Access to experimental treatment or drug
Durisotto v. Italy concerned the refusal by the Italian courts to authorise the applicant’s daughter to undergo compassionate therapy (experimental treatment known as the “Stamina” method) to treat her degenerative cerebral illness. The therapy was undergoing clinical trials and, under a legislative decree, was subjected to restrictive access criteria.
The Court declared the application inadmissible (manifestly ill-founded) under Article 8 (right to respect for private and family life) and under Article 14 (prohibition of discrimination) taken in conjunction with Article 8 of the Convention. On the one hand, noting in particular that a scientific committee set up by the Italian Ministry of Health had issued a negative opinion on the therapeutic method in issue and that the scientific value of the therapy had not therefore been established, it found that the interference in the right to respect for the applicant’s daughter’s private life, represented by the refusal to grant the request for medical therapy, could be considered as necessary in a democratic society
Access to personal medical records
K.H. and Others v. Slovakia (application no. 32881/04) 2009 The applicants, eight women of Roma origin, could not conceive any longer after being treated at gynaecological departments in two different hospitals, and suspected that it was because they had been sterilised during their stay in those hospitals. They complained that they could not obtain photocopies of their medical records.
The Court held that there had been a violation of Article 8 (right to private and family life) of the Convention in that the applicants had not been allowed to photocopy their medical records. It found that, although subsequent legislative changes compatible with the Convention had been introduced, that had happened too late for the applicants.
Alleged failure to provide adequate medical care
Center of Legal Resources on behalf of Valentin Câmpeanu v. Romania 2014 (Grand Chamber) The application was lodged by a non-governmental organization (NGO), on behalf of Valentin Câmpeanu, who died in 2004 at the age of 18 in a psychiatric hospital. Abandoned at birth and placed in an orphanage, he had been diagnosed as a young child as being HIV-positive and as suffering from a severe mental disability.
The Court found that, in the exceptional circumstances of the case, and bearing in mind the serious nature of the allegations, it was open to the NGO to act as a representative of Valentin Câmpeanu, even though the organisation was not itself a victim of the alleged violations of the Convention.
In this case the Court held that there had been a violation of Article 2 (right to life) of the Convention, in both its substantive and its procedural aspects. It found in particular: that Valentin Câmpeanu had been placed in medical institutions which were not equipped to provide adequate care for his condition; that he had been transferred from one unit to another without proper diagnosis; and, that the authorities had failed to ensure his appropriate treatment with antiretroviral medication. The authorities, aware of the difficult situation – lack of personnel, insufficient food and lack of heating – in the psychiatric hospital where he had been placed, had unreasonably put his life in danger. Furthermore, there had been no effective investigation into the circumstances of his death.
Clinical trial of new medicine
Traskunova v. Russia 2022 concerned the death of the applicant’s daughter while she was participating in the clinical trial of a new drug for schizophrenia, namely asenapine. The ensuing inquiry revealed that her daughter had slipped into a coma and died because of heart disease which had gone undetected and which had been aggravated by the experimental drug. The applicant unsuccessfully attempted to have disciplinary proceedings instituted against those responsible and to bring criminal proceedings into the death.
The Court held that there had been a violation of Article 2 (right to life) of the Convention in the present case, finding that the respondent State has failed to comply with its substantive and procedural obligations under Article 2. In particular, the Court noted that the State had not ensured an effective implementation and functioning of the legal framework with a view to protecting the right to life of the applicant’s daughter – a mentally ill and thus vulnerable individual – in the context of clinical trials of experimental medicinal products, and it had not provided an adequate judicial response to the applicant in that connection.
Compulsory childhood vaccination
Vavřička and Others v. Czech Republic concerned the Czech legislation on compulsory vaccination3 and its consequences for the applicants who refused to comply with it. The first applicant had been fined for failure to comply with the vaccination duty in relation to his two children. The other applicants had all been denied admission to nursery school for the same reason.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention in the present case, finding that the measures complained of by the applicants, assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State (to protect against diseases which could pose a serious risk to health) through the vaccination duty. The Court clarified that, ultimately, the issue to be determined was not whether a different, less prescriptive policy might have been adopted, as had been done in some other European States. Rather, it was whether, in striking the particular balance that they did, the Czech authorities had exceeded their wide margin of appreciation in this area. The Court concluded that the impugned measures could be regarded as being “necessary in a democratic society”.
Compulsory health insurance
De Kok v. the Netherlands The obligation to buy basic health insurance in the Netherlands and the consequences of his not having done so. He stated in particular that he would prefer to pay only for homeopathic remedies rather than sharing the collective burden of conventional medical treatment covered by the basic insurance.
The Court declared inadmissible, as being manifestly ill-founded, the applicant’s complaint under Article 8 (right to respect for private life) of the Convention. It considered in particular that, in so far as that provision was applicable – and thus proceeding on the basis that it should be assumed that both the obligation for the applicant to take out basic health insurance and the taking out of such insurance on his behalf constituted an interference with his right to private life – the decision in question was grounded in law and served the legitimate aim of ensuring access to adequate medical facilities and to prevent people from being uninsured so as to ensure the protection of health and the protection of the rights of others.
Confidentiality of personal information
L.H. v. Latvia The applicant alleged that the collection of her personal medical data by a State agency without her consent had violated her right to respect for her private life.
The Court recalled the importance of the protection of medical data to a person’s enjoyment of the right to respect for private life. It held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the applicant’s case, finding that the applicable law had failed to indicate with sufficient clarity the scope of discretion conferred on competent authorities and the manner of its exercise.
Konovalova v. Russia 2014 The applicant complained about the unauthorised presence of medical students during the birth of her child, alleging that she had not given written consent to being observed and had been barely conscious when told of such arrangements.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the relevant national legislation at the time of the birth of the applicant’s baby – 1999 – did not contain any safeguards to protect patients’ privacy rights.
P.T. v. the Republic of Moldova (no. 1122/12) 2020 concerned disclosure of the applicant’s HIV positive status in a certificate exempting him from military service. The applicant complained that he had had to show the certificate when renewing his identification papers in 2011 and in certain other situations, such as whenever he applied for a new job.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the disclosure of being HIV positive in the military service exemption certificate had breached the applicant’s privacy rights. It noted in particular that the Moldovan Government had not specified which “legitimate aim” of Article 8 of the Convention had been pursued by revealing the applicant’s illness.
Discrimination on ground of health
Novruk and Others v. Russia 2016 All five applicants wished to obtain residence permits in Russia. To complete their application, they were required to have a medical examination which included a mandatory test for HIV infection. After they tested positive for HIV, the migration authorities refused their applications by reference to the Foreign Nationals Act, which prevents HIV-positive foreign nationals from obtaining residence permits. The Court held that there had been a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to private life and family) of the Convention. It notably noted that the legislation aimed at preventing HIV transmission, which was used in the present case to exclude the applicants from entry or residence, had been based on an unwarranted assumption that they would engage in unsafe behaviour, without carrying out a balancing exercise involving an individualised assessment in each case.
Given the overwhelming European and international consensus geared towards abolishing any outstanding restrictions on entry, stay and residence of people living with HIV, who constitute a particularly vulnerable group, the Court found that Russia had not advanced compelling reasons or any objective justification for their differential treatment for health reasons. The applicants had therefore been victims of discrimination on account of their health status.
Deportation of seriously ill persons
Paposhvili v. Belgium 2016 (Grand Chamber) This case concerned an order for the applicant’s deportation to Georgia, issued together with a ban on re-entering Belgium. The applicant, who suffered from a number of serious medical conditions, including chronic lymphocytic leukaemia and tuberculosis, alleged in particular that substantial grounds had been shown for believing that if he had been expelled to Georgia he would have faced a real risk there of inhuman and degrading treatment and of a premature death.
The Court held that there would have been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed the risk faced by him in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, and a violation of Article 8 (right to respect for private and family life) of the Convention if he had been removed to Georgia without the Belgian authorities having assessed the impact of removal on his right to respect for his family life in view of his state of health. The Court noted in particular that the medical situation of the applicant, who had been suffering from a very serious illness and whose condition had been life-threatening, had not been examined by the Belgian authorities in the context of his requests for regularisation of his residence status. Likewise, the authorities had not examined the degree to which the applicant had been dependent on his family as a result of the deterioration of his state of health. =
Savran v. Denmark The applicant, a Turkish national, had been resident in Denmark for most of his life. After being convicted of aggravated assault committed with other people, which had led to the victim’s death, he was in 2008 placed in the secure unit of a residential institution for the severely mentally impaired for an indefinite period. His expulsion with a permanent re-entry ban was ordered=
The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered in particular that it had not been demonstrated that the applicant’s expulsion to Turkey had exposed him to a “serious, rapid and irreversible decline in his state of health resulting in intense suffering”, let alone to a “significant reduction in life expectancy”. Indeed, the risk posed by the reduction in treatment seemed to apply mainly to others rather than to the applicant himself. The Court held, however, that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, overall, the domestic authorities had failed to take account of the individual circumstances of the applicant and to balance the issues at stake, and that the effective permanent re-entry ban had been disproportionate.
Exposure to environmental hazards
Brincat and Others v. Malta 2014 concerned ship-yard repair workers who were exposed to asbestos for a number of decades beginning in the 1950s to the early 2000s which led to them suffering from asbestos related conditions. The applicants complained in particular about their or their deceased relative’s exposure to asbestos and the Maltese Government’s failure to protect them from its fatal consequences.
The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the applicants whose relative had died, and a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the remainder of the applicants. It found in particular that, in view of the seriousness of the threat posed by asbestos, and despite the room for manoeuvre (“margin of appreciation”) left to States to decide how to manage such risks, the Maltese Government had failed to satisfy their positive obligations under the Convention, to legislate or take other practical measures to ensure that the applicants were adequately protected and informed of the risk to their health and lives. Indeed, at least from the early 1970s, the Maltese Government had been aware or should have been aware that the ship-yard workers could suffer from consequences resulting from the exposure to asbestos, yet they had taken no positive steps to counter that risk until 2003.
S.A. Bio d’Ardennes v. Belgium 2019 concerned the Belgian authorities’ refusal to compensate the applicant company for the compulsory slaughter of 253 head of cattle infected with brucellosis. the applicant company alleged that the refusal to award it compensation for the slaughter of its cattle had constituted a disproportionate interference with its right to the enjoyment of its possessions.
The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1 to the Convention. The Court found, among other things, that the applicant company had been refused compensation because of numerous breaches of animal health regulations; this had been provided for under domestic law. It further observed that the national authorities had a degree of discretion when it came to protecting public health and food safety in their territory and determining the penalties for breaches of the health regulations, depending on the risks arising from the failure to comply and the nature of the animal diseases which the regulations were designed to eradicate.
Forcible medical intervention or treatment
Dvořáček v. the Czech Republic concerned the conditions surrounding the compulsory admission of the applicant to a psychiatric hospital to undergo protective sexological treatment. The applicant complained in particular that the hospital had failed to provide him with appropriate psychotherapy and that he had been subjected to forcible medicinal treatment and psychological pressure.
The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention with regard to the applicant’s detention in a psychiatric hospital and the medical treatment administered. It noted in particular that anti-androgen treatment had been a therapeutic necessity and that it had not been established that the applicant had been pressured into undergoing it. However, even though such a procedure would have reinforced legal certainty for all concerned, the failure to use such a form was insufficient for a breach of Article 3. Therefore, the Court could not establish beyond reasonable doubt that the applicant had been subjected to forcible medicinal treatment. The Court also held that there been no violation of Article 3 of the Convention concerning the investigation into the applicant’s allegations of ill-treatment.
R.S. v. Hungary (no. 65290/14) concerned the applicant being forced by the police to take a urine test via a catheter on suspicion of his being under the influence of alcohol or drugs while driving. He complained that the forcible taking of a urine sample from him had constituted inhuman and degrading treatment and a serious intrusion into his physical integrity.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the authorities had subjected the applicant to a serious interference with his physical and mental integrity, against his will, without it even having been necessary seeing as a blood test had also been carried out to find out whether he had been intoxicated.
Medical negligence and liability of health professionals
Positive obligations under Article 2 (right to life) of the Convention “require States to make regulations compelling hospitals … to adopt appropriate measures for the protection of their patients’ lives” and “an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable …” (Calvelli and Ciglio v. Italy, judgment (Grand Chamber) of 17 January 2002, § 49).
Gray v. Germany concerned the death of a patient in his home in the United Kingdom as a result of medical malpractice by a German doctor, who had been recruited by a private agency to work for the British National Health Service. The patient’s sons complained that the authorities in Germany, where the doctor was tried and convicted of having caused the death by negligence, had not provided for an effective investigation into their father’s death.
The Court held that there had been no violation of Article 2 (right to life) of the Convention, finding that the criminal proceedings in Germany against the doctor responsible for the applicants’ father’s death had been adequate.
Asiye Genç v. Turkey 2015 This case concerned a prematurely born baby’s death in an ambulance, a few hours after birth, following the baby’s transfer between hospitals without being admitted for treatment. The applicant complained in particular about alleged deficiencies in the investigation into her son’s death.
The Court held that there had been a violation of Article 2 (right to life) of the Convention. It considered, firstly, that the Turkish State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or its health protection system.
The child died because it had not been offered any treatment. Such a situation, the Court observed, constituted a denial of medical care such as to put a person’s life in danger. Secondly, the Court considered that the Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death. The Court therefore found that it could be considered that Turkey had failed in its obligations under Article 2 of the Convention in respect of the child, who had died a few hours after birth.
Altuğ and Others v. Turkey concerned the death of a relative of the applicants 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.
The Court held that there had been a violation of Article 2 (right to life) of the Convention. It pointed out in particular that it was not its role to speculate on the possible responsibility of the medical team in question in the applicants’ mother’s/grandmother’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.
Vasileva v. Bulgaria concerned a claim for damages by a patient against a surgeon and hospital following an operation. Various expert medical reports were produced in the proceedings. After examining the reports, the domestic courts found no evidence of negligence by the surgeon. The applicant complained in particular of a lack of impartiality on the part of the medical experts in the malpractice proceedings.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that it could not be said that the authorities had not provided the applicant an effective procedure enabling her to obtain compensation for the medical malpractice to which she alleged to have fallen victim.
Aydoğdu v. Turkey 2016 The applicants, whose daughter was born prematurely and died two days later at the hospital to which she had been transferred for emergency treatment, alleged that the death of their daughter had been caused by professional negligence on the part of the staff of the hospital where she had been treated. They also complained that the criminal proceedings had been unfair.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under both its substantive and procedural heads. It found in particular that the baby had been the victim of a lack of coordination between health-care professionals, coupled with structural deficiencies in the hospital system, and that she had been denied access to appropriate emergency treatment, in breach of her right to protection of her life.
Ioniță v. Romania 2017 This case concerned the death of the applicants’ four-year-old son following an operation. The applicants complained that the authorities had failed to effectively investigate the incident, despite their repeated claims that it had been caused by the negligence of medical staff.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural head, finding that there had not been a proper investigation into the death of the applicants’ son, for the following reasons in particular. First, the medical authorities had failed to provide an additional forensic report about the incident, even though one was necessary. Furthermore, the authorities had never established whether the supervising nurse had properly carried out her duties, even though these were highly relevant to the alleged cause of death. Moreover, the domestic courts had also found no medical negligence on behalf of the doctors – even though disciplinary tribunals had found that they had failed to obtain the applicants’ informed consent for the procedure, and this consent had been required under Romanian law. Finally, the proceedings had taken an unjustifiably long amount of time, given that six and a half years had elapsed between the death of the applicants’ son and the final decision in the case.
Erdinç Kurt v. Turkey concerned two high-risk operations performed on a patient – the applicants’ daughter – which left her with severe neurological damage (92% disability). The applicants maintained that the authorities were responsible for the damage in question, and complained of the lack of an effective remedy by which to assert their rights in the civil proceedings. They alleged that they had contested, without success, the relevance and sufficiency of the expert report on which the domestic courts had based their dismissal of the applicants’ compensation claim.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the applicants had not received an adequate judicial response that satisfied the requirements inherent in the protection of the right to physical integrity of the patient. The Court considered that only where it was established that the doctors had carried out the operation in accordance with the rules of medical science, taking due account of the risks involved, could the damage caused be regarded as an unforeseeable consequence of treatment; were it otherwise, surgeons would never be called to account for their actions, since any surgical intervention carried a degree of risk.
Lopes de Sousa Fernandes v. Portugal concerned the death of the applicant’s husband following nasal polyp surgery and the subsequent procedures opened for various instances of medical negligence. The applicant alleged that her husband’s death had been caused by negligence and carelessness on the part of the medical staff, and that the authorities had not elucidated the precise cause of the deterioration in her husband’s health.
The Grand Chamber held that there had been no violation of the substantive limb of Article 2 (right to life) of the Convention with regard to the applicant’s husband’s death. It considered in particular that the present case concerned allegations of medical negligence rather than denial of treatment. That being so, Portugal’s obligations were limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. However, the Grand Chamber held that there had been a violation of the procedural limb of Article 2, finding that that the domestic system as a whole, when faced with an arguable complaint by the applicant of medical negligence resulting in the death of her husband, had failed to provide an adequate and timely response regarding the circumstances of the latter’s death.
S.A. v. Turkey (no. 62299/09) concerned the applicant’s claim that his son had sustained physical harm as a result of an allegedly botched circumcision. The applicant complained that his son had sustained physical harm as a result of complications from surgery.
The Court declared the application inadmissible as being manifestly ill-founded, finding that, having regard to the case file, the Turkish courts’ decision had been neither arbitrary nor manifestly unreasonable. It noted in particular that the national authorities had opened, of their own motion, an internal administrative investigation for disciplinary purposes and that, in dismissing the claims of the applicant, the domestic authorities had relied on medical assessments
Mehmet Günay and Güllü Günay v. Turkey concerned allegations of medical negligence in relation to the death of the applicants’ daughter ten days after a hospital operation. The applicants alleged that the domestic proceedings had failed to identify those responsible for their daughter’s death and complained about the length of proceedings.
The Court declared inadmissible, as being manifestly ill-founded, the applicants’ complaint under Article 2 (right to life) of the Convention. It noted in particular that the expert medical assessments and the conclusions of the domestic courts, which had been properly reasoned, had ruled out any medical error or negligence. It also reiterated that it was not its task to question the findings of expert assessments. The Court held, however, that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention, finding that a period of some seven years and four months to adjudicate the applicants’ claim for compensation did not satisfy the “reasonable length” requirement.
Mehmet Ulusoy and Others v. Turkey 2019 The applicants, acting on their own behalf and on that of their son who was born in 2001 and has been suffering from a psychomotor impairment and a permanent mental deficiency since birth, attributed their son’s permanent and irreversible disability to medical negligence during the prenatal and delivery phases of the mother’s pregnancy. They also complained about the lack of an effective investigation into their allegations.
The Court considered the applicants’ complaints under Article 8 (right to respect for private life) of the Convention, which covers issues relating to the protection of the moral and physical integrity of individuals in the context of the provision of medical care. It held that there had been a violation of the procedural limb (investigation into the allegations of medical negligence) of Article 8, finding that no authority had been able to provide a consistent and scientifically based response to the applicants’ allegations and complaints or to assess the possible responsibility of the health professionals with full knowledge of the facts.
The Court held, however, that there had been no violation of the substantive limb (protection of the moral and physical integrity of individuals in the context of the provision of medical care) of Article 8, noting in particular that the applicants’ complaints broadly concerned an erroneous evaluation of the prenatal risks during the labour and childbirth phases. It considered therefore that the case primarily concerned allegations of simple medical errors or negligence. In that connection, it pointed out that the substantive positive obligations on Turkey were confined to the effective introduction and implementation of a statutory framework capable of protecting patients. It then noted that the statutory framework in force at the material time did not, per se, point to any infringement on the part of the State.
Tusă v. Romania The applicant in this case had had her left breast removed on the basis of a cancer diagnosis which had turned out to be mistaken. She complained in particular of the consequences of the surgery and of the outcome of the proceedings which she had instituted in the national courts.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that in the applicant’s case, the legal machinery in place under Romanian law had not afforded the effectiveness which the Court’s case-law required. It observed in particular that the regulatory framework established by the Romanian legislation, with its range of procedural remedies to choose from, could appear to be of benefit to potential litigants. Yet, in the applicant’s case, the various proceedings she had instituted had yielded differing results. Moreover, the legal machinery in place under Romanian law had proved sluggish and cumbersome in the applicant’s case.
Abdyusheva and Others v. Russia concerned the three applicants’ requests to be prescribed replacement therapy for their opioid use. The applicants alleged in particular that the failure to provide them with replacement therapy for their opioid addiction using methadone and buprenorphine had breached their right to respect for their private life.
The Court declared inadmissible, as being manifestly ill-founded, the second and third applicants’ complaints, finding in particular that they had not demonstrated the need for any medical treatment at all and especially for replacement therapy in order to overcome their opioid addiction. Indeed, according to the medical documents provided by the Russian Government, they were both in a state of remission, and had been for four years and one year respectively. The applicants did not dispute this.
The Court further held that there had been no violation of Article 8 (right to respect for private life) of the Convention in respect of the first applicant. in particular that the substances requested by the applicants as substitutes for opioid products, namely methadone and buprenorphine, were prohibited in Russia to all patients for the purpose of medical treatment. In the present case, the Court considered that, even assuming that the illnesses referred to by the applicants (diabetes, asthma or heart disease) could be compared to opioid addiction, there had been no difference in treatment between them and the patients cited as examples, given that the substances in question were in any event banned.
Petrova v. Latvia 2014 Having sustained life-threatening injuries in a car accident, the applicant’s son was taken to hospital, where he died. Shortly afterwards, a laparotomy was performed on his body, in the course of which his kidneys and spleen were removed for organ-transplantation purposes. The applicant alleged that the removal of her son’s organs had been carried out without her or her son’s prior consent and that, in any event, no attempt had been made to establish her views.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the Latvian law in the area of organ transplantation as applied at the time of the death of the applicant’s son had not been sufficiently clear and had resulted in circumstances whereby the applicant, as the closest relative to her son, had certain rights with regard to removal of his organs, but was not informed – let alone provided with any explanation – as to how and when these rights could have been exercised.
Elberte v. Latvia concerned the removal of body tissue from the applicant’s deceased husband by forensic experts after his death, without her knowledge or consent. Unknown to the applicant, pursuant to a State-approved agreement, tissue had been removed from her husband’s body after her husband’s autopsy and sent to a pharmaceutical company in Germany for the creation of bio-implants. She only learned about the course of events two years after her husband’s death when a criminal investigation was launched in Latvia into allegations of wide-scale illegal removal of organs and tissues from cadavers.
The Court held that there had been a violation of Article 8 (right for respect to private and family life) and a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that Latvian law regarding the operation of the consent requirement on tissue removal lacked clarity and did not have adequate legal safeguards against arbitrariness: although it set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the corresponding obligation or discretion of experts to obtain consent.
Polat v. Austria The applicant’s son was born prematurely and died two days later. He had been diagnosed with a rare disease so the treating doctors decided that a post-mortem examination would be necessary to clarify the diagnosis. The applicant and her husband refused on religious grounds and explained that they wished to bury their son in accordance with Muslim rites, which required the body to remain as unscathed as possible. Despite their objections, the post-mortem was performed and practically all the child’s internal organs were removed.
The Court held that there had been a violation of Article 9 (freedom of thought, conscience and religion) of the Convention, finding that, albeit the wide margin of appreciation afforded to the domestic authorities, in the instant case they had not struck a fair balance between the competing interests at stake by reconciling the requirements of public health to the highest possible degree with the right to respect for private and family life nor had they weighed the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the behaviour of the hospital staff towards the applicant had clearly lacked the diligence and prudence required by the situation. In addition, whereas the expert opinions had unanimously found that the post-mortem had been justified in order to be able to clarify the diagnosis, nothing therein mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months.
Providing medical information to the public
Open Door and Dublin Well Woman v. Ireland
The applicants were two Irish companies which complained about being prevented, by means of a court injunction, from providing to pregnant women information about abortion abroad. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found that the restriction imposed on the applicant companies had created a risk to the health of women who did not have the resources or education to seek and use alternative means of obtaining information about abortion. In addition, given that such information was available elsewhere, and that women in Ireland could, in principle, travel to Great Britain to have abortions, the restriction had been largely ineffective.
Women on Waves and Others v. Portugal
This case concerned the Portuguese authorities’ decision to prohibit the ship Borndiep, which had been chartered with a view to staging activities promoting the decriminalisation of abortion, from entering Portuguese territorial waters. The applicant associations complained that this ban on their activities had breached their right to impart their ideas without interference.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference by the Portuguese authorities had been disproportionate to the aims pursued. It observed in particular that, in seeking to prevent disorder and protect health, the Portuguese authorities could have resorted to other means that were less restrictive of the applicant associations’ rights, such as seizing the medicines on board. It also highlighted the deterrent effect for freedom of expression in general of such a radical act as dispatching a warship.
Refund of medical expenses
Nitecki v. Poland
21 March 2002 (decision on the admissibility)
The applicant, who had a very rare and fatal disease, alleged that he did not have the means to pay for his medical treatment. He complained before the Court of the authorities’ refusal to refund the full cost of his treatment (under the general sickness insurance scheme only 70% of the costs were covered).
The Court declared the application inadmissible (manifestly ill-founded). While an issue could arise under Article 2 (right to life) of the Convention where it was shown that the authorities of a Contracting State put an individual’s life at risk through the denial of
14. On 16 September 2022 the Russian Federation ceased to be a Party to the Convention.
health care which they had undertaken to make available to the population generally, it found that that was not the case with the applicant.
Panaitescu v. Romania
The applicant alleged in particular that the authorities had cynically and abusively refused to enforce final court decisions acknowledging his father’s right to appropriate free medical treatment, and that this had put his life at risk.
The Court held that there had been a procedural violation of Article 2 (right to life) of the Convention on account of the Romanian authorities’ failure to provide the applicant’s father with the specific anti-cancerous medication he needed for free, in accordance with the domestic courts’ judgments.
Surveillance of an insured person by detectives hired by a private insurance company
Mehmedovic v. Switzerland
11 December 2018 (decision on the admissibility)
This case concerned the surveillance of an insured person (the first applicant) and, indirectly, his wife, in public areas by investigators from an insurance company, with a view to ascertaining whether his claim for compensation, lodged following an accident, was justified.
The Court declared the application inadmissible as being manifestly ill-founded. In the first place, it noted that the insurance company’s investigations, which had been conducted from a public place and were confined to ascertaining the first applicant’s mobility, were aimed solely at protecting the insurer’s pecuniary rights. In this connection, the Court held that the domestic courts had found that the insurer had an overriding interest that meant that the interference with the applicant’s personality rights was lawful. Secondly, the Court noted that the sparse information concerning the second applicant, which had been gathered coincidentally and was of no relevance for the investigation, in no way constituted systematic or permanent gathering of data. In the Court’s view, there had therefore been no interference with this applicant’s private life.
Therapeutic use of cannabis
A.M. and A.K. v. Hungary
The applicants, who both had serious health conditions which they submitted could be alleviated by cannabis-based medication, complained under Article 8 of the Convention that domestic legislation providing a legal avenue for requesting individual permission to import such medication lacked legal certainty15.
The Court declared the applications inadmissible as being manifestly ill-founded, finding that it could not infer that the legislative avenue existing in Hungarian law was inaccessible, not foreseeable in its effects or was formulated in such a way as to create a chilling effect on doctors wishing to prescribe such medication. It noted in particular that the applicants had failed to show that their doctors or any other medical professionals were of the opinion that their respective conditions required or were suitable for treatment with cannabis-based medication.
Written consent and surgical operation
Reyes Jimenez v. Spain concerned a severe deterioration in the physical and neurological health of the applicant, who had been a minor at the material time and who was in a state of total dependence and disability following three surgical operations which he underwent to remove a brain tumour.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, on account of the interference with the applicant’s private life, finding that the domestic system had provided no appropriate answer to the question whether his parents had indeed given their informed consent to each of the surgical operations, in accordance with domestic law. The Court also noted that, while the Convention in no way required such informed consent to be given in writing provided it was unambiguous, Spanish law did indeed require such written consent. In the present case, it considered that the courts had not sufficiently explained why they considered that the failure to obtain such written consent had not infringed the applicant’s rights.