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Koch v Germany

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In Koch v. Germany, the European Court of Human Rights again has ruled on an application regarding an alleged right to assisted suicide. 
The Court elaborated on some procedural implications of article 8 in cases in which domestic courts are faced with requests to facilitate a suicide. It also stated, as it had already held in the cases Pretty v UK and Haas v Switzerland, that the right to private life under article 8 ECHR does not entail an obligation for states to assist citizens seeking to commit suicide.

Facts
The applicant was the widower of a woman who had been almost completely paralysed and in need of constant care since 2002. Since she wished to put an end to her life, which she perceived as undignified and requested from the Federal Institute for Drugs and Medical Devices to be provided with a lethal dosis of a certain substance. The Institute turned this request down, arguing inter alia that article 8 ECHR, on which the wife of the applicant had relied, did not encompass a right to assisted suicide.
The wife of the applicant lodge an appeal against this decision. Before this appeal was decided upon, she had herself transported more than 700 km to Switzerland, where she committed suicide with the help of the Swiss organization ‘Dignitas’ (an organization advocating for a self-determined and dignified death).
After her death, the Federal Institute for Drugs and Medical Devices rejected her appeal. The applicant as her widower filed an action with the Cologne Administrative Court. He asked the court to rule that the refusal to procure the requested substance to his late wife had been unlawful.
The Administrative Court ruled that the action was inadmissible, because the applicant could not claim that his own rights had been violated and therefore had no standing. It did not deal with the merits, but briefly mentioned in a so called ‘obiter dictum’, that means in a remark that does not form part of the ruling by the Court that the right to private life and family life under article 8 of the European Convention on Human Rights did not encompass a right to an assisted suicide.
The applicant appealed against the judgment without success and submitted an application to the Constitutional Court. In both cases, the Courts found the action inadmissible and did not enter into an examination of the merits of the case.
Judgment
The applicant claimed that his rights to private life and family life had been infringed in two ways: First by the refusal of the German Courts to examine the merits of the action he had submitted, second by the failure to provide his wife with the requested substance to commit suicide.
At the outset, the European Court of Human Rights scrutinized whether the applicant’s rights had been interfered with. Pursuant to article 34 of the Convention, only individuals who are personally affected may submit an application to the Court. Since the applicant’s wife had been the one seeking to put an end to her life, the question arose whether the applicant had been affected in his own rights.
In its jurisdiction, the Court has developed criteria to determine whether close relatives may proceed with a procedure pending before the Court in cases in which the actual victim dies during the procedure. The Court stated that these criteria also were relevant to the question whether rights of the applicant had been interfered with. These criteria are 
  • the existence of close family ties
  • the existence of a personal or legal interest
  • whether the applicant previously expressed interest in the procedure

Since the applicant and his wife had been married for a long time, had had a very close personal relationship with her and had accompanied her over the entire period of her suffering, the Court found that the applicant had been affected personally by the refusal of the Federal Institute for Drugs and Medical Devices to provide the requested substance. 
The Court also stated that the refusal of the German courts to examine the merits of the case had interfered with the applicant’s right to private life under article 8. Even though the European Court of Human Rights had never held that article 8 ECHR encompassed a right to assisted suicide, there was still a right to a judicial review of the legal question.
Having established that there was an interference, the Court turned to the question whether this interference had been justified. It found that this refusal had served no legitimate aim as required by article 8 paragraph 2 ECHR. Therefore, held Germany in violation of article 8 ECHR.
The European Court then briefly dealt with the question whether article 8 ECHR granted a right to receive assistance for a suicide in certain cases. As in prior decision, it pointed out that contracting states of the European Convention on Human Rights enjoy a wide margin of appreciation in this area. The decision whether to grant a right to an assisted suicide is largely up to the member states. Therefore, refusing to grant it does not amount to an infringement of the European Convention on Human Rights. 

Effective investigation of rape allegations – Tyagunova v Russia

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In Tyagunova v Russia, the European Court of Human Rights (ECtHR) has scrutinized an investigation of rape allegations in Russia. The Court reiterated its jurisdiction that article 3 and article 8 of the Convention entail a positive obligation to carry out an effective investigation.
Facts
The applicant had attended a small party together with colleagues. On the following day, she reported to the Public Prosecutor’s Office that she had been raped and robbed. According to her account, she had been stopped on her way home from the party by a group of men. These men had threatened her with a knife and raped her. Then they had taken her to a private apartment. In the apartment, there had been a man and a teenage girl. The man had forced her to spend the night in the flat. After she had finally been allowed to leave the flat, she noticed that the jewelry she had worn had disappeared.
The applicant reported the case to the Public Prosecutor’s Office in June 2005. According to Russian law, upon notice of a crime a preliminary investigation is conducted in order to establish whether there are sufficient reasons to start a criminal investigation. In case the perpetrator cannot be identified, the case may be closed. This preliminary investigation is carried out by an investigator. The decision of the investigator as to whether to initiate a criminal procedure or dismiss the case has to be confirmed by the prosecutor.
The investigator questioned the applicant, the man who had taken her to the flat and the applicant’s colleague. He also ordered a medical examination of the applicant. The expert concluded that there were no signs of rape. The investigator dismissed the case due to contradictions in the applicant’s statement, the medical expertise and the fact that the suspect who had been questioned denied the allegations.
The prosecutor quashed the decision to dismiss the case and ordered further investigations. Shortly after, the investigator dismissed the case again. The prosecutor quashed the decision and ordered additional investigations.
The case was dismissed and re-opened several times. In the course of the investigations it turned out that there were traces of sperm on the clothes which the applicant had worn during the night in question. 
However, when the applicant requested a genetic examination, she was informed by the investigator handling the case that the traces had been destroyed during forensic testing.
Finally, the case was dismissed by final decision as far as the rape charges were involved in May 2008.
However, one of the suspects was charged with robbery of the applicant’s jewelry. He pleaded guilty. 
During the trial, the teenage girl, who had been in the flat in which the applicant had been kept for one night, was a witness. She stated that the applicant had been upset and in tears and that she had worn her jeans inside out. She also stated that she realized that the applicant could have been raped. During the investigation, she had never been questioned as a witness.
Assessment by the Court
The European Court of Human Rights scrutinized the facts in light of article 3 ECHR (prohibition of torture) and article 8 ECHR (right to private life and family life) at the same time.
At the outset, the Court summed up the principles regarding the positive obligations to investigate rape allegations which it had set out in M.C v Bulgaria: States are under an obligation to take measures to ensure that persons under their jurisdiction are not ill-treated. As part of this obligation, states have to enact criminal law provisions stipulating adequate punishment for rape and other grave acts affecting the right to private life. 
If there is a suspicion that such a crime has been committed, states which have acceded to the ECHR are obliged to carry out an effective investigation. This obligation may also exist in cases in which state agents have not been involved, because the Convention does not only apply between individuals and states, but to a certain extent also between individuals. However, the scope of positive obligations entailed by the ECHR may differ depending on whether the relationship between individuals is at stake or a state agent is involved.
The Court then applied these principles to the facts of the case: It reiterated that the obligation to conduct an effective investigation is an obligation of means, not of result. This means, for purposes of the ECHR  an investigation is not considered ineffective because it did not yield results. What is important is that steps have been taken which were in principle apt to lead to the identification of the perpetrator. The authorities have to react promptly and available means of evidence such as witness testimony, documents or forensic evidence have to be secured.
The Court pointed out, that the investigation of the rape allegations had not met these requirements: The teenage girl, who had clearly been a possible witness, had never been questioned. While DNA evidence had been found, it had not been analysed. Furthermore, no identity parade for identification of suspects had been conducted.
Due to these shortcoming, the European Court of Human Rights found that Russia as the respondent state had breached its obligation to carry out an effective investigation. The Court found a violation of article 3 and article 8 ECHR.

The length of proceedings in the jurisdiction of the European Court of Human Rights

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I have put online a little article on ‘The length of proceedings in the jurisdiction of the European Court of Human Rights’.  
In summary:  Pursuant to article 6 para 1 ECHR, everybody is entitled to a trial within reasonable time. The European Court of Human Rights assesses whether the duration of proceedings has been reasonable considering all circumstances of the case.  
When making this assessment, it undertakes two steps:
  • First, it establishes the period to be considered by ascertaining the starting point and the closing point of the proceedings in question.  The starting point is not necessarily the moment when the procedure is considered as initiated under the domestic law in the respondent state, because the Court assesses this autonomously for the purposes of the Convention. The same holds true for the point of time when the procedure is considered finalized.

  • Once the ECtHR has established the time period to be taken into account, it assesses whether it is reasonable. 

To this end, it applies four criteria:


  • The complexity of the case
  •   The conduct of the applicant
  • The conduct of the respondent state
  • What is at stake for the applicant

The complexity of the case is determined by factors such as the number of documents to be reviewed, the numbers of witnesses, the numbAer of experts to be examined, the difficulty of the legal questions to be decided.
When scrutinizing the conduct of the applicant, the Court has regard to whether the applicant caused delays by asking for postponements of sessions or extensions of deadlines,  whether he delivered necessary documents and followed summonses.
With regard to the conduct of the respondent state, the Court examines if the state has met its obligation to facilitate a speedy trial.  Particular attention is paid to phases in which the proceedings effectively rested and no action was undertaken. Each signatory state to the ECHR is obliged to organize it judicial system in a way which ensures that proceedings can be conducted within reasonable time.
Finally, the Court considers what is at stake for the applicant. It has held that there are matters which call for expedition, such as disputes regarding child custody, pension rights or labor disputes.

Search and seizure in a law office – Robathin v Austria

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In Robathin v Austria, the European Court of Human Rights (ECtHR) scrutinized a search and seizure in a law office in light of article 8 of the European Convention on Human Rights.
The applicant was an Austrian lawyer based in Vienna. In 2005, the prosecution conducted an investigation against him on suspicion of grave theft, fraud and embezzlement (later on, the investigation led to an indictment and a trial, but the applicant was finally acquitted of all charges).
In the course of the investigation, an investigative judge issued a warrant for the search of the applicant’s law office and the seizure of documents, personal computers, bank documents, saving books, deeds and will in favor of the applicant and of all files related to Mr R and Mr G.
During the search, the applicant, his defense lawyer and a representative of the bar association were present. The presence of the latter was required according to Austrian law, because the defendant was a lawyer.
The police officers, who conducted the search, copied all files from the applicant’s computer to discs. Upon a request by the representative of the bar association, they stored the files regarding Mr R and Mr G (which were expressly mentioned in the search-and-seizure warrant) on a separate disc.
Since the applicant objected to the data being scrutinized, pursuant to Austrian law a court had to decide whether the files which had been copied could be read by the investigating authorities. The Court approved the screening of all the data – not only the electronic files related to Mr R and Mr G. In the reasoning for this decision, the Court repeated the reasons which had already been given in the search warrant. It stated that the files had been seized in the course of an investigative procedure against the applicant and that the applicant’s duty to confidentiality did not play a role in an investigation targeting the lawyer himself.
The applicant filed an application with the European Court of Human Rights (ECtHR) relying on article 8 ECHR, which protects the right to respect for private life, family life, home and correspondence.
The ECtHR followed the approach it usually takes when dealing with cases involving article 8 ECHR: In a first step, it examined whether there as an interference with one of the rights protected by article 8 ECHR. In the second step, it scrutinized whether the interference had been justified pursuant to article 8 paragraph 2 ECHR.
The Court stated that the search and seizure in the office of the applicant amounted to an interference with the applicant’s rights under article 8 ECHR.
It then turned to the question whether requirements of article 8 paragraph 2 had been met. Pursuant to this provision, an interference with rights enshrined in article 8 paragraph 1 is justified if it is in accordance with the law, serves a legitimate aim and is necessary in a democratic society.
The European Court of Human Rights pointed out that the Austrian Criminal Procedure Code does not contain any provision expressly governing the search and seizure of electronic data; however, according to the standing jurisdiction of Austrian courts, the provisions regarding the seizure of objects and documents are applied to the seizure of electronic files. The European Court of Human Rights stated that the circumstances in which electronic files can be seized are specified in the jurisdiction of Austrian courts in a sufficient manner. Therefore it concluded that there had been a legal basis for the seizure.
The Court stated that the seizure had served a legitimate purpose, namely the fight against crime.
Subsequently, the Court turned to the question whether the search and seizure had been ‘necessary in a democratic society’. When scrutinizing this, the ECtHR establishes whether there are sufficient safeguards against arbitrary actions by the authorities, for example whether the search and seizure is based on a decision by a judge, whether there was a reasonable suspicion and whether the scope and purpose of the search are sufficiently clear. In case of the search of a law office, the ECtHR also scrutinizes whether an independent observer is present who ensure that privileged information is safeguarded.
The European Court of Human Rights pointed out that the search warrant was sufficiently precise regarding the suspicion against the applicant. It contained details on the alleged offences, the time when they allegedly took place and the damage allegedly caused.
However, the Court also stated that the scope and purpose of the warrant had been very broad, since it referred to documents, saving books, wills etc. In order to counterbalance this wide scope, safeguards were required. The ECtHR made clear that safeguards had indeed been in place: A list of all seized items and documents had been compiled, a representative of the bar association had been present during the search and the applicant had had the opportunity to have a court scrutinize whether the examination of the seized electronic data was permissible.
However, the European Court of Human Rights stated that this scrutiny by a court had not been an effective safeguard, because the Austrian court had only given very short, general reasons for its ruling. It had not dealt with the question at all, why it had not been sufficient to scrutinize only the electronic files regarding G. and R. (the persons who had been referred to in the warrant).
For this reason, the ECtHR was unable to examine whether the scrutiny of all electronic files had been proportionate to the aim pursued. Therefore, it considered the search and seizure not ‘necessary in a democratic society’ and found a violation of article 8 ECHR.

Balancing freedom of expression against the right to private life – Kurier Zeitungsverlag v. Austria

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In Kurier Zeitungsverlag und Druckerei GmbH  v. Austria, the European Court of Human Rights has reiterated its jurisdiction on the balance between the right to respect for private life under article 8 ECHR on the one hand the right to freedom of expression (article 10 ECHR)  on the other hand.

The applicant was a publishing house which published the ‘Kurier’, a widespread Austrian daily newspaper. 

It had been convicted to pay compensation on the basis of the ‘Austrian media act’ on account of the reporting of the ‘Kurier’ on a law suit regarding custody of a child and the ensuing enforcement proceedings. The applicant claimed that this conviction amounted to an infringement of its right to freedom of expression.

The Austrian media act foresees that media can be liable to pay compensation in case they discuss or present a person’s strictly private life in public in a way which is apt to compromise this person. Compensation cannot be granted if the publication is true and has a direct connection to public life.

The ‘Kurier’ published three articles on a lawsuit and enforcement proceedings regarding the custody of a child. Following the divorce of a couple with two children, the parents had agreed that the mother should have custody for one child, the father for the other one. Shortly after, the father requested to be granted custody for his other son, Christian, too. The parents agreed that Christian should stay with his father until the request was decided upon. Contrary to the agreement, the father moved to Sweden with both of the children. A Court issued in injunction that Christian be returned to his mother. Later on, Austrian courts decided by final decision that the mother should have custody of Christian.

However, the father failed to comply with the order to hand Christian over to his mother. The authorities undertook without success several attempts to enforce the ruling of the Austrian court. On one occasion, the boy barricaded himself in a school. On another occasion, bailiffs found him in a car in front of his home, but he resisted their attempts to take him with them.

The applicant’s newspaper reported about these events in three articles. Inter alia, the articles criticized the fashion in which the authorities tried to enforce the decision on custody. Journalists received regular information on the state of affairs from Christian’s father. In one article, the ‘Kurier’ showed a picture of Christian crying and in a state of distress while trying to fight off bailiffs in front of his school. The article also stated the boy’s full name and gave details as to his whereabouts.

Represented by his mother, Christian filed a law suit on the basis of the media act. Austrian courts ruled in his favor and ultimately granted compensation in the amount of 9.000 Euros. The applicant claimed that this amounted to a violation of the right to freedom of expression under article 10 ECHR.

The European Court of Human Rights stated that the conviction was an interference with the rights enshrined in article 10 paragraph 1 of the Convention. It went on to scrutinize whether this interference had been justified pursuant to article 10 paragraph 2 ECHR. There was no doubt that the interference had been based on a law and had been imposed to serve a legitimate aim, namely the protection of the reputation of others.

The only issue in question was whether the interference had been necessary in a democratic society. The Court reiterated its long-standing jurisdiction that the term ‘necessary in a  democratic society implied that the measure had corresponded to a ‘pressing social need’. It underscored the importance of a free press in a democratic society, but underlined that the right to freedom of expression had to be weighed against the right to respect for private life.

The Court pointed out that it had to be considered if the person who had been subjected to reporting had entered the public scene already. Public figures have to tolerate further going interferences with their right to private life than people who are not in the public arena. In this respect, the  Court noted that Christian had not entered the public scene and had not become one on account of proceedings regarding his custody either.

The European Court of Human Rights also stated that publications which contribute to a debate of some public interest enjoy a stronger protection than publications which are merely to satisfy curiosity or to entertain readers. While the Court acknowledged that the publications contributed to a debate on a matter of public concern, namely enforcement proceedings in child custody cases, it stated that the disclosure of Christian’s identity had not been necessary to understand this debate.

It also underpinned that pictures fall into the scope of the right to private life under article 8 ECHR. Since the publication of a photo is a grave interference with article 8 para 1, the margin of appreciation granted to the member states in this area is small.

Finally, the Court held that the amount of compensation Austrian courts had convicted the applicant company to pay was not excessive and not likely to have a chilling effect on the freedom of expression. Consequently, the European Court of Human Rights did not find a violation of the applicant’s rights under article 10 ECHR.