Contact

Physical integrity

The protection of private life under article  8 ECHR encompasses a person’s physical and psychological  integrity. A person’s body is an intimate aspect of his or her private life (Y.F v Turkey) and a sound mental state is an important factor for the possibility to enjoy the right to private life (Bensaid v UK para 47). Measures which affect the physical integrity or mental health have to reach a certain degree of severity to qualify as an interference with the right to private life under Article 8 (Bensaid v UK, para 46). However, the Court has also held that even minor interferences with a person’s physical integrity may fall within the scope of article 8  if they are against the person’s will (Storck v Germany, para 143)

As far as the physical integrity is concerned, the scope of article 8 overlaps with the ambit of article  3 ECHR. As pointed out above, the Court distinguishes the fields of application of these two provisions according to the gravity of the interference. While it considers article 3 lex specialis if grave interferences with a person’s well-being are in question, the right to private life comes into play when the interference does not reach the threshold required to qualify it as torture or inhuman treatment.

Administering medicine against the will of the patient or performing medical treatment interferes with the right to private life. Therefore it has to be based on a law and necessary in a democratic society to be justified.

In the case Y. and F. v Turkey, the applicant’s wife had been arrested on suspicion of aiding and abetting a terrorist organization. After four days in police custody she had been examined by a doctor and then been taken to a gynecologist, who carried out a gynecological examination against her will. The Government argued that this examination had been necessary to check whether she had been sexually assaulted in police custody. The Court noted that there had been neither a legal basis for the examination nor a medical necessity and found a violation of article 8 ECHR.

In Glass v UK, the first applicant was a mentally and physically disabled child. He was treated in hospital against a severe lung disease. There were deep disagreements between the staff of the hospital and the second applicant, the mother of the first applicant, about the right treatment, which even resulted in physical violence on one occasion. The second applicant was strongly opposed to the administration of morphine for fear it might cause the death of the first applicant. Despite this opposition, the doctors decided to administer morphine to the first applicant when his state of health deteriorated alarmingly and they deemed it necessary

The Court stated that the administration of morphine had interfered with the right to private life. It scrutinized the domestic legal basis, inter alia in light of the ‘Council of Europe’s Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine: Convention on Human Rights and Biomedicine’. The Court found that there had been a sufficient legal basis. However, the European Court of Human Rights held that in light of the strong opposition against the administration of morphine, which the second applicant had expressed and which the medical staff had been aware of, the hospital should have obtained a Court order regarding the measures to take in case health situation of the first applicant should worsen considerably. Since the hospital had failed to do so, the Court found the administration of morphine to have not been necessary in a democratic society and held that there had been a violation of article 8 ECHR.

Medical treatment against a person’s will is an interference with the right to private life. However, such interference may be justified in the interest of the affected person, for example for purposes of health protection. In Acmanne v Belgium, the European Court of Human Rights held that a Belgian law requiring children to undergo an x-ray examination to prevent tuberculosis was not in breach of article 8 ECHR. Thus, while a large range of choices as to how and to what extent one’s physical integrity  is maintained fall within the scope of the right to private life, article 8 does not embrace an unlimited right to do with one’s body as one pleases. In Laskey, Jaggard and Brown v UK, the Court has held that the conviction for body injuries which were inflicted on another person in the context of consensual sado-masochistic practices was not in breach of the Convention.

Also, the right to private life does not encompass the right to obtain assistance to end one’s life, as the European Court of Human Rights has held in the case Pretty v UK. In this case, the applicant suffered from an incurable disease. As a consequence of this disease, she was paralyzed from the neck down, unable to speak and had to be fed through a tube. According to the usual progress of her disease, it was expected that her breathing muscles were going to fail and she would suffocate. The applicant, whose intellect was unimpaired by her disease, considered this an undignified and stressful death and wished to end her life at a time of her own choosing. Due to her physical condition she was unable to do so herself. Assisting another person to commit suicide was a criminal offence in the UK. Her husband had agreed to assist her on the condition that the authorities confirmed that he would not be prosecuted for assisting her suicide. However, all domestic authorities refused to give the requested undertaking.

The applicant argued that the right to self-determination was inherent to article 8 ECHR and that this right included the right to decide when to end one’s life. The Court accepted that depriving the applicant of the possibility to end her life at a time of her own choosing interfered with her right to private life. It reiterated that the quality of life and human dignity are a factor to be considered in the context of article 8 and stated that the prospect of long suffering and an undignified end to one’s life was a concern to many people in times of increasing medical sophistication. Yet, the Court considered that the interference with the applicant’s right to private life was justified pursuant to article  8 para 2 ECHR. The Court pointed out that the ban on assisted suicide served the protection of particularly vulnerable persons and thus responded to a pressing social need. While the Court was satisfied that the applicant was not weak and that her ability to make an informed decision was not limited, the state acted within its margin of appreciation when prohibiting assisted suicide altogether, regardless of the vulnerability of the person in question. Therefore, the Court held that there had been no violation of article 8 ECHR.

In Haas v Switzerland (judgment in French), the Court rejected that article 8 ECHR entailed a positive obligation for contracting states to facilitate access to medication which would enable persons to commit suicide without unnecessary pain. The applicant suffered from a grave bipolar disorder. He had attempted to commit suicide twice and had been admitted to psychiatric institutions several times. Since he deemed that his illness made a dignified life impossible and wished to end his life, he tried to obtain a dose of a certain substance which would be sufficient to cause death without suffering. He was unable to obtain it, though, because he did not possess the prescription which was necessary pursuant to Swiss law. He wrote numerous letters to doctors in which he indicated that he wished to commit suicide and needed a confirmation by a doctor stating that his disease was incurable and that he had made an informed decision. However, all doctors refused.

The applicant claimed that the denial of access to the substance amounted to a violation of article  8 ECHR. He stated that the desired substance was the only way he could end his life in a dignified manner without suffering and submitted that denying it was not justified by any public interest.

The Court pointed out that this case was distinguishable from Pretty v UK. While the applicant had suffered from a terminal disease at a progressed stage, Mr Haas’ disease was not fatal.  The Court examined the case in light of a possible obligation on the part of the state to enable a dignified suicide. It stated that the Convention, read in its entirety, provided for the protection of vulnerable persons. The Court pointed out that there was no consensus regarding the right to suicide and that Switzerland had acted within its margin of appreciation when deciding to make substances, which could be misused for suicide available upon prescription only.

 

Article 8 ECHR entails a positive obligation on the part of the state to protect the physical integrity of persons within their jurisdiction. As it is generally the case with positive obligations, the scope of the duty to safeguard the physical integrity of persons within the jurisdiction of the contracting states is not clearly defined. While the European Convention on Human Rights has to be applied in such a way as to provide effective rights, the states must not be burdened with disproportionate duties. The Court balances the individual’s interest in the protection of the physical well-being with the interest of the general public. Factors which the ECtHR considers when striking this balance are for example the area of life concerned and the impact it has on the life of the applicant if the state fails to act and the existence of an international consensus regarding a certain question. The Court also takes into account whether the positive obligation in question is clear-cut (and therefore easy to comply with) or rather broad.

In Georgel and Georgeta Stoicescu v Romania, the applicant was a retired woman who had lived in Bucharest. In October 2000, she had been attacked by a pack of stray dogs. She had suffered injuries (inter alia a fracture of the thigh bone) and had been hospitalized for four days. After her release from hospital, her health conditioned had worsened.

The problem of street dogs attacking pedestrians had been widely covered before in Romanian and international media. In 1998, a law was enacted by which local authorities were put in charge of organizing the capture of stray dogs. In 2001 an emergency law was passed on the basis of which a large number of street dogs were captured and killed.

The Court ruled that the Government had failed to meet its positive obligations arising from article 8 ECHR. While the Court acknowledged that the authorities had adopted legislation to address the issues of stray dogs, it pointed out that the Government had not been able to indicate which concrete measures had been taken to curtail the dangers of attacks by street dogs. Therefore the Court found Romania in violation of article 8 ECHR.

 

 

Social media & sharing icons powered by UltimatelySocial
Menu Title