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

Thursday, 26 June 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 weeks 25 and 26

RETROACTIVITY OF THE LAW In the case of Azienda Agricola Silverfunghi S.A.S. and Others v. Italy  the European Court of Human Rights held, unanimously, that the Retroactive application of law on companies’ social security payments was unfair but did not violate their property rights (violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights; and no violation of Article 1 of Protocol No. 1 (protection of property)). The case concerned proceedings before the Italian courts brought by a number of Italian agricultural companies based on their possible entitlement to a two-fold reduction of social security contributions. Pending these proceedings the Italian legislator passed a new retrospective law which determined that their benefits would be calculated alternatively, and not cumulatively. The Court found that in the circumstances of the case there had been no compelling general interest reason capable of outweighing the dangers of retrospective legislation. At the same time, the Court held that the Italian courts’ decisions had not violated the companies’ property rights, as the  decisions had not imposed an excessive financial burden on them.

SURROGACY ARRANGEMENTS - In the cases of Mennesson v. France and Labassee v. France the Court held, unanimously, that totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was in breach of the Convention (violation of Article 8 concerning the children’s right to respect for their private life). The cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment.
The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.

ORGAN TRANSPLANTATION In the case of Petrova v. Latvia the  Court held that organ transplantation without consent at a public hospital was unlawful (violation of Article 8 (right to respect for private and family life)). The case concerned Ms Petrova’s complaint that a public hospital had removed her son’s organs for transplantation purposes without her consent after he was involved in a road traffic accident and had died from his injuries. The Court found that the Latvian law in the area of organ transplantation as applied at the time of the death of Ms Petrova’s son had not been sufficiently clear and had resulted in circumstances whereby Ms Petrova, as the closest relative to her son, had certain rights with regard to removal of his organs, but was not informed – let alone provided with any explanation – as to how and when these rights could have been exercised.

“85.  The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference correlates with a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see A, B and C v. Ireland [GC], no. 25579/05, §§ 218-241, 16 December 2010).
86.  The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see, most recently, L.H., cited above, § 47).
(b)  Application in the present case
87.  As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant’s son sustained life-threatening injuries of which, after an attempt to save his life had been made, he had died. Immediately after his death, his kidneys and spleen had been removed for organ transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not therefore exercise certain rights allegedly established under domestic law – to express consent or refusal in relation to the removal of her son’s organs.
88.  The Court further notes that it has not been contested that both hospitals involved – Riga’s First Hospital and Pauls Stradiņš Clinical University Hospital – were public institutions and that the acts and omissions of its medical staff were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 II).
89.  The Court considers that the above-mentioned circumstances are sufficient for it to conclude that there has been an interference with the applicant’s right to respect for her private life under Article 8 of the Convention.
90.  As to whether the interference was “in accordance with the law”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also his or her closest relatives, including parents, to express their wishes in relation to removal of organs after that person’s death (see paragraphs 36 and 37 above). The parties did not contest this. However, their views differed in so far as the exercise of this right was concerned. The applicant’s view was that the domestic authorities had not fulfilled their duty to provide conditions whereby her wishes in relation to the removal of the applicant’s son’s organs for transplantation purposes could be expressed. According to the Government, the “presumed consent system” in Latvia was an active process and the persons involved were expected to take positive steps if they wished to veto any organ removal. It is the Court’s view that these issues appertain to the quality of domestic law, in particular, whether the domestic legislation was formulated with sufficient precision or afforded adequate legal protection against arbitrariness in the absence of the relevant administrative regulation.
91.  In this context, the Court observes that the principal disagreement between the parties is whether or not the law – which in principle afforded the closest relatives the right to express wishes in relation to imminent organ removal – was sufficiently clear as regards the implementation of this right. The applicant argued that there was no mechanism permitting her to exercise her right, but the Government considered that the mechanism was in place and that it was up to the closest relatives to take action if they wished to prevent any organ removal.
92.  The Court must point out, however, that where national legislation is in issue, it is not the Court’s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010).
93.  The Court is mindful of the fact that for almost three days, from 26 to 29 May 2002, the applicant’s son’s medical condition was very serious and that he remained unconscious until his death was recorded at 1.20 a.m. on the latter date. Against this background, while clearly there was a medical emergency given his critical condition, it cannot be said that it had been practically impossible to contact his closest relatives or at least to make an attempt to contact them, informing them of his condition and making enquiries about the possible organ transplantation. Indeed, the applicant submits that she was in contact with the doctors at the Hospital; the Government deny this for the simple reason that no contact details were recorded on her son’s medical card. Be that as it may, the starting point of the Court’s analysis is that, as established by the domestic authorities, the applicant was not informed about the possible removal of her son’s organs for transplantation purposes (see paragraphs 15, 18, 20 and 22 above).
94.  As to whether the domestic law was formulated with sufficient precision, the Court notes that the domestic authorities, most notably the Security Police and the prosecutor’s office, considered that the failure to inform the applicant about the possible removal of her son’s organs did not contravene domestic law (see paragraphs 16, 20, 24-26 above). However, the Minister for Health was of the opinion that the applicant should have been informed; it has been mentioned that as a result of a proposal by a working group established in the Ministry, certain amendments to the Law had been proposed to improve clarity (see paragraph 23 above). These amendments were later adopted by Parliament with effect from 30 June 2004 (see paragraph 41 above). Such disagreement and the subsequent changes in the legislation indicate a lack of reasonable clarity as to the nature of the discretion conferred on the public authorities under domestic law at the time. While Latvian law set out the legal framework allowing the closest relatives to express their wishes in relation to organ removal for transplantation purposes, it did not define with sufficient clarity the scope of the corresponding obligation or the discretion conferred on medical practitioners or other authorities in this respect.
95.  At the time when the applicant’s son was still alive, between 26 and 29 May 2002, no procedure was laid down in law for State institutions to follow in order to establish that person’s own views on organ transplantation (see paragraph 35 above). Following the death of the applicant’s son, as explained by the prosecution, only sections 4 and 11 of the Law were applicable (see paragraphs 25-26 above). The Government referred to domestic case-law, confirming that there was no legal duty to inform the closest relatives about imminent organ removal, and argued that the Law implied that action was needed to be taken by the relatives. The Court reiterates that the principle of legality requires States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a necessary part, to ensure the legal and practical conditions for their implementation (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004 V). In the present case, it remains unclear how the “presumed consent system”, as established under the Latvian law, operates in practice in the circumstances in which the applicant found herself, whereby she had certain rights as the closest relative but was not informed – let alone provided with any explanation – as to how and when these rights might have to be exercised.
96.  As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court observes that the Security Police admitted that the co-ordinator of the transplantation centre had been responsible for informing relatives of issues pertaining to organ transplantation (see paragraph 20 above), but according to the prosecution there was no obligation laid down in law to obtain their consent (see paragraph 25 above). The prosecution also explained that the relevant provisions prohibited organ removal in cases where a refusal or an objection had been received but not in cases where the wishes of the closest relative had not been established (see paragraph 26 above). The Government, while arguing that the removal of organs from the deceased person could not take place against the expressed or presumed wishes of the person concerned, nevertheless admitted that it was not necessary for the medical expert to explain the rights of the closest relatives or to make any inquires as to their wishes. The Court notes a considerable uncertainty as to the applicable law in these various positions. As noted by the applicant and uncontested by the Government, several medical examinations were carried out prior to the actual organ transplantation to establish whether the applicant’s son’s organs were in fact compatible with the potential recipient’s body. The amount of time required to carry out such examinations, short as it might have been, could have been sufficient to provide a real opportunity for the applicant to express her wishes in the absence of those of her son. As noted, however, no mechanism was in place for the applicant to express her wishes, which she was entitled to do under domestic law.
97.   In the light of the above-mentioned considerations, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness.
98.  The Court accordingly concludes that the interference with the applicant’s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, § 76, Reports 1998-II, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011).”
“I agree with my colleagues that the Latvian legislation pertaining to the different rights at stake in the instant case was not compatible with the Convention standards. Therefore, I voted in favour of finding a violation of Article 8 of the Convention. However, I am not persuaded that we should lay so much stress on the absence of relevant administrative regulation (see paragraphs 70 and 90 of the judgment). Firstly, why is an administrative regulation the preferred solution, rather than a better drafted statute? Such a stance would require more thorough consideration under the Latvian Constitution. Secondly, the Court is entering the domain of the States’ constitutional autonomy. In any event, it is for the Latvian authorities to identify the level of the legal hierarchy at which the legal rules require modification.”

SOURCE PROTECTION In the case of Stichting Ostade Blade v. the Netherlands the Court held that protection of journalistic sources does not  extend to perpetrator of bomb attacks. The case concerned the search of a magazine’s premises following a press release it issued announcing that it had received a letter from an organisation claiming responsibility for a series of bomb attacks in Arnhem. Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, the publisher of the magazine complained in particular that the search had amounted to a violation of its right to protect its journalistic sources.
The Court concluded that "source protection" was not in issue in this case as the magazine’s informant, who was seeking publicity for the attacks under cover of the press, was not entitled to the same protection as ordinarily accorded to “sources”. The search, which had been carried out in order to investigate a serious crime and prevent further attacks, had therefore complied with the requirements under Article 10 of the European Convention, notably of being necessary in a democratic society for the prevention of crime.

“58.  The Court finds that the order to hand over the letter, which was followed by a search of the applicant foundation’s premises when it was not obeyed, constituted an interference with the applicant foundation’s right to “receive and impart information”, as set out in Article 10 § 1 (see, among other authorities, Roemen and Schmit v. Luxembourg, no. 51772/99, § 47, ECHR 2003 IV; and Sanoma, cited above, § 72).
59.  Before proceeding to the question whether this interference was justified in terms of Article 10 § 2, the Court must determine the nature of the interference.
60.  The applicant foundation bases its argument on the premise that the case concerns the protection of journalistic sources and that the relevant case-law is that developed by the Court in Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996 II; Roemen and Schmit, cited above; Ernst and Others v. Belgium, no. 33400/96, 15 July 2003; Voskuil v. the Netherlands, no. 64752/01, 22 November 2007; Tillack v. Belgium, no. 20477/05, 27 November 2007; Financial Times Ltd and Others v. the United Kingdom, no. 821/03, 15 December 2009; Sanoma, cited above; and Telegraaf, cited above.
61.  In all of the above-mentioned judgments the Court has stated the importance of the press as “public watchdog” and the concomitant importance of ensuring that individuals remain free to disclose to the press information which, in a democratic society, should properly be accessible to the public (see Goodwin, § 39; Roemen and Schmit, § 46; Ernst and Others, § 91; Voskuil, § 65; Tillack, § 53; Financial Times, § 59; Sanoma, § 50; and Telegraaf, § 127).
62.  It does not follow, however, that every individual who is used by a journalist for information is a “source” in the sense of the case-law mentioned.
63.  In Nordisk Film & TV A/S v. Denmark (dec.), Reports 2005-XIII, the Court declared inadmissible a television producer’s complaint about an order to hand over to the police film recordings which it had covertly made and which were capable of identifying individuals suspected of criminal activity. Referring to the definition given by the Committee of Ministers in the explanatory note to its Recommendation No. R (2000) 7 (see paragraph 38 above), it distinguished the persons thus identified from “sources in the traditional sense”, who freely assisted the press to inform the public about matters of public interest or matters concerning others.
64.  It is undeniable that, even though the protection of a journalistic “source” properly so-called is not in issue, an order directed to a journalist to hand over original materials may have a chilling effect on the exercise of journalistic freedom of expression. That said, the degree of protection under Article 10 of the Convention to be applied in a situation like the present one does not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their “sources” confidential. The distinction lies in that the latter protection is twofold, relating not only to the journalist, but also and in particular to the “source” who volunteers to assist the press in informing the public about matters of public interest (see Nordisk Film, cited above).
65.  In the present case the magazine’s informant was not motivated by the desire to provide information which the public were entitled to know. On the contrary, the informant, identified in 2006 as T. (see paragraph 32 above), was claiming responsibility for crimes which he had himself committed; his purpose in seeking publicity through the magazine Ravage was to don the veil of anonymity with a view to evading his own criminal accountability. For this reason, the Court takes the view that he was not, in principle, entitled to the same protection as the “sources” in cases like Goodwin, Roemen and Schmit, Ernst and Others, Voskuil, Tillack, Financial Times, Sanoma, and Telegraaf.
66.  Having established that “source protection” is not in issue, the Court must now consider whether the interference complained of is justified under Article 10 § 2. This will be the case if the interference is “prescribed by law”, pursues one or more of the “legitimate aims” enumerated in that provision, and can properly be considered “necessary in a democratic society” in order to pursue the legitimate aim or aims identified.
67.  The Court accepts as sufficient for present purposes the statutory basis cited by the Government, namely Articles 111 § 1 and 113 § 1 of the Code of Criminal Procedure, as in force at the relevant time.
68.  The Court also accepts that the “legitimate aim” pursued was, at the very least, “the prevention of ... crime”.
69.  Turning now to the question of “necessity in a democratic society”, the Court notes that the original document received by the editorial board of the magazine Ravage was sought as a possible lead towards identifying a person or persons unknown who were suspected of having carried out a plurality of bomb attacks.
70.  The Court is not persuaded by the applicant foundation’s argument that these attacks had caused damage only to property. Nor does it see the relevance of the question whether these attacks could be labelled “terrorist” or not. It cannot but have regard to the inherent dangerousness of the crimes committed, which in its view constitutes sufficient justification for the investigative measures here in issue. At all events, the dangerousness of the perpetrator in the present case is sufficiently demonstrated, if further proof be needed, by his subsequent conviction of other crimes including bank robbery, arson and murder (see paragraph 33 above).
71.  Nor can it be decisive that the statement claiming responsibility for the bomb attack in April 1996 was quoted literally and in its entirety, as the applicant foundation alleges, or that other investigatory leads were available, as the applicant foundation insinuates. Even assuming such to be the case, the Court cannot find that the original document, whether on its own or in conjunction with other evidence, was incapable of yielding useful information. Indeed, if that be so then it cannot be seen what prevented the editors of the magazine from handing it over of their own accord.
72.  There remains the applicant foundation’s complaint that the search destroyed the confidentiality of information entrusted to the magazine’s editors. Nothing is known about this information, nor has the applicant foundation suggested that it, its informants and contributors or its readership suffered as a result. It is not denied that all materials seized were returned, with the exception of a typewriter ribbon which was destroyed, and that all information not relevant to the investigation was likewise destroyed (see paragraph 13 above). In the circumstances, which are further characterised by the fact that the search was occasioned by the wilful destruction of the letter, the Court is not disposed to lay the blame on the authorities.

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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