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

Thursday, 9 October 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 41

Procedure for allowing medical students to attend the birth of a baby without the explicit consent of the mother was inadequate - In the case of Konovalova v. Russia the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned Ms Konovalova’s complaint that medical students had been allowed to observe her giving birth, without her explicit consent. The Court found that the relevant national legislation at the time of the birth of Ms Konovalova’s baby – 1999 – did not contain any safeguards to protect patients’ privacy rights. This serious shortcoming had been exacerbated by the hospital’s procedure for obtaining consent from patients to take part in the clinical teaching programme during their treatment. In particular, the hospital’s booklet notifying Ms Konovalova of her possible involvement in the teaching programme had been vague and the matter had in general been presented to her in such a way as to suggest that she had no other choice.
„39.  The Court reiterates that under its Article 8 case-law, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, among other things, information relating to one’s personal identity, such as a person’s name, photograph, or physical and moral integrity (see, for example, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, 7 February 2012) and generally extends to the personal information which individuals can legitimately expect to not be exposed to the public without their consent (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010; Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010; and Ageyevy v. Russia, no. 7075/10, § 193, 18 April 2013). It also incorporates the right to respect for both the decisions to become and not to become a parent (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I) and, more specifically, the right of choosing the circumstances of becoming a parent (see Ternovszky v. Hungary, no. 67545/09, § 22, 14 December 2010).

40.  Moreover, Article 8 encompasses the physical integrity of a person, since a person’s body is the most intimate aspect of private life, and medical intervention, even if it is of minor importance, constitutes an interference with this right (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003‑IX, V.C. v. Slovakia, no. 18968/07, §§ 138-142, ECHR 2011; Solomakhin v. Ukraine, no. 24429/03, § 33, 15 March 2012; and I.G. and Others v. Slovakia, no. 15966/04, §§ 135 - 146, 13 November 2012).

41.  Turning to the circumstances of the instant case, the Court notes that given the sensitive nature of the medical procedure which the applicant underwent on 24 April 1999, and the fact that the medical students witnessed it and thus had access to the confidential medical information concerning the applicant’s condition (see paragraphs 16 above), there is no doubt that such an arrangement amounted to “an interference” with the applicant’s private life within the meaning of Article 8 of the Convention.

(b)  Whether the interference was in accordance with the law

42.  Under the Court’s case-law, the expression “in accordance with the law” in Article 8 § 2 requires, among other things, that the measure in question should have some basis in domestic law (see, for example, Aleksandra Dmitriyeva v. Russia, no. 9390/05, §§ 104-07, 3 November 2011), but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate their conduct. In the context of medical treatment, the domestic law must provide some protection for the individual against arbitrary interference with his or her rights under Article 8 (see, mutatis mutandis, X v. Finland, no. 34806/04, § 217, ECHR 2012).

43.  The Court notes that the presence of medical students during the birth of the applicant’s child was authorised in accordance with Article 54 of the Health Care Act, which provided that students of specialist medical educational institutions were allowed to assist in medical treatment in line with the requirements of their curriculum and under the supervision of the medical personnel responsible for their professional studies (see paragraph 29 above). Thus, it cannot be said the interference with the applicant’s private life was devoid of any legal basis.
44.  At the same time, the Court observes that Article 54 was a legal provision of a general nature, principally aimed at enabling medical students to participate in treatments for educational purposes. It delegated regulatory matters in this area to a competent executive agency, and as such did not contain specific rules protecting patients’ private sphere (see paragraph 29 above). In particular, the provision did not contain any safeguards capable of providing protection to patients’ private lives in such situations. The Court would note in this connection that the relevant set of rules was only adopted eight years after the events, in the form of Order no. 30 of the Ministry of Healthcare and Social Development of Russia of 15 January 2007 (see paragraph 31 above). This document contained a procedural safeguard in the form of the requirement to obtain patients’ consent for the participation of medical students in medical treatment.
45.  In the Court’s view, the absence of any safeguards against arbitrary interference with patients’ rights in the relevant domestic law at the time constituted a serious shortcoming (see, mutatis mutandis, V.C., cited above, §§ 138-142), which, in the circumstances of the present case, was further exacerbated by the way in which the hospital and the domestic courts approached the issue.
46.  The Court would point out firstly that the information notice referred to by the hospital in the domestic proceedings contained a rather vague reference to the involvement of students in “the study process” without specifying the exact scope and degree of this involvement. Moreover, the information was presented in such a way as to suggest that the participation was mandatory and seemed not to leave any choice for the applicant to decide whether or not to refuse to allow the students to participate (see paragraph 7 above). In such circumstances, it is difficult to say that the applicant had received prior notification about the arrangement and could foresee its exact consequences.
47.  Furthermore, the Court would note that the applicant learned of the presence of medical students during the birth the day before, between two sessions of drug-induced sleep, when she had already been for some time in a state of extreme stress and fatigue on account of her prolonged contractions (see paragraphs 6-16 above). It is unclear whether the applicant was given any choice regarding the participation of students on this occasion and whether, in the circumstances, she was at all capable of making an intelligible informed decision (see paragraph 37 above).
48.  As regards the domestic courts’ analysis of the applicant’s civil claim, the Court notes that the applicable legal provision did not regulate the matter in detail and did not require the hospital to obtain the applicant’s consent (see paragraph 29 above). Although the domestic courts found that under the applicable domestic law written consent was not necessary, they considered that implicit consent had been given (see paragraphs 23-25 above). Even if this finding had any bearing on the outcome of the domestic case, it remains unreliable because the courts simply deferred to the statements of the doctor without questioning any other witnesses, such as other medical personnel and the students involved (see paragraph 23 above). More importantly, the domestic courts did not take into account other relevant circumstances of the case, such as the alleged insufficiency of the information contained in the hospital’s notice, the applicant’s vulnerable condition during notification as pointed out by the Court earlier, and the availability of any alternative arrangements in case the applicant decided to refuse the presence of the students during the birth (see paragraph 37 above).
49.  In the light of the above, the Court finds that the presence of medical students during the birth of the applicant’s child on 24 April 1999 did not comply with the requirement of lawfulness of Article 8 § 2 of the Convention, on account of the lack of sufficient procedural safeguards against arbitrary interference with the applicant’s Article 8 rights in the domestic law at the time.
50.  There has therefore been a breach of Article 8 of the Convention.”

Spain should adopt measures to protect persons held incommunicado in police custody from possible violence at the hand of the authorities 
Etxebarria Caballero v. Spain and Ataun Rojo v. Spain

Severe harassment of Jehovah’s Witnesses in Georgia was tolerated by the authorities in 2000-2001
Begheluri and Others v. Georgia

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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