This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 51

• Death of patient following post-operation negligence
• Application of unclear rules on time-limit for appeal against a decision given by default
• Impossibility for defendant to question key witnesses at any stage of the proceedings made entire trial unfair
• Disproportionate sanction imposed on lawyer who had criticised judges’ procedural decisions in pleadings
• Amendment to pension legislation resulted in discrimination in payment of pensions

Death of patient following post-operation negligence - case of Lopes de Sousa Fernandes v. Portugal - violation of Article 2 (right to life) of the European Convention on Human Rights as to the right to life, and a violation of Article 2 of the Convention - The case concerned the death of Ms Lopes de Sousa Fernandes’ husband following nasal polyp surgery and the subsequent procedures opened for various instances of medical negligence. The Court found in particular that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted a medical intervention in conformity with the medical protocol on post-operative supervision. Without wishing to speculate on the chances of survival of Ms Lopes de Sousa Fernandes’ husband, the Court took the view that the lack of coordination between the ear, nose and throat department and the emergencies unit inside the hospital revealed a deficiency in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care. The Court further found that the Portuguese legal system had not functioned effectively, since, firstly, the length of three sets of internal proceedings did not meet the requirement of promptness and, secondly, none of the proceedings conducted, nor any of the experts’ assessments presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after undergoing his operation. The Court found, lastly, that the patient should have been clearly informed by the doctors prior to the operation about the risks incurred.

Application of unclear rules on time-limit for appeal against a decision given by default - case of Raihani v. Belgium - violation of Article 6 § 1 (right of access to court) of the European Convention on Human Rights The case concerned a former prisoner’s appeal against his contribution to the education and maintenance of his child, which was declared inadmissible as being out of time. The Court found in particular that the fixing of the starting point of the time-limit for appeal lacked clarity in two respects. First, the determination of the event to be taken into account for the calculation of the time-limit depended on an assessment that could give rise to different conclusions, and which had actually given rise to diverging results. Secondly, on the date finally taken as the starting point, Mr Raihani would not necessarily have known that there was a judgment to his detriment against which he was entitled to appeal. In those circumstances, the Court found that the application of the rules on the time-limit for appeal had not enabled Mr Raihani to realise in due time when the time-limit started to run and when it expired. Consequently, the Court concluded that in declaring inadmissible Mr Raihani’s appeal, the domestic courts had not respected the reasonable relationship of proportionality between the aim pursued and the means used. It thus found that Mr Raihani had not had a practical and effective right of access to a court and that there had accordingly been a violation of Article 6 § 1 of the Convention.

Impossibility for defendant to question key witnesses at any stage of the proceedings made entire trial unfair -case of Schatschaschwili v. Germany - violation of Article 6 §§ 1 and 3 (d) (right to a fair trial and right of a person charged with a criminal offence to examine or have examined witnesses against him) of the European Convention on Human Rights - The case concerned the complaint by a man convicted of aggravated robbery and extortion, who maintained that his trial had been unfair, as neither he nor his counsel had had an opportunity at any stage of the proceedings to question the only direct witnesses to one of the crimes allegedly committed. The Court found that, in view of the importance of the statements of the only eyewitnesses to one of the offences of which Mr Schatschaschwili had been convicted, the counterbalancing measures taken by the trial court had been insufficient to permit a fair and proper assessment of the reliability of the untested evidence. In particular, although under German law the prosecution authorities could have appointed a lawyer for him at the investigation stage and that lawyer would have had the right to be present at the hearing of the witnesses before the investigating judge, those safeguards had not been used.

JOINT CONCURRING OPINION OF JUDGES SPIELMANN, KARAKAŞ, SAJÓ AND KELLER

Conclusion

17. If the Grand Chamber allows an overall assessment of the fairness of proceedings to be conducted in the absence of good reasons for the non‑attendance of a witness, the right to confront witnesses will become very weak. We agree that within the threefold test there must be a degree of flexibility. However, an approach that unconditionally leads to a final overall examination of the fairness of the proceedings would give too much leeway to the national authorities. This application of the three-step examination would imply that there was no need for the different steps as long as the overall fairness test was fulfilled.

18. The Court’s overly cautious approach is also evident in paragraph 118. Although the order of the three questions is pertinent in principle, the majority stated that it “may ... be appropriate, in a given case, to examine the steps in a different order.” We are not convinced that the Court has given clear guidance to the national authorities as to the appropriate application of the Al-Khawaja and Tahery test.

19. We have a reasonable fear that the clarification provided by the Court in this case (which will be known as the “Schatschaschwili test” in the future) can be summarised in one single question: were the proceedings fair as a whole? This overall test is not, in our view, a step in the direction of strengthening the rights guaranteed by Article 6 (3) (d) of the Convention.

JOINT DISSENTING OPINION OF JUDGES HIRVELÄ, POPOVIĆ, PARDALOS, NUSSBERGER, MAHONEY AND KŪRIS

34. This judgment is an example of a rather formalistic approach to the importance of procedural guarantees, whereby failure to comply with or secure certain procedural guarantees at the pre-trial stage renders the evidence obtained illegal even if the use of that evidence, on the basis of an overall assessment, does not render the proceedings as a whole unfair.

Disproportionate sanction imposed on lawyer who had criticised judges’ procedural decisions in pleadings - case of Bono v. France - violation of Article 10 (freedom of expression) of the European Convention on Human Rights - The case concerned a disciplinary sanction imposed on Mr Bono, as lawyer acting for a suspected terrorist, S.A., for remarks made in his pleadings before the Court of Appeal. He claimed that the French investigating judges had been complicit in the torture of S.A. by the Syrian secret services and thus sought the exclusion of statements obtained through the use of torture.

The Court found that the remarks in question, as they were so harsh, clearly showed some contempt for the investigating judges. However, they did not refer to the judges personally but concerned the manner in which they had carried out the investigation. The written submissions, which had a factual basis, contributed directly to the defence of Mr Bono’s client and did not leave the courtroom. As Mr Bono had already been summoned to show moderation, during the hearing in the Paris Court of Appeal, the Court found that the disciplinary sanction was not proportionate.

While it was for judicial and disciplinary authorities, in the interest of the proper functioning of the justice system, to penalise certain conduct by lawyers, those authorities had to ensure that such scrutiny did not have a chilling effect that would hinder them in defending their clients’ interests.

Amendment to pension legislation resulted in discrimination in payment of pensions - case of Fábián v. Hungary - violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention - The case concerned a pensioner’s complaint that, following an amendment to the Pension Act, his old-age pension was suspended because he had taken up post-retirement employment as a civil servant. The new rule under the Pension Act notably targeted certain categories of pensioners such as Mr Fábián, the applicant, who benefitted from two incomes at the same time paid by the State. Those working in the private sector were not affected by the rule. The Court found in particular that the difference in treatment between publicly and privately employed retirees on the one hand, and between various categories of civil servants on the other hand (namely, pensioners working as government ministers or mayors were exempt from the new rule), as regards their continued entitlement to receive an old-age pension, had not been objectively and reasonably justified.