Lecture by Judge Paul Mahoney

Paul Mahoney, judge at the European Court of Human Rights on behalf of United Kingdom, will be on 29 May 2014 giving lecture on the execution of judgments of the European Court of Human rights in national systems and on the future of Strasbourg at the Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia. More details are available here. Welcome !

Gray v Germany – effective criminal prosecution of medical negligence

The European Court of Human Rights found on Thursday in the case of Gray v Germany (49278/09) no violation of Article 2 (right to life) of ECHR concerning the effective investigation and prosecution of medical doctor before German court for death of his patient in the United Kingdom. The Witten District Court initially found that medical doctor was responsible for patient’s death by negligence as he mixed two drugs. He was thereafter sentenced to suspended sentence of imprisonment and fine.  The proceedings have been simultaneously started in the United Kingdom; however, German authorities refused the UK’s request for extradition on the basis of the European Arrest Warrant. The applicants, sons of the deceased patients, thereafter complained before the European Court of Human Rights that “the summary criminal proceedings instituted against U. in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence” (para. 60). The Court, however, did not agree with their claim. It noted that :

… in reality, the applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It notes in this context that the German authorities were obliged to institute criminal proceedings against U. by operation of domestic law once they had learned of his involvement in the events surrounding Mr Gray’s death and consequently had a basis for their decision not to extradite U. to the United Kingdom in accordance with the relevant domestic and international law. The Court would point out in this respect that the procedural guarantees enshrined in Article 2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State. It reiterates in this connection that the procedural obligation under Article 2 is not an obligation of result but of means only …(footnotes omitted) (para. 93).

The Court therefore concluded that :

the German authorities have provided for effective remedies with a view to determining the cause of the applicants’ father’s death as well as U.’s related responsibility. There is further nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to Mr Gray’s death fell short of the procedural guarantees inherent in Article 2 § 1 of the Convention. (para. 95).

The Court’s reasoning and decision are not surpising as they are in the line with its previous case law. Procedural dimension of Article 2 of ECHR establishes only state obligation of conduct but not also of result. States can meet their obligatons under Article 2 of ECHR if they provide an effective investigation and prosecution into medical negligence resulting in patient’s death.

FRA Report on the right to political participation for persons with disabilities

The European Union Agency for Fundamental Rights has today published a new report on “the right to political participation for persons with disabilities: human rights indicators”. Here is the abstract :

The human rights indicators presented in the report show that legal and administrative barriers, inaccessible processes and information, and a lack of awareness about political rights can deny persons with disabilities the opportunity to participate in the political lives of their communities. The research also reveals the absence of reliable and comparable data about persons with disabilities’ experiences of taking part in elections in the EU. Addressing these challenges as soon as possible is essential for increasing the legitimacy of public institutions and creating more equitable and inclusive societies in which all members can participate fully.

Roundtable discussion on “25 Years after the Fall of the Berlin Wall: Self-determination”

The Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia, will be on 30 May 2014 holding a roundtable discussion on “25 Years after the Fall  of the Berlin Wall: Self-determination and Human Rights Protection in Europe”. Speakers include inter alia : Luzius Wildhaber, former President of the European Court of Human Rights, Paul Mahoney, judge of the European Court of Human Rights on behalf of United Kingdom, and Peter Jambrek, former judge of the European Court of Human Rights on behalf of Slovenia. Welcome !

Prohibition of expulsion to a risk of ill-treatment – Nizamov et al v. Russia

The European Court of Human Rights held on 7 May 2014 in the case of Nizamov and Others v. Russia (nos. 22636/13, 24034/13, 24334/13 and 24528/13) that Russia violated article 3 of the ECHR as a real risk exists that the applicants would be subjected to ill-treatment on the basis of their membership in the Islamic religious group if they were to be expelled to Uzbekistan. As in the previous cases, the concern was how one can prove that in fact applicants will be ill-treated if returned to Uzbekistan. However, the application of any standard of proof to the probability of future events will always be subject to a degree of speculation. What is more, the Court argued that mere formal commitment to international human rights treaties does not guarantee that they protection will be heeded in practice. More specifically, it noted that :

substantial grounds have been shown for believing that there is a real risk that the applicants would be subjected to treatment contrary to Article 3 of the Convention if they were to be expelled to Uzbekistan. The summary and unspecific reasoning adduced by the domestic authorities and the Government before the Court did not dispel the alleged risk of ill‑treatment. Nor can that risk be excluded on the basis of other material available to the Court. In this connection, the Court notes that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights, relied on by the Government in their arguments, are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention…

What is noticeable and commendable, that Russia, often described as a state with the poor record of compliance with the ECtHR’s judgments,  heeded interim order of the European court from April 2013 asking not to expel the applicants to Uzbekistan until the final decision.

Central and Eastern European Judges under the EU Influence

20140512_095631Conference on Central and Eastern European Judges under the EU Influence takes place today and tomorrow at the European University Institute. Has the state of mind of judiciaries in the Central and Eastern European states changed ten years after joining the EU ?