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 ?

Call for Papers – 6th Annual Conference on Legal Theory, Philosophy and Argumentation

6th Annual Conference on Legal Theory, Philosophy and Argumentation on »Legal and Philosophical Challenges of Transnational Law«, Bled, Slovenia, 21. – 22. November 2014

The conference is organized by the Graduate School of Government and European Studies in co-operation with the European Faculty of Law and with the generous support of the Slovenian Research Agency.The overall theme of this year’s conference is “Legal and Philosophical Challenges of Transnational Law«, which is to be analyzed through a variety of substantive andmethodological lenses, including: legal theory, legal argumentation, legal philosophy and political philosophy, international law, human rights and ethics.

The conference will thus consist of four panels, dedicated to legal theory and legal philosophy; legal argumentation; international law and ethics. A special panel will be reserved for PhD researchers and researchers at an early stage of their career.The organizers would like to invite interested contributors to send short abstracts (up to 250 words) falling within the above theme, addressing in particular, but not exclusively, the following questions:

– What is transnational law?

– Who are its actors and how is their legal accountability ensured?

– How does transnational law relate to traditional state law?

– How does transnational law impact on the canonical standards of legal argumentation?

– What are the specific ethical challenges of transnational law and how should they beaddressed?

The abstracts should be sent to matej.avbelj@fds.si by August 31, 2014. The selected contributors will be notified by September 15, 2014. The organizers will cover up to two nights of accommodation in the Hotel Jelovica, Bled, where the conference is going to take place.

Organizing Committee:

Matej Avbelj, Graduate School of Government and European Studies

Jernej Letnar Černič, Graduate School of Government and European Studies

Vojko Strahovnik, European Faculty of Law

Marko Novak, School of Advanced Social Studies

Ruiz Vieytez on the effectiveness of the European system of national minorities protection

20140505_182509Prof. dr. Eduardo J. Ruiz Vieytez of University of Deusto delivered yesterday at the Jean Monnet Academic Forum at the Graduate School of Government and European Studies in Kranj a speech that focused on the effectiveness of the European system of national minorities protection. In doing so he also discussed recent claims for greater autonomy and independence in the Basque country and Catalonia.

Non-consensual collection of personal medical data about forceful sterilisation contrary to Article 8 ECHR

The applicant in the case of L.H. v Latvia (52019/07) gave birth by Caesarean section in 1997 in Cēsis District Court. The surgeon also performed tubal ligation during the delivery, thereby effectively unlawfully sterilising the applicant. The applicant thereafter claimed damages from the hospital and was successful. However, the Latvian Inspectorate of Quality Control for Medical Care and Fitness for Work (MADEKKI) initiated inquiry in the procedures at the Hospital and thereafter transmitted findings, including personal medical data, without her consent to the hospital director. The applicant claimed before Latvian violations of right to privacy, however her claims were rejected as unfounded before all judicial instances in Latvia. However, the European Court of Human Rights noted that :

…  that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (para. 56)

and concluded :

… the MADEKKI appears to have collected the applicant’s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” …. for achieving whatever aim might have been pursued by the MADEKKI’s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data.. (para. 58).

Therefore, the Court found that Latvia violated Article 8 of ECHR as the intereference was not compliant with the law as it breached applicant’s right to respect for private life. The essence of the case was that applicant could have legally expected that the state authorites will not collect her personal medical data, however their failed to comply with their negative obligation to do act in accordance with the law.