‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 22 May 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 21

HEALTH CARE ALLOWANCE - In the case of McDonald v. the United Kingdom the case concerned a lady with severely limited mobility who complained about a reduction by a local authority of the amount allocated for her weekly care. The reduction was based on the local authority’s decision that her night-time toileting needs could be met by the provision of incontinence pads and absorbant sheets instead of a night-time carer to assist her in using a commode. Relying on Article 8, Ms McDonald alleged that the decision to reduce her care allowance on the basis that she could use use incontinence pads at night, even though she was not incontinent, amounted to an unjustifiable and disproportionate interference with her right to respect for private life, and exposed her to considerable indignity.

The Court held, unanimously, that the decision to reduce the amount allocated for Ms McDonald’s care interfered with her right to respect for her family and private life, in respect of the period between 21 November 2008 and 4 November 2009 because the interference with her rights had not been in accordance with domestic law during  this period. It held the complaint concerning the period after 4 November 2009 inadmissible as manifestly  ill-founded because the State had considerable discretion when it came to decisions concerning the allocation of scarce resources and, as such, the interference with Ms McDonald’s rights had been “necessary in a democratic society”.
“53.  From 4 November 2009 onward, there is no doubt that the interference was “in accordance with the law”. The Court also accepts that the interference pursued a legitimate aim, namely the economic well-being of the State and the interests of the other care-users. It therefore falls to the Court to consider whether the decision not to provide the applicant with a night-time carer to help her to access a commode was “necessary in a democratic society” for the purposes of paragraph 2 of Article 8 and, in particular, in that connection, was proportionate to the legitimate aim pursued.
54.  In conducting the balancing act required by Article 8 § 2 the Court has to have regard to the wide margin of appreciation afforded to States in issues of general policy, including social, economic and health-care policies (-). In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.
55.  In the present case the Supreme Court primarily considered the applicant’s Article 8 complaint within the sphere of positive obligations. It therefore had to consider whether or not a fair balance had been struck between the interests of the applicant and those of the wider community and it would have been impossible to do so without addressing one of the fundamental principles underpinning the Court’s jurisprudence in such cases: namely, that States are afforded a wide margin of appreciation in issues of general policy, and that margin is particularly wide when the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see paragraph 54 above).
56.  In any case, the Court observes that the proportionality of the decision to reduce the applicant’s care package was fully considered, first by the local authority in the course of its regular Care Plan Reviews and, secondly, by the domestic courts (including the Court of Appeal and the Supreme Court). In particular, in concluding that there had been no interference with the applicant’s rights under Article 8, Lord Brown considered the great lengths to which the local authority had gone to consult – and, in fact, to reach an agreement with – the applicant and her partner. He further noted that the applicant’s personal feelings and desires had properly been balanced against the local authority’s concern for her safety, independence and respect for other care-users. Finally, he concluded that even if there had been an interference with her right to respect for her private life, save for the period prior to 4 November 2009 review when the proposed care provision was not “in accordance with the law”, the interference would have been necessary for the economic well-being of the respondents (that is, the local authority) and the interests of their other care users and would therefore have been a proportionate response to her needs because it would have afforded her the maximum protection from injury, greater privacy and independence, and would have resulted in a substantial costs saving (see paragraph 24 above).
57.  The Court is satisfied that the national courts adequately balanced the applicant’s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large. It cannot, therefore, agree with the applicant that there has been no proper proportionality assessment at domestic level and that any reliance by it on the margin of appreciation would deprive her of such an assessment at any level of jurisdiction. In such cases, it is not for this Court to substitute its own assessment of the merits of the contested measure (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities (notably the courts) unless there are shown to be compelling reasons for doing so (-). The present applicant has not adduced any such compelling reasons in her pleadings before this Court.
58.  The foregoing considerations are sufficient to enable the Court to conclude that from 4 November 2009 onwards the interference with the applicant’s right to respect for her private life was both proportionate and justified in terms of the requirement of “necessity in a democratic society” under Article 8 § 2. The Court by no means wishes to underestimate the difficulties encountered by the applicant and it appreciates the very distressing situation she is facing. Nevertheless, the Court is of the opinion that in reducing her care-package it cannot be said that the competent authorities of the respondent State exceeded the margin of appreciation afforded to them, notably in relation to the allocation of scarce resources. It follows that in respect of this period the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention."
Article 2 PATIENT'S DEATH AS RESULT OF MALPRACTICE - In the case of Gray v. Germany the Court held, unanimously, that Criminal proceedings in Germany against German doctor responsible for a patient’s death in the UK were adequate (no violation of Article 2 (right to life) of the European Convention on Human Rights). The case concerned the death of a patient in his home in the United Kingdom as a result of medical malpractice by a German doctor, who had been recruited by a private agency to work for the British National Health Service. The patient’s sons complained that the authorities in Germany, where the doctor was tried and convicted of having caused the death by negligence, had not provided for an effective investigation into their father’s death. The Court accepted that the German trial court had sufficient evidence available to them for the doctor’s conviction by penal order without having held a hearing. Moreover, the applicants had been sufficiently informed of the proceedings in Germany, and the German authorities had been justified in not extraditing the doctor to the United Kingdom in view of the proceedings before the German courts.
“95.  The Court concludes that in the present case the German authorities have provided for effective remedies with a view to determining the cause of the applicants’ father’s death as well as U.’s related responsibility. There is further nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to Mr Gray’s death fell short of the procedural guarantees inherent in Article 2 § 1 of the Convention.”
Article 3 LIFE SENTENCES - In its Chamber judgment in the case of László Magyar v. Hungary the Court held, unanimously, that Hungary should reform its system for reviewing whole  life sentences (violation of Article 3 - prohibition of inhuman or degrading treatments). The case mainly concerned a prisoner’s complaint that his imprisonment for life without eligibility for parole amounted to inhuman and degrading treatment as it was irreducible.The Court was not persuaded that Hungarian law allowed life prisoners to know what they had to do to be considered for release and under what conditions. Moreover, the law did not guarantee a proper consideration of the changes in the life of prisoners and their progress towards rehabilitation. Therefore, the Court concluded that the sentence of Mr Magyar could not be regarded as reducible, which amounted to a violation of Article 3. However, the Court noted that the finding of a violation could not be understood as giving Mr Magyar the prospect of imminent release; it had not been even argued in the case that there were no longer any grounds for his detention.Moreover, the Court held that this case disclosed a systemic problem which could give rise to similar applications. Therefore, for the proper implementation of this judgment, Hungary would be required to put in place a reform of the system of review of whole life sentences to guarantee the examination in every case of whether continued detention is justified on legitimate grounds and to enable whole life prisoners to foresee what they must do to be considered for release and under what conditions.
“54.  It remains to be considered whether, in the light of the foregoing observations, the applicant’s whole life order meets the requirements of Article 3 of the Convention.
55.  At the outset, the present case is substantially different from Törköly (cited above), in that the applicant’s eligibility for release on parole from his life sentence was not excluded in that case. In Törköly, it was in great part that distant but real possibility for release which lead the Court to consider that the applicant had not been deprived of all hope of being released from prison one day and, accordingly, to declare the complaint manifestly ill-founded for want of any appearance of a violation of Article 3 of the Convention.
56.  It is true that in Törköly the Court also took into account that the applicant might be granted presidential clemency. However, in the present case where the applicant’s eligibility for release on parole was excluded, a stricter scrutiny of the regulation and practice of presidential clemency is required.
57.  Domestic legislation does not oblige the authorities or the President of the Republic to assess, whenever a prisoner requests pardon, whether his or her continued imprisonment is justified on legitimate penological grounds. Although the authorities have a general duty to collect information about the prisoner and enclose it with the pardon request (see section 597(5) of the Code of Criminal Procedure, cited in paragraph 21 above), the law does not provide for any specific guidance as to what kind of criteria or conditions are to be taken into account in the gathering and organisation of such personal particulars and in the assessment of the request. Neither the Minister of Justice nor the President of the Republic is bound to give reasons for the decisions concerning such requests.
58.  Therefore, the Court is not persuaded that the institution of presidential clemency, taken alone (without being complemented by the eligibility for release on parole) and as its regulation presently stands, would allow any prisoner to know what he or she must do to be considered for release and under what conditions. In the Court’s view, the regulation does not guarantee a proper consideration of the changes and the progress towards rehabilitation made by the prisoner, however significant they might be (see paragraphs 50 and 53 above). The Court is therefore not persuaded that, at the present time, the applicant’s life sentence can be regarded as reducible for the purposes of Article 3 of the Convention.
There has accordingly been a violation of Article 3 of the Convention.
59.  In reaching this conclusion the Court would note that, in the course of the present proceedings, the applicant has not argued that, in his individual case, there are no longer any legitimate penological grounds for his continued detention. The finding of a violation under Article 3 cannot therefore be understood as giving him the prospect of imminent release.”
Articles 5, 6 and 18: BLOGGING POLITITICIAN - In the case of Ilgar Mammadov v. Azerbaijan the Court held, unanimously, that Arrest and extended detention of opposition politician following critical blog (violation of Articles 5, 6 § 2 (presumption of innocence) and 18 (limitation on use of restrictions on rights). The case concerned the arrest and detention pending trial of an opposition politician and blogger following his reports on street protests in the town of Ismayilli in January 2013. The Court considered that Mr Mammadov, who had a history of criticising the Government, had been arrested and detained without any evidence to reasonably suspect him of having committed the offence with which he was charged, namely that of having organised actions leading to public disorder. The Court concluded that the actual purpose of his detention had been to silence or punish Mr Mammadov for criticising the Government and publishing information it was trying to hide.

“137.  The Court emphasises that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention (see Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004IV). As it has previously held in its case-law, the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could be reasonably inferred from the context. A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached (see Khodorkovskiy v. Russia, no. 5829/04, § 255, 31 May 2011).

138.  When an allegation under Article 18 of the Convention is made, the Court applies a very exacting standard of proof. As a consequence, there are only a few cases where a breach of that Convention provision has been found. Thus, in Gusinskiy (cited above, §§ 73-78), the Court accepted that the applicant’s liberty had been restricted, inter alia, for a purpose other than those mentioned in Article 5. It based its findings on an agreement signed between the detainee and a federal Minister for the Press, from which it was clear that the applicant’s detention had been applied in order to make him sell his media company to the State. In Cebotari v. Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in a context where the applicant’s arrest was visibly linked to an application pending before the Court. In Lutsenko v. Ukraine (no. 6492/11, §§ 108-09, 3 July 2012) the prosecuting authorities seeking the applicant’s arrest explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest, such reasoning clearly demonstrating that his arrest was an attempt to punish him for publicly disagreeing with accusations against him. In Tymoshenko v. Ukraine (no. 49872/11, § 299, 30 April 2013) the reasoning formally advanced by the authorities suggested that the actual purpose of the detention was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the judicial proceedings. Furthermore, both the Lutsenko and Tymoshenko cases were similar in their circumstances in that both applicants who were former high-ranking Government officials and leaders of opposition parties were, soon after the change of power, accused of abuse of power and the authorities’ actions against them were considered by the public to be part of the politically motivated prosecution of opposition leaders in Ukraine. However, in both cases, the Court chose to look at the matter separately from this general context of the allegedly politically motivated prosecution, because in each case it could discern other specific features (described above) which led to a finding of a breach of Article 18 (see Lutsenko, cited above, § 108, and Tymoshenko, cited above, §§ 296 and 298-99).

139.  In the present case, the applicant’s complaint under Article 18 was raised in conjunction with all of his other complaints under Articles 5, 6, 13 and 14. The Court will confine its examination to the applicant’s complaint under Article 18 taken in conjunction with Article 5 concerning his pre-trial detention.

140.  The Court takes note of the various opinions about the applicant’s case which suggest that he was subjected to politically motivated prosecution. However, as the political process and adjudicative process are fundamentally different, the Court must base its decision on “evidence in the legal sense” and its own assessment of the specific relevant facts (see, mutatis mutandis, Khodorkovskiy, cited above, § 259). The Court notes that the circumstances of the present case suggest that the applicant’s arrest and detention had distinguishable features which allow the Court to analyse the situation independently of various opinions voiced in connection with this case.

141.  The Court has found above that the charges against the applicant were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (contrast Khodorkovskiy, cited above, § 258, and compare Lutsenko, cited above, § 108). Thus, the conclusion to be drawn from this finding is that the authorities have not been able to demonstrate that they acted in good faith. However, that conclusion in itself is not sufficient to assume that Article 18 was breached, and it remains to be seen whether there is proof that the authorities’ actions were actually driven by improper reasons.

142.  The Court considers that, in the present case, it can be established to a sufficient degree that such proof follows from the combination of the relevant case-specific facts. In particular, the Court refers to all the material circumstances which it has had regard to in connection with its assessment of the complaint under Article 5 § 1 (c) (see paragraph 92 above), and considers them equally relevant in the context of the present complaint. Moreover, it considers that the applicant’s arrest was linked to the specific blog entries made by the applicant on 25, 28 and 30 January 2013. The blog post of 28 January 2013, in particular, included sourced information shedding light on the “true causes” of the Ismayilli protests, which the Government reportedly attempted to withhold from the public and which was immediately picked up by the press. Following the applicant’s blog entry, the information cited by the applicant was promptly removed from the websites of the Ministry of Culture and Tourism and the Ministry of Taxes (see paragraph 13 above). Even though the prosecution did not make any express references to the applicant’s blog entries, the Court notes that the accusations against him were first made in the authorities’ official press statement of 29 January 2013, immediately after the applicant’s blog post of 28 January 2013, and he was first “invited” to the Prosecutor General’s Office for questioning on the same day. Whereas by that time several days had passed from the applicant’s visit of Ismayilli on 24 January 2013, there is nothing in the case file to show that the prosecution had any objective information giving rise to a bona fide suspicion against the applicant at that time, and it has not been shown that they were in possession of any such information or witness statements at any point up to the moment of the applicant’s arrest on 4 February 2013.

143.  The above circumstances indicate that the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed was the true information that the Government were trying to hide. In the light of these considerations, the Court finds that the restriction of the applicant’s liberty was applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention.

144.  The Court considers this sufficient basis for finding a violation of Article 18 of the Convention taken in conjunction with Article 5.”
Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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