Utrinki s predavanja prof. Leacha

V torek, 15. maja 2018 ob 16h, je na ljubljanski lokaciji Evropske pravne fakultete potekala strokovna razprava o človekovih pravicah v krizi. Predaval je eden vodilnih evropskih strokovnjakov o Evropskem sodišču za človekove pravice in profesor na Univerzi Middlesex v Londonu, prof. dr. Philip Leach. Strokovno razpravo je organiziral in vodil izr. prof. dr. Letnar Černič.

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.

Strasbourg prohibits a former Securitate collaborator from public administration employment in Romania

The case of Naidin v Romania (38162/07, 21 October 2014) originates from one of the dark chapters of the recent history of Central and Eastern European countries. The applicant, Mr Naidin, has served for three terms in the Romanian Parliament until 2014. After his third term of service expired, he wished to return to this previous employment in the Romanian public administration. However, he was prevented from taking up this public service employment due to the Romanian Statute No. 188/1999. Its Article 50 prohibits access to the public administration to the persons that worked as collaborators of former Romanian secret police, Securitate, during the Communist regime. The applicant alleged, in particular, a violation of Articles 8 and 14 of the Convention concerning his right to protect his privacy for employment in the public administration. The third Section of the European Court of Human Rights disagreed and found no violation of the Convention. More specifically, it first noted that :

 »les États ont un intérêt légitime à réguler les conditions d’emploi dans le service public. Un État démocratique est en droit d’exiger de ses fonctionnaires qu’ils soient loyaux envers les principes constitutionnels sur lesquels il s’appuie (Vogt c. Allemagne, 26 septembre 1995, § 59, série A no 323 et Sidabras et Džiautas, précité, § 52).« (para. 49)

Finally, it noted that adopted measures were not disproportionate and were necessary in democratic society :

“les perspectives professionnelles du requérant n’ont été supprimées que dans la fonction publique. Les fonctionnaires publics, a fortiori ceux qui occupent des postes à haute responsabilité, de la nature de ceux que le requérant souhaitait réintégrer, exercent une parcelle de la souveraineté de l’État. L’interdiction frappant le requérant n’est donc pas disproportionnée par rapport à l’objectif légitime de l’État de s’assurer de la loyauté des personnes chargées de la sauvegarde de l’intérêt général” (para. 54).

This judgment should be welcomed as it affirms that states have a wide margin of appreciation in regulating the access to positions in their public administration. In this way, it is proportionate for states to prohibit access to former collaborators of secret services of the totalitarian regimes. However, this is not generally accepted standard and should not be taken for granted. Several Eastern European countries face difficulties with dealing with the totalitarian remainants of the past. Most of them have not implemented the policies of lustration as the communist oligarchs have slowly transformed themselves into post-communist elites. For these reasons old post-totalitarian elites have worked against the adoption of policies of lustration aimed at old nomenclature, which has often slowed down transition from totalitarian into democratic societies or even caused constitutional back-sliding of young liberal democracies in Central and Eastern Europe.

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.

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.

Advocate General Cruz Villalon on the Data Retention Directive

Advocate General Cruz Villalon has on 12 December 2013 delivered his opinion in a higly controversial case C‑293/12 and C‑594/12 on the Directive 2006/24/EC of the European Parliament and that of Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. He concluded that said Directive;  

is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use (para. 159)

and added :

Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years (para. 159).

The dilemma between protecting national security and the protection of fundamental rights of individuals to privacy does not fall between genuines dilemmas. It is actually not a dilemma. States can only protect national security in a manner that does not interfere unlawfully in the fundamental rights of individuals. Arbitrary interference of state and non-state bodies in the privacy of the individuals are illegal and in breach of the European Convention and the EU Charter.