CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 décembre 2008

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THE FACTS The applicants, whose names appear in the appended list, are seven Italian associations and six Italian nationals. They were represented before the Court by Mr   R.   Elefante, Mr A. Granata and Mr R. Dolce, lawyers practising in Naples. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applications were lodged by the guardians of persons in a vegetative state, by associations whose membership consists of, inter alia , relatives of severely disabled people, doctors, psychologists, and lawyers assisting such persons and by Acmid-Donna Onlus, a human-rights defence organisation. In January 1992 E.E., a 20-year-old woman, was a victim of a road-traffic accident in which she suffered a head injury and a fractured vertebra and fell into a coma. She was subsequently diagnosed as being in a vegetative state with spastic tetraplegia and loss of all higher cognitive functions. In December 1996 E.E. was placed under the guardianship of her father. In January 1999 her father began court proceedings, seeking authorisation to discontinue his daughter’s artificial nutrition and hydration and alleging that this would have been his daughter’s wish given her personality and the ideas she had expressed about life and human dignity before her accident. The authorisation was refused twice at first instance and on appeal, in 1999 and 2003. In April 2005 the Court of Cassation quashed the first decision of the Milan Court of Appeal dismissing the appeal and remitted the case for fresh consideration, observing that E.E.’s father’s request could not be granted in the absence of specific evidence as to the wishes expressed by his daughter before the accident. On 16   October   2007 the Court of Cassation quashed the second decision of the Court of Appeal and, in its order remitting the case, stated that the judicial authority could authorise the discontinuation of artificial nutrition if the person concerned was in a persistent vegetative state and if there was evidence that such person would have opposed medical treatment if he or she had been in possession of all his or her faculties. In a decision of 25 June 2008 the Milan Court of Appeal, after rehearing the case, granted the authorisation requested by E.E.’s father on two grounds, namely, that E.E.’s vegetative state was irreversible and that there was clear, consistent and convincing evidence that the request accurately reflected the will of the represented person in so far as this could be inferred from her lifestyle, her beliefs and the views she had expressed on human dignity before becoming unconscious. On 8 October 2008 the Constitutional Court rejected applications lodged by Parliament in September 2008 alleging a conflict between the various branches of State power. It found that the judges who had examined the case had not issued a legislative precedent and had not therefore usurped the prerogatives of Parliament. Lastly, on 11 November 2008, the Court of Cassation dismissed an appeal on points of law by the Milan public prosecutor’s office against the Court of Appeal’s decision of 25 June 2008, on the ground that the public prosecutor did not have capacity to act in the proceedings. That decision rendered the contested judgment final. COMPLAINTS Relying on Articles 2 and 3 of the Convention, the applicants complained of the adverse effects that execution of the decision of the Milan Court of Appeal of 25 June 2008 in the case of E.E. could have on them. Relying on Article 6 § 1, they argued that the domestic proceedings in E.E.’s case had been unfair. Lastly, they alleged a violation of Articles 5, 6 and 7 of the Oviedo Convention and of Article 25 of the UN Convention on the Rights of Persons with Disabilities. THE LAW A.     Joinder of applications Given the similarity of the factual aspects of the applications and the substantive issues they raise, the Court considers it appropriate to join them and examine them together. B.     Alleged violations The applicants complained of the judgment of the Milan Court of Appeal of 25 June 2008 which had become final after the Court of Cassation had given a decision on 11 November 2008 dismissing the appeal lodged by the public prosecutor. They argued that the decision authorising E.E.’s father to discontinue his daughter’s artificial nutrition and hydration “[would] have ethical, psychological, social and legal consequences for persons suffering from severe brain damage”   and that “it [would] cause them serious harm and injustice to an incalculable extent, creating very serious discrimination for people with severe disabilities, who are ill-treated and above all at the mercy of third parties who can freely dispose of their life”. The applicant associations, for their part, described themselves as “the ultimate custodians of a fundamental collective interest of persons in a vegetative state” and considered themselves “fully entitled to refer a case to the Court in order that the human dignity of severely disabled persons and those suffering from a general disability be recognised”. On account of the very close connection between their situation and that of E.E., the interested parties were, they alleged, direct and indirect victims of the violations of Articles 2 and 3 of the Convention for which they claimed that the Italian State was responsible. The contested judicial decisions could set a precedent, which would expose legally incapacitated persons to a genuine and extremely serious danger. They alleged, further, that there had also been a violation of Article 6 § 1 of the Convention in that the domestic proceedings brought by E.E.’s father were unfair because the authorities had failed to carry out a fresh investigation regarding the irreversibility of the young woman’s vegetative state. Lastly, they alleged a violation of Articles 5, 6 and 7 of the Oviedo Convention and of Article 25 of the UN Convention on the Rights of Persons with Disabilities (“the UN Convention”). C.   “Victim” status The Court considers that it must first rule on the issue whether the applicants can claim to be victims of a violation of the Convention for the purposes of Article 34 of this text, the relevant parts of which read as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols. ...” The Court reiterates that this Article “requires that an individual applicant shall claim to have been actually affected by the violation he or she alleges. It does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment” (see Klass and Others v. Germany , 6 September 1978, § 33). This principle also applies to decisions that are allegedly contrary to the Convention (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005 ‑ VI). Moreover, according to the European Commission of Human Rights, “it can be observed from the terms ‘victim’ and ‘violation’ and from the philosophy underlying the obligation to exhaust domestic remedies provided for in [former] Article 26, that in the system for the protection of human rights conceived by the authors of the Convention, the exercise of the right of individual petition cannot be used to prevent a potential violation of the Convention: in theory, the organs designated by Article 19 to ensure observance of the engagements undertaken by the Contracting Parties of the Convention cannot examine – or if applicable, find – a violation other than a posteriori , once that violation has occurred. ... It is only in highly exceptional circumstances that an applicant may nevertheless claim to be a victim of a violation of the Convention owing to the risk of a future violation” (see Noël Narvii Tauira and 18 Others v. France , application no.   28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-B, p. 112). The Court notes that according to the file in respect of each application, the individual applicants have no direct link with E.E. They have no family ties with the young woman and their action before the Court is not in any way intended to oppose or support an application lodged by E.E. As for the applicant associations, neither E.E. nor her father – and guardian – are members. Furthermore, the domestic court proceedings, whose outcome is criticised by the applicants and whose consequences they fear, do not affect them directly, as the decision of the Milan Court of Appeal of 25 June 2008 is a judicial act which, by its nature, concerns only the parties to the proceedings and the dispute that was the subject of those proceedings. The applicants cannot therefore be regarded as direct victims of the alleged violations. It remains to be seen whether they can at least be regarded as potential victims of a violation of the Convention as defined in the Court’s case-law on account of the outcome of domestic court proceedings relating to a third party. Given the nature of the complaints under Articles 2 and 3 of the Convention, the Court will examine them in the light of its case-law and the Oviedo Convention and the UN Convention. 1.     The individual applicants The Court reiterates first of all that Articles 2 and 3 of the Convention protect certain aspects of physical integrity and place positive obligations on Contracting Parties. The imposition of medical treatment without the consent of the patient if he or she is an adult and of sound mind – or that of his or her guardian if he or she is legally incapacitated – amounts to an assault causing bodily harm to the person concerned who may invoke in particular the rights protected by the provisions relied on by the applicants. The Court next points out that the six individual applicants are all represented by their respective guardians and the arguments submitted by them in their application reflect their strong opposition to any attempt to stop providing artificial nutrition and hydration to their severely disabled relatives. It should be emphasised that in its judgment of 25 June 2008 the Milan Court of Appeal did not order the artificial nutrition and hydration of E.E. to be discontinued, but confined itself to declaring that the request for authorisation made by the father of the young woman was legitimate. In so deciding, the Court of Appeal found that E.E’s vegetative state was irreversible and considered that there was clear, consistent and convincing evidence that the request accurately reflected the will of the person represented in so far as this could be inferred from her lifestyle, her beliefs and the views she had expressed on human dignity before becoming unconscious. The Court has already accepted that an applicant may claim to be a potential victim of a violation of the Convention where he or she is unable to prove that the legislation in question has actually been applied in his or her case because of the secret character of the measures which it allows (see Klass and Others , cited above), where a law against homosexual acts is likely to apply to a certain category of people, of which the person concerned forms part (see Dudgeon v. the United Kingdom , 22 October 1981, Series A no. 45), where the enforcement of deportation orders against foreigners, already decided but not yet implemented, would expose the persons concerned to ill-treatment contrary to Article 3 in the destination country (see Soering v. the United Kingdom , 7 July 1989, Series A no. 161) or would violate the right to respect for family life (see Beldjoudi v. France , 26 March 1992, Series A no. 234 ‑ A) and where a court order restraining the corporate applicants, and their servants and agents, from providing certain information to pregnant women is likely to indirectly affect applicants not belonging to the companies in question (see Open Door and Dublin Well Woman v. Ireland , 29 October 1992, § 44, Series A no. 246 ‑ A). In the latter judgment, the Court recognised the victim status of Mrs X. and Mrs Geraghty – two applicants whose beliefs had encouraged them to join the application lodged by the corporate applicants – on the grounds that “it [was] not disputed that they belong[ed] to a class of women of child-bearing age which may be adversely affected by the restrictions imposed” and that they “[were] not seeking to challenge in abstracto the compatibility of Irish law with the Convention”. It follows from the cases mentioned above that in order for an applicant to be able to claim to be a victim, he must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient in this respect (see Noël Narvii Tauira and 18 others , cited above, p. 131). In the instant case the Court considers that the applicants have not met this requirement. It notes that the decisions whose effects the applicants fear were delivered by the Court of Cassation and by the Milan Court of Appeal in relation to a specific set of circumstances concerning a third party. In these circumstances, the Court considers that if the competent national judicial authorities were called upon to rule on the question of whether the applicants’ medical treatment should be continued, they could neither disregard the wishes of the patients as expressed by their guardians –   who have adopted a clear position in defence of the right to life of their relatives   –nor the opinions of the medical specialists. The judicial authorities would be bound in their assessment of the facts by the criteria laid down by the Court of Cassation in its judgment of 16   October 2007, just as the Milan Court of Appeal had been in the case of E   .E. Accordingly, the individual applicants cannot claim to be victims of a breach by the respondent State of its obligation to protect the rights invoked by them under Articles 2 and 3 of the Convention (see, mutatis mutandis , Burke v.   the United Kingdom (dec.), no.   19807/06, 11   July   2006 ). The complaints under these provisions are incompatible ratione personae with the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 2.     The applicant associations The Court notes that the applicant associations play an important role since they are devoted, in a completely altruistic manner, to providing assistance to care for people in a vegetative state, whom they try to rehabilitate as far as possible. They distribute information on the psycho-physical situation of these patients and they make society aware of the problems they pose on a daily basis, and especially for the families taking care of them. According to established case-law, “victim” status can be granted to an association – but not to its members – if it is directly affected by the measure in question (see Association des amis de Saint-Raphaël et de Fréjus et autres v. France (dec.), no. 45053/98, 29   February 2000; Dayras and Others and the association “SOS Sexisme” v. France , (dec.), no. 65390/01, 6   January 2005; and Grande Oriente d`Italia di Palazzo Giustiniani v. Italy (no.2) , no. 26740/02, § 20, 31 May 2007). In the judgment of Gorraiz Lizarraga and Others v. Spain , (no. 62543/00, ECHR 2004 ‑ III), the Court granted “victim” status not only to the applicant association, but also to some of its members, even though they had not been parties to the domestic proceedings. In coming to this decision, the Court noted that the association in question had been set up to defend the interests of its members before the courts in the context of an action brought to prevent the construction of a dam. Lastly, the Court observes that, unlike the two companies affected by the legal prohibition on providing information to their members about the possibility of abortion outside the national territory which was at issue in the case of Open Door and Dublin Well Woman (cited above), the applicant associations will not be prevented from working in furtherance of their objectives because the decision of the Milan Court of Appeal of 25 June 2008 cannot actually have any impact on their activities. In conclusion, the applicant associations cannot be regarded as victims of a violation of the rights enshrined in the Convention. Accordingly, their complaints under Articles 2 and 3 are incompatible ratione personae with the provisions of the Convention and must be rejected under Article 35 paragraphs 3 and 4 of the Convention. Lastly, with regard to the alleged unfairness of the proceedings, the Court notes, having considered all the arguments submitted by the applicants, that they cannot rely on the guarantees of Article 6 § 1 of the Convention concerning proceedings relating to third parties and to which they were not parties. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article   35   §§ 3 and 4 of the Convention.   For these reasons, the Court, by a majority, Decides to join the applications; Declares the applications inadmissible.   Sally Dollé   Françoise Tulkens   Registrar   President   ANNEX LIST OF APPLICANTS Application no.   55185/08 : Mrs Ada Rossi, born in 1952 and living in Rome; the associations VI.VE Onlus, Federazione Nazionale Associazioni Trauma Cranico, ARCO 92, Gli amici di Luca and Genesis; Application no.   55483/08 : Associazione Rinascita Vita Onlus; Application no.   55516/08 : Associazione Acmid-Donna Onlus; Application no.   55519/08 : Mrs Lucia Zoppis, born in 1961 and living in Rome; Application no.   56010/08 : Mr Juan Francisco Hernandez Silveira, born in 1968 and living in Rome; Application no.   56278/08 : Mr Gautam Marcello Pigozzi, born in 1985 and living in Soave Porto Mantovano (Mantoue); Application no.   58420/08 : Mr Patrick Muzzurru, born in 1985 and living in Rome; Application no.   58424/08 : Mr Gianluca Cioffarelli, born in 1981 and living in Rome.