Tag Archives: ECHR

The Government’s Great Repeal Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited Great Repeal Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the Great Repeal Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the Great Repeal Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the Great Repeal Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the Great Repeal Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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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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