This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 36

• Unlawful detention of Tunisian migrants in degrading conditions on the island of Lampedusa in Italy pending collective expulsion
• Banning a woman from donating embryos obtained from in vitro fertilisation to scientific research was not contrary to respect for her private life
• The security measures imposed on a person found to lack criminal responsibility did not constitute penalties within the meaning of the Convention.
• The search of a law firm’s offices and the seizure of computer files and emails did not infringe right to respect for private life 
• Croatian authorities failed to promptly investigate allegations of child abuse by a father or to hear the child’s view either in the criminal or custody proceedings

Unlawful detention of Tunisian migrants in degrading conditions on the island of Lampedusa in Italy pending collective expulsion - case of Khlaifia and Others v. Italy - The case concerned the detention in a reception centre on Lampedusa and subsequently on ships moored in Palermo harbour, as well as the repatriation to Tunisia, of clandestine migrants who had landed on the Italian coast in 2011 during the events linked to the “Arab Spring”. The Court held that the applicants' detention had been unlawful. They had not been notified of the reasons for their detention, for which there was no statutory basis, and had been unable to challenge it. Concerning their conditions of detention in the reception centre, the Court took account of the exceptional humanitarian crisis facing Italy on the island of Lampedusa in 2011 in the wake of the Arab Spring (55,298 migrants had landed around the time the applicants had been present there). The Court nonetheless concluded that the applicants’ conditions of detention had diminished their human dignity, although that had not been the case on board the ships moored in Palermo harbour. The Court further considered that the applicants had suffered a collective expulsion, as their refoulement decisions did not refer to their personal situation – the Court held in particular that an identification procedure was insufficient to disprove collective expulsion. Furthermore, the Court noted that at the time a large number of Tunisians had been expelled under such simplified procedures. Lastly, the Court considered that the applicants had not benefited from any effective remedy in order to lodge a complaint, because under Article 13, if a remedy was to be deemed effective in the case of a collective expulsion it had to have automatic suspensive effect – which in this case meant that it should have suspended the refoulement to Tunisia – and that had not been the case.

"Das Urteil kommt zur rechten Zeit: Flüchtlinge haben ein Recht auf Achtung ihrer Menschenwürde, auch wenn sehr viele in sehr kurzer Zeit ankommen und das Ankunftsland darauf sehr schlecht vorbereitet ist. Das ist die Quintessenz des heutigen Lampedusa-Urteils des Europäischen Gerichtshofs für Menschenrechte. Die „Krisen-“ und „Notstands“-Argumente, mit denen der Aufnahmestaat sich verteidigt, mögen noch so berechtigt sein – gegen die Menschenwürde richten sie nichts aus." Verfassungsblog

Banning a woman from donating embryos obtained from in vitro fertilisation to scientific research was not contrary to respect for her private life - case of Parrillo v. Italy -  The case concerned a ban under Italian Law no. 40/2004, preventing Ms Parrillo from donating to scientific research embryos obtained from an in vitro fertilisation which were not 

The Court, which was called upon for the first time to rule on this issue, held that Article 8 was applicable in this case under its “private life” aspect, as the embryos in question contained Ms Parrillo’s genetic material and accordingly represented a constituent part of 

The Court considered at the outset that Italy was to be given considerable room for manoeuvre (“wide margin of appreciation”) on this sensitive question, as confirmed by the  The Court then noted that the drafting process for Law no. 40/2004 had given rise to considerable discussions and that the Italian legislature had taken account of the State’s interest in protecting the embryo and the interest of the individuals concerned in exercising their right to self-determination. The Court stated that it was not necessary in this case to examine the sensitive and controversial question of when human life begins, as Article 2  Noting, lastly that there was no evidence that Ms Parillo’s deceased partner would have wished to donate the embryos to medical research, the Court concluded that the ban in Additional point on the admissibility of the application: for the first time, the Court examined whether the procedure for bringing a question of constitutionality, introduced in Italy in 20072, represented a domestic remedy that had to be exhausted before an application was lodged with it. It concluded that in the present case, with regard to an issue of medically assisted reproduction, this form of review did not amount to an effective remedy that the applicant ought to have used.

"174. The Court observes at the outset that, unlike the above-cited cases, the instant case does not concern prospective parenthood. Accordingly, whilst it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity.175. Consequently, and having regard to the principles established in its case-law, the Court considers that the respondent State should be afforded a wide margin of appreciation in the present case.176. Furthermore, it observes that the question of the donation of embryos not destined for implantation clearly raises “delicate moral and ethical questions” (see Evans; S.H. and Others; and Knecht, all cited above) and that the comparative-law materials available to the Court (see paragraphs 69 to 76 above) show that, contrary to the applicant’s affirmations, there is no European consensus on the subject (see paragraph 137 above).177. Admittedly, certain member States have adopted a non-prohibitive approach in this area: seventeen of the forty member States about which the Court has information allow research on human embryonic cell lines. In some other States there are no regulations but the relevant practices are non-prohibitive.178. However, certain States (Andorra, Latvia, Croatia and Malta) have enacted legislation expressly prohibiting any research on embryonic cells. Others allow research of this type only subject to strict conditions, requiring for example that the purpose be to protect the embryo’s health or that the research use cells imported from abroad (this is the case of Slovakia, Germany, Austria and Italy).179. Italy is therefore not the only member State of the Council of Europe which bans the donation of human embryos to scientific research.180. Furthermore, the above-cited Council of Europe and European Union materials confirm that the domestic authorities enjoy a broad margin of discretion to enact restrictive legislation where the destruction of human embryos is at stake, having regard, inter alia, to the ethical and moral questions inherent in the concept of the beginning of human life and the plurality of existing views on the subject among the different member States.181. An example of this is the Oviedo Convention, Article 27 of which provides that none of its provisions should be interpreted as limiting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine. Opinion no. 15, adopted on 14 November 2000 by the European Group on Ethics in Science and New Technologies to the European Commission, Resolution 1352 (2003) of the Parliamentary Assembly of the Council of Europe on Human Stem Cell Research and Regulation (EC) No. 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products contain similar provisions (see paragraph 58, point III letter F and point IV letter B above).182. The limits imposed at European level aim rather to temper excesses in this area. This is the case for example of the ban on creating human embryos for scientific research provided for in Article 18 of the Oviedo Convention, or the ban on patenting scientific inventions where the process involves the destruction of human embryos (see the judgment of the Court of Justice of the European Union Oliver Brüstle v Greenpeace eV of 18 October 2011).183. That being said, the State’s margin of appreciation is not unlimited and it is the Court’s task to examine the arguments to which the legislature has had regard in reaching the solutions it has retained and to determine whether a fair balance has been struck between the interests of the State and those of the individuals directly affected by the solutions in question (see Evans, cited above, § 86, and S.H. and Others, cited above, § 97).184. The Court notes in this context that, relying on documents relating to the preparatory works to Law no. 40/2004, the Government submitted at the hearing that the drafting of the Law had given rise to discussions that had taken account of the different scientific and ethical opinions and questions on the subject (see paragraph 127 above).185. It can be seen from a report by the XIIth Standing Committee submitted to Parliament on 26 March 2002 that doctors, specialists and associations working in the field of assisted reproduction had contributed to the discussions and that the liveliest part of these had in general concerned the sphere of individual freedoms, pitting the advocates of a secular conception of the State against those in favour of a denominational approach.186. Furthermore, during the discussions of 19 January 2004 Law no. 40/2004 had also been criticised on the grounds, among others, that recognition of the embryo as a legal subject under section 1 of the Law gave rise, according to some, to a series of prohibitions, such as the use of heterologous fertilisation and the use of cryopreserved embryos not destined for implantation for scientific research.187. Like the Government, the Court reiterates that Law no. 40/2004 was the subject of several referendums that were declared invalid for failure to reach the required threshold of votes cast. In order to promote the development of scientific research in Italy in the area of diseases that are difficult to cure, one such referendum proposed to repeal the part of section 13 that made authorisation to carry out scientific research on embryos conditional on protecting their health and development.188. The Court therefore observes that, during the drafting process of the Law in question the legislature had already taken account of the different interests at stake, particularly the State’s interest in protecting the embryo and that of the persons concerned in exercising their right to individual self-determination in the form of donating their embryos to research.189. The Court notes the applicant’s allegation that Italian legislation on medically assisted reproduction is inconsistent, in support of her submission that the interference complained of is disproportionate.190. In her written observations and at the hearing the applicant observed that it was difficult to reconcile the protection of the embryo advocated by the Government with a woman’s legal ability to terminate a pregnancy on therapeutic grounds up until the third month and also the use by Italian researchers of embryonic cell lines obtained from embryos that had been destroyed abroad.191. The Court’s task is not to review the consistency of the Italian legislation in the abstract. In order to be relevant for the purposes of the Court’s analysis, the inconsistencies complained of by the applicant must relate to the subject of the complaint that she raises before the Court, namely, the restriction of her right to self-determination regarding the fate of her embryos (see, mutatis mutandis, Olsson (no. 1), cited above, § 54, and Knecht, cited above, § 59).192. With regard to the research carried out in Italy on imported embryonic cell lines taken from embryos that had been destroyed abroad, the Court observes that whilst the right asserted by the applicant to decide the fate of her embryos relates to her wish to contribute to scientific research, that cannot however be seen as a circumstance directly affecting the applicant.193. Furthermore, the Court takes note of the information provided by the Government during the hearing, according to which the embryonic cell lines used in Italian laboratories for research purposes are never produced at the request of the Italian authorities.194. It agrees with the Government that the deliberate and active destruction of a human embryo cannot be compared with the use of cell lines obtained from human embryos destroyed at an earlier stage.195. It concludes from the foregoing that, even supposing that there are inconsistencies in the legislation as alleged by the applicant, these are not capable of directly affecting the right invoked by her in the instant case.196. Lastly, the Court observes that in this case the choice to donate the embryos in question to scientific research emanates from the applicant alone, since her partner is dead. The Court does not have any evidence certifying that her partner, who had the same interest in the embryos in question as the applicant at the time of fertilisation, would have made the same choice. Moreover, there are no regulations governing this situation at domestic level.197. For the reasons outlined above, the Court considers that the Government have not overstepped the wide margin of appreciation enjoyed by them in the present case and that the ban in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.198. There has therefore been no violation of the applicant’s right to respect for her private life under Article 8 of the Convention."

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

“43. Unborn human life is no different in essence from born life. Human embryos must be treated in all circumstances with the respect due to human dignity. Scientific research applications concerning the human genome, in particular in the field of genetics, do not prevail over respect for human dignity. Scientific progress must not be built upon disrespect for ontological human nature. The scientific goal of saving human lives does not justify means that are intrinsically destructive of that life.The beginning and end of human life are not questions of policy subject to the discretion of the member States of the Council of Europe. The “adequacy” of the protection provided to the embryo by the Contracting Parties to the Convention is subject to close scrutiny by the Court, since States have a narrow margin of appreciation with regard to fundamental issues related to the human being’s existence and identity. In Europe, an insurmountable limit to our possibilities of experimenting with human life is established by the Convention. Thus, it is incompatible with the Convention to produce or use living human embryos for the preparation of embryonic stem cells, or to produce cloned human embryos and then destroy them in order to produce embryonic stem cells. In the European legal space, scientific research on human embryos and embryonic stem cell lines is allowed only in the two exceptional cases referred to above.”

CONCURRING OPINION OF JUDGE DEDOV

“14. Since new biotechnology objectively expands our perception of the forms and conditions of human existence, I am not aware of any objective obstacles to legal recognition of this achievement, as soon as possible, as it is well known that any delay in such recognition at national and international level is potentially life-threatening and arbitrary.”

JOINT PARTLY DISSENTING OPINION OF 

JUDGES CASADEVALL, ZIEMELE, POWER-FORDE, DE GAETANO AND YUDKIVSKA

"9. In our view and consistent with the Court’s case law, to date, it would have been preferable to find that since prospective parenthood is not an issue in this case, the applicant’s right to ‘self-determination’ as an aspect of her private life simply does not arise. Her submission that the donation of embryos would confer upon her a certain ‘noble feeling’ is noted but the Convention, of course, is concerned exclusively with the protection of fundamental human rights rather than with the fostering of feelings of one kind or another. Her asserted right to ‘make use of the embryos’ for scientific research is not a right within the scope of Article 8 of the Convention. Accordingly, in our view, this part of the application should be rejected as incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 thereof."

PARTLY DISSENTING OPINION OF JUDGE NICOLAOU

"13. My own opinion that the application should have been declared inadmissible for exceeding the time-limit is based on what I consider to be the rather tenuous nature of the link between the applicant and the frozen embryos. It seems to me that although there is indeed a meaningful link, since the embryos emanated from the genetic material of the applicant and her partner, and this link brings the matter within the ambit of Article 8, it does so only at the periphery and amounts to no more than the possibility, on the part of the applicant, of expressing a wish concerning their fate. On receiving a negative response, and as there was no adequate domestic remedy to be exhausted, the limitation period would start running at that point for the purpose of subjecting the relevant legislative restriction to review under the Convention.14. Having regard to the position set out above, it cannot be said that that Article 8 aspect gives the applicant a right which lasts for an indefinite period of time. The new Law came into force about four months after her circumstances had dramatically changed and, if the six-month time-limit is added onto that, one would be tempted to think there was enough time for her to decide whether she wished to have a say in the matter. It is also possible, however, to approach the question more broadly and, on the basis of a continuing situation created by the new Law, examine what may have been a reasonable time frame within which a person in the applicant’s position, in the sad circumstances in which she found herself, could have sufficiently reflected and acted. What I certainly cannot accept is that the applicant was entitled to unlimited time for setting in motion the Strasbourg machinery of human-rights protection."

DISSENTING OPINION OF JUDGE SAJÓ

"19. In order for an interference to be proportionate the Government must provide legitimate (relevant and sufficient) reasons. Even assuming, in view of Evans (cited above, § 81), that there is a wide margin of appreciation in IVF cases, “since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments” the interference still cannot be arbitrary. In Italy both abortion and research on foreign stem cell lines are permitted. The law disregards the interest in preventing actual human suffering through scientific research in the name of the protection of a potential for life which, moreover, cannot ever materialise in the circumstances of the case. I cannot see why preponderant weight is attached to the potential for life when Italian law does allow the abortion of a viable foetus, and in the particular circumstances of the present case where, in the absence of the consent of the applicant, that potential cannot materialise. This attitude and the related explanation are not only inconsistent but plainly irrational and as such cannot be sufficient justification for the proportionality of the measure."

COMMENT:  Liberté, Libertés chéries: Le don d'embryons à des fins de recherche 

"Une nouvelle fois, la Cour européenne se fonde sur l'existence ou l'absence d'un consensus au sein des Etats du Conseil de l'Europe pour apprécier la conformité du droit d'un Etat membre à la Convention européenne des droits de l'homme. Certes, cette jurisprudence laisse une grande latitude aux Etats dans des domaines sensibles dans lesquelles les convictions éthiques et religieuses interviennent largement. Il n'en demeure que l'on conserve le sentiment, un peu fâcheux, que le droit européen devient le produit d'une sorte de décompte mathématique. Madame Parillo pourra-t-elle faire un nouveau recours lorsque vingt et un Etats sur quarante autoriseront le don d'embryon ?"

The security measures imposed on a person found to lack criminal responsibility did not constitute penalties within the meaning of the Convention - Berland v. France - no violation of Article 7 § 1 (no punishment without law) of the European Convention on Human Rights - The case concerned the security measures imposed under a Law of 25 February 2008 on Mr Berland, who had been found to lack criminal responsibility, in connection with a murder committed prior to the entry into force of the Law. Mr Berland complained of the imposition of “penalties” which, on account of his mental state, he would not have incurred under the earlier legislation applicable on the date on which the acts had been committed. The Court observed that the security measures had not been ordered following Mr Berland’s conviction of an offence, but following a finding that he lacked criminal responsibility. The measures in question (a 20-year ban on contact with the civil parties and on possessing a weapon) were to be regarded as preventive rather than punitive measures and as such not covered by the principle of non-retroactivity set forth in Article 7 § 1. The Court held that the present case has to be distinguished from the case of M. v. Germany

The search of a law firm’s offices and the seizure of computer files and emails did not infringe right to respect for private life - case of Sérvulo & Associados - Sociedade de Advogados, Rl v. Portugal - no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the search of a law firm’s offices and the seizure of computer files and email messages, during an investigation into suspected corruption, acquisition of prohibited interests and money laundering in connection with the purchase by the Portuguese Government of two submarines from a German consortium. The Court found that the seizure of computer records in the offices of the law firm had been compensated for by procedural safeguards to prevent abuse and arbitrariness and to protect legal professional secrecy.

Croatian authorities failed to promptly investigate allegations of child abuse by a father or to hear the child’s view either in the criminal or custody proceedings - The case M. and M. v. Croatia concerned a custody dispute, including allegations of child abuse by the father. The applicants, a mother and her daughter, complained in particular that the national authorities had failed to remove the child from the father’s care and to thus prevent further domestic abuse.The Court noted in particular substantial delays in both the criminal proceedings brought against the father as well as in the custody proceedings, both still pending after more than four years without the child ever having been interviewed in either set of proceedings. The Court was particularly struck by the fact that the child, now 13 and a half, has still not yet been heard in the custody proceedings and has thus not been given the chance to express her view before the courts about which parent she wants to live with. The protracted nature of those proceedings has exacerbated the plight of a traumatised child who, if for nothing else than her parents’ conflicting relationship, has suffered great mental anguish, culminating in self-injuring behaviour. 

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.