Hembach Legal

ECHR - Business and Human Rights - Data Protection

Blog

Documentary on the African Court on Human and Peoples’ Rights

· ·

The African Court on Human and Peoples’Rights has published a documentary with information on the African Court, its role and mandate. It can be found here

Mandate
The African Court on Human and Peoples’ Rights is mandated to oversee the observance of the African Charter on Humanand Peoples’ Rights (African Charter) and other human rights instruments applicable in Africa, such as the African Charter on the Rights and the Welfare of the Child or the so called Women’s Protocol. It was established in 2006, by a Protocol to the African Charter, which is binding on the states which have signed it. So far, 26 out of the 54 member states of the Africa Union (AU) have ratified the Protocol, thus recognizing the African Court. Rulings by the African Court are binding on the states which have recognized the Court.

The mandate of the African Court complements the mandate of the African Commission on Human and Peoples’ Rights, which is the body established by the African Charter to ensure its observance. Both institutions can refer cases to each other on certain conditions.
Jurisdiction
The jurisdiction of the African Court comprises advisory opinions and contentious matters.

– advisory opinions
Any member state of the AU, the AU or any of its organs as well as any organization recognized by the AU may request the African Court to provide an opinion on legal matters regarding the interpretation of the African Charter or other relevant human rights instrument. The African Court did not have an opportunity yet to examine the notion ‘organization recognized by the AU’ yet.

– contentious matters
In addition to that, the African Court has jurisdiction in individual cases. The African Commission on Human and Peoples’ Rights, states involved in litigation before the African Commission or states whose citizens have been victims of human rights violations or intergovernmental may submit cases to the Court.
States which have ratified the Protocol establishing the African Court may deposit a declaration to the effect that they recognize the Court’s jurisdiction in individual cases. If a state has made this declaration, individuals may initiate a case against this state alleging that it has failed to comply with the African Charter or other human rights instruments applicable in Africa. To date, six member states of the African Union have deposited the declaration allowing individual applications.
Structure and Organisation
The African Court has its seat in Arusha, Tanzania; it comprises of 11 judges. The judges are elected for a term of six years, which may be renewed once. Apart from the President of the Court, who is based in Arusha, judges serve on a part time basis. The African Court has four ordinary sessions per year, which last for two weeks. In addition to this, extra-ordinary session may be scheduled.
The judges are supported by the Registry, which provides administrative support, conducts legal research as requested etc. 

Protocol 15 to the ECHR

· ·

On 16 May 2013, the Committee of Ministers of the Council of Europe has adopted Protocol 15 to the European Convention on Human Rights. The Protocol is now open for signature by the Council of Europe member states and will enter into force once all member states have acceded to it.
Background
(Draft) Protocol 15 to the ECHR was drafted following the adoption of the Brighton Declaration. The Brighton Declaration was the result of a number of events – notably three high-level conferences held in Interlaken, Izmir and Brighton – conducted to discuss the challenges facing the Court. Important topics addressed were, inter alia, 

  • the inundation of the Court with applications concerning very similar cases, caused by the reluctance of some member states to undertake structural reforms aimed at ensuring the effective enjoyment of Convention rights;
  • related to this, the duration of proceedings before the ECtHR
  • the quality and consistency of the Court’s jurisdiction and the qualification of the judges elected onto the Court


Protocol 15 is to implement some (but not all) of the measures proposed in the Brighton Declaration to target these problems. While the Brighton Declaration has been criticized for various reasons  (as its alleged failure to address the root causes jeopardizing the European human rights system), the amendments contained in Protocol 15 are widely regarded as ‘technical’ and ‘uncontroversial’
Amendments
The protocol will change some aspects of the procedure before the ECtHR, entrenches the principles of subsidiarity and the ‘margin of appreciation doctrine’ in the Convention and abolishes the compulsory retirement age of 70 years for judges. 

 – Procedural amendments

Time limit
The protocol contains some amendments to the procedure before the European Court of Human Rights. The time period for submission of applications to the Court is shortened. Currently, applications have to be submitted within 6 months, starting with the date of the last decision on an effective legal remedy. The amending protocol sets out that article 34 of the Convention will changed to the effect that it lays down a time limit of four months.

Rejection due to lack of significant damage
The possibility to reject applications is broadened. Currently, article 35 provides that applications are declared inadmissible, if the applicant has not suffered a significant damage. Yet an exception applies in cases in which domestic courts have not duly considered the case. Protocol  15 abolishes this exception, i.e. even cases which have not been given due consideration on a domestic level may now be rejected as inadmissible if the applicant has not suffered significant damage.
No possibility for the parties to object relinquishment in favor of the Grand Chamber
Article 30 ECHR provides that cases may be relinquished in favor of the Grand Chamber,
  • if the case gives rise to an important question  regarding the interpretation of the Convention orone of its protocols
  • if the Chamber competent for the case is considering to deviate from the jurisdiction of the Court

Currently, this is subject to the condition that none of the parties objects. The amending protocol will abolish this requirement. This amendment will expedite the procedure by removing one procedural step and add to the consistency of the Court’s case law by ensuring referral to the Grand Chamber in case a change of jurisdiction is considered. In line with this change, the Court has announced to change Rule 72 of the Rule of Court, which deals with the relinquishment of jurisdiction.
 – Margin of appreciation and principle of subsidiarity
Protocol 15 will include a reference to the margin of appreciation in article 1 of the Convention. When the suggestion to include this principle expressly in the ECHR was tabled during the discussion preceding the ‘Brighton declaration’ , it met with different kinds of misgivings. Critics – notably from the NGO community – feared that the notion ‘margin of appreciation’ might be misused to dilute the control the Court exercised over member states and give them more room to maneuver. 

The language finally chosen met with approval by the Parliamentary Assembly of the Council of Europe as well as ultimately the Court itself, which stated that

The principle of subsidiarity, is in line with long-standing jurisdiction of the Court. The Court has welcomed the language contained in the Protocol as ‘reflecting the Court’s pronouncement on the principle’.
Change of retirement age

 – Retirement age of judges
The compulsory retirement age of 70 years is abolished and at the same time a new rule introduced that candidates put forward as judges have to be less than 65 years old. In view of the nine years’ term judges are serving, the retirement age is thus 74.

Clear regulation of requirements for assisted suicide under article 8 ECHR – Gross v Switzerland

· ·

In Gross v Switzerland, the European Court of Human Rights has once again dealt with an application alleging that article 8 ECHR implied a right to an assisted suicide. 

The question, whether the right to private life also embraces the right of an individual to end one’s own life has already been brought before the Court before. In Pretty v UK, the applicant was a woman suffering from a terminal disease. At the final stage, this disease was to paralyze muscles of her breathing system, causing her to die of asphyxiation. Since she considered this a painful and undignified death, she sought to put an end to her life. Being physically unable to do so, she had requested an undertaking from the prosecution service that her husband was not going to be criminally prosecuted for assisting her to commit suicide. The prosecution service refused to give the desired undertaking. 

The applicant claimed that the right to private life under article 8 ECHR encompassed a right to end one’s life and that the refusal of the British authorities to give the requested undertaking violated amounted to a violation of this right. The Court pointed out that autonomy is an underlying concept of article 8. It was not prepared to rule out that the fact, that the British legal framework made it impossible for the applicant to end her life constituted an interference with the right to private life. Yet it held that the interference was justified pursuant to article 8 paragraph 2. The legal provisions prohibiting assisted suicide sought to protect the interests of weak or vulnerable persons, which was necessary to safeguard the supremely important right to life. Therefore the Court did not find a violation of article 8 ECHR.

In Haas v Switzerland, the ECtHR did not find a violation of article 8 ECHR either. The applicant had been suffering from a psychiatric disease for more than 20 years.  He wished to end his life. To this end, he requested to be provided with a lethal dose of sodium pentobarbital, which would ensure a death without suffering. In Switzerland, this substance is (in accordance with international agreements Switzerland is party to) available only upon prescription. The applicant had been unable to obtain a prescription and complained that the regulation preventing him from procuring sodium pentobarbital infringed on his right to private life under article 8 ECHR.

The European Court of Human Rights distinguished the case from Pretty v UK. It stated that, other than the applicant in Pretty v UK, the applicant did not suffer from a terminal disease. Also, he did not ask for an assisted suicide without criminal prosecution of the assisting persons. Rather, he alleged that Switzerland was under an obligation to provide him with a lethal dose of the requested substance.  The Court rejected this argument. It referred to Switzerland’s obligation to make sodium pentobarbital available only upon prescription. Also, it pointed out that there was no consensus among Council of Europe member states to the effect that states were to facilitate suicides. Considering the margin of appreciation which contracting states of the ECHR enjoyed, the Court did not find Switzerland in violation of article 8 ECHR.

The case of Gross v Switzerland concerned a similar request. The applicant was born in 1931; while she did not suffer from any terminal disease, her state of health had deteriorated over the years and she had become increasingly frail. She was unable to take long walks and every change of environment frightened her. Since she felt that her life had become more and more monotonous and distressful over the years, she had developed a strong wish to die. Following a suicide attempt she had undergone psychiatric treatment, which had not changed her wish to put an end to her life, though. She was in possession of an expert statement by a psychiatrist confirming that she was fully able to form her own judgment.

She requested from several medical practitioners to be provided with a lethal dose of sodium pentobarbital, which would enable her to commit suicide in a painless fashion. The medical doctors she approached declined her request for ethical reasons or for fear of criminal prosecution.  

Having been turned down by private practitioners, the applicant applied to the health board, a Swiss public entity concerned with health issues, and asked to be provided with sodium pentobarbital.  Her request was rejected. She challenged this decision before Swiss courts. 

The Federal Supreme Court of Switzerland held in last instance that the refusal to make sodium pentobarbital  available to the applicant was lawful. It referred to the judgment the European Court of Human Rights had rendered in Pretty v UK and pointed out that article 8 ECHR did not entail a positive obligation for states to enable citizens to commit suicide.  The Swiss Federal Supreme Court underlined that the requirement of a prescription to obtain sodium pentobarbital  was necessary, because it  prevented individuals from hasty and not well thought-through decisions.

The applicant contended that denying her sodium pentobarbital, which prevented her from committing suicide and a painless and reliable manner, infringed upon her right to private life under article 8 ECHR.
Under Swiss law, assisting in a suicide or inciting to suicide is a criminal offence only if it performed for selfish reasons. According to the case law of the Swiss  Federal Supreme Court,  medical doctors are not prosecuted or held criminally responsible for procuring sodium pentobarbital if they observe certain conditions. The Federal Supreme Court infers these conditions from guidelines issued by an NGO. These guidelines state that doctors may issue a prescription for sodium pentobarbital for patients suffering from a disease which will, according to experience, lead to death

The European Court of Human Rights scrutinized her request from the perspective of positive obligations arising from article 8.  It underlined that the right to autonomy and self-determination was an underlying principle of the right to private life under article 8 ECHR.

It pointed out that the Swiss Federal Supreme Court referred in its jurisdictions to guidelines which had been produce by non-state actors and did not have the quality of a law. It also stated, that these guidelines established a requirement for the prescription of sodium pentobarbital which was not reflected in Swiss law, namely the requirement that patients have a terminal disease. The Court concluded that this was an element of uncertainty, which might well deter medical doctors from issuing prescriptions for sodium pentobarbital;  two doctors had refused to issue the prescription.   

The uncertain situation as to the conditions subject to which medical doctors could issue prescriptions was, according to the Court, likely to cause anguish and insecurity for citizens considering to  put an end to her life. Therefore, the Court found that Switzerland had violated its positive obligation to provide clear guidelines for issuing prescriptions for sodium pentobarbital; it found a violation of article 8.
Anyway, the Court did not rule that the right to private life entails a right to an assisted suicide.

Panteliou-Darne and Blantzouka v Greece

· ·

In Panteliou-Darne and Blantzouka v Greece, the European Court on Human Rights has elaborated on the protection which entitlements or receivables enjoy under article 1 of Protocol 1 to theEuropean Convention on Human Rights.

The applicants were former air hostesses, who had worked for the then state owned air company Olympic Airlines. In this position, they were considered public servants.  Greek law provided that public servants with children were entitled to a family allowance under certain conditions. Yet an exception applied to such employees, whose spouse was employed in the public sector as well.

The applicants had children in 1986 and 1996. Since their respective husbands worked in the public sector, they did not receive family allowances in compliance with the aforementioned regulation. Although their pay-slips contained a clause inviting employees to raise objections against the calculation of their salaries if they deemed that it was erroneous, the applicants never questioned the correctness of their remuneration.
In 2001, they filed a civil action against their employer demanding payments of the family allowances starting from the birth of their respective children. Briefly after the submission of the law suit, the Greek Supreme Court declared the provisions which excluded public servants, whose spouses worked in the public sector from the entitlement to a family allowance unconstitutional. Despite this decision, the Greek courts rejected the applicants’ claim. Relying on a provision of the Greek civil code according to which exercising a right was prohibited if it is not exercised in good faith or exercising the right is clearly not in accordance with the social or economic objective of the entitlement, they held that the applicants’ claim amounted to an abuse of law.

The applicants contended that the rejection of their claim violated their right to property under article 1 of Protocol 1 to the ECHR. They stated that they had not complained about the calculation of their salaries earlier because they had not been aware that their statutory exclusion from the family allowance had been illegitimate. In view of the balance, which the European Court of Human Rights strikes between the interests of the general public and the interests of the individual when assessing the justification of an interference with the right to property, they advanced that the sums they claimed were too small to touch upon public interests.

The European Court of Human Rights examined whether the ruling of the Greek courts to reject the applicants’ claim interfered with the applicants’ right to peaceful enjoyment of possessions pursuant to article 1 of Protocol 1 to the ECHR. It reiterated its long standing jurisdiction that entitlements, rights or legitimate expectations fall within the scope of the right to property if they have a sufficient basis in domestic law.
Since all Greek courts concerned with the matter had recognized that the applicants had in principle been entitled to the family allowance, the ECtHR concluded that the claim of the applicants satisfied this requirement and was thus protected by the right to property. Consequently, the denial of the claim had interfered with the right to property.

The Court went on to examine whether this interference had been justified. Satisfied that the interference had been based on a law and pursued a legitimate aim, the ECtHR reiterated that article 1 of Protocol 1 to the ECHR required that a fair balance be struck between the interests of the individual and the interests of the public at large. This implies that the measure taken has to be in reasonable proportion to the aim pursued.
In accordance with its long standing jurisdiction, the Court pointed out that the contracting states enjoy a wide margin of appreciation in the economic and social sphere. It also stressed that it is chiefly for the authorities and courts of the member states to interpret their domestic law and that the ECtHR examines the application of domestic law only with view to their compliance with the European Convention on Human Rights.

The Court stated that all Greek courts concerned with the matter had recognized that the entitlement claimed by the applicants existed in principle, but could not be exercised because the applicants had failed to do so for such a long time. It rejected the argument that the applicants had been unable to complain about their being denied a family allowance earlier since they had been unaware of this right pointing to the fact that numerous other employees of Olympic Airlines had put their demands on record earlier. The ECtHR stated that the procedure followed by Greek courts had given the applicants sufficient opportunity to advance their arguments. With respect to the aim pursued, the Court referred to the economic consequences a ruling in favor of the applicants could have had for Olympic Airlines. The applicants had demanded approximately 14.700 Euros. If similar sums were to be granted to all former employees of Olympic Airlines, this might have had grave repercussions for the air company. On the basis of these considerations, the Court found that the measure had been proportionate to the aim pursued. It ruled that there had been no violation of the right to property.