The Impact of the ECHR in Central and Eastern Europe

Iulia Motoc and Ineta Ziemele have recently edited an excellent book “The Impact of the ECHR on Democratic Change in Central and Eastern Europe” (CUP, 2016). Here is its abstract :

 

9781107135024High hopes were placed in the ability of the European Convention and the Court of Human Rights to help realise fundamental freedoms and civil and political rights in the post-communist countries. This book explores the effects of the Strasbourg human rights system on the domestic law, politics and reality of the new member States. With contributions by past and present judges of the European Court of Human Rights and assorted constitutional courts, this book provides an insider view of the relationship between Central and Eastern European states and the ECHR, and examines the fundamental role played by the ECHR in the process of democratisation, particularly the areas of the right to liberty, the right to propriety, freedom of expression, and minorities’ rights.

Documentary on Tito’s Murder Squads

German TVs “Bayerischer Rundfunk” and “Deutsche Welle” have recently aired an excellent documentary on “Tito’s Murders Squads – The Killing of Yugoslav Exiles in Germany”. The title refers to the killings and liquidations of the political opponents (of Croatian, Bosnian and Serbian Slovenian nationality) of the former Yugoslav communist regime in 1970s and 1980s in West Germany by the Yugoslav secret police. A documentary webpage is available here and you can watch the documentary here. 

ECtHR on mass deportations from Latvia following World War II

DSC_2211The European Court of Human Rights remains haunted by the dark chapter, of in particular, Central and Eastern European States. It has just before festive season delivered admissibility decision in the cases of Larionovs v. Latvia (application no. 45520/04) and Tess v. Latvia (no. 19363/05). Both cases arise from dealing with the past in Latvia. Mr Larionovs and Mr Tess were both convicted for crimes of humanity before Latvian courts convicted for their involvement in crimes against humanity concerning  mass deportations of Latvian inhabitants to various, often remote, locations in Soviet Union in 1949. They complained to the Strasbourg court claiming that the Latvian criminal law had been retroactively applied in violation of violation of Article 7 (no punishment without law) of ECHR. The Court declared their complaint inadmissible for non-exhaustion of domestic remedies as they have not complained to the Latvian Constitutional Court. However, the Court noted as follows that the Latvian courts did not breach prohibition of rectroactivity by convicting Mr Larionovs and Tess:

the lack of statutory limitations and the possibility of convicting perpetrators of one of the gravest international crimes – “crimes against humanity including genocide” – irrespective of when such acts had taken place stems not only from the text of national law, but also from the very nature of that crime….After accession to the relevant international treaties, Latvia was bound to implement the principles contained therein. Importantly, the text of Article 681 of the 1961 Criminal Code defined the crime as a “crime against humanity including genocide”. It also referred to the definition of the crime “by the respective normative treaty legislation” and contained a reference to international law (see paragraph 103 above). Therefore, the Court rejects the applicants’ argument that their convictions were merely related to an interpretation and application of the relevant provisions. Their convictions were based on the provisions of the national criminal law, which transposed the relevant provisions of international law (para. 151).

This case is another in a series of cases dealing with the past in Central and Eastern European countries and another in the line of case where former Soviet partisans have been somehow unconvincingly arguing violation of prohibition of retroactivity concerning their domestic convictions for war crimes and crimes against humanity. Prosecutions of crimes against humanity, even if they were not criminalised at the time of commission, does not violate the prohibition of retroactivity since those crimes were already at the time of commission contrary to fundamental principles of humanity. By allowing exceptions to the principle of legality the international community recognized that protecting the rights of victims of crimes against humanity and international law was even more important than the principle of legality. Prosecutions of international crimes, whether in national legal orders or at the international level, are easier to accomplish if they take place in close proximity to the time of conflict, because evidence and memories are fresher. However, each transition from war to peace is different.

The complaints by Mr Larionovs and Tess were based on the flaw assumptions that they can absolve themselves from responsibility for crimes of humanity committed after the Second World War only by arguing that such acts were not prohibited at the time of commission. Full-fledged democracy, rule of law and reconciliation in any post-totalitarian society is never going to be achieved if the current political or ethnic opponents stubbornly insist on their narratives, without a will and a desire to try to understand the feelings and suffering of their neighbours with different ethnic origins. Compassion emerge difficulty without sacrifices and assuming responsibility as individuals and collective catharsis commences at a subconscious level. Guilt and shame conflict there with the prevailing feelings of forgetfulness of the worst offenses against humanity. Only when the feelings of shame and guilt emerge, slowly, and even then not in all situations, the catharsis processes emerge. Consolidation of democracy and reconciliation is therefore possible only on the basis of the pluralistic debate about the dark sides of Latvian transitional society. As long as those conditions are not met, Latvian and other Central and Eastern European society will continue to live in immature and subconsciously crippled societies, which instead of facing with the dark side of their past and the present, have been deliberately oblivious and have neglected them.

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.

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.