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

Thursday, 11 December 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 50

"Adoration of the Shepherds" by Gerard van Honthorst, 1622

BIRTH 
"Wer es erlebt hat, wird mir zustimmen: Es gibt kaum einen intimeren, mächtigeren, das Innerste buchstäblich nach außen kehrenderen Moment im Leben als die Geburt des eigenen Kindes. Bis zu welcher Grenze ist es dem Staat erlaubt, diesen Moment unter seine fürsorgliche Kontrolle zu bringen, zu meiner und meines Kindes Sicherheit, notfalls auch gegen meinen Willen?" Von der Freiheit, sein Kind daheim zur Welt zu bringen (Maximilian Steinbeis, Verfassungsblag)
Prohibition on midwives assisting home births in Czech Republic does not violate mothers’ rights - case of Dubská and Krejzová v. the Czech Republic - no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights - The case concerned the prohibition under Czech law on midwives assisting home births. The Court took into consideration, in particular, that there was no European consensus on whether or not to allow home births, and that this question involved the allocation of financial resources, for example for an adequate emergency system for home births. It concluded that States had a lot of room for manoeuvre (“margin of appreciation”) in regulating this issue. Moreover, the applicants did not have to bear a disproportionate burden on account of the fact that they could only be assisted by a medical professional if giving birth in a hospital:
"93.  The Court observes that the present case involves a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births. It notes in this respect that besides their physical vulnerability, newborns are fully dependent on decisions made by others, which justifies a strong involvement on the part of the State. Moreover, the issue of home births touches on areas where there is no clear common ground amongst the member States (see paragraphs 59-61 above) and involves general social and economic policy considerations of the State including the allocation of financial means as setting up an adequate emergency system may involve shifting budgetary means from the general system of maternity hospitals to a new security network for home births. In the light of these considerations, the Court is of the opinion that the margin of appreciation to be afforded to the respondent State must be a wide one.

94.  In balancing the interests at stake, the Court notes that the Government focused primarily on the legitimate aim of protecting the best interests of the child, which – depending on their nature and seriousness – may override those of the parent who cannot, in particular, be entitled under Article 8 to have measures taken that would harm the child’s health and development (see Haase v. Germany, no. 11057/02, § 93, ECHR 2004‑III (extracts)). The Court considers that while there is generally no conflict of interest between the mother and her child, certain choices made by the mother as to the place, circumstances or method of delivery may be seen to give rise to increased risk to the health and safety of the newborns whose mortality rate shown in figures for perinatal and neonatal deaths, is not negligible, despite all the advances in medical care.

95.  The Court accepts that the situation in question had a serious impact on the freedom of choice of the applicants who were required, if they wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that this posed to themselves and to the newborns, or to give birth at hospital (see paragraph 93 above). The applicants were free to give birth in a hospital of their choice, where in theory their wishes relating to matters concerning the birth would be respected (see paragraph 39 above). However, the material before the Court suggests that the conditions in most local hospitals, as far as respecting the choices of mothers, were questionable (see paragraphs 7, 16 and 21 above). In this context the Court notes that the Committee on the Elimination of Discrimination against Women, recommended to the respondent State that it should ensure respect for patients’ rights, avoiding unnecessary medical interventions (see paragraph 56 above). Accordingly, the mothers’ free choice of the hospital in which to give birth did not weaken the applicants’ interest in having assisted home births.
96.  The Court further observes, on the one hand, that the majority of the research studies presented to it do not suggest that there is an increased risk for home births, when compared to births in a hospital, but only if certain preconditions are fulfilled. First, home births would be acceptable only in case of “low-risk” pregnancies. Second, the home birth has to be attended by a qualified midwife who is able to detect any complications during a delivery and to refer a woman in labour to a hospital if necessary. Third, the transfer of mother and child to the hospital should be secured within a very short period of time. Thus, a situation such as the one in the Czech Republic in which medical professionals are not allowed to assist mothers who wish to give birth at home and where no specialised emergency aid is available, may be said to increase rather than reduce the risk to the life and health of the mother and newborn.
97.  On the other hand, the Court, noting the Government’s argument that the risk for newborns is higher in respect of home births than in respect of deliveries in fully staffed and equipped maternity hospitals, is aware that, even if a pregnancy seems to be without any particular complications, there can arise unexpected difficulties during the delivery, such as the acute lack of oxygen supply to the foetus or profuse bleedings, or events which require specialised medical intervention, such as a caesarean section or the need to put a newborn on neonatal assistance. Moreover, in the course of a hospital birth, the institution can immediately provide the necessary care or intervention, which is not true of a home birth, even one attended by a midwife. The time spent getting to a hospital should such complications occur could indeed give rise to increased risks to the life and health of the newborn or of that of the mother (see paragraphs 65-67 above).
98.  Therefore, in the light in these circumstances, the Court concludes that the mothers concerned, including the applicants, did not have to bear a disproportionate and excessive burden.
99.  The Court must finally establish whether the national authorities, principally the Ministry of Health, when dealing with the policy concerning the home births and, especially, when adopting and maintaining the relevant regulations (see paragraphs 22, 26-28 and 42-43 above), gave due weight to the competing interests and whether they carefully considered the possible alternatives and assessed the proportionality of their policy in respect of home births. The Court notes in this respect that the material before it does not show that the Ministry of Health did originally carry out such an assessment. It further appears that the national authorities tried to lead an open discussion including all relevant interest groups on the issue of homes births which, however, eventually failed (see paragraph 26 above). A further assessment by way of obiter dictum, was done by the Constitutional Court in July 2013, according to which a modern democratic State protects freedoms, including those that are accompanied by a certain degree of acceptable risk and the right of parents to a free choice of place and mode of a delivery was limited only by the interests of the safe delivery and health of the child; those interests could not however be interpreted as leading to an unambiguous preference for deliveries in hospitals (see paragraph 36 above).
100.  Finally, the Court finds appropriate to add that the State authorities should keep the relevant provisions under a constant review which reflects medical, scientific and legal developments. Indeed, the Ministry of Health recently re-examined its policy, since 1 January 2014, women with low risk pregnancies may choose whether they wish to remain in hospital for a period of 72 hours after delivery, following the recommendation of medical specialists, or to give birth in hospital under the care of a midwife and leave the hospital 24 hours after the birth (see paragraph 28 above).
101.  Having regard to all the circumstances of the case and bearing in mind that there is no European consensus in the matter, the Court finds that in adopting and applying the then policy relating to home births, the authorities did not exceed the wide margin of appreciation afforded to them or upset the fair balance which is required to be struck between the competing interests. Accordingly, there has been no violation of Article 8 of the Convention."
DISSENTING OPINION OF JUDGE LEMMENS
"3.  Was a fair balance struck in the present case between the general interest and the interests of the applicants, taking into account the margin of appreciation enjoyed by the States in matters of public health? According to the Government, the general interest pursued by the State lies in protecting the health of mothers and their children. However, as I noted above, the law does not prohibit mothers from giving birth in a place of their choice. It is therefore theoretically possible for mothers to give birth at home. Should they choose to do so, however, they are unable to obtain the assistance of a midwife. I cannot understand how such a system, taken as a whole, can be seen as compatible with the stated aim of protection of the health of the mothers and their children. Even the majority acknowledges that, on this point, there is something strange about the Czech system (see paragraph 96 of the judgment). Having regard to the foregoing, I believe that the public-health argument put forward by the Government should not be overestimated.
5.  It is of course true that delivery at home, even with the assistance of a midwife, would not be fully without risk. The majority rightly points out that there could be unexpected complications which would require a specialised medical intervention, and which could give rise to a life- or health-threatening delay before the mother could avail herself of the necessary care in a hospital (see paragraph 97 of the judgment).
However, with respect to this aspect of the issue, I think we should, in a spirit of subsidiarity, take due account of what the Czech Constitutional Court held in its judgment of 24 July 2013 (see paragraph 36 of the judgment):
“... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of persons to a free choice of the place and mode of a delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospitals.”
6.  Having regard to all the above, I find that it has not been shown that the present situation in the Czech Republic strikes a fair balance between the competing interests at stake. I therefore find that there has been a violation of Article 8 of the Convention."
Measure obliging mother and baby to return to hospital after birth breached the Convention - case of Hanzelkovi v. the Czech Republic - Violation of Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention - The case concerned a court-ordered interim measure requiring the return to hospital of a new-born baby and its mother, who had just given birth and had immediately gone home, and the lack of any remedy by which to complain about that measure. The Court reiterated that the taking into care of a new-born baby at birth was an extremely harsh measure and that there had to be unusually compelling reasons for a baby to be removed from the care of its mother against her will immediately after the birth and following a procedure which involved neither the mother nor her partner. In particular, when the domestic court was considering the interim measure it should have ascertained whether it was possible to have recourse to a less extreme form of interference with the applicants’ family life at such a decisive moment in their lives. The Court took the view that this serious interference with the applicants’ family life and the conditions of its implementation had had disproportionate effects on their prospects of enjoying a family life immediately after the child’s birth. While there may have been a need to take precautionary measures to protect the baby’s health, the interference with the applicants’ family life caused by the interim measure could not be regarded as necessary in a democratic society. The judgment is available only in French.

DISSENTING OPINIONS OF JUDGES ZUPANČIČ AND YUDKIVSKA 
"À notre sens, la Cour n’est en mesure ni d’apprécier les problèmes médicaux potentiels ni, par conséquent, de dire si l’ordre de réhospitaliser le second requérant pour protéger son bien-être a « produit des effets disproportionnés sur les perspectives qu’avaient les requérants de jouir d’une vie familiale dès la naissance du second d’entre eux ». Les autorités ont réagi de façon réfléchie, en particulier compte tenu du fait qu’une fausse adresse leur avait été donnée, même si à l’époque leur réaction a peut-être paru un peu dure. Nous ne souscrivons pas à la conclusion selon laquelle il aurait été possible de recourir à des mesures moins intrusives, par exemple l’examen de l’enfant par un expert (paragraphe 76 de l’arrêt). Un examen médical ponctuel n’est pas suffisant pour exclure totalement des risques pouvant survenir à tout moment dans les 72 heures après l’accouchement." 
Pre-trial detention without adequate justification - case of Geisterfer v. the NetherlandsThe ground of social disturbance for pre-trial detention can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence. The national court merely referred in general terms to the interest of the prosecution, which it considered of overriding importance. - violation of Article 5 §§ 1 (c) and 3  (right to liberty and security / entitlement to trial within a reasonable time or to release pending trial):
"39.  The Court accepts that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises - as does Article 67a of the Netherlands Code of Criminal Procedure - the notion of disturbance to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence. More generally, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see Letellier v. France, 26 June 1991, § 51, Series A no. 207; see also Ječius v. Lithuania, no. 34578/97, § 94, ECHR 2000-IX; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Panchenko v. Russia, no. 45100/98, § 101, 8 February 2005; and as a recent authority, Idalov v. Russia [GC], no. 5826/03, § 145, 22 May 2012).40.  Turning to the facts of the present case, the Court notes that on 2 February 2006 the investigating judge of the Haarlem Regional Court ordered the applicant detained on remand on three grounds: firstly, the seriousness of the criminal act of which the applicant was suspected, which carried a maximum sentence of imprisonment of twelve years or more and had caused serious upset to the legal order; secondly, the danger that the applicant might reoffend; and thirdly, the needs of the criminal investigation (see paragraph 7 above). On 14 February 2006 the Haarlem Regional Court extended the applicant’s detention on remand, adopting the reasoning given by the investigating judge as its own (see paragraph 8 above); this order was renewed, periodically, until its order of 7 May 2007 by which the applicant’s detention on remand was suspended. Even so, the latter order found that the grounds for the applicant to be detained on remand still existed; for that reason, it made the applicant’s temporary release from detention subject to conditions designed to prevent him from evading justice or reoffending (see paragraph 12 above).41.  The Regional Court’s decision of 22 August 2007 (see paragraph 14 above), which continued the suspension of the applicant’s detention on remand rather than terminating it, no longer referred to the needs of the criminal investigation; however, it laid great stress on the seriousness of the crimes of which the applicant stood accused.42.  On 25 September 2007, when the applicant was ordered back into detention, the Regional Court did not enlarge on the grounds for so doing but merely referred in general terms to the interest of the prosecution, which it considered of overriding importance (see paragraph 16 above).43.  It has not been argued that the applicant’s release into society following the Regional Court’s decision of 7 May 2007 caused any threat to public order, or that for any other reason the conditions to which the applicant’s release was made subject did not suffice. It appears, therefore, that the Regional Court assumed that the gravity of the charges carried such a preponderant weight that no other circumstances could have warranted allowing the applicant to remain at liberty, not even conditionally.44.  That being so, the Court finds that there has been a violation of Article 5 §§ 1 (c) and 3."
Conviction of Adrian Nastase, former Prime Minister of Romania, was not in breach of Convention - In its decision in the case of Nastase v. Romania the Court, by a majority, declared the application inadmissible. The case concerned the conviction of Adrian Nastase, former Prime Minister and former Minister for Foreign Affairs of Romania, by the High Court of Cassation and Justice, for using his influence as chairman of a political party in order to obtain financing for his 2004 election campaign. 
Mr Nastase relied on Article 3 (prohibition of torture and inhuman or degrading treatment), Article 8 (right to respect for private and family life), Article 5 § 1 (a) (right to liberty and security), Article 6 § 1 (right to a fair hearing), Article 6 § 3 (a) (right to be informed promptly of the accusation against him), (b) (right to adequate time and facilities for preparation of defence) and (d) (right to examine witnesses), Article 18 (limitation on use of restrictions on rights), Article 7 (no punishment without law), Article 11 (freedom of assembly and association), Article 1 of Protocol No. 1 (protection of property) and Article 3 of Protocol No. 1 (right to free elections).
The Court found that Mr Nastase’s complaints were manifestly ill-founded or incompatible with the Convention, or to be rejected for failure to exhaust domestic remedies. The decision is available only in French.


Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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