This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 23 - updated

Featuring this week:

• No violation of Article 2 (right to life) in the event of France authorising the withdrawal of the artificial nutrition and hydration of Vincent Lambert.
• Journalist should not have been found liable for defamation for article on criminal case 
• Procedure imposed on a resigned army officer for buying back his remaining years of service was contrary to the Convention 
• Case brought by Slovenian bank against Croatia declared inadmissible as the bank is government-controlled and has no standing to lodge an application 
• Cassation appeal procedure in civil cases in Russia constitutes a remedy to be exhausted before bringing a case before the Strasbourg court.

Grand Chamber judgment in the case of Lambert and Others v. France - no violation of Article 2 (right to life) of the European Convention on Human Rights in the event of France authorising the withdrawal of the artificial nutrition and hydration of Vincent Lambert - The case concerned the judgment delivered on 24 June 2014 by the Conseil d’État authorising the withdrawal of the artificial nutrition and hydration of Vincent Lambert. The Court observed that there was no consensus among the Council of Europe member States in favour of permitting the withdrawal of life-sustaining treatment. In that sphere, which concerned the end of life, States must be afforded a margin of appreciation. The Court considered that the provisions of the Act of 22 April 2005, as interpreted by the Conseil d’Etat, constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court was keenly aware of the importance of the issues raised by the present case, which concerned extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterated that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient’s wishes in accordance with national law. The Court’s role consisted in examining the State’s compliance with its positive obligations flowing from Article 2 of the Convention. The Court found the legislative framework laid down by domestic law, as interpreted by the Conseil d’État, and the decision-making process, which had been conducted in meticulous fashion, to be compatible with the requirements of Article 2. The Court reached the conclusion that the present case had been the subject of an in-depth examination in the course of which all points of view could be expressed and that all aspects had been carefully considered, in the light of both a detailed expert medical report and general observations from the highest-ranking medical and ethical bodies.

JOINT PARTLY DISSENTING OPINION OF JUDGES HAJIYEV, ŠIKUTA, TSOTSORIA, DE GAETANO AND GRIҬCO

"1. We regret that we have to dissociate ourselves from the majority’s view expressed in points 2, 4 and 5 of the operative provisions of the judgment in this case. After considerable reflection, we believe that once all is said and written in this judgment, after all the subtle legal distinctions are made and all the fine hairs split, what is being proposed is nothing more and nothing less than that a severely disabled person who is unable to communicate his wishes about his present condition may, on the basis of a number of questionable assumptions, be deprived of two basic life-sustaining necessities, namely food and water, and moreover that the Convention is impotent in the face of this reality. We find that conclusion not only frightening but – and we very much regret having to say this – tantamount to a retrograde step in the degree of protection which the Convention and the Court have hitherto afforded to vulnerable people.
2. In reaching the conclusion in paragraph 112 of the judgment, the majority proceed to review the existing cases in which the Convention institutions have accepted that a third party may, in exceptional circumstances, act in the name and on behalf of a vulnerable person, even if the latter has not expressly stated his or her wish to submit an application. The majority deduce from that case-law two main criteria to be applied in such cases: the risk that the direct victim will be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant (see paragraph 102 of the judgment). While we agree with these two criteria as such, we completely disagree with the way in which the majority apply them in the particular circumstances of the present case.
With regard to the first criterion, it is true that the applicants can, and did, invoke Article 2 on their own behalf. However, now that the Court has recognised the locus standi of a non-governmental organisation to represent a deceased person (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, [GC] no. 47848/08, ECHR 2014), we do not see any valid reason not to follow the same approach in respect of the applicants in the instant case. In fact, as close relatives of Vincent Lambert, they have, a fortiori, even stronger justification for acting on his behalf before the Court.
As regards the second criterion, the majority consider that, since the impugned domestic decisions were based on the certainty that Vincent Lambert would not have wished to be kept alive under the conditions in which he now finds himself, it is not “established that there is a convergence of interests between the applicants’ assertions and what Vincent Lambert would have wished” (see paragraph 104 of the judgment). This statement would be correct only if – and in so far as – the applicants alleged a violation of Vincent Lambert’s right to personal autonomy under Article 8 of the Convention, which, according to our Court’s case-law, comprises the individual’s right to decide in which way and at which time his or her life should end (see Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011). However, although the applicants do invoke Article 8, they do so in a completely different context; it is Vincent Lambert’s physical integrity, and not his personal autonomy, that they seek to defend before the Court. Their main complaints raised on behalf of Vincent Lambert are based on Articles 2 and 3 of the Convention. Unlike Article 8, which protects an extremely wide panoply of human actions based on personal choices and going in various directions, Articles 2 and 3 of the Convention are clearly unidirectional in that they do not involve any negative aspect. Article 2 protects the right to life but not the right to die (see Pretty v. the United Kingdom, no. 2346/02, §§ 39-40, ECHR 2002 III). Likewise, Article 3 guarantees a positive right not to be subjected to ill-treatment, but no “right” whatsoever to waive this right and to be, for example, beaten, tortured or starved to death. To put it simply, both Article 2 and Article 3 are “one-way avenues”. The right not to be starved to death being the only right that Vincent Lambert himself could have validly claimed under Articles 2 and 3, we fail to see how it is logically possible to find any lack of “convergence of interests” between him and the applicants in the present case, or even entertain the slightest doubt on this point.
In these circumstances, we are convinced that the applicants did have standing to act in the name and on behalf of Vincent Lambert, and that their respective complaints should have been declared compatible ratione personae with the provisions of the Convention.
3. We would like to make it clear from the outset that had this been a case where the person in question – Vincent Lambert in this case – had clearly expressed his wish not to be allowed to continue to live because of his severe physical disability and the pain associated therewith, or, in view of that situation, had clearly refused food and water, we would have found no objection to hydration and feeding being turned off or withheld if domestic legislation provided for that (and save always the right of members of the medical profession to refuse to be party to that procedure on grounds of conscientious objection). One may not agree with such a law, but in such a situation two Convention rights are, as it were, pitted against each other: the right to life (with the corresponding duty of the State to protect life) on the one hand – Article 2 – and the right to personal autonomy which is subsumed under Article 8. In such a contest one can agree that “respect for human dignity and human freedom” (underlined in Pretty, cited above, § 65) may prevail. But that is not Vincent Lambert’s situation.
4. Vincent Lambert is, according to the available evidence, in a persistent vegetative state, with minimal, if any, consciousness. He is not, however, brain dead – there is a failure of function at one level of the brain but not at all levels. In fact, he can breathe on his own (without the aid of a life-support machine) and can digest food (the gastro-intestinal tract is intact and functioning), but has difficulty in swallowing, in moving solid food down the oesophagus. More critically, there is no evidence, cogent or otherwise, that he is in pain (as distinguished from the evident discomfort of being constantly in bed or in a wheelchair). We are particularly struck by a submission made by the applicants before this Court in their observations of 16 October 2014 on the admissibility and merits (see paragraphs 51 and 52), and which has not really been contested by the Government, to the following effect:
“The Court must realise that, like any person in a state of severely diminished consciousness, Mr Lambert can be got out of bed, dressed, put in a wheelchair and taken out of his room. Many patients in a condition comparable to his reside in a specialised nursing home and are able to spend weekends and some holidays with their families ... and it is precisely the enteral method used to feed them that makes this form of autonomy possible.
In September 2012 Doctor Kariger agreed to let Vincent Lambert’s parents take him on holiday to the south of France. That was six months before the first decision to stop feeding him was taken ... and there had been no change in his condition in the interim.”
From the evidence submitted before this Court, enteral feeding involves minimal physical invasion, causes the patient no pain, and, with minimal training, such feeding can continue to be administered by the family or relatives of Mr Lambert (and the applicants have offered to do so) – although the food mixture to be administered is still something that has to be prepared in a clinic or hospital. In this sense enteral feeding and hydration (irrespective for the moment of whether this is termed “treatment” or “care” or just “feeding”) is entirely proportionate to the situation in which Vincent Lambert finds himself. In this context we are none the wiser, even after having heard oral submissions in this case, as to why the transfer of Vincent Lambert to a specialised clinic – the Bethel[1] nursing home – where he can be cared for (thereby relieving the Reims University Hospital of that duty) has been blocked by the authorities.
In other words, Vincent Lambert is alive and being cared for. He is also being fed – and food and water are two basic life-sustaining necessities, and are intimately linked to human dignity. This intimate link has been repeatedly stated in numerous international documents[2] What, we therefore ask, can justify a State in allowing a doctor – Dr Kariger or, since he has resigned and left Reims University Hospital[3], some other doctor – in this case not so much to “pull the plug” (Lambert is not on any life-support machine) as to withdraw or discontinue feeding and hydration so as to, in effect, starve Vincent Lambert to death? What is the overriding reason, in the circumstances of the present case, justifying the State in not intervening to protect life? Is it financial considerations? None has been advanced in this case. Is it because the person is in considerable pain? There is no evidence to that effect. Is it because the person is of no further use or importance to society, indeed is no longer a person and has only “biological life”?
5. As has already been pointed out, there is no clear or certain indication of what Vincent Lambert’s wishes really are (or even were) regarding the continuance or otherwise of his feeding and hydration in the situation that he now finds himself in. Although he was a member of the nursing profession before the accident which reduced him to his present state, he never formulated any “advance directives” nor appointed “a person of trust” for the purpose of the various provisions of the Public Health Code. The Conseil d’Etat, in its decision of 24 June 2014, made much of the evidently casual conversations that Vincent Lambert had had with his wife (and apparently on one occasion also with his brother Joseph Lambert) and came to the conclusion that “Dr Kariger [could not] be regarded as having incorrectly interpreted the wishes expressed by the patient before the accident”[4]. In matters of such gravity nothing short of absolute certainty should have sufficed. “Interpreting” ex post facto what people may or may not have said years before (and when in perfect health) in casual conversations clearly exposes the system to grave abuse. Even if, for the sake of argument, Vincent Lambert had indeed expressed the view that he would have refused to be kept in a state of great dependency, such a statement does not in our view offer a sufficient degree of certainty regarding his desire to be deprived of food and water. As the applicants note in paragraphs 153 and 154 of their observations – something which again has not been denied or contradicted by the respondent Government –
“If Mr Vincent Lambert had really wanted his life to end, if he had really ‘given up’ psychologically, if he had really and truly wanted to die [he] would already be dead by now. He would not have survived for 31 days without food (between the first time his nutrition was stopped on 10 April 2013 and the first order of the Châlons-en-Champagne Administrative Court, of 11 May 2013 ordering the resumption of his nutrition) if something inside him, an inner force, had not made him fight to stay alive. No one knows what this force of life is. Perhaps, unconsciously, it is the fact that he is a father, and the desire to see his daughter? Perhaps it is something else. What is undeniable is that by his actions Mr Vincent Lambert has shown a will to live that it would be wrong to ignore.
Conversely, any person who works with patients in a state of impaired consciousness will tell you that a person in his condition who gives up on life dies within ten days. In the instant case, Mr Lambert survived for 31 days with no food and only 500 ml of liquid per day.”
However, all this emphasis on the presumed wishes or intentions of Vincent Lambert detracts from another important issue, namely the fact that under the French law applicable in the instant case, where a patient is unconscious and has made no advance directives, his wishes and the views or wishes of his family only complement the analysis of what the doctor in charge of the patient perceives to be a medical reality. In other words, the patient’s wishes are, in such a situation, in no way determinative of the final outcome. The three criteria set out in Article L. 1110-5 of the Public Health Code – futility, disproportion and sustaining life artificially – are the only relevant criteria. As the Conseil d’Etat has stated, account must be taken of any wishes expressed by the patient and particular importance must be attached to those wishes (see paragraphs 47 and 48 of the judgment), but those wishes are never decisive. In other words, once the doctor in charge has, as in the instant case, decided that the third criterion applies, the die is cast and the collective procedure is essentially a mere formality.
6. By no stretch of the imagination can Vincent Lambert be deemed to be in an “end-of-life” situation. Regrettably, he will be in that situation soon, after feeding and hydration are withdrawn or withheld. Persons in an even worse plight than Vincent Lambert are not in an imminently terminal condition (provided there is no other concurrent pathology). Their nutrition – regardless of whether it is considered as treatment or as care – is serving a life-sustaining purpose. It therefore remains an ordinary means of sustaining life and should, in principle, be continued.
7. Questions relative to the supplying of nutrition and hydration are often qualified by the term “artificial”, and this, as has happened in this case, leads to unnecessary confusion. Every form of feeding – whether it is placing a feeding bottle in a baby’s mouth, or using cutlery in the refectory to put food in one’s mouth – is, to some extent, artificial, as the ingestion of the food is being mediated. But when it comes to a patient in Vincent Lambert’s condition, the real question that must be asked (in the context of the concepts of proportionality and reasonableness that underpin the notion of the State’s positive obligations under Article 2) is this: is the hydration and nutrition of benefit to the person without causing any undue burden of pain or suffering or excessive expenditure of resources? If the answer is yes, then there is a positive obligation to preserve life. If the burdens surpass the benefits, then the State’s obligation may, in appropriate cases, cease. In this context we would add, moreover, that a State’s margin of appreciation, referred to in paragraph 148, is not unlimited, and, broad as it may be, must always be viewed in the light of the values underpinning the Convention, chief among which is the value of life. The Court has often stated that the Convention must be read as a whole (a principle referred to in paragraph 142) and interpreted (and we would say also applied) in such a way as to promote internal consistency and harmony between its various provisions and the various values enshrined therein (see, albeit in different contexts, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005 X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012). In assessing this margin of appreciation in the circumstances of the instant case, and the method chosen by the French authorities to “balance” any competing interests, the Court should therefore have given more weight to the value of life. It should also be recalled that we are not in a situation here where one can legitimately say that there may be some doubt as to whether or not there is life or “human life” (such as in cases dealing with fertility and human embryos – the “when does human life begin?” question). Nor is it a case where there is any doubt as to whether or not Vincent Lambert is alive. To our mind, a person in Vincent Lambert’s condition is a person with fundamental human dignity and must therefore, in accordance with the principles underpinning Article 2, receive ordinary and proportionate care or treatment which includes the administration of water and food.
8. We agree with the applicants that the law in question lacks clarity[5]: on what is ordinary and extraordinary treatment, on what amounts to unreasonable obstinacy, and, more critically, on what amounts to prolonging (or sustaining) life artificially. It is true that it is primarily for the domestic courts to interpret and apply the law, but it is also clear to us that the Conseil d’Etat, in its judgment of 24 June 2014, adopted uncritically the interpretation given by Mr Leonetti, and moreover disposed in a perfunctory way of the issue of the compatibility of domestic law with Articles 2 and 8 of the Convention (see paragraph 47 of the judgment), attaching importance only to the fact that the “procedure had been observed”. It is true that this Court should not act as a fourth-instance court and that the principle of subsidiarity must be respected, but not to the point of refraining from affirming the value of life and the inherent dignity even of persons who are in a vegetative state, severely paralysed and who cannot communicate their wishes to others.
9. We agree that, conceptually, there is a legitimate distinction between euthanasia and assisted suicide on the one hand, and therapeutic abstention on the other. However, because of the manner in which domestic law has been interpreted and the way it has been applied to the facts of the case under examination, we strongly disagree with what is stated in paragraph 141 of the judgment. The case before this Court is one of euthanasia, even if under a different name. In principle it is never advisable to use strong adjectives or adverbs in judicial documents, but in the instant case it certainly is utterly contradictory for the respondent Government to insist that French law prohibits euthanasia and that therefore euthanasia does not enter into the equation in this case. We cannot hold otherwise when it is clear that the criteria of the Leonetti Act, as interpreted by the highest administrative court, when applied to a person who is unconscious and undergoing “treatment” which is not really therapeutic but simply a matter of nursing care, actually results in precipitating death which would not otherwise result in the foreseeable future.
10. The public rapporteur before the Conseil d’Etat is reported (in paragraphs 31 and 122 of the judgment) as having said (citing the Minister of Health while the Leonetti bill was being piloted in the Senate) that “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” Much has been made of this statement both by the Conseil d’Etat and by this Court. We beg to differ. Apart from the fact that, as we have already said, there is no evidence in the instant case that Mr Lambert is suffering in any way, that statement would be correct if, and only if, a proper distinction were made between ordinary care (or treatment) and extraordinary care (or treatment). Feeding a person, even if enterally, is an act of ordinary care, and by withholding or withdrawing food and water death inevitably follows (which would not otherwise follow in the foreseeable future). One may not will the death of the subject in question, but by willing the act or omission which one knows will in all likelihood lead to that death, one actually intends to kill that subject nonetheless. This is, after all, the whole notion of positive indirect intent as one of the two limbs of the notion of dolus in criminal law.
11. In 2010, to mark its fiftieth anniversary, the Court accepted the title of The Conscience of Europe when publishing a book with that very title. Assuming, for the sake of argument, that an institution, as opposed to the individuals who make up that institution, can have a conscience, such a conscience must not only be well informed but must also be underpinned by high moral or ethical values. These values should always be the guiding light, irrespective of all the legal chaff that may be tossed about in the course of analysing a case. It is not sufficient to acknowledge, as is done in paragraph 181 of the judgment, that a case “concerns complex medical, legal and ethical matters”; it is of the very essence of a conscience, based on recta ratio, that ethical matters should be allowed to shape and guide the legal reasoning to its proper final destination. That is what conscience is all about. We regret that the Court has, with this judgment, forfeited the above-mentioned title.

[1] See the observations of the third-party intervener association Amréso-Bethel.
[2] Suffice it to refer to General Comment no. 12 and General Comment no. 15 adopted by the UN Committee on Economic, Social and Cultural Rights at its twentieth and twenty-ninth sessions respectively.
[3] See the applicants’ observations, § 164.
[4] See the seventh paragraph of that decision as reproduced in paragraph 50 of the judgment.
[5] There is also a hint of this in paragraph 56."

Journalist should not have been found liable for defamation for article on criminal case - case of Hlynsdottir v. Iceland (no. 3) - Violation of Article 10 (freedom of expression) of the European Convention on Human Rights - The case concerned defamation proceedings against a journalist following publication of an article about a major criminal case in which the defendant was eventually acquitted. In July 2007, the newspaper DV published an article by Erla Hlynsdóttir about an ongoing set of criminal proceedings against a man suspected of importing a large quantity of cocaine into Iceland. On the newspaper’s front page there was a large headline “Scared cocaine smugglers”. On page two, the article included one passage which revealed part of the description of the facts contained in the indictment, stating that the cocaine had been hidden in a car. Following his acquittal, the accused brought defamation proceedings against Erla Hlynsdóttir and the editor of the newspaper. After the first-instance court had initially found for Erla Hlynsdóttir, the Supreme Court, in March 2010, overturned the judgment and declared null and void the words “cocaine smugglers” and the statement “...believing that the cocaine was still in the vehicle”. It also ordered her and the editor to pay the claimant compensation. The Court found in particular that it was clear from the article that the proceedings were pending and had not been concluded at the time. The statement in question used the exact wording from the indictment, and there was no reason for Erla Hlynsdóttir to believe that the indictment was not a source on which she could rely.

“66.  The Court observes from the outset that the defamation in respect of which the applicant was held liable was based on a part of the statement which appeared in the article at page 2 of the newspaper and was taken verbatim from the indictment (hereinafter referred to as item 1):

“... believing that the cocaine was still in the vehicle ...”

She was in addition held liable jointly and severally to pay compensation along with the editor who was found liable in defamation for a part of the headline (hereinafter referred to as item 2), “cocaine smugglers” (kókaínsmyglarar), which appeared on the front page of the newspaper.

67.  In its judgment of 11 March 2010, the Supreme Court noted that the subject matter of the above-mentioned article had been the ongoing criminal proceedings, as clearly stated in the article. The Court sees no reason to disagree with its findings to the effect that each of the two items referred to above contained an insinuation that Mr A was guilty of the offence in question. It was not stated directly that they were based on the indictment being contested in the said proceedings. Nor does the Court see any grounds for calling into doubt the Supreme Court’s assessment and that the reasons relied on by the latter were relevant to the legitimate aim of protecting the rights and reputation of Mr. A.

68.  As regards the further question, that of whether those reasons were sufficient for the purposes of Article 10, the Court must take into account the overall background against which the statements were published. It observes, as noted by the applicant, that due to the quantity of the drugs confiscated the criminal case against Mr A had been one of the largest cocaine cases in Iceland, and that the offence for which he had been indicted was a serious one. The Court thus agrees with the applicant that the general public had a legitimate interest in being informed of the serious criminal proceedings that were ongoing at the time the article was published.

69.  The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Björk Eiðsdóttir, cited above, § 69; see also Jersild, cited above, § 35; Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000‑IV; Tønsbergs Blad A.S. and Haukom, cited above, § 88; compare MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155; 18 January 2011; Von Hannover, cited above, §§ 106-107; and Axel Springer AG, cited above, §§ 87-88, 7 February 2012).

70.  Thus the Court will consider the impugned article as a whole and have particular regard to the words used in the disputed part of the article and the context in which it was published, as well as the manner in which it was prepared (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999‑IV).

71.  In the Court’s view, a journalist’s good faith should be assessed on the basis of the knowledge and information which was available to him or her at the time of writing the item(s) in question. Thus it is not decisive for the purpose of the present case that Mr A was later acquitted of the charges brought against him by the Director of Public Prosecutions. In accordance with its case-law (see paragraph 67 above), the Court also fully agrees with the Supreme Court that it is for the courts, not the media, to determine whether an accused is guilty of an offence (see paragraph 14 above).

72.  As regards item 1 (“believing that the cocaine was still in the vehicle ...”) it is significant for the purposes of Article 10 of the Convention that the object of the article appearing inside the newspaper and of which the applicant was the author, was to report on the trial against Mr A and his co-accused before the Reykjavik District Court. It was clear from the article that the proceedings were pending and had not been concluded.

73.  Furthermore, item 1 was – as already mentioned – a verbatim rendering of the indictment, but without any specific reference being made to the indictment in that particular passage of the article (see paragraph 9 above). It is not contended, nor is there anything to suggest, that the indictment, in the situation as it presented itself to the applicant at the time of publication, was not a source on which she could rely without having to undertake independent research. Indeed, the rendering of an indictment in a media coverage after it has been read out at a trial hearing is a kind of situation where there may be special grounds for dispensing the press from its ordinary obligation to verify factual statements that are defamatory of private individuals (see Worm, cited above, § 55; Bladet Tromsø and Stensaas, cited above, §§ 66 and 68; Colombani and Others, cited above, § 65; and Cumpǎnǎ and Mazǎre, cited above, § 108), provided that the source has been clearly identified (Worm, cited above, § 55; see also McVicar cited above, § 84; Thoma, cited above, § 64; Verdens Gang and Aase v. Norway (dec.), no. 45710/99, ECHR 2001‑X; Tønsbergs Blad A.S. and Haukom, cited above, § 95).

74.  Moreover, with specific reference to the indictment, the preceding passage of the article reported the objective description of the offence and the sentence requested by the Director of Public Prosecutions. When read in immediate connection with this information and in the light of the article as a whole and also the context of the publication, the impugned affirmation contained in the ensuing passage could in the Court’s view reasonably be understood by an ordinary reader as a continuation of the article’s rendering of the indictment (see paragraph 8 above). The Court is not convinced that the omission to take the extra precaution of reminding the reader, that the belief thus imputed to Mr A merely consisted in a further rendering of the indictment, would lead the reader to understand the disputed statement as the applicant’s and the newspaper’s own opinion as to Mr A’s guilt (compare Worm, cited above, §§ 51 to 53) or their own version of events (compare Thoma, cited above, § 64; and contrast Verdens Gang and Aase, cited above).

75.  Against this background, the Court finds that the applicant could not be reproached for having failed to specify the official source – i.e. the indictment – of item 1 or that it was otherwise justified to hold her accountable in the same way as if the accusation had been hers.

76.  Quite a different matter is item 2 – the impugned words “cocaine smugglers”, which appeared in a large headline at a prominent place on the front page. The Government invited the Court to take them into account in its assessment of the applicant’s Article 10 complaint (see paragraphs 51 and 53 above). In the Court’s view, those words were not sufficiently connected to the above-mentioned passage of the article inside the paper to enable the reader to understand that it was based on the indictment. However, and very importantly, the affirmation in question was, as was undisputed, attributed, not to the applicant, but to the editor who was deemed to have defamed Mr A thereby. The Court is therefore unable to agree, for the purposes of Article 10 of the Convention, with the Supreme Court’s finding that the two items were linked to such a degree that it was justified to make also the applicant responsible – albeit only financially and jointly and severally with the editor – for paying compensation to Mr A and, by implication, to restrict her freedom of expression in this manner.

77.  In the light of these considerations, the Court finds that the respondent State failed to sufficiently show that the applicant acted in bad faith or otherwise inconsistently with the diligence expected of a responsible journalist reporting on a matter of public interest (see Erla Hlynsdottir v. Iceland (no. 2), no. 54125/10, § 75, 21 October 2014).

78.  The applicant was adversely affected in that the defamation proceedings brought by Mr A ended in an order by the Supreme Court declaring null and void the statement (item 1) attributed to her. Moreover, she was ordered jointly and severally with the editor to pay ISK 100,000 in compensation to Mr A in respect of item 1 and also item 2 attributed to the editor, and to cover the 50,000 in costs for publication of the Supreme Court’s conclusion.

79.  In these circumstances, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic society”. The Court considers that there was no reasonable relationship of proportionality between the restrictions resulting from the measures applied by the Supreme Court on the applicant’s right to freedom of expression and the legitimate aims pursued.

There has accordingly been a violation of Article 10 of the Convention.”

CONCURRING OPINION OF JUDGE SAJÓ

“I fully agree with my colleagues that Article 10 was violated in this case for the reasons expressed in the judgment. I would like to add only an explanatory note on the meaning of paragraph 59 of the judgment. I voted a few months ago for this text, but, in view of possible misunderstandings, I find it necessary to explain the meaning of the wording so that it conforms unequivocally to the Court’s case-law.

The paragraph in question reads as follows:

“In assessing the relevance and sufficiency of the national courts’ findings, the Court, in accordance with the principle of subsidiarity, thus takes into account the extent to which the former balanced the conflicting rights implicated in the case, in the light of the Court’s established case-law in this area. If the reasoning of the national court demonstrates a lack of sufficient engagement with the general principles of the Court under Article 10 of the Convention, the degree of the margin of appreciation afforded to the authorities will necessarily be narrower. Indeed, as the Court has previously held in the Article 10 context, ‘the quality of ... judicial review of the necessity of the measure is of particular importance in this respect, including the operation of the relevant margin of appreciation’ (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).”[1]

To my knowledge (based on a HUDOC search), there is only one other instance (in another case brought by the same applicant) where the word “subsidiarity” is mentioned at all among general principles in the Court’s Article 10 case-law.[2] On the other hand, reference to subsidiarity is a rather standard or preferred argument of some Governments. For example, in Rubins v. Lithuania (no. 79040/12, § 66, 13 January 2015) the Latvian Government referred to the principle of subsidiarity allegedly reiterated in the Palomo Sánchez judgment.[3] On that authority the Government maintained that the domestic court “had thoroughly analysed the evidence brought before it, thus rendering the sanction proportionate to the legitimate aim of protecting ... reputation and dignity” (§ 66).[4]

While subsidiarity is not mentioned in the determination of the necessity of a limitation of rights, the Court should give due consideration to the role of domestic courts in matters of balancing Convention rights. It is for this reason that a “certain” (as opposed to wide!) margin is granted to the States. It is also clear that where the Court has to decide a matter of conflicting Convention rights (as is the case here), this is discussed in terms of the margin of appreciation.[5] In such circumstances the Court requires that the domestic authorities strike a fair (that is, not a specifically correct, optimal, etc.) balance (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 66, ECHR 2012, citing additional case-law). In consequence, “[w]here the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012).             

It was probably unfortunate to introduce the term “subsidiarity” in paragraph 59 of the judgment in the present case, as it may give support to a misunderstanding among legal writers or even a departure from the case-law of the Grand Chamber. Subsidiarity cannot change the margin of appreciation. Subsidiarity is present in all cases; it is a structural feature of the human rights protection system under the Convention. The two concepts will perhaps move towards “parallel concepts” once Protocol No. 15 is accepted.[6] But they remain distinct even in that Protocol.

At the end of the day, the applicable standard is articulated in Palomo Sánchez (cited above, § 57): “If the reasoning of the domestic courts’ decisions concerning the limits of freedom of expression in cases involving a person’s reputation is sufficient and consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.” The fact that this standard was not cited in the judgment does not disclose any intention to depart from it.[7]

I have to admit, however, that it would have been more felicitous to follow the language used in Grand Chamber judgments,[8] in particular, as regards the second sentence of the impugned paragraph 59, the wording of Aksu (cited above, § 67):

“If the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one. However, if the assessment was made in the light of the principles resulting from its well-established case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts, which consequently will enjoy a wider margin of appreciation (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).” 

[1] Only the last sentence of the paragraph comes directly from Animal Defenders International. Moreover, the citation is not complete, and this too might be a source of misunderstanding. In Animal Defenders, a case about a general measure (which happens to be, in my view, a blanket ban), the judiciary was working together with legislation in the determination of proportionality; this broader process was considered for the purposes of satisfying the Hatton criteria, which were originally limited to the review of parliamentary debate (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 104, ECHR 2003‑VIII). In Animal Defenders the proportionality analysis undertaken by the domestic courts was considered in addition to the legislative debate, in which, perhaps, the issue of proportionality was not thoroughly considered.

It is perhaps time for the Court to revert to first principles. Legislation is not immune from our review. This was clearly stated a long time ago: the Court’s “supervision concerns both the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also the decision applying it, even one given by an independent court”  (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).

This position has never been openly rebutted.

[2] Erla Hlynsdottir v. Iceland (no. 2), no. 54125/10, 21 October 2014.

[3] Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011 (however, the term “subsidiarity” does not appear in this judgment).

[4] Another Government argument of this kind can be found in Stoll v. Switzerland [GC], no. 69698/01, § 77, ECHR 2007‑V. It was duly rebutted.

[5] “Because of their direct, continuous contact with the realities of the country, a State’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article” (see Palomo Sánchez, cited above, § 54). This principle goes back to Handyside (cited above, § 48).

It is clear that the use of the overburdened and highly criticised term “margin of appreciation” in this context has created additional problems in terms of legal doctrine.

[6] See also a reference along these lines by President Spielmann, http://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf

[7] It is a matter of consideration to what extent the “the national courts explicitly took account of the Court’s relevant case-law” (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 125, ECHR 2012). But the fact that the criteria were considered must not be understood as rendering the Court’s supervisory role futile. In Axel Springer five dissenting judges took the view that only where the domestic courts applied the relevant criteria in a manifestly unreasonable way, or failed to duly assess the presence of some important factor, should the Court undertake its supervision (see Axel Springer AG, cited above, dissenting opinion of Judge López Guerra joined by Judges Jungwiert, Jaeger, Villiger and Poalelungi). This was not the path taken by a substantial majority.

[8] It has to be admitted that there is a little inconsistency in the wording used in Grand Chamber cases, and the quoted paragraph from Aksu differs slightly from the language used in Von Hannover and Axel Springer, delivered six weeks earlier. I regret that I did not notice this earlier, trusting the authority of Animal Defenders International (cited above, § 108). As mentioned, Palomo Sánchez and its progeny settle the matter with some clarity.”

Procedure imposed on a resigned army officer for buying back his remaining years of service was contrary to the Convention - case of Chitos v. Greece - violation of Article 4 § 2 (prohibition of forced labour) of the European Convention on Human Rights - The case concerned an army officer who had been forced to pay a fee to the State in order to resign before the end of his period of service. The Court considered that the State’s desire to secure a return on its investment in the training of army officers and military medical officers and to ensure adequate staff numbers justified prohibiting their resignation from the forces for a specified period – to be determined by the State – and to subject them to paying a fee in order to cover the subsistence and training costs which it had incurred during their years of training, in addition to paying remuneration and social benefits. The Court added that military medical officers enjoyed privileges unavailable to civilian medical students during their studies and specialist training. Nevertheless, by ordering Mr Chitos to pay the sum due in order to buy back his remaining years of service, to the tune of 109,527 euros, without any facility for paying in instalments, even though he had had an appeal pending before the Court of Audit, the authorities had failed to strike a fair balance between protecting Mr Chitos’ individual right and the interests of the community at large.

Case brought by Slovenian bank against Croatia declared inadmissible as the bank is government-controlled and has no standing to lodge an application - case of Ljubljanska banka d.d. v. Croatia - application inadmissible - The case essentially concerned the enforcement proceedings brought by the Ljubljanska banka d.d. against a Croatian sugar factory for recovery of debt. The bank complained in particular about the non-enforcement of two writs of execution in its favour. The Court reiterated its rule that governmental bodies or public companies under the strict control of a State are not entitled to bring an individual application before the European Court of Human Rights. It found that, although Ljubljanska banka was a separate legal entity, it did not have sufficient institutional and operational independence from the State and therefore had to be regarded as a governmental organisation. As such, Ljubljanska banka had no standing to lodge an individual application before the European Court. This was regardless of the fact that Ljubljanska banka was not a governmental organisation of Croatia, the defending State in the present case.

“49.  The Court notes at the outset that the applicant bank instituted proceedings before the Court by lodging an individual application under Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

50.  The Court therefore considers that it first has to examine whether the applicant bank as a legal entity has standing to do so. It reiterates in this connection that a legal entity may lodge an individual application only if it may be regarded as a “non-governmental organisation” within the meaning of Article 34 of the Convention as interpreted in the Court’s case-law.

51.  The term “non-governmental organisation” referred to in that Article is opposed to “governmental organisation”, which includes, inter alia, State-owned companies which do not enjoy “sufficient institutional and operational independence from the State” (see Zastava It Turs v. Serbia (dec.), no. 24922/12, §§ 19-23, 9 April 2013).

52.  In this connection the Court reiterates its findings in the Ališić case regarding the applicant bank (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, §§ 114-16, 16 July 2014):

“114.  Having found that Ljubljanska Banka Ljubljana and Investbanka were and still are liable for ‘old’ foreign-currency savings in their Bosnian-Herzegovinian branches, it must be examined, as the Chamber did, whether Slovenia and Serbia were responsible for the failure of those banks to repay their debt to the applicants. In this regard, the Court reiterates that a State may be responsible for debts of a State-owned company, even if the company is a separate legal entity, provided that it does not enjoy sufficient institutional and operational independence from the State to absolve the latter from its responsibility under the Convention .... The key criteria used in the above-mentioned cases to determine whether the State was indeed responsible for such debts were as follows: the company’s legal status (under public or private law); the nature of its activity (a public function or an ordinary commercial business); the context of its operation (such as a monopoly or heavily regulated business); its institutional independence (the extent of State ownership); and its operational independence (the extent of State supervision and control).

115.  Additional factors to be taken into consideration are whether the State was directly responsible for the company’s financial difficulties, siphoned the corporate funds to the detriment of the company and its stakeholders, failed to keep an arm’s-length relationship with the company or otherwise acted in abuse of the corporate form .... Lastly, as to the companies under the regime of social ownership, which was widely used in the SFRY and is still used in Serbia, the Court has held that they do not, in general, enjoy ‘sufficient institutional and operational independence from the State’ to absolve the latter from its responsibility under the Convention (see, among many other authorities, R. Kačapor and Others, cited above, §§ 96-99, and Zastava It Turs v. Serbia (dec.), no. 24922/12, §§ 19-23, 9 April 2013).

116.  ... the Court notes that Ljubljanska Banka Ljubljana is State-owned by Slovenia and controlled by a Slovenian Government agency – the Succession Fund .... It is moreover crucial that by virtue of an amendment to the 1991 Constitutional Act, Slovenia transferred most of that bank’s assets to a new bank, to the detriment of the bank and its stakeholders .... The State thus disposed of Ljubljanska Banka Ljubljana’s assets as it saw fit .... The Grand Chamber therefore agrees with and endorses the Chamber’s finding that there are sufficient grounds to deem Slovenia responsible for Ljubljanska Banka Ljubljana’s debt to Ms Ališić and Mr Sadžak. ....” (-)

"53.  Even though those findings were made in the context of responsibility of the State under Article 1 of Protocol No. 1 to the Convention for the debts of State-owned companies, the Court has already held that findings made in such context apply with equal force in the context of determining whether a (State-owned) company may be considered a “non-governmental organisation” within the meaning of Article 34 of the Convention (compare Zastava It Turs, cited above, §§ 21-23, with R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 97-99, 15 January 2008).

54.  The Court therefore considers that although the applicant bank is a separate legal entity, it does not enjoy sufficient institutional and operational independence from the State and must, for the purposes of Article 34 of the Convention, be regarded as a governmental organisation (see Zastava It Turs, loc. cit.). It thus has no standing to lodge an individual application with the Court.

55.  This is so regardless of the fact that in the instant case the applicant bank is not a governmental organisation of the respondent State. In particular, the Court has already held that the rule that governmental bodies or public companies under the strict control of a State are not entitled to bring an application under Article 34 of the Convention, would apply even if the application was lodged by such company incorporated in a State which is not party to the Convention (see Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98, § 81, ECHR 2007‑V). Indeed, there is nothing in the text of Article 34 of the Convention to suggest that the term “non-governmental organisation” could be construed so as to exclude only those governmental organisations which could be regarded as a part of the respondent State.

56.  It follows that the present application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court unanimously

Declares the application inadmissible.”

Cassation appeal procedure in civil cases in Russia constitutes a remedy to be exhausted before bringing a case before the Strasbourg court - case of Abramyan and Others v. Russia - applications inadmissible - The ECtHR examined for the first time the cassation procedure before presidia of regional courts and the Supreme Court in civil cases introduced by a reform to the Russian Code of Civil Procedure (Law no. 353-FZ) which entered into force on 1 January 2012. The ECtHR concluded that this procedure had to be exhausted by a person intending to lodge a complaint about an alleged violation of his or her Convention rights before it. The recognition of the cassation procedure as a remedy to be exhausted will give the Russian Supreme Court an adequate opportunity to consider a complaint about an alleged violation of the Convention in civil cases and remedy any such violation before examination by the European Court of Human Rights. The ECtHR considers that the new approach will strengthen the dialogue between the Russian judicial system and the Convention institutions, thus giving full effect to the subsidiarity principle. As regards the applicants’ complaints, the ECtHR agreed with the Russian Government that the final decision at national level in their case had been a decision of a single judge of the Russian Supreme Court of 5 October 2012, adopted more than six months before they lodged their applications with the ECtHR. The applications had thus been lodged out of time and had to be rejected under Article 35 (admissibility criteria) of the European Convention on Human Rights. The applicants complained about the court-ordered demolition of their boathouses in Sochi (Russia) and the quashing of a binding judgment in their favour.

“General principles

74.  The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I). Effective and available remedies are those which are accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). The requirement of exhaustion of domestic remedies is closely interrelated with the six-month rule, which constitutes an element of legal stability (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12).

75.  According to the Court’s established case-law, an application for supervisory review in civil proceedings, which has hitherto constituted the only possibility for submitting the case for review to the presidia of the regional courts and the Civil Chamber of the Supreme Court in the Russian Federation, has not been considered as a remedy to be exhausted under Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999, and Denisov v. Russia (dec.), no. 33408/03, 6 May 2004). In Martynets, cited above, where the Court examined the system of supervisory review as in force between 7 January 2008 and 1 January 2012, it found that this procedure continued to leave binding judicial decisions open to indefinite challenge, thus generating unacceptable uncertainties as to the final point in the domestic litigation. The Court reached this conclusion notwithstanding the tangible changes made to this procedure such as the shortening of the time-limit for lodging a supervisory‑review application from one year to six months, the introduction of an obligation of prior exhaustion of ordinary avenues of appeal and the abolition of the discretionary power of the presidents of the regional courts to overrule decisions by judges of those courts dismissing such applications. In particular, the Court criticised the fact that it was still possible to make several consecutive applications for supervisory review at both regional and federal level, the existence of an overall six-month time‑limit open to differing interpretations, and not least the discretionary powers of the President or Deputy President of the Supreme Court to reverse any decision by a judge of the same court dismissing a supervisory‑review application (see Martynets, cited above).” 

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