Death concealment bars Human Rights Court suicide case
A case taken to the European Court of Human Rights by a woman who complained that she was unable to obtain drugs that would end her life has been dismissed as an abuse of process – because the court was not informed that the applicant had since died.
A Grand Chamber of the court, by nine votes to eight, considered that the fact and the circumstances of the applicant’s death concerned "the very core of the matter underlying her complaint under the Convention", after hearing that Alda Gross, a Swiss national, had died in November 2011 after taking sodium phenobarbital obtained via a medial practitioner. The court was not advised of her death until January 2014.
Ms Gross, who was born in 1931, had applied to the court after various other medical practitioners had refused to issue her with the drug over the three years preceding her death, though she had repeatedly expressed the wish to end her life due to her increasing frailty. The Swiss courts had upheld their decision as she did not meet the medical ethics guidelines adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness.
Her lawyer had dealt with her through a pastor, Mr F, who at her request did not disclose the fact of her death because she feared it would bring the proceedings to an end and she wanted “to open the way for other people in her situation”. He remained unaware until the Swiss Government informed the court. A chamber judgment had been issued which had not become final.
The court was invited to continue the proceedings on the grounds that the case raised substantive questions regarding compliance with the Convention which necessitated further examination in the public interest.
Ruling the application inadmissible, the majority judgment stated: "Whilst such a motive may be understandable from the applicant’s perspective in the exceptional situation in which she found herself, the court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel, the applicant intended to mislead the court on a matter concerning the very core of her complaint under the Convention. Accordingly, the court upholds the Government’s preliminary objection that the applicant’s conduct constituted an abuse of the right of application within the meaning of article 35 §3(a) of the Convention."
The court also commented that "the fact that counsel for the applicant had no direct contact with his client but agreed to communicate with her indirectly through an intermediary gives rise to a number of concerns regarding his role as a legal representative in the proceedings before it. In addition to the duties of an applicant to cooperate with the court... and to keep it informed of all circumstances relevant to his or her application..., a representative bears a particular responsibility not to make misleading submissions".
The minority judges would not have made the "abuse of right of petition" finding, on the basis that the intention to mislead the court had not been established with sufficient certainty, but considered that the application could have been struck out under article 37 §1(c) of the Convention: "The applicant passed away without leaving any heirs or descendants. Under the specific circumstances of the case, the court should have decided that it was no longer justified to continue its examination within the meaning of article 37 §1(c), without qualifying Ms Gross’s behaviour as an abuse of rights."