Strasbourg, 20 November 2015 DH-BIO/INF (2015) 12
COMMITTEE ON BIOETHICS (DH-BIO)
Developments in the field of bioethics
in the case law of the European Court of Human Rights (ECtHR)
Document prepared by the Secretariat
based on the terms of the official documents published by the ECHR
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 destined for a pregnancy.
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 her identity.
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 lack of a European consensus and the international texts on this subject.
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 (right to life) was not in issue.
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 question had been “necessary in a democratic society”.
In a judgment of 27 August 2015, the Court held, by sixteen votes to one, that there had been: no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.
The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it was subsequently revealed that they had no biological relationship with the child.
In its Chamber judgment of 27 January 2015, the European Court of Human Rights held, by five votes to two, that there had been a violation of Article 8 of the Convention. It found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Chamber considered that, in the present case, the conditions justifying a removal had not been met.
On 1 June 2015the case was referred to the Grand Chamber at the request of the Italian Government.
(available in French only, press release in English)
In this case, the applicant, Mr Canonne, complained about the fact that the domestic courts had inferred his paternity from his refusal to submit to the genetic tests ordered by them.
Decision delivered on 25 June 2015 (final): inadmissible as being manifestly ill-founded. The Court held that the domestic courts had not exceeded the room for manoeuvre (“wide margin of appreciation”) available to them when they took into account Mr Canonne’s refusal to submit to court-ordered genetic testing and declared him the father of Eléonore P., and in giving priority to the latter’s right to respect for private life over that of Mr Canonne.
The applicants wished to give birth at home, but under Czech law health professionals are prohibited from assisting with home births. The first applicant eventually gave birth to her child alone at home while the second applicant delivered her child in a hospital. The Constitutional Court dismissed the first applicant’s complaint for failure to exhaust the available remedies but expressed doubts as to the compliance of the relevant Czech legislation with Article 8 of the Convention.
In their applications to the European Court, the applicants complained of a violation of Article 8 as mothers had no choice but to give birth in a hospital if they wished to be assisted by a health professional.
In a judgment of 11 December 2014, a Chamber of the Court, by six votes to one, found that there had been no violation of Article 8 of the Convention. In particular, it found that, in adopting and applying the policy relating to home births, the authorities had not exceeded the wide margin of appreciation afforded to them or upset the requisite fair balance between the competing interests.
On 1 June 2015 the case was referred to the Grand Chamber at the applicants’ request.
(available only in French, press-release in English)
The case concerned the death of Ms Keşoğlu at the age of 74 as the result of a violent allergic reaction to a penicillin derivative administered by intravenous injection in a private hospital.
Judgment delivered on 30 June 2015 (final): violation of Article 2 (right to life). The Court pointed out that it was not its role to speculate on the possible responsibility of the medical team in question in Ms Keşoğlu’s death. It considered, nevertheless, that the authorities had failed to ensure appropriate implementation of the relevant legislative and statutory framework geared to protecting patients’ right to life. Indeed, neither the medical experts, who considered that the death had been a question of therapeutic contingency, nor the Turkish courts had addressed the possibility that the medical team had infringed the current legal provisions (obligation to question patients or their families on their medical record, to inform them of the possibility of an allergic reaction and to obtain their consent to the administration of the drug in question).
(available only in French and Turkish, press-release in English)
The case concerned the death of the applicant’s wife following an operation for a uterine fibroid. The operation was conducted after two gynecologists consequently diagnosed the applicant’s wife with a uterine fibroid. Four days after the operation, suffering from fever and nausea, she was again hospitalised. Her condition deteriorated significantly and Ms Öztürk died from toxic hepatitis and sepsis.
Mr Öztürk lodged a criminal complaint against the doctor, who had operated on his wife, alleging negligence and carelessness resulting in death. The criminal court decided, on the basis of the expert report, to sentence the doctor to six months’ imprisonment, which was commuted to a suspended fine. Later, when the case had been referred back to that court, the criminal proceedings was terminated given that the limitation period had lapsed. The parallel claim for compensation in respect of the same doctor was ultimately dismissed.
Mr Öztürk alleged that the circumstances of his wife’s death had entailed a violation of the Convention. He also complains about the length of the proceedings brought before the national courts and alleges that these proceedings could not be considered fair, since they had become time-barred.
Judgment delivered on 21 July 2015 (not final): violation of Article 2 (right to life).
All the applicants are addicted to heroin. On a number of occasions they underwent detoxification treatment, however continued to take drugs once they were released from hospitals. It should be noted that all of the applicants are also suffering from HIV and one of them from a form of hepatitis C. The applicants’ claims for methadone and buprenorphine substitution treatment were dismissed with reference to the Russian law. These refusals were upheld by the national courts.
The applicants complain about violations of their rights under Articles 3, 8 and 14 of the Convention.
On 12 May 2014 the case was communicated with the questions, whether the blanket prohibition of methadone and buprenorphine substitution treatment is in line with the State’s obligation to protect life and health of the persons within its jurisdiction and what are the reasons of that blanket prohibition. The Court also asked the parties whether the applicants could be considered as being discriminated against on the ground of health, which is contrary to Article 14 in conjunction with Article 8 of the Convention.
(available in French only, press release in English)
The case concerned the conditions of detention of HIV-positive persons in the psychiatric wing of Korydallos Prison Hospital.
The Court established the inadequate physical conditions and sanitation facilities for persons detained in the prison hospital, and also the irregularities in the administration of medical treatment. It held that the applicants had been subjected to physical and mental suffering going beyond the suffering inherent in detention.
On 9 October 2015, the Court unanimously held that there had been: a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention of the European Convention on Human Rights; a violation of Article 13 (right to an effective remedy) of the Convention.
The case concerned the applicant’s complaint about receiving inadequate medical care in detention.
Mr Patranin had been suffering from progressive multiple sclerosis for years and, while in pre-trial detention, from February 2012 onwards, his health deteriorated significantly as the detention facility where he was placed did not have any medical specialists. In September 2012 he suffered an epileptic seizure which resulted in paralysis of one side of his body. A medical report subsequently found that his serious condition prevented his detention and he was released. Following his conviction in September 2013, however, he was taken into custody again and placed in a prison hospital in a correctional colony. In January 2014 he was served with a medical opinion which concluded that he did not suffer from a condition serious enough to warrant his release. According to his submissions, he spent the entire day in bed, he could not eat or drink unaided and could not go to the toilet, receiving an enema only once every two weeks.
Having received no reply to his complaints to various Russian State authorities that he required constant assistance and medical treatment which the Russian penal system was unable to provide, or to his request to be examined by an independent doctor, Mr Patranin made a successful request to the European Court of Human Rights for an interim measure, under Rule 39 of its Rules of Court.
Judgment delivered on 23 July 2015 (not final): violation of Article 34 (right to individual petition), violation of Article 3 (prohibition of inhuman or degrading treatment), Violation of Article 13 (right to an effective remedy).
Both cases principally concerned allegations of inadequate medical care in detention.
The applicants are both currently serving prison sentences. Both men suffered from various illnesses during their detention.
Mr Denisov, suffering from HIV, cancer and chronic hepatitis C, was regularly monitored during his detention, given treatment for his HIV and referred to a cancer specialist. A biopsy was recommended but refused by Mr Denisov.
Mr Tselovanlik started experiencing severe knee pain during his detention in December 2009, and, following numerous complaints, he was seen in June 2010 by a doctor who suspected that he might be suffering from rheumatoid polyarthritis. At the end of October 2012, in response to Mr Tselovalnik’s continuous complaints of ongoing pain, he started to receive some limited treatment and, in December 2012, was seen by various medical professionals but not by the appropriate specialist. Complaints made by Mr Tselovalnik regarding pain in other joints went unexamined. He was diagnosed with acute prostatitis in February 2013 but rather than seeing a specialist, as recommended, he was found fit for transfer.
Relying on Article 3 (prohibition of inhuman or degrading treatment), both men complained that the authorities had not taken steps to safeguard their health and well-being, having failed to provide them with adequate medical assistance. Mr Denisov argued in particular that his HIV treatment had been interrupted following his arrest and that his suffering from cancer and HIV infection had warranted his release. Mr Tselovalnik alleged in particular that the authorities had failed to take the necessary measures to ensure an accurate diagnosis at an early stage of his disease. Also relying on Article 13 (right to an effective remedy), both men argued that they had not had an effective remedy to complain about the lack of medical assistance in detention. Finally Mr Denisov further complained under Article 5 (right to liberty and security) that his pre-trial detention had been unreasonably long and that the court orders for his detention had not been sufficiently reasoned.
Judgments delivered on 8 October 2015 (not final):
- case of Sergey Denisov:
No violation of Article 3
No violation of Article 5 § 3
Violation of Article 13
- case of Tselovalnik:
Violation of Article 3 (inhuman and degrading treatment)
Violation of Article 13
(available in French only, press release in English)
The case concerned the suicide in detention of A.S., a prisoner suffering from schizophrenia. After an investigation the domestic courts considered that even though the prisoner had patently suffered from a psychiatric pathology, his illness had not involved any suicidal tendencies and nothing in his records or his conduct had pointed to a risk of suicide. The domestic courts accordingly found that there had been no negligence on the part of the prison authorities.
The Court found in particular that the behaviour of A.S. had not suggested any risk of suicide.
Consequently, it could not be claimed that the national authorities ought to have been aware of a real and immediate risk of A.S. taking his own life. They had therefore been under no obligation to adopt specific measures.
Judgment delivered on 8 October 2015 (not final): no violation of Article 2 (right to life).
The case concerned Mr Akkoyunlu’s allegation that he had lost the sight in his left eye during his military service due to delays in access to medical care.
On 25 July 2001, shortly after Mr Akkoyunlu had started his compulsory military service, he complained of severe pain in his left eye. According to the applicant the military doctor was absent and he was seen by a soldier who sent him away with eye drops. The Government dispute this allegation, stating that Mr Akkoyunlu had in fact been examined by a military doctor. On 2 August 2001 he was eventually referred to hospital. Diagnosed with a corneal ulcer, he started treatment but completely lost the sight in his left eye. in July 2002 he was deemed no longer medically fit for military service and discharged from the army. He is now entitled to a disability pension.
Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), Mr Akkoyunlu alleged that because his regiment had not immediately referred him to hospital, he had been delayed access to appropriate medical treatment and this had resulted in him losing the sight in his left eye.
Judgment delivered on 13 October 2015 (not final): violation of Article 3 (positive obligations).
The applicants are Vladislav Batalin and his parents.
The case concerned Vladislav Batalin’s involuntary confinement and treatment in a psychiatric hospital. After having cut his veins, he was admitted to a psychiatric hospital. There he was diagnosed with a number of diseases, including a chronic pain disorder and a personality disorder. Despite the requests of Vladislav Batalin, his parents were refused to take him home. Vladislav Batalin also alleges that he was beaten by the hospital nurses and then strapped to a bed. He claims that he was subjected to scientific research by being treated with a new antipsychotic drug and forbidden all contact with the outside world. After his release an ambulance doctor noted a haematoma under his eye and bruises and contusions on his body.
The applicants complained of Vladislav Batalin’s involuntary confinement in the hospital and his alleged ill-treatment. The criminal proceedings were eventually opened with a significant delay. The proceedings concerning the alleged beatings were subsequently suspended and reopened on several occasions and they remain pending. The complaint concerning Vladislav Batalin’s involuntary confinement was later removed from the case and separate proceedings were opened in October 2007; they were eventually discontinued in November 2010.
Judgment delivered on 23 July 2015: Violation of Article 5 § 1 (in respect of Vladislav Batalin), Violation of Article 5 § 4 (in respect of Vladislav Batalin), Violation of Article 3 (ill-treatment) - on account of Vladislav Batalin’s forced psychiatric treatment Violation of Article 3 (ill-treatment and investigation) - on account of Vladislav Batalin’s ill-treatment in the psychiatric hospital and failure of the domestic authorities to carry out an effective investigation
The case concerned the applicants’ placement in a social care home, where they are currently detained.
All three applicants were treated for schizophrenia. They were deprived of their legal capacity and placed under guardianship, of either a relative or a representative of a social work centre, either before or following their placement in the Drin social care home.
Two of the applicants in separate proceedings, lodged a constitutional appeal challenging the lawfulness of their detention in the social care home. In both cases, the Constitutional Court of Bosnia and Herzegovina, in April and June 2013 respectively, found that the applicants’ deprivation of liberty had been unlawful, as they had been held in psychiatric detention without a decision of the competent civil court, and that their rights had been breached by the lack of a judicial review of the lawfulness of their detention. The Constitutional Court ordered the local social work centres in charge to take measures to ensure respect for the applicants’ rights. In both cases, a municipal court subsequently examined the necessity of the applicants’ placement in the social care home and concluded, in September 2014 and November 2013 respectively, that their current state did not warrant their continued confinement there. However, the applicants have not yet been released from the social care home.
Relying, in substance, on Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights in particular, all three applicants complained: that their detention in the social care home had been unlawful, maintaining that they were being held there against their will and that they could not obtain release; and that there had been no judicial review of their placement there.
Judgment delivered on 3 November 2015: violation of Article 5 § 1 in respect of all of the applicants.
The applicant, Yelena Anatolyevna Bogdanova is a transsexual woman. She had a gender reassignment male-to-female surgery in 2011. After her arrest in 2012 on suspicion of an attempted drug trafficking, the authorities refused to provide the applicant with the hormone replacement medicaments despite her numerous complaints and the fact that such life-long therapy was an indefensible requirement after the surgery. The applicant argued that the failure to obtain such therapy led to the development of “gender dystrophy” (the return of the secondary sexual (male) characteristics). Her mental condition also allegedly deteriorated significantly. She also did not receive treatment for her hepatitis B with which she had been diagnosed after her arrest. In response to the applicant’s complaints, the authorities informed her that she had to pay for the hormone replacement therapy herself. The applicant did not have the necessary resources.
The applicant also stated that following her arrival to the tuberculosis hospital the administration of the facility informed the entire prison population that the applicant was a transsexual. As a result she became the subject of threats and prison violence, was segregated from other inmates and placed in a medical unit as a “safe place”.
In July 2013 the applicant asked a court to authorise her provisional release given her poor state of health and inability to receive the hormone replacement therapy. Having concluded that the applicant’s condition was not included in the list of illnesses calling for a release, on 17 October 2013 the Krasnoyarsk Regional Court, in the final instance dismissed the request.
The applicant complained, among other matters, under Articles 3 and 13 of the Convention about the absence of necessary medical treatment, including the hormone replacement therapy, and the lack of an effective remedy to complain about that violation. The applicant also complained about the conditions of her detention as a result of the authorities having disclosed the information about her gender reassignment surgery.
The case concerned the ban under UK law on assisted suicide and voluntary euthanasia. Assisted suicide is prohibited by section 2(1) of the Suicide Act 1961 and voluntary euthanasia is considered to be murder under UK law.
Mrs Nicklinson, the wife of Tony Nicklinson (now deceased) who was suffering from locked-in syndrome and wished to end his life, complained that the domestic courts had failed to determine the compatibility of the law in the UK on assisted suicide with her and her husband’s right to respect for private and family life. The ECtHR declared this application inadmissible as manifestly ill-founded, finding that Article 8 did not impose procedural obligations which required the domestic courts to examine the merits of a challenge brought in respect of primary legislation as in the present case. In any event, it was of the view that the majority of the Supreme Court had examined the substance of Mrs Nicklinson’s complaint.
Mr Lamb, who is paralysed and also wishes to end his life, brought a complaint about the failure to provide him with the opportunity to obtain court permission to allow a volunteer to administer lethal drugs to him with his consent. The ECtHR declared his application inadmissible for non-exhaustion of domestic remedies.
The decision is final.
The applicants are the parents, a half-brother and a sister of Vincent Lambert who sustained a head injury in a road-traffic accident in 2008 as a result of which he is tetraplegic. They complain in particular about the judgment delivered on 24 June 2014 by the French Conseil d’État which, relying on, among other things, a medical report drawn up by a panel of three doctors, declared lawful the decision taken on 11 January 2014, by the doctor treating Vincent Lambert, to discontinue his artificial nutrition and hydration.
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.
In a judgment of 5 June 2015, the Grand Chamber of the Court held, by a majority, that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights in the event of implementation of the Conseil d’État judgment of 24 June 2014.
Prepared by the Court’s Press Service, Factsheets focus on the case law of the Court, and pending cases. These files are not exhaustive and do not bind the Court. The date indicates the latest update of the factsheet.
· New technologies (October 2015)