsletter – europeanrights.eu

[13] Italian Code of Civil Procedure, Artt 395, 396, 391 bis

[14] Italian Code of Criminal Procedure, Artt 629-647

[15] Cass, Sez I, 22 settembre 2005 n.35616, Cat Berro; Cass, Sez I, 12 luglio 2006 n 32678, Somogyi

[16] Eg: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447; Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457

[17] On the various attempts made by the Italian judiciary to give effects to the Strasbourg judgments, see: MG Aimonetto, ‘Condanna “europea” e soluzioni interne al sistema processuale penale: alcune riflessioni e spunti de iure condendo’ (2009) Riv It Dir Proc Pen 1510; E Aprile, ‘I “meccanismi di adeguamento alle sentenze della Corte Europea dei Diritti dell’Uomo nella giurisprudenza penale di legittimità’ (2011) Cass Pen 321 M Gialuz, ‘Il riesame del processo a seguito di condanna della Corte di Strasburgo’(2009) Riv It Dir Proc Pen 1845; D Negri, ‘Corte europea e iniquità del giudicato penale’ (2007) Dir Pen Proc 1229; A Tamietti, ‘Un ulteriore passo verso una piena esecuzione delle sentenze  della Corte europea dei diritti dell’uomo in tema di equo processo: il giudicato nazionale non è di ostacolo alla riapertura dei processi’ (2007) Cass Pen 1015

[18] Dorigo v Italy, App n 33286/96 (ECtHR, 20 May 1998)

[19] n 18

[20] Ord 22 March 2006 Ord 23 December 2008 of the Corte di appello of Bologna, cited in; C Cost, sent 129/2008; C Cost, sent 113/2011

[21] C Cost, sent n 113/2011 (2011) Giur Cost 1523. Commentaries to the decision: L Parlato, ‘Revisione del processo iniquo: la Corte Costituzionale “getta il cuore oltre l’ostacolo”’ (2011) Dir Pen Proc 833; G Ubertis, ‘La revisione successiva a condanne della Corte di Strasburgo’ (2011) Giur Cost 1542; G Repetto, ‘Corte Costituzionale e CEDU al tempo dei conflitti sistemic’ (2011) Giur Cost 1548; S Lonati, ‘La Corte Costituzionale individua lo strumento per adempiere all’obbligo di conformarsi alle condanne europee: l’inserimento delle sentenze della Corte Europea tra i casi di revisione’ (2011) Giur Cost 1557

[22] C Cost, sent n 113/2011 (2011) Giur Cost 1523

[23] S Quattrocolo, ‘La vicenda Drassich si ripropone come crocevia di questioni irrisolte’ (2013) Diritto Penale Contemporaneo: <www.penalecontemporaneo.it> accessed 12 December 2013

[24] Costituzione della Repubblica Italiana, Art 136

[25] Cfr V Sciarabba , ‘Il Giudicato e la CEDU. Profili di diritto costituzionale, internazionale e comparato’ (2013) CEDAM 88 ff

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Grand Chamber hearing in Lambert v France: the debate on passive euthanasia before the European Court of Human Rights

Introduction[*]

On the 7th of January 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) held a hearing in the case of Lambert v France.[1] The case concerns the withdrawal of artificial nutrition and hydration of a man in a vegetative state; thus, it relates to the so-called passive euthanasia. This can be defined as the withdrawal of ‘medical treatments that will keep a dying patient alive for a time’.[2] It is currently a disputed issue in the debate on end-of-life situations.[3]

The ECtHR has already pronounced on assisted suicide (i.e., the suicide of a patient facilitated by means or information provided by a physician who is aware of how the patient intends to use such means or information).[5] I have already dealt with this issue in my previous post in An International Law Blog.

The present contribution wishes to discuss the main legal issues regarding the so-called passive euthanasia, which have been raised in the Lambert hearing.[6]

Procedure

The case Lambert v France originates from an application lodged by the parents and two siblings of Vincent Lambert.[7] The applicants challenge a judgment in which the French Conseil d’Etat upheld the medical decision of withdrawing Vincent Lambert’s artificial nutrition and hydration. They submit that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be contrary to the State’s obligations to protect life under Article 2 ECHR and to the prohibition of torture set for by Article 3 ECHR. They allege that the French law authorizing the withdrawal lacks clarity and precision, thus violating the conditions under which Article 8 ECHR allows the State to interfere with private and family life. Finally, they submit that the process leading to the decision of the French court have not been impartial, thus violating the right to a fair trial under Article 6 ECHR. The applicant’s complaint under Article 6 ECHR relates to factual findings that are not of interest here. The arguments under Articles 2, 3 and 8 ECHR, instead, are relevant for understanding the European Court of Human Rights’ position towards passive euthanasia.[9] In October 2014, the Chamber of the ECtHR to which the application had been assigned announced its intention to relinquish jurisdiction in favour of the Grand Chamber.[8]

The applicants

At the Grand Chamber hearing held on the 7th of January 2015, Mr Jean Paillot and Mr Jérôme Triomphe spoke for the applicants, Mr François Alabrune represented the French Government, and the positions of the third parties interveners were described by Mr Laurent Pettiti and Ms Madelaine Munier-Apaire.

 The law

At the hearing, the third-parties interveners and the French Government stressed the link established by the ECtHR case law between Article 2 ECHR, protecting the right to life, and Article 8 ECHR, protecting private and family life. Mr Pettiti underlined that in the Haas and Gross judgments,[10] the Court has connected the obligation to protect life with the need to preserve personal autonomy, and that in Pretty[11] it has assessed a ‘right to decline the consent to a treatment, which might have the effect of prolonging life’. Ms Munier-Apaire declared that the right to life must be read in conjunction with Article 8 ECHR, protecting the right to freely decide how to live. She also connected Articles 2 and 8 with Article 3 ECHR (prohibition of torture), adding that the right to freely decide how to live includes a right to decide when your own life amounts to degrading and inhuman conditions, and it is not worth to be lead anymore. On the other hand, Mr Alabrune underlined that the procedure established by French law requires doctors to set in motion a sedative and pain-killing treatment, thus protecting the patient against a violation of article 3 ECHR.

The representatives of the applicants did not elaborate on the topic during the hearing: Indeed, there is little doubt that Articles 2 and 8 ECHR should be read in connection, as the Court’s case law is pretty clear on this.[12] What is doubtful is rather to which conclusions such a connection might lead. In its case law on assisted suicide, the ECtHR has avoided pronouncing on the balance between Articles 2 and 8 of the ECHR, and limited itself to test the quality of the legal framework surrounding this balance at the national level, and the protections set for the respect of the patient’s will. [13]

Mr Paillot and Mr Pettiti were probably having this case law in mind when they prepared their interventions for the Lambert hearing of the last 7th of January. On that occasion, Mr Pettiti declared that the conventional right to life requires Member States to establish a procedure capable of ‘ensuring that a decision to end life is corresponding to the free will’ of the person whose life is at stake. Also, he argued that the ECtHR adjudicates on the manners in which States safeguard the rights of individuals. Mr Paillot, on his part, stressed the uncertainty surrounding the distinction between medical treatments and form of ordinary care. The distinction is relevant in this case because French law allows the withdrawal of medical acts, and the notion does not include forms of ordinary care.[14] Notwithstanding the absence of a consensus in Europe as to whether artificial nutrition and hydration is a form of treatment or care, the fact that the French law does not take a stance in this regard could be a relevant element in the Court’s evaluation. Indeed, legal certainty is one of the supreme values enshrined in the ECHR.[15] Thus, any procedure determining the legality of an otherwise unlawful behaviour (as the Court has already claimed in the case of a physician-assisted suicide) must comply with the standards of certainty set for by the European Convention.

Conclusion[16]

In its previous case law on end-of-life situations, the European Court of Human Rights has been focusing on the quality of the domestic legal framework, and on the protections set for the respect of the patient’s will, avoiding to pronounce on the substance of the issue at stake (i.e., the balance between life and dignity). There are reasons to believe that this will be the attitude adopted in the Lambert case, as envisaged by the representative of the applicants and of the third-parties interveners at the hearing.

The French legal system allows passive euthanasia when the medical decision has been grounded on a ‘collective procedure’ set for by the law.[17] Thus, French law ‘proceduralises’ passive euthanasia, leaving to doctors and patients the task to decide on the correct balance between life and dignity. The Strasbourg Court, on its side, has shown its interest in legal certainty and the procedural guarantees surrounding the assessment of the patient’s will. Thus, it is likely that in the Lambert case the Court will focus on the French law and procedure leading to passive euthanasia, rather than on the substance of the medical and legal decisions concerning Vincent Lambert.[18] If this will be the case, the doctors and relatives of Mr Lambert will face a curious situation, in which neither the ECHR nor the domestic law provide substantial guidelines as to the balance between life and dignity. Whether this is the best way to respect the essence of individual autonomy, or just a way to avoid taking a stance on debated and controversial issues, is an aspect central to the debate on end-of-life decisions.

[1] Lambert v France, App no. 46043/14

[2] Passive euthanasia. (n.d.). Collins English Dictionary – Complete & Unabridged 10th Edition. Retrieved January 30, 2015, from Dictionary.com website: http://dictionary.reference.com/browse/passive euthanasia

[3] CoE, Guide on the decision-making process regarding medical treatment in end-of-life situations,  http://csc.ceceurope.org/fileadmin/filer/csc/Ethics_Biotechnology/CoE_FDV_Guide_Web_e.pdf. The guide was “drawn up by the Committee on Bioethics (DH‑BIO) of the Council of Europe in the course of its work on patients’ rights and with the intention of facilitating the implementation of the principles enshrined in the Convention on Human Rights and Biomedicine (Oviedo Convention, ETS No. 164, 1997)”

[4] Active euthanasia. (n.d.) Mosby’s Medical Dictionary, 8th edition. (2009). Retrieved January 30 2015 from http://medical-dictionary.thefreedictionary.com/active+euthanasia. Cfr Pretty v UK, ECHR 2002-III

[5] Assisted suicide (n.d.)., Merriam-Webster Dictionary, Retrieved January 30, 2015, from Merriam-Webster.com website:  http://www.merriam-webster.com/medical/physician-assisted+suicide. Cfr Haas v Switzerland (2011) 53 EHRR 33

[6] Records of the hearing are available online, at: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=en&c=&py=2015 .

[7] For a summary of the facts of this case, see the Press Releases issued by the Registrar of the Court: ECHR 290 (2014), 7.10.2014 and ECHR 2 (2015) 07.01.2015

[8] Press Release issued by the Registrar of the Court, ECHR 290 (2014), 7.10.2014

[9] Grégor Puppinck and Claire de la Hogue, ‘The “Right” to Assisted Suicide in the case law of the ECtHR’, IntJHR, 2014

[10] Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] Pretty v UK, ECHR 2002-III

[12] Pretty v UK, ECHR 2002-III; Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[13] Cfr Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014) and Koch v Germany, App 497/09, Judgment of 19 July 2012

[14] English translation by the Author. See Article L1105 of the French Public Health Code – Code de la Santé publique : ‘Ces actes ne doivent pas être poursuivis par une obstination déraisonnable. Lorsqu’ils apparaissent inutiles, disproportionnés ou n’ayant d’autre effet que le seul maintien artificiel de la vie, ils peuvent être suspendus ou ne pas être entrepris’.

[15] Sunday Times v UK, Appl. 6538/74, judgm 26/04/1979.

[16] Conclusion will be updated following the developments of the Lambert proceedings before the ECtHR

[17] Cfr Loi 22 avril 2005, so called Leonetti Act

[18] Particularly, the lack of clarity with regard to whether artificial nutrition and hydration is a form of treatment or care might be relevant to this case, as it might constitute an infringement of the supreme value of legal certainty

[*] The Author of the present post has been grounding her report of the hearing on the press releases and webcast accessible on the European Court of Human Rights’ official website, echr.coe.int: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=lang&c=&py=2015.

The webcasting project is funded by the Irish Department of Foreign Affairs and Trade, which the Author would like to thank

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Waiting for the judgment in the Lambert case: end-of-life situations in the case law of the European Court of Human Rights

Introduction

The European Court of Human Rights conceives the European Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[1] Accordingly, ‘the Court cannot overlook the marked changes…[occurring] in the domestic law of the member States’, [2] and may vary its evaluation as to the infringement of ‘new’ human rights. The activism of Strasbourg judges is often restrained by the need to justify the extension of the Convention provisions to its Member States. Thus, a long set of judgments is usually required before the final recognition of the need to protect a right that was not previously recognized by the Court”.[3] These judgments also have the function of defining the extent of the ‘new’ human right.

The present post focuses on the position of the European Court of Human Rights towards end-of-life situations (encompassing very different practices, from active euthanasia and assisted suicide to the choice of discontinuing artificial nutrition and hydration, or passive euthanasia; from cases in which the person involved has freely chosen to die, as well as cases in which a person is not able to take a decision in this regard). Obviously, end-of-life situations represent a very complicated phenomenon, involving not only the law, but also moral choices and values. What is certain is that nowadays, there is an increasing number of cases in which people ask for a recognition of their ‘right’ to die with dignity. However, only some Member States of the ECHR have addressed this issue through domestic law. Accordingly, in many Member States, the choices connected to end-of-life situations are dealt with by the judiciary, and this is evident from the increase in applications to domestic or international judges on the broad area of “euthanasia”.

End-of-life situations are a good example of the new ‘present-day conditions’ in need of legal regulation. The European Court of Human Rights is involved in this process; however, its position is difficult, as there is no clear consensus among the Member States on the topic. Thus, the Court is striving to find a balance between an evolutive interpretation of the ECHR and the lack of a shared ‘European consensus’ on the topic. A case involving passive euthanasia is currently pending before the European Court of Human Rights,[4] and the first hearing is going to take place on 14 January 2015. This post wishes to briefly examine the Court’s position on end-of-life situations in a number of cases preceding this pending case.

ECtHR case law on end-of-life situations

The lack of consensus among Member States on end-of-life situations was at the basis of the Court’s first relevant decision on the topic. The case was that of Mrs Pretty, a British national suffering from an incurable, degenerative disease, who wanted to end her life.[5] Her disease did not allow her to commit suicide: however, if her husband helped her in committing suicide, he could face prosecution under English law. The applicant argued that Article 2 ECHR not only protects the right to life, but it also entails the right to choose whether or not to go on living. The European Court dismissed the claim, concluding that the right to life could not ‘without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die’.[6] The applicant further argued that, under Article 3 ECHR, Member States have an obligation to refrain from torture or inhuman and degrading treatment, as well as an obligation to protect their citizens from similar sufferings. The European Court stated that the applicant’s claim placed ‘a new and extended construction on the concept of [inhuman and degrading] treatment, which…goes beyond the ordinary meaning of words’. The Court stressed the need to interpret Article 3 ECHR ‘in harmony’ with Article 2 ECHR, and concluded that no obligation arose requiring the respondent state not to prosecute the applicant’s husband for assisting her to commit suicide.[7] The applicant also argued that Article 8 ECHR includes the right to self-determination, and thus the right to choose when and how to die. Interestingly, the Court stated that it was ‘not prepared to exclude’ that there had been an interference with the applicant’s right to respect for private life.[8] However, it noted that the interference fell within the legitimate area of discretion of the respondent State.[9] Thus, the Court held unanimously that there had been no violation of any Articles of the Convention.

The Court’s positive outlook towards the potential applicability of Article 8 ECHR to end-of-life situations cases has been reaffirmed by a 2013 Chamber judgment, in the case of Gross v Switzerland. The judgment is now deprived of its legal effect by a Grand Chamber ruling;[10] however, it is still an interesting sample of how the ‘free choice of how to die’ may be a developing human right in the ECHR system.

The case was that of Ms Gross, an elderly woman wishing to end her life by reason of the continuing decline of her physical and mental faculties, caused by old age. The case thus dealt with a peculiar situation, since even though Ms Gross had the physical ability to commit suicide, she claimed her entitlement to a painless and “safe” death. Unlike other Member States of the ECHR, Switzerland regulates assisted suicide. According to the Federal Supreme Court’s case law, physicians are exempted from criminal liability when performing assisted suicide in accordance with the Swiss medical ethics guidelines. These guidelines require, among other conditions, that the patient is suffering from an illness that will lead to “death within a matter of days or a few weeks”. This was not the case of Ms Gross. Thus, even if her ability to form a reasoned and well-considered choice on suicide had been attested by a psychiatric examination, her request to be given a prescription for sodium pentobarbital had been declined by Swiss physicians. Her appeals to obtain an exemption from the need of a prescription had been rejected by the Federal Supreme Court. On that occasion, the Swiss Court had also assessed that the State had no positive obligation, under the European Convention, to grant its citizens an undetermined right to die; and that since another case on the same issue (Haas v Switzerland) was under the scrutiny of the European Court, it was up to that Court to determine whether the Swiss legislation was compatible with the European Convention. Thus, Ms Gross applied to the European Court of Human Rights, and her claim focused particularly on an alleged violation of Article 8 ECHR, protecting the right to private life.

The Strasbourg Court agreed that the applicant’s claim fell within the scope of Article 8 ECHR, something that was not surprising since the Court’s previous case law on assisted suicide had already cleared the path for this option. Nevertheless, the Court departed from its previous case-law by deciding to analyse Mrs Gross’s case from a new (and unexpected) perspective: that of legal certainty. The Court held that, since the Swiss medical ethical guidelines apply only to patients suffering from an incurable and deadly illness, the situation of people in Mrs Gross’s state was not regulated by Swiss law. Accordingly, this lack of regulation was likely to cause “a chilling effect on doctors”, and a “considerable degree of anguish” on people in the applicant’s state. The Court thus concluded that the Swiss law, even though it provides the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. On this basis, the Chamber acknowledged that a violation of Article 8 of the Convention had occurred. The Court carefully pointed out that its conclusions related only to the absence of clear and comprehensive legal guidelines, without in any way taking up a stance on their substantive content.

Waiting for the Court’s decision in Lambert

As noted, a case involving passive euthanasia is currently pending before the European Court of Human Rights. The case originated in a road-traffic accident, as a result of which a French citizen, Mr Lambert, is tetraplegic and in a vegetative state. The decision of suspending his artificial nutrition and hydration, taken by French judicial authorities in accordance with the French law, has been contested by some of Mr Lambert’s relatives. The applicants claim that it represents an infringement of Articles 2, 3, 6 and 8 ECHR.

This case is completely different from the ones analysed above, as it involves a person who is not capable of expressing his will. Thus, it is more in line with a complaint under Article 2 ECHR, or with Article 3 ECHR, rather than with a complaint grounded on Article 8 ECHR. For this reason, it could be a good occasion for the Strasbourg Court to review, or to reaffirm, its previous position on two important aspects, namely positive obligations descending from Article 3 ECHR, and negative obligations descending from Article 2 ECHR. As the consensus among Member States on euthanasia is still scarce, it is likely that the Court will not depart from the positions expressed in Pretty. However, this could be the chance for the Court to promote a more activist position, thus reaffirming its role of interpreter of present-day conditions on human rights. [11]

 

 

 

 

 

[1] Tyrer v the UK (1978) Series A no 26, par 31, Marckx v Belgium (1979) Series A no 31 par 41

[2]   Dudgeon v the UK (1981) Series A no 45, par 23

[3] See e.g. the evolution of the ECtHR’s case law on transsexuals’ rights, from Rees v UK to Goodwin v UK

[4] Lambert and Others v France,  App 46043/14, 23 June 2013, referred to the Grand Chamber in November 2014

[5] Pretty v UK, ECHR 2002-III

[6] Ibidem

[7] Pretty v UK, par 56

[8] Pretty v UK, par 71

[9] Ibidem

[10] Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] An International Law Blog is going to be updated following the developments of the Strasbourg case law in Lambert v France

 

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Legality in the case law of the European Court of Human Rights. The birth of an autonomous notion and its implications

Introduction

Many provisions of the European Convention on Human Rights refer to the ‘law’ of the Member States, or to the ‘lawfulness’ of their actions. A random selection includes Article 5, paragraph 2 ECHR (listing the circumstances in which limitations to the right to liberty of person are ‘lawful’), and Article 7, paragraph 1 ECHR (requiring penalties for criminal offences to be prescribed ‘by law’).

Since the earliest stages of its activity, the Strasbourg Court has developed an autonomous notion of ‘law’, applying to the interpretation of all these provisions. The term is autonomous on two levels. First, when the Court verifies the existence of a domestic legal basis, it is satisfied by a ‘substantial notion’ of law.[1] Second, the Court requires the law to comply with qualitative standards. [2]  Thus, in the ECHR system, ‘law’ is ‘a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability’.[3]

The autonomous notion of ‘law’ developed by the ECtHR underpins its understanding of legality. In the ECHR system, legality means that an accessible and foreseeable provision of (written or unwritten) law must regulate the actions of the Member States, whenever they interfere with the Convention rights and freedoms.

This understanding has notable implications, analysed below with reference to the Strasbourg case law.

Case law

In 2000, the Court delivered its judgement in the case of Mr Baranowski, a Polish national who had been held on remand after the expiry of the time limit indicated by the detention order.[4] The Polish law did not state the maximum length of detention on remand. Mr Baranowski thus complained that his deprivation of liberty had not been based on a ‘law’ of adequate foreseeability.[5]

The European Court of Human Rights showed little interest in the absence of a domestic law. Its attention focused, instead, on assessing ‘whether domestic law itself is in conformity with the Convention’.[6] The Court determined that the relevant Polish legislation did not satisfy the test of ‘foreseeability’, thereby, finding a violation of the applicant’s right to liberty of person.[7] The same rationale was subsequently applied to other, similar judgments,[8] the latest and most famous being that involving Ms Tymoshenko, the former prime minister of Ukraine.[9]

In 2009 the Court delivered its judgment in the case of Liviik v Estonia.[10] The case originated from an application concerning the Estonian offence of ‘misuse of official position’. The offence had been inherited from the former Sovietic legal system: thus, the domestic case law shaping the offence had developed within an entirely different economic system.

Mr Liviik applied to the European Court of Human Rights, alleging that his sentence had been based on an ‘unclear and incomprehensible (…) law’ and had thus had violated Article 7, paragraph 1 ECHR. The European Court, having analysed the background against which the offence had been developed, concluded that the interpretation and application of the domestic law was not of the quality required under the Convention in terms of clarity and foreseeability.

A similar judgement followed in 2012. It related to the application of Mr Alimuçaj, an Albanian citizen who had been sentenced to twenty years’ imprisonment for deception.[11] His conviction was based on a new calculation system, and on the grounds of a new law attaching criminal consequences to the process of loan-taking. Mr Alimuçaj applied to the European Court complaining of the retrospective application of a heavier penalty and of the lack of a legal basis for his conviction. The Court dismissed his second claim and only considered whether, at the time that the offence was committed, there was ‘interpretive case law which would satisfy the foreseeability test’ with regard to the sentence of twenty years’ imprisonment. The Court concluded that, at the time the applicant had committed the offence, he could not have reasonably foreseen the penalty: thus, a violation of Article 7, paragraph 1 ECHR was found.

In 2013, the Court rendered its judgment in the case of Mr Vyerentsov, a Ukrainian national who had been arrested for taking part in a peaceful demonstration in Ukraine.[12] He had been sentenced for breach of the demonstration procedure: however, the Ukrainian law was silent on the elements of this procedure. The European Court did not focus its attention on the inexistence of a national law and instead determined that the absence of clear indications as to the rules under which a demonstration could be organised rendered the national law unforeseeable.[13] Thus, the restriction to the applicant’s right to peaceful assembly had not respected the qualitative standards required by the Convention notion of ‘law’.

Conclusions

The case law above exemplifies the understanding of legality adopted by the Strasbourg Court.

In all cases, the Court tends to focus more on the lack of ‘foreseeability’ of the domestic law,  than on the lack of a national legal basis. In both Baranowski and Vyerentsov the Court, confronted with a lacuna, did not consider the lacuna in itself a violation of the Convention: the lacuna was deemed to cause a lack of ‘foreseeability’ in the national law.

The origins of this tendency are probably rooted in the broad definition of law promoted by the Court. Indeed, the Court considers as valid sources of law every ‘enactment in force as the competent courts have interpreted it’.[14] For this reason, it is uncommon for the Court to be faced with the total absence of a national legal basis. The Court is usually confronted with national laws not complying with the qualitative requirements of accessibility and foreseeability, and it has thus developed a well-assessed body of case law based on this assumption.

This becomes particularly problematic in the field of criminal law. According to the autonomous notion of ‘law’ elaborated by the Strasbourg Court, the judicial creation of criminal offences is conceivable. The only limitation emanating from the ECHR system is that the criminal (written or unwritten) law must be developed and applied in a way that is ‘consistent with the essence of the offence’ and ‘reasonably foreseeable’ to its addressee.[15] The Alimuçaj and Liviik cases are lucky examples of the positive consequences of this approach. However, this position also bears potentially dangerous consequences. ‘Consistency with the essence of the offence’ makes the evaluation of legality easily dependent on the nature of the offence under review. ‘Foreseeability’, on its part, is read by the Court as a subjective requirement. Consequently, the ‘number and status’ of those to whom the law is addressed is a central element of the Court’s evaluation of legality.[16]

By making legality dependent on elements such as the content of the instrument at issue, the field it is designed to cover and the number and status of those to whom it is addressed, this notion of legality allows for the existence of vague laws. What it worst, it carries the risk of discrimination and of the retrospective application of criminal law. Indeed, when an offence consists of behaviour which is ‘naturally’ perceived to be criminal (e.g. rape or murder), the Court is more prone to assess the foreseeability of changes in the law, even though they are unfavourable to the accused.[17] However, in all democratic legal systems, one of the essential desiderata of legality is the non-retroactivity of the criminal law. For this reason, the position developed by the Strasbourg Court towards legality should be handled with care when transposed into national legal orders.

[1] G LAUTENBACH, The Rule of Law, 112

[2] The Sunday Times v UK (no 1), par 49

[3] C.R. v UK (1995) Series A no 335-C, par 33

[4] Baranowski v Poland ECHR 2000-III

[5] Baranowski v Poland, par 43

[6] Baranowski v Poland, par 51

[7] Baranowski v Poland, par 55

[8] Kawka v Poland App no 25874/94 (ECtHR, 9 January 2001); ECtHR, case of Yeloyev v Ukraine App no 17283/02 (ECtHR, 6 November 2008); Farhad Aliyev v Azerbaijan App no 37138/06 (ECtHR, 9 November 2010)

[9] Tymoshenko v Ukraine App no 49872/11 (ECtHR, 30 April 2013)

[10] Liivik v Estonia App no 12157/05 (ECtHR, 25 June 2009)

[11]Alimuçaj v Albania, App no 20134/05 (ECtHR, 7 February 2012)

[12] Vyerentsov v Ukraine, App no 20372/11 (ECtHR, 11 April 2013)

[13] Vyerentsov v Ukraine, par 54 and 67

[14] Huvig v France (1990) Series A no 176-B, par 28

[15] G. v France (1995) Series A no 325-B, par 34

[16] Groppera Radio AG and Others v Switzerland (1990) Series A no 173

[17] Eg: S.W. and C.R. v UK (1995) Series A nos 335-B and 335-C, Streletz, Kessler and Krenz v Germany, ECHR 2001-IIECtHR

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