ANNUAL REPORT
European Court of Human Rights
2017
PROVISIONAL VERSION
2017
ANNUAL REPORT
European Court of Human Rights
PROVISIONAL VERSION
of Human Rights, 2018
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FOREWORD 7
SPEECHES 11
Guido Raimondi 11
Judge Silvia Fernández de Gurmendi 19
OVERVIEW OF THE COURT’S CASE-LAW 25
Jurisdiction and admissibility 28
“Core” rights 33
Procedural rights 52
Others rights and freedoms 75
Other Convention provisions 127
SUPERIOR COURTS NETWORK 139
BRINGING THE CONVENTION HOME 143
Dissemination of the Court’s case-law 144
Training of legal professionals 149
General outreach 150
Appendix 152
JUDICIAL ACTIVITIES 155
Grand Chamber 155
Sections 156
Single-judge formation 156
Composition of the Court 157
Composition of the Sections 159
The Plenary Court 162
STATISTICS 165
Events (2016-17) 165
Pending cases at 31 December 2017 (by respondent State) 166 Pending cases at 31 December 2017 (main respondent States) 167 Court’s workload by state of proceedings and application type at
31 December 2017 168
Violations by subject matter (2017) 169
Applications allocated to a judicial formation (2002-17) 170
Judgments (2002-17) 171
Allocated applications by State and by population (2014-17) 172 Violations by Article and by respondent State (2017) 174 Violations by Article and by respondent State (1959-2017) 176
THE YEAR IN PICTURES 179
Foreword
T
he Court’s work in 2017 testifies to the fact that, more than ever, the subsidiary nature of the machinery of the European Convention on Human Rights remains the key to the system’s success. The very large number of cases contributing to the Court’s excessive caseload, whether relating to detention conditions and prison overcrowding or to non-enforcement of judicial decisions, shows that it is primarily at domestic level that an effective remedy is required for human rights violations.Although the authorities of the countries concerned are adopting action plans and drawing up new legislation, this all takes time, and the Burmych and Others1 judgment delivered in 2017 is particularly important in this regard. It concerns the prolonged non-enforcement of final judicial decisions raising similar issues to those examined in the pilot judgment in Yuriy Nikolayevich Ivanov v. Ukraine2, which noted the existence of a structural problem. By dealing with individual cases, the Court was constantly attracting new applications and was not resolving the situation. It therefore decided to strike these cases out of its list and to transmit them to the Committee of Ministers in its capacity as the body responsible for overseeing redress and justice for all the victims affected by the systemic problem found in the pilot judgment, as part of the general measures for the execution of that judgment. In view of the fact that the interests of the existing or potential victims of the systemic problem in question were more appropriately protected in the execution process, the Court found that the aims of the Convention were not best served if it continued to deal with cases of this kind.
Once the Court’s work is done, it is for the other protagonists in the system – the Committee of Ministers and the State concerned – to fulfil their obligations. This is therefore a good example of the collective enforcement established by the European Convention on Human Rights. The judgment is an illustration of shared responsibility and, by proceeding in this way, the Court has called upon the State concerned and the Committee of Ministers to assume their responsibilities. Since the
1. Burmych and Others v. Ukraine (striking out) [GC], 46852/13 et al., 12 October 2017.
2. Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009.
machinery of the European Convention on Human Rights is subsidiary in nature, this means that the problem must first be addressed at domestic level. What really lies at the heart of this judgment, and indeed many others, is subsidiarity.
2017 was also marked by a flood of applications directly linked to the measures taken following the attempted coup in Turkey. Most of these applications were lodged by individuals who had been taken into custody, in particular journalists and judges. Since the onset of this crisis, the Court has taken the view that the subsidiarity principle must be fully observed and that applicants must exhaust domestic remedies before bringing their application. As a result, more than 27,000 applications lodged in this context have been declared inadmissible for failure to exhaust domestic remedies, either because there had been no appeal to the Constitutional Court or because the remedy of a complaint to the ad hoc commission set up in January 2017 had not been attempted. This was not understood by everyone, but subsidiarity is the cornerstone of our system and requires domestic remedies to be exhausted. Such remedies must, however, be effective, one relevant factor being the length of the proceedings. Time will tell whether the remedy in question satisfies this criterion.
The most significant challenge currently facing the Court is undoubtedly posed by the 26,000 outstanding Chamber cases, including approximately 6,000 non-repetitive priority cases. It is essential for the Court to be able to devote sufficient time to these cases, which are often the most important and complex ones.
It is also worth noting that in 2017 there was increasingly frequent recourse to the Committee procedure, particularly for repetitive cases.
Committees are able to deal with cases more quickly, on the basis of the Court’s well-established case-law.
One major development in 2017 was indisputably the provision of reasons for single-judge decisions. Having been announced and postponed on a number of occasions, it featured among the requests made to the Court at the Brussels Conference. Although this has entailed a considerable workload for the Court, it meets an entirely legitimate expectation on the part of applicants, who should be in a position to understand the reasons why their application has been rejected.
As regards the Court’s external relations, ties were strengthened in 2017 with the Court of Justice of the European Union in Luxembourg, in particular through a visit from a substantial delegation of members of that court. The close and regular dialogue that has developed with the Luxembourg Court is extremely important.
The network for the exchange of information on the case-law of the Convention has grown significantly during 2017, and now counts sixty- four Superior Courts from thirty-four countries among its members.
These figures are certainly impressive and a reflection of the success of this initiative.
In addition, a number of Superior Courts have visited the Court for bilateral meetings, highlighting our close relations. We have received delegations from the French Conseil d’État, the Belgian Conseil d’État, the Netherlands Supreme Court, the Swiss Federal Court and the Italian High Council of the Judiciary. Beyond Europe’s frontiers, I would also mention the visit of a delegation from the Brazilian Supreme Court.
Other international courts with which we have had exchanges in 2017 include the Inter-American Court of Human Rights and, for the first time, the Court of Arbitration for Sport, which sent a delegation to visit us in July.
We can only welcome the fact that increasing numbers of international leaders are visiting the Court. This shows the importance they attach to our institution. In 2017 we received the Presidents of Romania, Cyprus and Greece and the Prime Ministers of the Republic of Moldova, Montenegro and Slovakia. By coming to the Court, these leading European political figures are expressing their commitment to it.
The high point of this year was without a doubt the visit to the Court by the President of France, Emmanuel Macron, who gave a landmark speech here. In declaring that “Europe should take pride in having created a supranational body with responsibility for ensuring compliance with human rights” and that the Court was “an institution that we must bequeath intact to subsequent generations”, he gave strong backing to our institution.
We can only agree with his conclusion that this is a relentless struggle.
But with support of this kind, we feel ready to face up to it.
No doubt because, as President Macron noted at the start of his speech, we, as judges of the Court, work passionately to serve 830 million Europeans belonging to the nations that have ratified the European Convention on Human Rights, and we are committed to this task.
Guido Raimondi
President of the European Court of Human Rights
Speeches
GUIDO RAIMONDI
President of the European Court of Human Rights, opening of the judicial year, 27 January 2017
P
residents of Constitutional Courts and Supreme Courts, President of the Parliamentary Assembly, Secretary General of the Council of Europe, Excellencies, ladies and gentlemen,I should like to thank you, personally and on behalf of all of my colleagues, for honouring us with your presence at this solemn hearing to mark the opening of the judicial year of the European Court of Human Rights. Since we are still, for a few days yet, in the month of January, I shall follow tradition and wish you a happy and successful year in 2017.
New judges joined us in the course of 2016, and I welcome them most particularly, since they are taking part in this solemn hearing for the first time as judges of the Court.
As is usual on this occasion, I shall begin by providing some statistical information about our Court’s activity.
In 2016 the Court ruled in more than 38,000 cases. At the end of 2015 there were some 65,000 applications pending. This figure rose to 80,000 at the end of 2016, which represents an increase of 23%.
After a two-year reduction in the number of incoming cases, in 2016 we saw for the first time in several years a 32% increase in the number of new cases. This influx is to be explained by the situation in three coun- tries: Hungary, Romania and Turkey.
Firstly, with regard to Hungary and Romania, for which the number of cases increased by 95% and 108% respectively in 2016, these essentially
... the rule of law is what sets Europe apart: it is one of the achievements of our civilisation, a rampart against tyranny.
concern issues related to conditions of detention. Admittedly, these are priority cases, since they come under Article 3 of the Convention, but they are repetitive cases which reflect systemic or structural difficulties and require that solutions be found at domestic level.
Yet we are all aware that no immediate miracle cure exists for these situations, either in the country concerned, for which resolving this issue implies considerable political and budgetary measures, or in Strasbourg.
In the prison field, the Court admittedly defines principles, which, moreover, were clearly set out in 2016 in Muršić v. Croatia 1. On the basis of these principles it diagnoses a given situation in a member State.
Nevertheless, and I repeat, it is at the national level that solutions must be found. This is possible, as is demonstrated by the example of Italy, for which the number of cases has been more than halved in two and a half years. This is the result of the Italian Government’s policy, firstly in response to the Torreggiani and Others v. Italy 2 pilot judgment, which concerned prison overcrowding, and secondly, with regard to the length of proceedings. This shows that where a Government has the will to resolve a situation and takes the necessary measures, the results quickly follow.
Then we come to Turkey. Recent years had seen a significant reduc- tion in the number of pending cases from that country, essentially as a result of the existence of a direct appeal to the Constitutional Court, a remedy that we had considered effective. Indeed, I welcome the pres- ence among us this evening of a large delegation from that court.
Since last July’s tragic attempted coup d’état, Turkey has climbed back up to second position, with a very significant increase in the number of cases.
Whatever the follow-up that will be given to these cases, this is a striking example of the direct impact of a major political crisis in a member State on the work of our Court.
To close this point, I would note that this week’s developments in Turkey are encouraging. The creation, by legislative decree, of a commis- sion with responsibility for examining the appeals lodged in response to the decisions taken since the attempted coup d’état is an excellent initiative, particularly since a judicial appeal will lie against the decisions taken by that commission.
In any event, whatever the country concerned, it is essential to adopt specific and targeted strategies if we really wish to attack the backlog of cases.
1. Muršić v. Croatia [GC], no. 7334/13, ECHR 2016.
2. Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, 8 January 2013.
A year ago, in this same room, I was discussing the numerous chal- lenges that the Court would have to face in 2016. Little did I imagine at that point the major threats that Europe would have to confront over the year. I have already mentioned the attempted coup d’état in Turkey, but of course I am also thinking of the terrorist attacks which have con- tinued to plunge our continent into mourning, whether in Nice, Brussels, Berlin or Istanbul.
Terrorism, economic crisis, the mass arrival of migrants: Europe must square up to all of these challenges simultaneously. And as though this tragic context were not enough, an identity crisis is causing some States to turn inward, Brexit being the apogee of this trend. We are also seeing a reassessment of the rule of law. As Emmanuel Decaux has noted, the law has become “an unbearable constraint” in some quarters.
Yet the rule of law is what sets Europe apart: it is one of the achieve- ments of our civilisation, a rampart against tyranny. This is what Europe represents: a part of the world where the rules of the democratic game have been laid down, and where compliance with these rules is guaran- teed by the Constitutional and Supreme Courts.
For its part, the European Court of Human Rights has contributed for almost sixty years to establishing a community of values in Europe and, in so doing, has helped to consolidate the rule of law. It is the guarantor of a common area of protection for rights and freedoms. In doing battle with arbitrariness, it too oversees compliance with the rules of the dem- ocratic game.
The Court continued to play this role to the full in 2016, by main- taining the quality of its case-law. From this perspective, it cannot be disputed that the past year was a particularly rich one, making it all the more difficult to select the cases that I wish to refer to this evening.
I have mentioned the rule of law: it was one of its fundamental prin- ciples, the independence of the judiciary, which was at stake in the case of Baka v. Hungary 3. The applicant, Mr Baka, President of the Hungarian Supreme Court, alleged that his mandate had been prematurely termi- nated as a result of the views he had expressed publicly, in his capac- ity as President of the Supreme Court, in respect of legislative reforms affecting the courts. Our Court found in his favour, and held that there had been an interference with the exercise of his right to freedom of expression. Such a measure could not serve the aim of increasing the independence of the judiciary. Yet the independence of the judiciary remains a marker for a State governed by the rule of law.
Presidents of Constitutional Courts and Supreme Courts,
3. Baka v. Hungary [GC], no. 20261/12, ECHR 2016.
If judges end up afraid to express their opinions in the exercise of their functions, this will inevitably lead to a weakening, or even the dis- appearance, of one of the foundations of democracy.
This is what makes Baka a landmark judgment.
For several years we have been powerless spectators to the images of human beings launching themselves onto the seas and along the high- ways in an attempt to reach Europe: When Humans become Migrants, to repeat the very apt title of Marie-Bénédicte Dembour’s book.
It is precisely this tragedy that lies at the heart of the Khlaifia and Others v. Italy 4 judgment, delivered at the end of 2016. It concerned the holding, in the well-known Lampedusa reception centre, then on ships in Palermo harbour, of irregular migrants who had arrived on the Italian coasts following the events of the “Arab Spring”.
We held that their deprivation of liberty, without any clear and acces- sible legal basis, did not satisfy the general principle of legal certainty, and that they had been unable to enjoy the fundamental safeguards of habeas corpus, as laid down in the Italian Constitution.
In fact, the refusal-of-entry orders issued by the Italian authorities contained no reference to the applicants’ detention, or to the legal and factual reasons for such a measure, and they had not been notified of them “promptly”. Nor did they have any remedy by which they could have obtained a judicial decision on the lawfulness of their detention.
Protection against arbitrariness, the necessity of a remedy to chal- lenge a judicial decision – these are the essential elements in a State governed by the rule of law, and they were absent in the Khlaifia and Others case.
The mass arrival of migrants places national authorities in a very diffi- cult situation. However, although this judgment reiterates that there are principles from which States cannot derogate, it did not find a violation of Article 3 of the Convention on account of the conditions in which the applicants were held. Nor did it consider that there had been a collective expulsion of aliens, which is prohibited by a Protocol to the Convention.
The judgment thus provided balanced and reasonable responses to these difficult questions – but it did so with due respect for our values.
The judgment in Paposhvili v. Belgium 5, delivered last December, has already received widespread coverage. It is noteworthy in several respects. Firstly, in its content and, secondly, from the perspective of our relationship with the national Supreme Courts.
4. Khlaifia and Others v. Italy [GC], no. 16483/12, ECHR 2016 (extracts).
5. Paposhvili v. Belgium [GC], no. 41738/10, ECHR 2016.
The background to this case is relevant. You will remember that in 2008 the Court had held, in the case of N. v. the United Kingdom 6, that it was possible to expel a Ugandan national suffering from Aids to her country of origin, without this entailing a violation of Article 3. It had found at that time that a State could only be prevented from expelling a sick alien “in a very exceptional case, where the humanitarian grounds against the removal [were] compelling”.
This case-law attracted criticism. The Court’s approach was subse- quently reaffirmed in several Chamber judgments. Nonetheless, the judges who had expressed their views in a separate opinion, like the legal theorists, voiced the hope that the Grand Chamber would one day return to this question.
This has now been done, and the Paposhvili judgment departs from the N. v. the United Kingdom case-law, clarifying it in a manner that is more favourable for applicants. The applicant in this case, who was suf- fering from a very serious illness and whose condition was life-threat- ening, did not wish to be deported to Georgia. The Court considered that in the absence of any assessment by the domestic authorities of the risk facing him in Georgia, with due regard to his state of health and of whether or not there existed appropriate treatment in the destina- tion country, the Belgian domestic authorities did not have available to them sufficient information to conclude that the applicant, if returned to Georgia, would not run a real and concrete risk of treatment contrary to Article 3 of the Convention.
The Paposhvili judgment provides important explanations and clarifies the approach followed to date. Admittedly, the threshold of severity for preventing the deportation of an alien suffering from an illness remains high. However, the work of assessment is primarily for the national authorities, who must put in place adequate procedures in order to evaluate the risks run in the event of deportation. This is proper implementation of the principle of subsidiarity. The assessment must take account both of the general situation in the receiving State and of the alien’s particular case. It is necessary to obtain assurances that medical treatment will be available and accessible to the person concerned.
However, this case also warrants examination in terms of our relation- ship with the Supreme Courts. In practice, the N. v. the United Kingdom judgment had led the Belgian authorities to grant leave to remain only in really very exceptional circumstances, where the individual con- cerned was close to death. Yet the Belgian appellate courts considered
6. N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008.
that wider protection ought to be provided. We see here a very inter- esting dialogue between the domestic court and our Court, in which it is the national court which, as it were, asks us to adopt a less restrictive position, one that is more protective of the rights of applicants.
The voices raised in Brussels have thus been heard in Strasbourg.
A little more than a year ago, together with the French Supreme Courts, the Conseil d’État and the Court of Cassation, we launched a trial phase for our Network for the exchange of information on the case-law of the European Convention on Human Rights. It has proved highly pro- ductive, and I should like to thank Jean-Marc Sauvé, Bertrand Louvel and Jean-Claude Marin, senior figures from these courts who have honoured us with their presence this evening, for agreeing to be our first partners in this project. They have been joined by twenty-eight Superior Courts from twenty-one countries. I applaud the great success of this initiative. I should also like to extend a particular welcome to Francisco Pérez de los Cobos, President of the Spanish Constitutional Court, who is here with us this evening and who signed up to the Superior Courts Network this very morning.
Generally speaking, the dialogue with other national and interna- tional courts was very intense in 2016. This is not the moment to list all of the meetings which took place. Of the delegations which came to study our Court, I will mention only those which travelled from another continent, namely those from South Africa, Brazil and Japan. It is always a source of pride and satisfaction on such occasions to note that the courts in these distant lands follow our case-law and take it into account in their own decisions.
Mr Bertrand Louvel, President, I felt this pride in a particular manner when hearing you, at the opening of the Court of Cassation’s judi- cial year, utter words that I should like to repeat here: in ratifying the European Convention on Human Rights, “France voluntarily placed itself under the judicial authority of the Strasbourg Court. The genius of this Court is that it lies at the confluence of the various European legal traditions, of which it proposes a synthesis, judgment after judgment.
Striving to make discerning use of the national margin of appreciation available to it, the Court of Cassation has loyally followed the approach taken by the European Court, of which it has become an active partner through its working groups and the judgments which result from these deliberations, reflecting little by little a renewed conception of the tradi- tional legalistic method.”
Please accept our solemn thanks.
One of the undoubted highlights of 2016 was the fact that the German-speaking Constitutional Courts of Germany, Austria, Switzerland and Liechtenstein chose to hold their two-yearly meeting at the European Court of Human Rights. I consider it a symbol of our proximity that this meeting, traditionally held at the seat of one of these Constitutional Courts, took place here in Strasbourg.
Among the attendees were the German-speaking judges of the Court of Justice, and foremost among them its President, my friend Koen Lenaerts. I welcome him most particularly this evening, since he is attending the opening of our judicial year for the first time in his capac- ity as President of the Court of Justice of the European Union.
The ties which exist between our two Courts are much stronger than is generally thought. Indeed, our meeting in 2016 was particularly useful and warm. Laurence Burgorgue-Larsen, the renowned observer of our respective case-laws, is correct in pointing out that “[t]he neces- sary requirement of maintaining coherence between the two European systems leads the [Strasbourg] Court to ally itself with European Union law by drawing attention to possible shortcomings in EU law, particu- larly in the judgments of the [Court of Justice]”. She is referring, of course, to our judgments in M.S.S. v. Belgium and Greece 7 and V.M. and Others v.
Belgium 8.
I cannot cite the Court of Justice this year without mentioning the judgment in Avotiņš v. Latvia 9. Our Court was required to analyse the mutual recognition of foreign judgments. The judgment upheld the doctrine of equivalent protection in respect of the European Union, a concept which originated in the Bosphorus 10 case-law. Nonetheless, the Court specified that, where the conditions for application of the presumption of equivalent protection are met, it must satisfy itself that
“the mutual-recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guar- anteed by the Convention manifestly deficient”.
In terms of the relationship between the international legal systems, this judgment is consistent with our permanent quest for coherence and, above all, clarity for European citizens.
Without wishing to be exhaustive, it would be remiss of me not to mention the great honour bestowed by the Municipality of Nijmegen in
7. M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011.
8. V.M. and Others v. Belgium, no. 60125/11, 7 July 2015, and V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, 17 November 2016.
9. Avotiņš v. Latvia [GC], no. 17502/07, ECHR 2016.
10. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI.
awarding us the Treaties of Nijmegen Medal. It will be recalled that the Nijmegen Treaties put an end to several European wars. In awarding us this Medal, the organisers wished to emphasise the work carried out by our Court in the service of peace and tolerance. This prestigious distinc- tion is a spur to pursue our mission.
Ladies and gentlemen,
Of all the distinguished individuals whom I have had the great honour of meeting in the course of 2016, there is one who left a par- ticular impression: I refer to Silvia Fernández de Gurmendi, President of the International Criminal Court. It was my wish that she be the guest of honour at the solemn opening of our judicial year.
Madam,
You come from a country, Argentina, whose very name fires the imagination, one which is both geographically distant and yet culturally so close to Europe.
A distinguished lawyer and high-level diplomat, you played a major role in the negotiations leading to the adoption of the Rome Statute, the international treaty which set up the International Criminal Court. You have been a judge at that Court since 2009 and its President since 2015.
The International Criminal Court is the fruit of a dream that seemed unachievable at the beginning of the twentieth century: the creation of a permanent international court responsible for promoting human rights and international humanitarian law at the global level, and for bringing to account those who breach these rights in the most serious way.
Your Court has much in common with ours. Admittedly, almost all of the cases that we judge would be inadmissible before your Court.
But, like us, you defend the same hard core of fundamental rights and, in particular, the right to life.
Like us, you accept the idea that it is necessary to create an interna- tional order based on human rights.
Like our Court, you are sometimes criticised. But you continue to plough your furrow, with a view to ensuring that the perpetrators of war crimes, genocide or crimes against humanity do not go unpunished.
Madam President of the International Criminal Court, dear Silvia Fernández de Gurmendi,
We serve the same universal values and your presence among us today is a great joy and an immense honour.
I would now kindly invite you to take the floor.
JUDGE SILVIA FERNÁNDEZ DE GURMENDI
President of the International Criminal Court, opening of the judicial year, 27 January 2017
P
resident Raimondi, honourable judges, Mr Secretary General, Excellencies, ladies and gentlemen,Thank you very much, President Raimondi, for your kind words of introduction. I am very honoured to address your audience today.
This solemn hearing is certainly one of the most important judicial gatherings of the year.
It celebrates the efforts of the European judi- cial community to safeguard the fundamental rights of all people in Europe.
These efforts echo beyond the Council of Europe area. The jurisprudence of the European Court of Human Rights inspires and influences efforts on other continents as well and thus helps to promote human rights worldwide.
The fact is that today’s world is interde- pendent and interconnected, and that applies to courts as well.
Since I became President of the International Criminal Court (ICC) two years ago, I have come to realise more than ever the importance of building connections between judicial institutions. Last year, I was very pleased to visit the European Court of Human Rights. I had a very pro- ductive discussion with President Raimondi on different steps we could take to bring our two courts closer together.
And I feel privileged that I have been invited to today’s solemn hearing. This ceremony unites key actors of what is the oldest and largest regional human rights mechanism. I come myself from a different con- tinent, a continent that has also invested great efforts in overcoming a legacy of violence including by setting up a regional human rights com- mission and court.
The ICC and other criminal tribunals are different from human rights courts. Criminal courts do not monitor respect for human rights in general, but focus exclusively on individual criminal responsibility for certain gross violations of human rights that may qualify as international crimes when they attain predefined thresholds. Importantly, interna-
The international, national and regional institutions can together become stronger by their mutual reinforcement through a system of global justice.
tional criminal courts seek to ensure the responsibility of individual perpetrators of those crimes regardless of whether they are State or non-State actors.
Notwithstanding the differences between our courts, we do share the same values. More importantly, we share a common purpose. We all aim at promoting the well-being of all by fostering the rule of law.
We also share common roots. As the world marks today the International Holocaust Remembrance Day, we are reminded that our institutions are a result of the international community’s determination to prevent the repetition of the horrors of the past.
Despite their differences, international criminal justice and human rights law interact in many ways.
In accordance with its founding treaty, the Rome Statute, the ICC must apply and interpret its law in a manner consistent with internation- ally recognised human rights. Human rights law and jurisprudence have influenced many of our substantive and procedural provisions. They also guide us in areas where our own provisions are silent or very general, such as the detention of persons or reparations to victims.
Let me address some areas of complementarity and convergence in more detail.
Human rights and humanitarian law are at the core of the prohi- bition of genocide, crimes against humanity and war crimes. Not so distant regional experiences of human rights abuses are reflected in the acts prohibited under those crimes. The inclusion of apartheid, enforced disappearances and forced pregnancy as crimes against humanity or war crimes are important examples, intended to take into account spe- cific forms of egregious human rights violations suffered in particular in Africa, Latin America and Europe.
In today’s world, international crimes are not only committed by individuals acting on behalf of States; non-State actors also perpetrate mass crimes and other atrocities. Since the Second World War, the nature of armed conflicts has changed drastically. We have witnessed an ever-growing participation of non-State groups in armed conflicts, while classical State-against-State confrontations have become the exception rather than the rule.
The international community has also taken stock that armed con- flicts are not the only situations where mass atrocities are perpetrated and that civilian populations are victimised in time of peace by both State and non-State groups.
International humanitarian law and international criminal law have therefore developed in order to better reflect modern mass violence. As
a result, the legal distinction between international and non-interna- tional armed conflicts is now blurred.
Crimes against humanity have also considerably expanded since Nuremberg to encapsulate various forms of criminality committed on a widespread or systematic scale by both State officials and private indi- viduals, in both times of peace and war.
These developments provide legal basis to sanction most atrocities committed today. Criminal responsibility for such atrocities attaches to all individuals equally, whether they are State or non-State actors.
Most of the cases currently before the ICC involve non-State actors.
So far, all convictions involve non-State actors. Final convictions have been entered against two leaders of militia in the Democratic Republic of the Congo (Mr Lubanga and Mr Katanga) and a member of a group associated with al-Qaeda, Mr Al Mahdi, convicted for the destruction of cultural property in Timbuktu, Mali. Another conviction against Jean- Pierre Bemba, for crimes committed in Central African Republic by non- State forces under his command, is now under appeal.
We hope these proceedings send a powerful message to all those involved in situations of violence: the rule of law knows no exception.
Thanks to the remarkable development of international criminal law in the last decades, non-State actors are now on notice that they too can be held accountable for participation in mass atrocities.
As said, human rights law has also influenced the procedural scheme of the ICC. The Rome Statute encapsulates fair-trial rights enshrined in human rights instruments, including the right to have adequate time and facilities for the preparation of the defence, the right to legal assistance of the accused’s choosing and the right to have free of any costs interpretation and translations in a language that the accused fully understands and speaks. This is an aspect that has proved to be extremely challenging in practice at our Court.
The Rome Statute, in an historic step forward, has made progress from an exercise of purely retributive justice to a new dimension that includes elements of restorative justice. Accordingly, victims may par- ticipate in all phases of the proceedings to express their views and con- cerns, and to seek reparation in the event of a conviction.
The definition of victims and harm, as well as the procedural and sub- stantive rights to be accorded to them, have been influenced by human rights law and the jurisprudence of regional courts of human rights.
The distance between our proceedings at The Hague from commu- nities directly affected by the crimes is a major challenge for a global court. In order to ensure understanding of and meaningful access to
justice by victims, the ICC makes great efforts to raise their awareness about the system and bring justice closer to such communities.
Recently, we took a number of initiatives to reach out to them in northern Uganda by organising viewing sessions in various localities particularly affected by the crimes allegedly committed by the Lord’s Resistance Army. This has made it possible for people to follow the trial against Mr Dominic Ongwen, an alleged former commander of this rebel group.
The ICC can also choose to hold proceedings in situ. Unfortunately security reasons have prevented us from doing so thus far. We hope to do so in the near future as this would be an effective way of bringing our Court closer to those directly concerned by the crimes.
As said, human rights law and jurisprudence have influenced the approach of the ICC to reparations to victims. Under the Rome Statute, reparation orders are not directed against States, but at convicted persons. In certain cases, reparations can be made through a special trust fund for victims, which receives voluntary donations from States and private entities and individuals.
Following convictions, the ICC has now started to test this innovative legal framework. Currently, reparations are being considered in relation to the enlistment and conscription of child soldiers, attacks against the civilian population, sexual violence and the destruction of cultural property.
The distance of proceedings in The Hague from the actual place where crimes took place also raises human rights challenges regard- ing the detention of our suspects and accused persons coming from distant countries. The ICC must have due regard to cultural differences and needs to ensure, inter alia, the maintaining of sufficient family links.
Again, human rights law and jurisprudence guides the responses pro- vided by our Court.
Colleagues, Excellencies, ladies and gentlemen,
It can be seen clearly from the examples I have given that there are many areas of convergence between human rights law on the one hand and the theory and practice of international criminal law on the other.
We share a common goal, that of promoting the rule of law. That is why it is important for us to listen to each other as much as possible. It is vital that we should be able to count on our mutual support in order to send together, on the basis of our common values, a clear message in favour of justice and an end to impunity.
This solemn occasion represents a unique opportunity for us to engage in a dialogue, so that we can strengthen our mutual under- standing and our commitment to seeing justice done.
It is equally important to enter into a dialogue with the national courts, and in that connection I am glad to see here today so many rep- resentatives of judicial authorities from the various States.
The ICC and the European Court of Human Rights are both courts of last resort. They both act to complement the work accomplished at an earlier stage by the national courts. Together, we are all participants in a system of global justice, and one which seeks to protect the most precious values of our societies.
National courts have a role that is essential – and even crucial – in upholding the rule of law. The outcome of our efforts to ensure respect for human rights and an end to impunity for international crimes depends above all on the willingness of the States and their capacity to achieve this.
This requires enacting legislation to that end at national level, par- ticularly for the purpose of implementing the Rome Statute and other major human rights and international humanitarian law treaties which have now classified as criminal offences some of the most heinous acts.
And this also means having the requisite jurisdiction at a national and an extraterritorial level to investigate those crimes and prosecute the perpetrators.
The responses of the domestic courts are taken into account by the ICC. In its turn, our Court may also have an influence on the way in which national and regional courts deal with international crimes. This influence takes different forms, in particular by the incorporation into a State’s legislation of the relevant crimes, the different types of respon- sibility and the general principles of the Rome Statute. In many coun- tries, the definitions that have been adopted are either identical or very similar to those of the Rome Statute.
The adoption of analogous provisions laying down criminal sanc- tions for those crimes at national level is a major step forward for the harmonisation of international criminal law – a harmonisation which contributes in turn to the strengthening of the system of global justice.
The international, national and regional institutions can together become stronger by their mutual reinforcement through a system of global justice. We recently had occasion to commend the regional approach which provided a solution for the momentous trial of the former Chadian President, Hissène Habré, before the Extraordinary African Chambers in the Senegalese courts.
Colleagues, Excellencies, ladies and gentlemen,
Our passion for justice is what unites us. While we each have different mandates, our aspirations are the same. Our institutions, although they have followed different paths, are working towards the same goals.
By uniting in our efforts to achieve these objectives we can make the system of global justice more effective.
On behalf of the International Criminal Court, I wish the European Court of Human Rights a productive and successful judicial year 2017.
Thank you for your attention.
Overview of the Court’s case-law
This Overview contains a selection by the
Jurisconsult of the most interesting cases from 2017.
T
here were developments in the case-law in a wide range of areas in 2017, the Court’s approach being to read the Convention as a whole so as to ensure the coherent and harmonious interpretation of its provisions.The case-law on Articles 18, 19, 37, 41 and 46 was either clarified or extended. The Court explained its role in cases involving supervision by the Committee of Ministers or where the Court’s judgment was the subject of interpretation by a domestic superior court. It also explained its approach regarding evidential matters and awards of just satisfaction to applicants.
The Grand Chamber delivered nineteen judgments and one decision in 2017. The Lopes de Sousa Fernandes judgment elucidated the case- law concerning allegations of medical negligence (Article 2). In its judgments in Hutchinson and Khamtokhu and Aksenchik, the Grand Chamber reaffirmed the relevant case-law principles both on the Article 3 requirement for whole life sentences to be reducible and on penal policy regarding the execution of life sentences (Articles 5 and 14).
The Grand Chamber also explained the distinction between
“deprivation of liberty” within the meaning of Article 5 § 1 and restrictions on “freedom of movement” within the meaning of Article 2 of Protocol No. 4 (De Tommaso), ruled on complaints under Article 5 §§ 1 and 3 (Merabishvili) and clarified the criteria for deciding when Article 6
§ 1 was applicable under its civil limb (De Tommaso, Károly Nagy and Regner).
It considered the right to a fair hearing in judgments concerning the lack of a public hearing (De Tommaso), the issue of arbitrariness and “denial of justice” (Moreira Ferreira (no. 2)), the refusal of access to
confidential information held by the intelligence services (Regner) and the right to legal assistance within the meaning of Article 6 § 3 (c) (Simeonovi).
The Paradiso and Campanelli judgment concerned the scope of the right to “private life” of a couple who were refused permission to adopt a child conceived abroad through surrogacy whom they had brought to their home country in violation of its adoption laws.
The Bărbulescu judgment established the jurisprudential principles governing the respective rights and obligations of employees and employers regarding personal electronic communications – such as electronic messaging – in the workplace.
The Grand Chamber developed its case-law on the balance to be struck between the right to respect for private life (Article 8) and the right to freedom of expression (Article 10) in its judgments in Medžlis Islamske Zajednice Brčko and Others and Satakunnan Markkinapörssi Oy and Satamedia Oy.
It also examined a difference in treatment based on “sex” and “age”
(Articles 5 and 14) as regards the sentencing of adult men compared to female, juvenile and senior offenders (Khamtokhu and Aksenchik).
In the Fábián judgment it examined whether public and private- sector employees were, for the purposes of Article 14 of the Convention, in a “relevantly similar situation” and whether suspension of the disbursement of a State pension was compatible with Article 1 of Protocol No. 1.
In De Tommaso the Grand Chamber examined under Article 2 of Protocol No. 4 the foreseeability of measures restricting the freedom of movement and liberty to communicate of an individual considered to be a danger to society. The Garib judgment was the first case in which the Court had to scrutinise State choices regarding socio-economic measures that were liable to restrict freedom to choose one’s residence.
The Grand Chamber analysed for the first time the construction of Article 18 of the Convention (Merabishvili) and the notion of an application “substantially the same as a matter that has already been examined” by the Court, within the meaning of Article 35 § 2 (b) of the Convention (Harkins).
Also for the first time it conducted a comprehensive review of the relevant principles governing requests for the striking out of all or part of an application (Article 37) on the basis of a unilateral declaration by the respondent Government (De Tommaso). In the Burmych and Others judgment the Grand Chamber expounded on the respective roles of the Court and of the Committee of Ministers regarding follow-up applications
arising out of a failure to execute a pilot judgment (Articles 19 and 46).
In adopting its striking-out judgment (Article 37), the Grand Chamber stressed the public interest in the proper and effective functioning of the Convention system. In Nagmetov it set out the circumstances in which the Court would award just satisfaction under Article 41 in the absence of a properly submitted claim, and in the cases of Chiragov and Others and Sargsyan it examined the question of financial compensation for violations of the rights of persons displaced by conflict.
Other important judgments concerned State obligations to protect life during a hostage-taking by terrorists (Tagayeva and Others); the giving of reasons in court decisions (Cerovšek and Božičnik), including in cases concerning the fight against terrorism (Ramda); the right to self-determination of vulnerable people and the limits thereto (A.-M.V. v.
Finland); and, for the first time, deprivation of citizenship in a terrorism and national-security context (K2 v. the United Kingdom).
The Court emphasised the vulnerability and special needs of minor migrants in detention (S.F. and Others v. Bulgaria). It stressed the importance of being able to communicate freely with one’s lawyer (M v.
the Netherlands), of protection against homophobia (Bayev and Others), of striking a balance between freedom of expression and the prevention of terrorism (Döner and Others) and of the protection of journalistic sources for freedom of the press (Becker). The Court also reaffirmed its case-law concerning budgetary austerity measures in the context of economic and financial crisis (P. Plaisier B.V. and Others).
Other cases of legal interest concerned human-trafficking (Chowdury and Others and J. and Others v. Austria); undercover police operations (Grba); the criminal liability of members of the government for acts or omissions in the exercise of their official functions (Haarde); the rights of transgender persons (A.P., Garçon and Nicot); the right to manifest one’s religion at school (Osmanoğlu and Kocabaş), with respect to military service (Adyan and Others) or in a court (Hamidović); the right of the press to inform the public about the conduct of members of parliament (Selmani and Others); and the rights of victims of racially motivated violence (Škorjanec).
Other developments in the case-law concerned the applicability of Article 5 § 4 (Oravec and Stollenwerk), Article 7 (Koprivnikar), Article 13 (Tagayeva and Others), Article 35 § 1 (Kósa), Article 3 of Protocol No. 1 (Davydov and Others and Moohan and Gillon) and Article 4 of Protocol No. 7 in the context of terrorist offences (Ramda).
With regard to the prohibition of discrimination the Court, for the first time, found fault with the language used by a domestic court when
dealing with the age and gender of a litigant (Carvalho Pinto de Sousa Morais). It also examined a case concerning a difference in the penal policy applied to male or female detainees with a child of less than a year old (Alexandru Enache) and a case concerning the recognition of same-sex couples (Ratzenböck and Seydl).
The Court had regard to the interaction between the Convention and European Union law. It referred to the Charter of Fundamental Rights (in Bărbulescu), the case-law of the Court of Justice of the European Union (in Merabishvili) and to budgetary rules imposed by EU law (in P. Plaisier B.V. and Others).
It likewise took into account the interaction between the Convention and international law. Thus, as an aid to applying and interpreting the Convention, it referred to both international-law norms (for example, on the elimination of discrimination against women in Khamtokhu and Aksenchik and Alexandru Enache, and on the protection of personal data in Bărbulescu) and Council of Europe norms (including the European Prison Rules in Khamtokhu and Aksenchik; data-protection texts in Satakunnan Markkinapörssi Oy and Satamedia Oy and Bărbulescu;
and the Convention on Action against Trafficking in Human Beings in Chowdury and Others).
In a number of cases the Court considered the States’ positive obligations under the Convention (Bărbulescu; Chiragov and Others;
Sargsyan; Lopes de Sousa Fernandes; J. and Others v. Austria; Chowdury and Others; A.P., Garçon and Nicot; Škorjanec; and Davydov and Others). It also highlighted the importance of the principle of subsidiarity (in Moreira Ferreira (no. 2); Burmych and Others; Chiragov and Others; and Sargsyan) and delivered important judgments on the extent of the States’ margin of appreciation (see, for example, Paradiso and Campanelli; Khamtokhu and Aksenchik; Satakunnan Markkinapörssi Oy and Satamedia Oy; Moreira Ferreira (no. 2); Fábián; Garib; and P. Plaisier B.V. and Others).
JURISDICTION AND ADMISSIBILITY Admissibility (Articles 34 and 35)
Exhaustion of domestic remedies (Article 35 § 1)
The decision in Kósa v. Hungary 1 raised the issue whether public-interest litigation can exonerate an applicant from bringing his or her own domestic court proceedings.
The applicant was of Roma origin. In the Convention proceedings she claimed that the discontinuance of a free bus service between
1. Kósa v. Hungary (dec.), no. 53461/15, 14 December 2017.
her home and her integrated primary school meant that, for over two years, her only option had been to attend a local Greek Catholic school which essentially catered for Roma children and provided substandard education. The applicant relied on Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1.
The applicant did not bring domestic proceedings to contest the lawfulness of the authorities’ action from the standpoint of her own personal circumstances. The Government argued that the applicant had not exhausted domestic remedies and her case should therefore be declared inadmissible. The applicant stressed in reply that a non- governmental organisation had brought legal proceedings in the public interest challenging the policy of, among others, the local authority on the ground that it resulted in unlawful segregation of Roma children.
The Supreme Court ultimately dismissed the public-interest action on the basis of a domestic legal provision according to which the equal- treatment requirement was not violated where the school (which otherwise had the characteristics of a segregated school in so far as the overwhelming majority of students were of Roma origin) was a faith school chosen voluntarily and in an informed manner by the parents, and the students were not provided with substandard education.
The case is interesting in that the Court had to address the sufficiency of public-interest litigation in terms of the requirements of Article 35
§ 1 of the Convention and in particular whether such litigation could exonerate an individual from taking his or her own court proceedings.
It observed that in the instant case the domestic legislation explicitly allowed certain civil-society organisations to bring legal proceedings in defence of a larger group of people affected by a violation, or risk of a violation, of the requirements of equal treatment. Accordingly, it considered that, in principle, it would be conceivable to accept public- interest litigation as a form of exhaustion of domestic remedies for the purposes of Article 35 § 1. Interestingly, it noted that
“[s]uch a proposition would be especially justified in relation to alleged discrimination against a vulnerable group requiring special protection, such as Roma children ... Access to justice for members of such groups should be facilitated so as to provide effective protection of rights: the Convention is intended to guarantee rights which are ‘practical and effective’ rather than theoretical and illusory ... For the Court, the Hungarian legislation, notably section 20 of the Equal Treatment Act ... is a laudable example of that facilitative and protective approach” (paragraph 57).
However, on the facts of the applicant’s case the Court noted that although the Supreme Court’s judgment in the public-interest case
concerned a matter which was closely related to the complaints set out in the applicant’s application form, it did not correspond exactly to her individual situation. It observed that an essential element of the Supreme Court’s finding – that segregation could not be established on account of the operation of the local faith school – was that Roma parents freely chose to send their children there and pupils attending the school had not been prejudiced as regards the quality of the education provided. The applicant for her part firmly disputed these conclusions with reference to her own particular circumstances.
Since the public-interest litigation did not provide the national courts with the opportunity to address and thereby prevent or put right the Convention violations alleged by the applicant against the local authority, nor provide the Court with the views of the national courts on the applicant’s specific complaints, the applicant had failed to exhaust domestic remedies.
Matter already examined by the Court (Article 35 § 2 (b))
The issue before the Court in Harkins v. the United Kingdom 2 was whether a development in the Court’s case-law subsequent to a judgment in an applicant’s case could amount to “relevant new information” for the purposes of Article 35 § 2 (b) of the Convention.
The applicant’s extradition was being sought by the government of the United States of America. He was facing charges in Florida of first- degree murder and attempted armed robbery. In his first application lodged with the Court, the applicant claimed among other things that, if convicted, he would receive a mandatory life sentence without the benefit of parole. The decision to extradite him would therefore be in breach of Article 3 of the Convention. In a judgment delivered on 17 January 2012 (Harkins and Edwards v. the United Kingdom 3), a Chamber of the Fourth Section of the Court found that a mandatory life sentence without the possibility of parole would not be “grossly disproportionate”, and the applicant had not demonstrated that there was a real risk of treatment reaching the Article 3 threshold as a result of his sentence were he to be extradited. In particular, the applicant had not shown that, if convicted, his incarceration would serve no penological purpose, so no Article 3 issue could arise at that time. If there came a time when his incarceration could be shown not to serve any legitimate penological purpose, it was “still less certain” that the Governor of Florida and Board of Executive Clemency would refuse to use their powers to commute
2. Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, ECHR 2017.
3. Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012.
his sentence. That judgment became final on 9 July 2012 following the rejection of the applicant’s referral request by a panel of the Grand Chamber. The applicant then brought proceedings before the domestic courts in which he sought to have the final domestic decision rejecting his challenge to the extradition request reopened. He relied on two judgments adopted by the Court following the delivery of the judgment in his case: Vinter and Others v. the United Kingdom 4 and Trabelsi v.
Belgium 5. In Vinter and Others the Grand Chamber ruled among other things that a whole life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Where domestic law did not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground would therefore already arise at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. In Trabelsi a Chamber of the Court held, with reference to the principles laid down in the Vinter and Others judgment, that the applicant’s extradition to the United States of America had been in breach of Article 3 of the Convention as it had exposed him to a risk of a life sentence without the possibility of parole. The domestic court rejected Mr Harkin’s request to reopen the proceedings. He subsequently lodged a fresh application with the Court. He complained that following the Court’s judgment in Trabelsi, his extradition would breach Article 3 of the Convention since the sentencing and clemency regime in Florida did not satisfy the mandatory procedural requirements identified by the Grand Chamber in Vinter and Others. He further submitted that the imposition of a mandatory sentence of life imprisonment without parole would be “grossly disproportionate”.
The judgment is of note in that this is the first occasion on which the Grand Chamber has elaborated on the rationale behind and the principles governing the admissibility requirement contained in the first limb of Article 35 § 2 (b) (which concerns applications that are
“substantially the same as a matter that has already been examined by the Court”), in particular the scope of the notion of “relevant new information”. It reiterated that the principal purpose of this admissibility criterion was to serve the interests of finality and legal certainty by preventing applicants from seeking, through the lodging of a fresh application, to appeal against previous judgments or decisions (see
4. Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts).
5. Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts).
paragraphs 41 and 51 of the judgment, referring to the decision in Kafkaris v. Cyprus 6). Developing this point in its reasoning and with reference to the restrictions applied to requests for revision of its own judgments contained in Rule 80 of the Rules of Court (paragraph 54), it noted that
“while legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia, that, where a court has finally determined an issue, its ruling should not be called into question (Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). If this were not the case, the parties would not enjoy the certainty or stability of knowing that a matter had been subject to a final disposal by the Court.”
Interestingly, it further observed that under the second limb of Article 35 § 2 (b) as interpreted in the case-law (see, for example, OAO Neftyanaya Kompaniya Yukos v. Russia 7) the Court lacked jurisdiction to deal with any application that has already been submitted to another procedure of international investigation or settlement and contained no relevant new information. For the Court, if its jurisdiction is excluded in relation to an application that falls within the second limb of Article 35
§ 2 (b), it must similarly be excluded in relation to an application that falls within the first limb of that Article. This restrictive approach was justified by the need to provide legal stability by indicating to individuals and the State authorities when its supervision is or is not possible.
The Court’s approach to the interpretation of Article 35 § 2 (b) must in view of these considerations necessarily be a rigorous one. It stressed that in order for the Court to consider an application that relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information – and this it qualified as factual information – that has not previously been considered by the Court (see paragraph 42 and the decision in Kafkaris, cited above, § 68).
The core issue to be decided in the instant case was whether the above- mentioned development of the Court’s case-law following its judgment in Harkins and Edwards by itself constituted “relevant new information”
for the purposes of the first limb of Article 35 § 2 (b) of the Convention.
It concluded that the applicant’s Article 3 complaints (see above) were substantially the same as the complaints already examined by the Court in Harkins and Edwards. The Court’s subsequent case-law did not constitute “relevant new information” for the purposes of Article 35
§ 2 (b) of the Convention. Importantly, it noted (paragraph 56):
6. Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011.
7. OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 520, 20 September 2011.
“The Court’s case-law is constantly evolving and if these jurisprudential developments were to permit unsuccessful applicants to reintroduce their complaints, final judgments would continually be called into question by the lodging of fresh applications. This would have the consequence of undermining the strict grounds set out in Rule 80 for permitting revision of the Court’s judgments ... as well as the credibility and authority of those judgments. Moreover, the principle of legal certainty would not apply equally to both parties, as only an applicant, on the basis of subsequent jurisprudential developments, would effectively be permitted to ‘reopen’ previously examined cases, provided that he or she were in a position to lodge a fresh application within the six-month time-limit.”
“CORE” RIGHTS Right to life (Article 2)
Obligation to protect life
The Lopes de Sousa Fernandes v. Portugal 8 judgment concerned the responsibility of the State in the context of death following medical treatment.
The applicant’s husband died following a series of medical problems that occurred in the months following surgery for the removal of nasal polyps. The applicant considered that her husband had died as a result of a hospital-acquired infection and carelessness and medical negligence during that post-surgery period. No negligence was established in the various domestic proceedings (disciplinary, civil and criminal).
She complained, mainly under Article 2, of the death of her husband and the failure by the authorities to elucidate the cause of the deterioration in his condition. The Grand Chamber found no violation of the substantive aspect of Article 2 and a violation of its procedural limb.
(i) The judgment is important because it reviews and clarifies the Court’s case-law on the scope of the substantive positive obligation of the State as regards deaths resulting from alleged medical negligence.
The judgment confirms that the obligation is an essentially regulatory one and that it is only exceptionally that the responsibility of the State to protect life will be engaged in respect of acts or omissions of health-care providers.
In particular, the Grand Chamber confirmed that, where a State has put the regulatory framework in place (by making adequate provision for securing high professional standards among health professionals and
8. Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, 19 December 2017.
