Switzerland and ECHR

A good article on ECHR in Switzerland can be read here. It refers to a comprehensive report drafted by Swiss government analyzing past 40 years since Switzerland ratified ECHR and offering some perspectives on the future.  Here is a short section from report’s summary :

Cet attachement à la convention n’empêche pas de poursuivre une réflexion critique sur la jurisprudence de la CEDH, de souligner l’importance du principe de subsidiarité qui est un principe essentiel au bon fonctionnement et à l’acceptation de la Cour et d’œuvrer, encore et toujours, à la mise en place de réformes efficaces du système de contrôle, à court et à long terme. Dans la mesure où les critiques actuelles résultent du fait que certaines initiatives populaires ces dernières années ont mis en évidence des conflits potentiels avec la CEDH, le Conseil fédéral poursuit ses efforts pour trouver une solution appropriée, susceptible de satisfaire une majorité politique.

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.