Nota 22 dicembre 2008

Corte Europea dei diritti dell’uomo. Nota 22 dicembre 2008: “Interruzione del trattamento di alimentazione di paziente in stato vegetativo permanente: inadmissibility decision A. Rossi and others v. Italy”.

A Chamber of the European Court of Human Rights has declared inadmissible eight joined applications lodged in the case of Ada Rossi and Others v. Italy (applications nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08, 58420/08 and 58424/08) (The decision is available only in French.).

The applicants

The applicants are six Italian nationals, represented by their guardians, six Italian associations whose membership consists of the relatives and friends of severely disabled persons and of doctors, psychologists and lawyers who assist the persons concerned, and also a human rights association.

Summary of the facts

In January 1992, as the result of head injuries sustained in a road-traffic accident, E.E., a 20-year-old woman, fell into a coma. Her condition subsequently developed into a vegetative state with spastic tetraplegia and loss of all higher cognitive function.

In January 1999 her father and guardian, basing his arguments on his daughter’s personality and the ideas concerning life and dignity which she had allegedly expressed before the accident, began court proceedings seeking authorisation to discontinue his daughter’s artificial nutrition and hydration. The authorisation was refused at first instance and twice on appeal, in 1999 and 2003. In April 2005 the Court of Cassation quashed the latest decision by the Milan Court of Appeal dismissing the appeal and remitted the case for fresh consideration, whilst making clear 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 latest decision of the Court of Appeal and, in its order remitting the case, stated that the judicial authority could authorise the discontinuation of nutrition if the person concerned was in a persistent vegetative state and if there was evidence that, had he been in possession of all his faculties, he would have opposed medical treatment.

In a decision of 25 June 2008 the Milan Court of Appeal granted the requested authorisation on the basis of the two criteria laid down by the Court of Cassation.

On 8 October 2008 the Constitutional Court rejected the applications lodged in relation to the conflict of State powers raised by Parliament in September 2008.

Finally, 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 decision of 25 June 2008, on the ground that the public prosecutor did not have capacity to act in the proceedings.

Complaints

Relying on Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, the applicants complained of the adverse effects that execution of the decision of the Milan Court of Appeal in the case of E.E. was liable to have on them. Relying on Article 6 § 1 (right to a fair hearing), they also complained that the domestic proceedings in E.E.’s case had been unfair.

Procedure

The applications were lodged with the European Court of Human Rights in November and December 2008.

Decision of the Court1

Articles 2 and 3

The Court reiterated that, in principle, it did not suffice for an applicant to claim that the mere existence of a law violated his rights under the Convention; it was necessary that the law should have been applied to his detriment. Furthermore, the exercise of the right of individual petition could not be used to prevent a potential violation of the Convention: only in highly exceptional circumstances could an applicant nevertheless claim to be a victim of a violation of the Convention owing to the risk of a future violation.

The Court noted that the applicants had no direct links with E.E. In addition, the domestic court proceedings whose outcome they criticised and whose consequences they feared did not affect them directly, as the decision of the Milan Court of Appeal of 25 June 2008 was a judicial act which, by its nature, concerned only the parties to the proceedings and the facts which formed the subject-matter thereof.

The applicants could not therefore be said to be direct victims of the alleged violations.

It remained for the Court to consider whether they could be regarded as potential “victims”.

The individual applicants

The Court pointed out that it had already accepted that an applicant could be a potential victim in certain cases. However, according to the Court, in order for an applicant to claim to be a victim, he must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally would occur; mere suspicion or conjecture was insufficient in this regard.

In the instant case the applicants had not met this requirement, as the judicial decisions whose effects they feared had been adopted in relation to a specific set of circumstances concerning a third party.

Consequently, in the Court’s view, 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 not disregard either the wishes of the persons concerned as expressed by their guardians – who had adopted a clear position in defence of the right to life of their relatives – or the opinions of the medical specialists. Just as the Milan Court of Appeal had been in the case of E.E., 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.

Accordingly, the individual applicants could not claim to be victims of a failure by the Italian State to protect their rights under Articles 2 and 3. These complaints were therefore declared inadmissible.

The legal entities

The Court reiterated that victim status was granted to an association – and not to its members – if it was directly affected by the measure in question, for instance when the association had been set up to defend the interests of its members before the courts.

The Court considered that these applicants would not be prevented from continuing to work in pursuance of their objectives, as the decision of the Milan Court of Appeal of 25 June 2008 was not actually capable of having any impact on their activities.

In conclusion, the applicant associations could not be regarded as victims of a violation of the rights enshrined in the Convention. Accordingly, their complaints under Articles 2 and 3 were declared inadmissible.

Article 6 § 1

As the proceedings in question had involved third parties and the applicants had not been a party to them, the Court declared the complaint under Article 6 § 1 inadmissible as being manifestly ill-founded.