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European Court of Human Rights

In: European Journal of Health Law
Authors:
Joseph Dute Emeritus Professor of Health Law, Faculty of Law, Radboud University Nijmegen The Netherlands

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https://orcid.org/0000-0003-1536-1725
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Tom Goffin Professor of Health Law, Faculty of Medicine and Health Sciences, University of Ghent Ghent Belgium

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Open Access

These summaries are based on the provisional text of the judgements of the European Court of Human Rights. These judgments are still subject to editorial revision before their reproduction in Reports of Judgments and Decisions. For the full provisional text, see: http://www.echr.coe.int

ECHR 2022/3 Case of Jivan v. Romania, 8 February 2022, no. 62250/19 (Fourth Section)

The Facts

In 2017, the applicant was in his late eighties. He had a partially amputated leg, which he lost in 2015, when he was eighty-five years old, and suffered from several medical conditions, such as cataracts, loss of hearing and incontinence. He needed a wheelchair to move around and had recently become bedridden as he had lost the strength to manipulate his wheelchair. He lived on the fourth floor of a building and was helped in his daily activities by his son. There were no neighbours or other family members nearby to offer support.

The applicant requested to be recognised as suffering from a severe disability necessitating a personal assistant. However, the Commission for the Assessment of Adults with Disabilities issued a certificate, establishing that the applicant suffered from a medium-level disability.

Finally, the Court of Appeal found that, despite the social assessments according to which the applicant is in a state of total dependency needing a personal assistant and needs help for his daily activities, the applicant’s principal medical condition (partial amputation of a leg) was not qualified by law as being a “severe disability”. Consequently, the court ruled that he could not benefit from a personal assistant.

This summary is restricted to the issues raised under Article 8 of the Convention.

The Law

Alleged Violation of Article 8 of the Convention

The applicant complained that by denying him the benefit of a personal assistant, a right of which he should have benefitted by virtue of law, the authorities had breached his right to respect for his private life, in so far as they had deprived him of his autonomy and of access to the outside world, thus forcing him into isolation.

The Court notes at the outset that the Disability Act calls for the protection of people with disabilities in the light of the guiding principles enshrined in that law, including freedom of choice, social inclusion and respect for the specific needs of the individuals concerned. The level of protection afforded is based on a complex and personalised evaluation to establish an individual’s level of disability. That assessment must rely not only on medical data but also on other indicators of the individual’s degree of autonomy (or lack thereof), assessed in the light of his or her living conditions.

Moreover, the CRPD, to which the respondent State is party, recognises people with disabilities as full subjects of rights and as rights holders. The CRPD encourages respect for dignity, individual autonomy and independence. The principles reflected in Articles 19, 20 and 28 of the CRPD are of particular relevance to the present case. The respondent State, as a party to that Convention, has recognised the equal rights of all persons with disabilities and their right to an adequate standard of living and social protection, and has committed itself to take effective and appropriate measures to help persons with disabilities to live independently and be included in the community and to ensure their personal mobility.

On the basis of the domestic requirements, social services assessed that the applicant was in a state of total dependency and required a personal assistant in order to meet his basic needs. The Commission classified the applicant’s condition as a medium-level disability. In other words, it estimated that the applicant was able to manage his daily activities without the help of a personal assistant. This assessment was shared by the Court of Appeal.

The Court cannot but note that the Commission and the Court of Appeal focused their assessment on the applicant’s principal medical condition, that is, the partial amputation of his leg, while nevertheless at least acknowledging the severity of his condition and the lack of support. In his claims before the authorities, the applicant raised arguments related to his broader situation, both medical and social, and provided evidence to support his action. In the Court’s view, those arguments were specific, relevant and important. However, neither the Commission nor the Court of Appeal explicitly engaged with them.

In particular, the applicant’s right to autonomy and respect for his dignity do not seem to have been taken into account in the domestic assessments in question. His living conditions and the lack of a support network — provided either by neighbours or by his family — were not mentioned in those decisions either. Moreover, the authorities did not take into account the applicant’s age or the fact that he had lost his leg at the age of eighty-five. The implications that such a drastic change must have had on the life of an old person were not referred to in the domestic assessments either. Nothing in the impugned decisions explained the apparent discrepancies between the applicant’s particular situation of a lack of autonomy and support, and the finding that he was not entitled, under the domestic law, to a personal assistant. As a consequence of those decisions, the applicant was left to fend for himself and the authorities did not offer any alternative practical arrangements to ensure him the constant support he needed.

The Court considers that the domestic authorities did not do what was reasonable in the circumstances of the case to ensure the applicant, an elderly disabled person, effective protection of his right to respect for his private life, thus failing to strike the fair balance required by Article 8.

For these reasons, the court, unanimously, holds that there has been a violation of Article 8 of the Convention.

ECHR 2022/4 Case of Fenech v. Malta, 1 March 2022, no. 19090/20 (First Section)

1 The Facts

The applicant, born in 1981, is currently detained in a correctional facility in Malta. He was arrested on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017.

On 30 November 2019 he was arraigned and charged with promoting, organising or financing an organisation with a view to committing a criminal offence, and of complicity in willful homicide. He pleaded not guilty to the charges and has been remanded in custody since that date. Having tested positive for substance abuse on arrival in the prison, he was placed in a single cell with limited contact, before being moved to a dormitory on 4 January 2020.

As a result of the Covid-19 public-health crisis, the applicant felt that the State failed to take adequate measures to protect him from contracting Covid-19 whilst in prison even though his medical condition — the previous loss of a kidney — placed him at increased risk and that his chances of overcoming Covid-19 were diminished.

This summary is restricted to the issues raised under Article 3 of the Convention with regard to Covid-19 prevention.

2 The Law

Alleged Violation of Article 3 of the Convention

The applicant complained about the risk to his life due to the Covid19 pandemic and his vulnerable status, in relation to which the authorities had taken no steps to safeguard his life and health while in detention.

The Court considers that given the nature of Covid-19, its well-documented effects, as well as the fact that it is easily transmitted from one person to another (via droplets or airborne particles containing the virus), the fears for the applicant’s health in the eventuality of contracting the virus, are not insignificant. Thus, in order to protect his physical well-being, the authorities had the obligation to put certain measures in place aimed at avoiding infection, limiting the spread once it reached the prison, and providing adequate medical care in the case of contamination. Preventive measures have to be proportionate to the risk at issue, however they should not pose an excessive burden on the authorities in view of the practical demands of imprisonment. This is even more so in the present case, where the authorities were confronted with a novel situation such as a global pandemic — unprecedented in recent decades — as a result of a new strain of coronavirus (called Covid-19) to which they had to react in a timely manner.

The Court observes that on 12 March 2020 the Covid-19 outbreak was declared a pandemic. The Court shares the considerations made by the WHO that in all countries, the fundamental approach to be followed is prevention of introduction of the infectious agent into prisons or other places of detention, limiting the spread within the prison, and reducing the possibility of spread from the prison to the outside community. Furthermore, the Court observes that the passage of time has brought along not only new variants, but also an extended scientific knowledge of the virus as well as relevant responses (both via vaccinations and medical treatment). All these factors have made it possible for Governments to adapt their policies and protocols to the changing circumstances. This process is still ongoing, and it is in that light that the Court must not lose sight of the challenges being posed by the constant evolution of the Covid-19 pandemic.

For several months, at the outbreak of Covid-19 internationally, the correctional facility was effectively in a lockdown, whereby visitors of all kinds were not allowed in and the staff was working weekly shifts to avoid excessive exposure to outside factors. According to the documented plan, staff had to be provided with protective equipment including disposable gears, which they could opt for, when in contact with inmates, to avoid contamination going both directions. The Court considers that these measures certainly diminished the risk of wide-spread contamination within the prison thus preserving the health and safety of inmates and staff.

Apart from the specific measures during the lockdown the Court takes account of the general measures listed by the Government, such as disinfection (by means of regular cleaning, hand sanitiser, and relative pumps), and mask wearing, as well as the possibility of physical distancing given the size of the applicant’s dormitory and the personal space available to him, as well as the fact that he had access to open air all day long, via the yard adjacent to the dormitory. Moreover, there is no indication that the correctional facility, which hosts around 900 inmates, was or is generally overcrowded, a factor which could enhance proliferation of the virus. Thus, the Court considers that, contrary to the applicant’s wishes, in respect of the situation at the correctional facility there would be no pressing necessity to consider a greater use of alternatives to pre-trial detention, particularly for persons like the applicant accused of particularly serious crimes.

In addition, there had been put in place regular temperature verification of officials who could not enter the facility without such clearance, and hosted inmates who were transferred to a ‘quarantine zone’ in case of fever, allowing for immediate isolation of suspected cases. According to the contingency plan the same applied to new arrivals (over and above the medical screening on entry). This type of initial screening can be considered as satisfactory, particularly in the early phases of the pandemic.

Later on, any new detainee was kept in quarantine for fourteen days. Detainees who tested positive for the virus or were in quarantine underwent medical checks twice daily. More recently, following widespread vaccination and rapid testing, the quarantine period was decreased to 24–48 hours for persons who tested negative. In the Court’s view, the above shows that authorities maintained their vigilance and adapted their protocols to the evolving situation.

Importantly the Court notes that vaccination against Covid-19 was available to all inmates in early 2021 and by April 2021 all the inmates who wished so had been vaccinated. That instrument was deployed in an extremely timely manner in order to protect inmates of the correctional facility and the Government’s efforts in this respect must be lauded.

In so far as the applicant complained that he should have been insulated from exposure and protected more than other detainees, the Court takes note of the Government’s submission that various individuals in the prison could qualify as vulnerable. Given the practical demands of imprisonment and the novelty of the situation, the Court can accept that it may not be possible to make arrangements for each vulnerable individual to be moved to safer quarters, before any contamination occurs in the prison. While refined allocation procedures should be considered allowing prisoners at highest risk (such as those having cardiovascular disease, diabetes, chronic respiratory disease, or cancer) to be separated from others — the applicant has not made out a case that he fell within the category of the most vulnerable.

While it is true that correctional facility did not entirely prevent contamination within the prison, there is no indication that the spread of the virus had not been, and continues to be, limited via these measures, nor has the applicant claimed that the contaminations had gone out of hand. It would be unrealistic to expect that a detainee would never come in contact with a positive person, even more so given that certain measures could only be kept in place for as long as reasonably necessary (such as, for example, the suspension of family visits).

The Court considers that the authorities have put in place adequate and proportionate measures in order to prevent and limit the spread of the virus.

For these reasons, the court, unanimously, holds that there has been no violation of Article 3 of the Convention.

ECHR 2022/5 Case of Lings v. Denmark, 12 April 2022, no. 15136/20 (Second Section)

1 The Facts

The applicant, born in 1941, worked as a physician until 2010. He is the founder of Physicians in Favour of Euthanasia, an association aiming to have euthanasia made lawful in Denmark. In pursuance of this, he prepared a guide called “Medicines suited to suicide” and made this available on the internet, which is lawful under Danish law. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals. The guide also provided advice on how a person could be assured of death by taking the recommended doses of medicines, including by combining different pharmaceuticals or by taking a full dose of a pharmaceutical in combination with a plastic bag over the head and a rubber band around the neck.

In 2017, following a radio interview in which he outlined having assisted someone in committing suicide, the applicant was struck off the medical register. He was later charged with two counts of assisted suicide and one count of attempted assisted suicide, and on 26 September 2018 he was convicted on two counts. On appeal, however, the High Court convicted him on all three counts. That decision was upheld by the Supreme Court in 2019.

The facts for which the applicant was convicted included prescribing medication (Fenemal) to two individuals with knowledge that they intended to commit suicide, and advising another (hereafter: C) to put a plastic bag over her head, alongside an overdose of medication. Two died and one later recovered, and indeed recovered full mental health following use of prescription drugs.

The applicant was finally sentenced to 60 days’ imprisonment, suspended, with his age being cited as a mitigating factor.

2 The Law

Alleged Violation of Article 10 of the Convention

The applicant complained that the Supreme Court’s judgment of 2019 breached his right to freedom of expression guaranteed by Article 10 of the Convention.

It is not in dispute between the parties that the applicant’s conviction constituted an interference, prescribed by law, which pursued the legitimate aims of the protection of health and morals and the rights of others.

Assisted suicide has been criminalised in the Danish Penal Code. The current wording is from 2004. For an act to be punishable, it is required that the offender must have performed a specific act of assistance with the intent that one or more specific persons commit suicide. Encouragement of suicide and descriptions of methods of committing suicide do not fall within the scope of the Penal Code if not directed at specific persons.

In the present case, the Court is not required to determine whether the criminalisation of assisted suicide is justified. It can only review whether or not the application of the Penal Code in the case of the applicant was “necessary in a democratic society”. The answer to the question whether such a necessity exists depends on the need to protect the “health and morals” and “the rights of others” in issue by way of criminal law measures.

There is no support in the Court’s case-law for concluding that a right to assisted suicide exists under the Convention, including in the form of providing information about or assistance that goes beyond providing general information about suicide. Accordingly, as the applicant was not prosecuted for providing general information about suicide, but for having assisted suicide through specific acts, the Court finds that the present case is not about the applicant’s right to provide information that others under the Convention had a right to receive.

As regards counts (1) and (2) the Supreme Court found unanimously that the applicant had not only provided guidance, but also, by specific acts, procured medications for the persons concerned, in the knowledge that it was intended for their suicide. Such acts were clearly covered by the Penal Code, and implicitly, did not give rise to an issue under Article 10. As regards count (3) it was found established that the applicant, in emails exchanged with C, had advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing: “If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.”

The Supreme Court found the applicant guilty under the Penal Code in that he had assisted C in a specific and significant way in committing suicide, that his advice was not exempted from punishment because it was based on his lawful general guide on the website of “Physicians in Favour of Euthanasia”, that his specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide, and that his conviction would not be in breach of Article 10 of the Convention. The applicant was given a suspended sentence of 60 days’ imprisonment. It was taken into account as an aggravating circumstance that to a certain extent the acts had been committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old.

The Court sees no reason to call into question the Supreme Court’s conclusions. It notes that a crucial question was the distinction to be drawn between the legal general guide available on the internet and the specific information provided by the applicant to C. The Court notes in this respect that C in her first email to the applicant had asked for his assistance, although she had already procured the necessary medication herself and was aware of the existence of the general guide on the internet. Moreover, the applicant and C exchanged at least nine emails during a period of approximately three weeks. In these circumstances, the Court considers that the reasons relied on by the Supreme Court when finding that the act fell within the scope of the Penal Code were relevant and sufficient.

The Court considers that the quality of the judicial review of the disputed general measure and its application in the present case militates in favour of a wide margin of appreciation. Another element, which speaks in favour of a wide margin of appreciation in the present case, is the fact that the subject of assisted suicide concern matters of morals and that the Member States of the Council of Europe are far from having reached a consensus on this issue.

The Court considers that the reasons relied upon by the domestic courts were both relevant and sufficient to establish that the interference complained of can be regarded as “necessary in a democratic society”, proportionate to the aims pursued, namely the protection of health and morals and the rights of others, and that the authorities of the respondent State acted within their margin of appreciation, having taken into account the criteria set out in the Court’s case-law.

For these reasons, the court, unanimously, holds that there has been no violation of Article 10 of the Convention.

ECHR 2022/6 Case of Lia v. Malta, 5 May 2022, no. 8709/20 (First Section)

1 The Facts

The applicants, a married couple, were born in 1980 and 1971 respectively. After unsuccessful attempts at having children, they were given medical advice that the only remedy to have children was by means of assisted procreation in vitro fertilisation (IVF).

In 2014 the second applicant, aged forty-two years, underwent Intracytoplasmic Sperm Injection (ICSI), using her own ova, at a private hospital, at the State’s expense. The treatment was provided by the Government free of charge to subjects satisfying the Embryo Protection Authority’s (EPA) protocol. The treatment was not successful and consequently the applicants requested another cycle of treatment in 2015, this time at their own expense. However, the EPA refused the request, referring to the protocol which states that “it is desirable that the woman, who is entitled to treatment should be between the age of 25 and 42 years”. In 2015, the second applicant had reached the age of forty-three.

In 2017 the applicants instituted constitutional redress proceedings before the Civil Court in its constitutional competence. The court considered that neither the promulgation of the protocol nor its interpretation could give rise to discrimination. On appeal the Constitutional Court confirmed the first-instance judgment stating that the fact that the age-limit indicated in the protocol, was not mandatory did not mean that the EPA, using its discretion, and on the basis of medical findings, could not decide to apply that age-limit. While the EPA had the discretion to decide to go beyond the age bracket, it also had the discretion to apply it.

2 The Law

Alleged Violation of Article 8 of the Convention

The applicants complained that they had suffered a breach of Article 8 of the Convention as a result of the refusal of their request for the second IVF cycle. Article 8 protects the right to respect for private and family life.

The Court will approach the case as one involving an interference as it concerns the State’s decision to deny the applicants’ access to IVF procedures which were available to the population and which they sought to pay for themselves.

As to whether the law (the protocol) was foreseeable, the Court considers that the age-limit was not mandatory as the protocol clearly stated that it was only “desirable” for the eligible candidate to be below forty-three years of age. Indeed, both constitutional jurisdictions agreed with this evident interpretation and considered that the age limitation was not mandatory, and the Constitutional Court precisely held that the EPA could, in their discretion and on the basis of medical findings, decide to apply it or not. The latter interpretation was also supported by the two experts who testified in the proceedings and had been involved in the drafting of the protocol. The protocol therefore provided for a certain flexibility. Nevertheless, it is not disputed that the EPA interpreted the age-limit as being mandatory and applied it accordingly, without any considerations related to the medical situation of the candidates, or reference to any other pertinent reasoning. As a result, the administrative and judicial authorities gave different interpretations of the same legal provision. Furthermore, the Court cannot but note that the interpretation applied to the applicants — which left no room for flexibility — was the less favourable one to them, and the one most at odds with the clear wording of the law, as supported by its drafters as well as the highest courts of the land.

It follows that, at the relevant time, the way in which the judicial and administrative authorities involved interpreted and applied the impugned legal provision (which was not referred to in any other law) was incoherent and thus lacked the required foreseeability. In this connection, the Court notes that the first-instance constitutional jurisdiction had explicitly sympathised with the applicants about the uncertainty caused by the word “desirable” and the Court observes the new formulation following relevant amendments, whereby the protocol now unequivocally reads “will only be allowed to undergo treatment up to the maximum age of 42 years”.

In conclusion, the interference suffered by the applicants had not been in accordance with a law of sufficient quality. That being so, the Court is not required to examine further aspects of the lawfulness requirement, or to determine whether the interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued.

For these reasons, the court, unanimously, holds that there has been a violation of Article 8 of the Convention.

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