Tag Archives: European Convention on Human Rights

The dismissal of the revision request in the case of Ireland v UK

 Introduction*

On 20 March 2018 the European Court of Human Rights (ECtHR) has dismissed, by six votes to one, the Irish Government’s request to revise the 1978 Ireland v UK judgment.[1]

The case concerned the use, by British authorities, of ‘disorientation’ or ‘sensory deprivation’ techniques on men detained under emergency powers during Northern Ireland’s civil strife. The so-called ‘five techniques’ consisted in hooding, wall standing in stress position for long periods of time, sleep deprivation, subjection to noise, food and water deprivation. The conclusion reached in 1978 by the ECtHR was that, although the techniques ‘undoubtedly amounted to inhuman and degrading treatment’, ‘they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’.[2]

The revision request, submitted under Rule 80 § 1 of the Rules of Court, aimed at obtaining a different legal qualification of the techniques: the Irish Government produced newly discovered evidence, on the basis of which it was alleged that the 1978 judgment should have considered the techniques as torture.[3]

The five techniques have been used by other Governments’ agencies in Afghanistan, Iraq and detention facilities such as Guantanamo, and the 1978 judgment has been cited by the 2002 ‘Torture Memo’ to justify the conclusion that the use of similar techniques by the United States did not amount to torture. It is therefore not surprising that the dismissal of the revision request has provoked strong reactions among human rights activists.

However, the dismissal is correctly grounded on technical arguments which derive logically from the Court’s case law, and it should not be read as a rejection of the opinion according to which the techniques amount to torture. The present post analyses the dismissal and argues that it should be welcomed as a proof of the Court’s consciousness of the extent of its own interpretative powers.[4]

The 1978 judgment

Ireland v UK was the first interstate application lodged before the ECtHR. Its exceptional nature lied also in the fact that the respondent Government had acknowledged the violation for which the applicant state had set in motion the proceedings.[5] Thus, before the Court it needed not to be established whether the five techniques had been used: what was disputed was the amount of damages caused by them, a key factor for their legal qualification under Article 3 of the European Convention on Human Rights (ECHR, or the Convention).

Article 3 ECHR prohibits ill-treatments of two kinds: ‘torture’ and ‘inhuman and degrading treatments’. The dividing line between the two notions has been clarified progressively by the Court’s case law,[6] but in 1978 it was already clear that the severity of the treatment played a significant role in the distinction.[7]

The European Commission issued a report and concluded, by a unanimous vote, that, while it was clear that the techniques resulted in no physical injury, the available evidence did not allow to establish the exact degree of their psychiatric after-effects;[8] however, in light of their systematic application and of the underlying purpose (i.e., extracting information from prisoners) they amounted to torture.

The Court, to whom the case was subsequently referred, reached a different conclusion. While sharing the view that the five techniques amounted to inhuman and degrading treatments, having regard to other instruments of international law,[9] it concluded that the notion of torture is meant to attach ‘a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.[10] In the light of the factual findings, the Court concluded that the five techniques did not occasion ‘suffering of the particular intensity and cruelty implied by the word torture as so understood’.[11]

The revision request

The revision request lodged by Ireland was grounded on Rule 80 of the Rules of Court, which reads as follows:

‘A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.’

The Irish Government alleged that in 2014 it had become aware of previously secret documents, including medical reports by Dr. L (one of the experts heard by the Commission), which if known to the Court at the time of the judgment, would or might have had a decisive influence.[12] The documents demonstrated that in 1978 it was already clear that the effects of the five techniques could be substantial, severe and long-lasting, thus justifying their legal qualification as ‘torture’.[13]

The UK contested the revision request, alleging, inter alia, that it was not grounded on new facts but aimed at acquiring new evidence, and that, even assuming it was grounded on new facts, these did not have a decisive influence.[14]

The 2018 revision judgment

The 2018 judgment is grounded on two premises.

The first premise is the need to apply a restrictive interpretation. The Court recalls that revision is an exception to the rule of finality of judgments, which is not provided for by the Convention but by Rule 80 of the Rules of Court.[15] In order to protect legal certainty (essential element of the rule of law) revision can only be allowed in exceptional circumstances, which must be subject to strict interpretation: accordingly, where doubts remain as to whether or not a new fact actually could have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.[16]

The second premise is the need to take into account the temporal aspect of the revision request. The Court underlines that the new facts grounding the request occurred almost 40 years after the original judgment. Since then, the Court’s case law on the notion of torture has considerably evolved; the long-term effects of a treatment when distinguishing between torture and inhuman treatment are now particularly relevant.[17]

On the basis of these premises, the Court concludes that there is no certainty that the alleged new fact (‘namely that Dr L. misled the Commission regarding the effects of the five techniques)[18] could have a ‘decisive influence’ on the original judgment. Indeed, there is no certainty that, had the Court been aware of the fact that the five techniques could have severe long-term psychiatric effects, in the light of the case‑law on Article 3 of the Convention as it stood at the time, this would have led to a qualification of the techniques as torture. [19]

Analysis

As underlined by Judge O’Leary in her dissenting opinion, the judgment has undeniably some flaws. For instance, it reduces the ground for revision relating to the discovery of new documents to the fact that ‘Dr L. misled the Commission regarding the effects of the five techniques’.[20] However, the Irish Government had relied on various documents, not limited to those demonstrating Dr L.’s allegedly misleading statements.

Furthermore, the reasoning given for the assessment of non-relevance of the new facts is inter alia grounded on the assertion that ‘the original judgment does not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment’.[21] While it is true that the 1978 Court’s judgment made no reference the possible long-term effects of the five techniques, the Commission had clearly taken into account the issue when making its own assessment. Thus, it cannot be said that the topic was completely unknown to the European judges.

These flaws, although regrettable (for they expose the judgment to potential criticism), are not substantial, and they certainly do not render the judgment a rejection of the opinion according to which the techniques amount to torture. What needs to be borne in mind is the double premise on which the judgment was grounded: the need to apply a restrictive interpretation to revision requests, and the temporal dimension of the Ireland v UK request for revision.

The ECtHR conceives the Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[22] For this reason, it applies extensively the rights and freedoms guaranteed by the Convention, often demonstrating a certain activism.[23] For instance, its case law as to the rights of post-operative transsexuals has considerably evolved during time, shifting from non-recognition to recognition in a lapse of less than 20 years.

In this context, the Court’s dismissal of Ireland’s revision request is equivalent to admitting that it is impossible to evaluate with sufficient certainty how evidence discovered today on the long-lasting effects of ill-treatments would impact on a judgment issued well before the establishment of a clear case law under which long-lasting effects determine the difference between ‘inhuman treatments’ and ‘torture’.

Conclusion

The 2018 judgment by which the ECtHR dismissed the revision request in the case of Ireland v UK is clearly not a rejection of the opinion according to which the brutal interrogation techniques which were at the origin of the case amount to torture.

On the opposite, one could argue that the Court knew that the five techniques would amount to torture under the current case law on Article 3 ECHR: however, it also knew that this case law has developed considerably over the last forty years, and for this reason it acknowledged the impossibility of reaching an impartial and sufficient certain conclusion for a period in which such case law was not yet available.

By this judgment, the Court has demonstrated a willing restraint in the exercise of its powers, motivated by the extraordinary nature of the request, that is, the revision of a final judgment issued 40 years ago. Conclusively, the judgment should be welcomed as a proof of the Court’s consciousness of the need to handle with due care the powerful interpretative tools at its disposal.

 

 

 

 

* The views in this post represent the personal opinion of the author in her private capacity.

[1] Ireland v. the United Kingdom, no. 5310/71, Judgment (revision) 20 March 2018.

[2] Ireland v. the United Kingdom, § 167.

[3] Ireland v. the United Kingdom, §§ 21-27.

[4] For other commentaries to the decision see: Iulia Padeanu, Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case, and Michael O’Boyle, Revising the verdict in Ireland v UK: time for a reality check? both on http://www.ejiltalk.org.

[5] The respondent Government had ‘conceded.. that the use of the five techniques was authorised at ‘high level’’, see § 97 of the judgment.

[6] See, among other authorities: Selmouni v. France [GC] no. 25803/94, ECHR 1999‑V Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010

[7] As recalled by the Court at paragraph 167 of the 1978 judgment, Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975 declares: ‘Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.

[8] At that time the European Commission of Human Rights shared adjudicatory functions with the ‘old’ Court.

[9] Particularly, Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975: see § 167 of the judgment.

[10] Ireland v. the United Kingdom § 167.

[11] Ibidem.

[12] Ireland v. the United Kingdom, §§ 19-44.

[13] Ireland v. the United Kingdom, §§ 61-67.

[14] Ireland v. the United Kingdom, §§ 46-60.

[15] Ireland v. the United Kingdom §§ 93, 122.

[16] Ireland v. the United Kingdom § 122.

[17] Ireland v. the United Kingdom § 124.

[18] Ireland v. the United Kingdom § 96.

[19] Ireland v. the United Kingdom §§ 125-135.

[20] Ireland v. the United Kingdom § 96.

[21] Ireland v. the United Kingdom §§ 134.

[22] Tyrer v United Kingdom  (1978) Series A no 26, par 31; Marckx v Belgium (1979) Series A no 31, par 41.

[23] For references on this topic, see D. Sartori, Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights, Tulane European and Civil Law Forum, 29, 2014.

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Can the effects of an ECtHR’s judgment be extended? The answer of the Italian courts as to the guarantees of criminal trial

Introduction

Under Article 46, paragraph 1, of the European Convention on Human Rights (‘ECHR’), “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”. According to the European Court of Human Rights (‘ECtHR’), this provision implies that “a judgment in which the Court finds a violation imposes on the respondent State a legal obligation (…) to choose (…) the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects”.[1] Thus, judgments issued by the ECtHR may require the interested State to adopt measures which go beyond the scope of the concrete case under review.

This interpretation of the provision is in line with the role of the ECtHR, a court whose task is not limited to solving disputes between parties but extends to the safeguard of general interests.[2] At domestic level it may raise the issue of whether and, in the affirmative, how, the effects of a judgment finding a violation of the Convention should be extended to other cases.

The present post analyses how the Italian system deals with this issue, with specific reference to the ECtHR’s judgments finding violations of the guarantees of criminal trial. First, it recalls the remedies developed by Italian courts to enforce the ECtHR’s judgments; then, it describes how these remedies are applied to extend the effects of an ECtHR’s judgment to other cases. It will be argued that the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases.

The enforcement of ECtHR’s judgments

The Italian legislator has not yet dealt with the enforcement of ECtHR’s judgments finding violations of the guarantees of criminal trial comprehensively.[3] Thus, the enforcement of these judgments is mostly left to the interpretative efforts of the Italian courts, which, as described in a previous post, have relied on different solutions.

The Italian Court of Cassation has applied analogically two sets of procedural remedies: the “ricorso straordinario per errore materiale o di fatto”, an extraordinary appeal to correct material errors contained in the Court of Cassation’s judgments, under article 625bis Code of Criminal Procedure (‘CPP’);[4] and the “incidente d’esecuzione” procedure, providing remedies to deal with issues arising in the execution of a sentence, under articles 666 and following CPP.[5] In 2011 the Constitutional Court has added a further remedy, by declaring the partial unconstitutionality of article 630 CPP, insofar as it did not include ECtHR judgments finding a violation of criminal guarantees among the exceptional circumstances allowing the review of a final conviction.[6]

Therefore, the Italian system counts three different options to implement the ECtHR’s judgments finding violations of the guarantees of criminal trial and apply them to a case: the “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP; the “incidente d’esecuzione” procedure under articles 666 and following CPP; the exceptional review of a final conviction under article 630 CPP.

The extension of ECtHR’s judgments to other cases

The issue of whether and how an ECtHR’s judgment finding violations of the guarantees of criminal trial may be extended to other cases was first examined by the Italian courts following the case of Scoppola v Italy (n.2).[7] The case originated in some amendments to the provision regulating the reduction of a life sentence, following trial under summary procedure. The ECtHR found a violation of the principle of legality in criminal law (Article 7 ECHR), as Italy failed to apply retroactively the more lenient law to Mr Scoppola.

The decision was implemented in Mr Scoppola’s case through the “ricorso straordinario per errore materiale o di fatto”.[8] With regard to individuals in similar positions, the Italian Government adopted a quite simplistic view, recalling “the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case”.[9] However, the Court of Cassation had to intervene, following the refusal by a lower court to extend the effects of the Scoppola judgment through the “incidente d’esecuzione” procedure.

On that occasion, the Court of Cassation stated that the conclusions reached in Scoppola have general nature, and that the effects of a judgment finding a general and objective violation of the Convention should be extended to identical cases, notwithstanding the existence of a final domestic decision which would normally prevent reconsideration of the case.[10] The acknowledgment of limits to the res judicata principle, on the ground of an ECtHR judgment issued in a case other than the one under review, was in itself innovative.[11] Furthermore, the Court of Cassation deferred a question of constitutionality to the Constitutional Court, which took this opportunity to clarify that the “incidente d’esecuzione” procedure can be used when the issue at stake is a mere redetermination of the sentence to be imposed, whereas the exceptional review under article 630 CPP concerns trials that must be reopened.[12]

The distinction between these remedies and the “ricorso straordinario per errore materiale o di fatto” was the object of further examination by the Court of Cassation, following the case of Contrada v Italy (n. 3).[13] The case originated in the introduction, by way of interpretation, of a new crime. The ECtHR found a violation of the principle of legality in the case of Mr Contrada, because he had been tried and found guilty for facts committed before the moment in which the case law introducing the new crime had settled: which is to say, at a time when the crime was not yet clearly foreseeable.

Following this judgment, the Court of Cassation was confronted with appeals by individuals claiming to be in the same situation as Mr Contrada, and asking for an extension of the effects of the judgment to their cases.[14] In the first case, Mr Dell’Utri, an Italian politician, requested the annulment of his final sentence by way of “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP. The Court of Cassation declared the remedy not applicable, underlying that -unlike the two previous cases in which this remedy had been used-[15] Mr Dell’Utri had no ECtHR’s judgment in his favour, nor had he asked for a mere modification of his conviction.[16] Mr Dell’Utri then applied for revocation or non-execution of his sentence, under articles 673 and 670 CPP. Both remedies operate in the executive phase of the judgment, and are thus species of the wider genus “incidente d’esecuzione”. The Court of Cassation recalled the judgment issued by the Constitutional Court in the post-Scoppola cases and clarified that, after 2011, the exceptional review introduced by way of interpretation under article 630 CPP has become the “ordinary” remedy to enforce ECtHR judgments.[17] This remedy may be applied not only to enforce a judgment in the specific case under the ECtHR’s review, but also to extend the effects of such judgments to similar cases; and not only for violations of Article 6 ECHR, but also when violations of Article 7 ECHR are at stake.[18] The “incidente d’esecuzione” procedure, to the contrary, may be used as a “residual” remedy only upon three conditions: that the ECtHR’s judgment has general nature; that the case at stake is identical to the one decided by the ECtHR; that execution does not require a previous declaration of unconstitutionality or any discretional evaluations by the execution judge.[19] Having assessed that in the case of Mr Dell’Utri these conditions were not met, the Court rejected his application.[20]

In the second and most recent case, the Court of Cassation recalled and fully endorsed these conclusions about the ambit of application of the “incidente d’esecuzione” procedure and of the exceptional review under article 630 CPP.[21]

Interestingly enough, in the lapse of time between these two judgments, a different section of the Court of Cassation rejected a request for extraordinary review lodged under article 630 CPP.[22] The refusal was grounded on the fact that the applicant was not directly interested by the ECtHR judgment of which he had asked enforcement, thus contradicting the Court of Cassation’s position developed since 2011 in the post-Scoppola cases, and reaffirmed in the post-Contrada ones.[23] As for now, the judgment remains a unicum in the case law of the Court of Cassation: however, it certainly demonstrates how a jurisprudential solution may be subject to revirements.

Final remarks

In the Italian legal system, the absence of a comprehensive legislative intervention on the enforcement of ECtHR judgments finding violations of the guarantees of criminal trial has led domestic courts to intervene. Procedural remedies are applied analogically (“ricorso straordinario per errore materiale o di fatto” under article 625bis Code of Criminal Procedure; “incidente d’esecuzione” procedure under articles 666 and following CPP), and a general remedy has been introduced (exceptional review of a final conviction under article 630 CPP).

The most recent developments of the Italian case law deal with the issue of how to extend the effects of an ECtHR judgment to cases other than the one under the ECtHR’s review. In the absence of any organic stance by the executive or by the legislative power, cooperation between higher courts seems to have led to a solution. According to a set of judgments by the Court of Cassation and the Constitutional Court, the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases. The “incidente d’esecuzione” procedure, instead, represents a residual solution which may be used when the effects of the ECtHR’s judgments pertain exclusively to the execution phase and do not require the use of any discretional power by the judge.

Doubts have been cast on this conclusion by a recent conflicting judgment of the Court of Cassation, which, however, remains so far isolated. In any case, it must be pointed out that only a comprehensive legislative intervention could solve, once and for all, the issues of enforcement of the ECtHR’s judgments in the Italian system.

 

 

 

[1] Inter alia: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‑II.

[2] Under Article 19 of the Convention, the Court’s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols”. On Article 49 ECHR: S.Bartole, P. DeSena, V. Zagrebelsky, Commentario breve alla convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, CEDAM Padova 2012, pp. 749 ff.

[3] Currently, the only legislative intervention has been the one allowing the reopening of proceedings celebrated in absentia, introduced by law 67/2014 with the specific aim of bringing the system in compliance with the numerous findings of violation by the ECtHR. On this topic, see: G. Di Paolo, La Rescissione Del Giudicato Ex Art. 625-Ter C.P.P.: Rimedio Effettivo O Meccanismo Virtuale?, Penale Contemporano 2015.

[4] E.g.: Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457.

[5] E.g.: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447. On this remedies in Italian criminal procedure: G. Lattanzi, E. Lupo, Codice di procedura penale: rassegna di giurisprudenza e di dottrina, VII / VIII, Giuffré Milano 2013.

[6] C Cost, sent n 113/2011.

[7] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[8] Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[9] CM/ResDH(2011)66.

[10] Cass. pen., Sez. Un., ord. 19 aprile 2012 (dep. 10 settembre 2012), n. 34472, Pres. Lupo, Est. Milo, Imp. Ercolano.

[11] A wide number of commentaries is available on this judgment. By way of example, see: F. Viganò, Pena illegittima e giudicato. Riflessioni in margine alla pronuncia delle Sezioni Unite che chiude la saga dei “fratelli minori” di Scoppola, Penale Contemporaneo, 1/2014.

[12] C Cost, sent n. 210/2013.

[13] Contrada v. Italy (no. 3), no. 66655/13, 14 April 2015.

[14] The follow-up cases of the Contrada judgment have encouraged a wide scholarly debate. See, by way of example: F. Viganò, Il caso Contrada e i tormenti dei giudici italiani: sulle prime ricadute interne di una scomoda sentenza della Corte EDU, Penale Contemporaneo, 26.4.2016; A. Manna, La sentenza Contrada e i suoi effetti sull’ordinamento italiano: doppio vulnus alla legalità penale?, Penale Contemporaneo, 4.10.2016.

[15] Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457; Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[16] Cass., sez. V pen., sent. 14 marzo 2016 (dep. 8 luglio 2016), n. 28676/16, Pres. Bruno, Rel. Catena, Ric. Dell’Utri.

[17] Cass., sez. I pen., sent. 11 ottobre 2016 (dep. 18 ottobre 2016), n. 44193/16, Pres. Mazzei, Rel. Magi, Ric. Dell’Utri, p. 29.

[18] Ibid, p. 27.

[19] Ibid, p. 30.

[20] Ibid, pp. 35-40.

[21] Cass., Sez. I, sent. 10 aprile 2017 (dep. 27 novembre 2017), n. 53610, Pres. Mazzei, Rel. Rocchi, Ric. Gorgone.

[22] Cass. pen., sez. II, sentenza 20 giugno 2017 (dep. 7 settembre 2017), n. 40889, Pres. Fiandanese, rel. Recchione, ric. Cariolo.

[23] For a critical commentary of this decision: S. Bernardi, La Suprema Corte torna sui limiti di operabilità dello strumento della “revisione europea”: esclusa l’estensibilità ai “fratelli minori” del ricorrente vittorioso a Strasburgo, Penale Contemporaneo, 26.9.2017

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The Government’s European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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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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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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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