Gross v Switzerland : Death cover-up as a abuse of rights ?

The Grand Chamber of the European Court of Human Rights has on 30 September in the case of Gross v Switzerland (67810/10) dismissed applicant’s complaint concerning the right to assisted suicide with nine votes to eight as inadmissible. The applicant, in 2011, ended her life by imbibing 15 grams of sodium pentobarbital. However, the Court was not aware of this fact and its Chamber found in its judgment of 14 May 2013 that Switzerland violated Article 8 of the ECHR. After the Court was in January 2014 informed of applicant’s death, it decided to dismiss her application complaint holding that shed abused her rights under Article 35 § 3 (a) of the Convention. The Court held that :

According to Mr. F., the applicant’s motive for withholding the relevant information had been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. Whilst such a motive may be understandable from the applicant’s perspective in the exceptional situation in which she found herself, the Court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant intended to mislead the Court on a matter concerning the very core of her complaint under the Convention. (para. 6)

It is seems that the Court dismissed the application on the basis Article 35 § 3 (a) of the Convention not on the basis of Article 37 § 1 (c) of the ECHR as it was outraged that it was not informed about the applicant’s death. However, this is unlikely a justified reason to invoke »abuse of rights« doctrine, particularly in such difficult cases concerning assisted suicide and given that the applicant’s attorney was not aware of her death. Therefore, eight of the Grand Chamber judges (Spielmann, Ziemele, Berro‑Lefèvre, Zupančič, Hajiyev, Tsotsoria, Sicilianos and Keller) delivered joint dissenting opinion noting that :

… that the qualification “abuse of rights” is reserved for cases which cause the Court to “waste its efforts on matters obviously outside the scope of its real mission, which is to ensure the observance of the solemn, Convention-related, engagements undertaken by the State Parties”. In the present context, we note that the number of assisted suicides is high and unlikely to abate in the near future. In the case of Switzerland, for example, the number of foreign residents who travel to the country to seek assistance in taking their own lives is not negligible. Accordingly, we do not consider the Court’s efforts to have been wasted: the issue of assisted suicide is likely to engender future applications to the Court and thus certainly merits examination. We observe that there is undoubtedly a European dimension to this issue: travel to Switzerland by people wishing to end their lives, for the purpose of availing themselves of the services of assisted-suicide organisations, has triggered heated discussions in various Contracting States (para. 8, footnotes omitted )

…. the Court should have expressed serious doubts as to the question whether the applicant intended to mislead the Court, but should have ultimately left this issue open as the application could have been struck out under Article 37 § 1 (c) of the Convention. The applicant passed away without leaving any heirs or descendants. Under the specific circumstances of the case, the Court should have decided that it was no longer justified to continue its examination within the meaning of Article 37 § 1 (c), without qualifying Ms Gross’s behaviour as an abuse of rights. (para. 9)

This case could have provided some guidelines as to the end of life situation. In such cases the boundaries between life and death are often blurred. In cases of serious illness and accidents doctors, patients and family members are faced with the dilemma of what to do and how to move forward. Can an individual decide on her own to terminate her life, if she finds herself in a hopeless state of health? Does she has the right to terminate her life if her medical condition is stable? Could her family members of even a doctor decided about the termination of life as is often the case in practice? Issues of treatment of patients at the end of their lives, particularly in intensive care at the end of life are certainly not easy, nor for the doctors who are in daily contact with them, not for family members.  Moral norms of medical ethics stipulates that the doctor should always during medical treatment attempt to protect human life. Therefore, several unanswered questions remain as to who and when can decide to terminate patient life. Alas, this has not solved any of them. On the contrary, it has raised a trivial question whether not informing about applicant’s death amounts to the abuse of the rights of ECHR.

Judgment againts Switzerland on the denial of Armenian Genocide

The European Court of Human Rights has just before Christmas delivered a very controversial decision in Perinçek v. Switzerland (application no. 27510/08) concerning the denial of Armenian genocide. The Court did not find that Mr Perinçek abused his rights under Article 17 of ECHR and held that Switzerland violated Article 10 by sentencing him to pay a fine. The Court concluded that:

»129.  Compte tenu de ce qui précède et notamment à la lumière des éléments de droit comparé, la Cour considère que les motifs avancés par les autorités nationales pour justifier la condamnation du requérant ne sont pas tous pertinents et, considérés dans leur ensemble, s’avèrent insuffisants. Les instances internes n’ont pas démontré en particulier que la condamnation du requérant répondait à un « besoin social impérieux » ni qu’elle était nécessaire, dans une société démocratique, pour la protection de l’honneur et les sentiments des descendants des victimes des atrocités qui remontent aux années 1915 et suivantes. Les instances internes ont donc dépassé la marge d’appréciation réduite dont elles jouissaient dans le cas d’espèce, qui s’inscrit dans un débat revêtant un intérêt public certain.«

This decision is comparable to the case of Garaudy v. France the author of “Fundamental myths of modern Israel”, where author was sentenced to a suspended prison sentence and fined for denying crimes against humanity and the Holocaust (no. 65831/01, 24. 6. 2003, pp. 2–12) The Court stated that “denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order” (Ibid., para. 23). Judges Vučinić and Pinto de Albuqueque noted in their partially dissenting opinion that that “Dans cette mesure, le requérant a agi avec le même dolus inacceptable que l’avait fait M. Garaudy. Il a même agi de manière plus répugnante encore, en s’identifiant au personnage qui, selon les juridictions militaires turques compétentes, avait fomenté le génocide des Arméniens …” (para. 25).  It would be interesting why the Court has decided to depart from its well-established law on hate speech and, particularly why denial of the Armenian genocide which is a historical fact was not considered as the violation of Article 17 of ECHR on prohibition of abuse of rights.