Second section case of gross v. switzerland

The applicant suffered from a serious bipolar disorder and wished to commit suicide and requested a lethal dose of sodium pentobarbital, which is available only on prescription, from several psychiatrists but was unsuccessful.

The applicant then contacted various official bodies seeking permission to obtain the substance from a pharmacy without a prescription.

The Federal Office of Justice responded that it did not have jurisdiction to grant his request. They also noted that Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not impose on states a positive duty to create the conditions for committing suicide without the risk of failure or pain.

This decision was upheld by the Administrative Court. The applicant launched an appeal with the Federal Court. He argued that Article 8 of the Convention guaranteed the right to choose to die without state interference, subject to certain limits. The applicant further argued that the prescription requirement and the impossibility of obtaining such a prescription constituted an interference with his right to respect for his private life. The Federal Court dismissed the appeal. The Court found that one aspect of the respect for private life guaranteed by Article 8 of the Convention is the right of an individual to decide how and when to end his or her life, provided that he or she had the capacity to make a decision and to take the appropriate action.

Thus, States have a considerable margin of appreciation in this area, and can take action to prevent individuals from ending their lives if such a decision is not taken freely and with full knowledge.

second section case of gross v. switzerland

The Court found that the restriction of access to sodium pentobarbital was intended to protect health and public safety and to prevent crime.

The prescription requirement pursued the legitimate aim of preventing individuals from making rash decisions and preventing abuse, which is an inherent risk in a system such as that in Switzerland where assisted suicide is permitted.

The Court held that although a right to suicide exists, this does not confer upon states a positive duty to ensure a rapid and painless suicide for concerned parties. Indeed, under Article 2, the State must protect the right to life and therefore has an obligation to prevent abuse. In addition, and again in contrast to the Pretty case, the applicant cannot in fact be considered infirm, in that he is not at the terminal stage of an incurable degenerative disease which would prevent him from taking his own life.

Such regulations are all the more necessary in respect of a country such as Switzerland, where the legislation and practice allow for relatively easy access to assisted suicide. Where a country adopts a liberal approach in this manner, appropriate implementing measures for such an approach and preventive measures are necessary. The introduction of such measures is also intended to prevent organisations which provide assistance with suicide from acting unlawfully and in secret, with significant risks of abuse.

Para Haas v. Switzerland [] ECHR Download Judgment : English. Germany A, B and C v.Violation of Art. Kovler, judges,and Mr E. Fribergh, Section Registrar. The case originated in an application no. The applicant was represented by Mr U.

A POSTSCRIPT TO GROSS V SWITZERLAND

Behnisch and Mr M. The application was transmitted to the Court on 1 Novemberwhen Protocol No. By a decision of 6 April the Chamber declared the application partly admissible [Note by the Registry. The applicant, a Swiss national born inis a retired ski instructor and mountain guide living in X, Switzerland. It was noted that between and the applicant had made investments with P.

He was requested to submit all the documents which he had concerning these companies. However, the applicant did not submit the requested documents. On 24 June the applicant was again asked to declare the source of the income, amounting toSwiss francs CHFwhich he had invested with P.

The applicant did not reply.

second section case of gross v. switzerland

On 2 September the District Tax Commission decided to issue an assessment to supplementary tax Nachsteuer on the interest derived from the income which the applicant had invested with P.

In letters dated 29 September and 11 Octoberthe applicant was informed of the assessment of his taxes Steuerveranlagung and of the supplementary tax due. Following an intervention of the Federal Tax Inspector, the President of the District Tax Commission withdrew the supplementary tax decision in two letters dated 7 and 20 October At the same time the President again requested the applicant to explain the source of the invested income.

A further such request was served on the applicant on 19 January The applicant duly paid the fine. On 7 April and on 19 June, 17 July and 16 August the District Tax Commission again admonished the applicant as he still had not submitted the required information. On 3 August and 5 September the applicant replied that, in his view, the decision to impose supplementary taxes on him had acquired legal force Rechtskraft on 29 September and 11 Octoberso that he was not obliged to provide further information.

In its decision, the Tax Appeals Commission found that the applicant had intentionally not complied with the order of the tax authorities to provide information.

Moreover, the decision to impose supplementary taxes on the applicant had not acquired legal force as it had been withdrawn on 7 and 20 October by the President of the District Tax Commission. The applicant filed an administrative-law appeal with the Federal Court in which he complained, inter alia, under Article 6 of the Convention that as an accused he should not be obliged to incriminate himself.

Meanwhile, the applicant also filed an objection against the third disciplinary fine, imposed on 4 December and 22 Januaryalthough the proceedings before the competent district court Bezirksgericht were suspended pending the outcome of the proceedings before the Federal Court. In its decision, the Federal Court considered it undisputed that the applicant had made investments with P.

The tax authorities had not been in a position to assume that the means invested stemmed from income and assets which had already been taxed. They had therefore quite correctly asked the applicant to demonstrate the source of these moneys.

second section case of gross v. switzerland

The Federal Court then recapitulated the relevant case-law.Sign in Create an account. Syntax Advanced Search. A postscript to Gross v Switzerland. Isra Black. Medical Law Review 22 4 By a majority of 9—8, the Grand Chamber of the ECtHR has declared the application of Ms Gross inadmissible for abuse of the right of individual application.

The Second Section judgment ofin which the Court found Switzerland to have violated Ms Gross' right to decide when and how to die included in the right to private life protected by Article 8 ECHR, will now not become final Assisted Suicide in Applied Ethics.

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Gross v Switzerland: ECHR 14 May 2013

Isra Black - - Medical Law Review 22 1 Isra Black - - Medical Law Review 20 1 Natural Law as Biolaw. Virginia Mantouvalou - manuscript. George Letsas - - Oxford University Press. Rory O'Connell - unknown. Richard S. Kay - manuscript. Douwe Korff - unknown. Alan Rothschild - - Journal of Bioethical Inquiry 5 1 Added to PP index Total views 64of 2, Recent downloads 6 months 4of 2, How can I increase my downloads? Sign in to use this feature.

About us. Editorial team. Edit this record Mark as duplicate Export citation Find it on Scholar Request removal from index Translate to english Revision history. Applied ethics. History of Western Philosophy. Normative ethics. Philosophy of biology. Philosophy of language. Philosophy of mind. Philosophy of religion.I offer a critical discussion of this important case with an attempt to define the limits in the global fight against torture.

In Part I, I present the facts of the case, as well as the reasoning and the main conclusions of the Court; in Part II, I critically assess the judgment from three different angles. In the final Part, I add several personal conclusions. He was arrested in April by the police in Italy and taken to the Tunisian consulate in Genoa. He was then taken to Tunis by Tunisian authorities. He alleges that, from April 25, to June 1,he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.

Inhe fled Tunisia for Switzerland, where he was granted asylum in On July 8,the applicant lodged a claim for damages with the courts of the Canton of Geneva against Tunisia and against A. This claim was not successful and rejected by all courts, in last instance by the Federal Supreme Court, which dismissed it on May 22, Where the Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.

On November 28,a panel of five judges accepted a request to refer the case to the Grand Chamber. Regarding the merits of the case, the Court applied the traditional test, namely whether the limitation of the access to a court pursued a legitimate aim and was proportionate.

With regard to the proportionality of the restriction on the right to access to a court, the Grand Chamber identified two concepts of international law that were relevant for the present case: universal jurisdiction and the forum of necessity. The Court had then to determine whether international law had imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant.

As the forum of necessity was not generally accepted by the States, it could not be concluded that there existed an international custom rule enshrining the concept of forum of necessity.

The Court further noted that there was also no international treaty obligation obliging the States to provide for a forum of necessity. Therefore, Switzerland enjoyed a wide margin of appreciation in this area. In other words, its freedom to decide whether or not it considered appropriate to grant to the applicant access to court was not restricted by international law.

In order to determine whether the Swiss authorities had exceeded their margin of appreciation in the present case, the Court was required to examine, in turn, Section 3 of the Swiss Federal Law on Private International Law and the decisions issued by the Swiss courts.

The Court concluded that by introducing a forum of necessity with the criteria laid down in Section 3, the Swiss legislature had not exceeded its margin of appreciation. Moreover, it was reasonable to not to take into account the links to Switzerland that the applicant has created since he was awarded asylum in Switzerland because those links did not exist at the moment of the alleged acts of torture.

Judge Wojtyczek expressed a partly dissenting opinion. Judge Dedov and Judge Serghides each expressed a dissenting opinion. In part II, I will critically assess the reasoning and main conclusions of the Court. The Part is divided into three sections. Without doubt the most important achievement of the judgement lies in the fact that the Court, in several paragraphs, clearly confirmed and highlighted the right for victims of acts of torture to obtain appropriate and effective redress, and that States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts with occurred outside their geographical frontiers.

In other words, the Court accepted and reiterated without hesitation the existance of the right of victims of torture to redress and compensation and left open the door for future developments in the field. The exact scope of this right, however, and in particular the question whether States are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicants submitted, was more disputed.

Interpreting an international treaty is not a precise, mathematical exercise, but rather an art of identifying those rules among others whose application seems appropriate in a certain situation.

From my point of view, the lack of consideration of this method of interpretation had important repercussion on the proportionality of the restriction to the right to access a court for the following reasons. In the instant case, a lot of energy has been used by the Court to determine the width of the margin of appreciation on which Switzerland could rely as a result of the absence of a consensus in this domain. Switzerland in a given situation is not determined exclusively by the existence or absence of consensus of the Member States of the Council of Europe, but also by the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aim pursued.

In the leading case in the field of extraordinary rendition El-Masri v. As a result, while the Court heavily—perhaps too heavily—considered how the questions of forum of necessity and universal civil jurisdiction for victims of torture was dealt with abroad, it took a narrow approach towards its own instrument, the ECHR, and did therefore not take into account the broader picture of the case, namely that Mr.

Nait-Liman had endured serious acts of torture. Within the ECHR, a special mechanism establishes, at least in theory, an erga omnes obligation allowing States Parties to file inter-State complaints.The Court held that :. According to Mr. In the present context, we note that the number of assisted suicides is high and unlikely to abate in the near future. The applicant passed away without leaving any heirs or descendants.

This case could have provided some guidelines as to the end of life situation. In cases of serious illness and accidents doctors, patients and family members are faced with the dilemma of what to do and how to move forward. Can an individual decide on her own to terminate her life, if she finds herself in a hopeless state of health?

Does she has the right to terminate her life if her medical condition is stable? Could her family members of even a doctor decided about the termination of life as is often the case in practice? Issues of treatment of patients at the end of their lives, particularly in intensive care at the end of life are certainly not easy, nor for the doctors who are in daily contact with them, not for family members. Moral norms of medical ethics stipulates that the doctor should always during medical treatment attempt to protect human life.

Therefore, several unanswered questions remain as to who and when can decide to terminate patient life. Alas, this has not solved any of them. You are commenting using your WordPress. You are commenting using your Google account. You are commenting using your Twitter account. You are commenting using your Facebook account. Notify me of new comments via email.

Notify me of new posts via email. The Court held that : According to Mr. Share this: Twitter Facebook LinkedIn. Like this: Like Loading Leave a Reply Cancel reply Enter your comment here Fill in your details below or click an icon to log in:. Email required Address never made public. Name required.This is the old version of the H2O platform and is now read-only.

This means you can view content but cannot create content. Thank you. Switzerland: 9. The Lausanne Police Board Belilos lodged an application under sections 36 et seq. After reading out the police report, it heard the defendant and then the policemen who had laid the information. On 26 August, it gave Mrs. Belilos a further hearing, and also heard evidence from her former husband as a witness. Having regard to the fact, on the one hand, that Mrs.

Belilos had not played an active role but, on the other hand, that this was not a first offence, the Board reduced the fine to CHF; it also ordered her to pay costs of 22 CHF. The decision was notified to the applicant by registered letter on 15 September. Belilos applied to the Criminal Cassation Division of the Vaud Cantonal Court to have that decision declared null and void.

She claimed principally that in view of the requirements of Article 6 art. The Criminal Cassation Division dismissed the appeal on 25 Novemberholding:. As regards Art. It answered this question in the affirmative, as Art. The fact that appeal proceedings are in written form without any oral argument or taking of evidence is not contrary to Art.

The Cassation Division therefore carries out the ultimate control by the judiciary required by the European Convention on Human Rights, subject to the reservations made by Switzerland, even if it cannot hear witnesses. The Federal Court The applicant lodged a public-law appeal against this decision with the Federal Court. Such a jurisdiction was conceivable only if judicial review was ultimately available. Furthermore, under section 12 of the Vaud Municipal Decisions Act the municipality could delegate its powers to a senior police official, who was an agent of the executive; that being so, the Police Board was acting as judge in its own cause.

Gross v. Switzerland

On 2 Novemberthe Federal Court 1st Public-Law Division delivered a judgment dismissing the appeal on the following grounds:. In any event, such a complaint was not formulated in terms sufficiently clear with regard to section 90 1 b OJ [Federal Judicature Act]. The Federal Court finds no grounds for departing from that interpretative declaration ATF [Judgments of the Swiss Federal Court] Iaeven though its validity and its scope have been contested by academic writers D.She was found to be able to form her own judgement.

Following a failed suicide attempt, she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. However, four medical practitioners declined to issue the requested prescription. The Federal Supreme Court, in its case-law on the subject, had referred to the medical ethics guidelines on the care of patients at the end of their life, which had been issued by a non-governmental organisation and did not have the formal quality of law.

Furthermore, the guidelines only applied to patients whose doctor had arrived at the conclusion that a process had started which, as experience had indicated, would lead to death within a matter of days or a few weeks.

As the applicant was not suffering from a terminal illness, her case clearly did not fall within the scope of application of those guidelines. The Government had not submitted any other material containing principles or standards which could serve as guidelines.

This lack of clear legal guidelines was likely to have a chilling effect on doctors who would otherwise have been inclined to provide someone such as the applicant with the requested medical prescription. The uncertainty as to the outcome of her request in a situation concerning a particularly important aspect of her life must have caused the applicant a considerable degree of anguish.

This state of anguish and uncertainty would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners were authorised to issue the requested prescription in cases where an individual had come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death was not imminent as a result of a specific medical condition.

The Court acknowledged that there may be difficulties in finding the necessary political consensus on such controversial questions with a profound ethical and moral impact.

However, these difficulties were inherent in any democratic process and could not absolve the authorities from fulfilling their task therein. The foregoing considerations were sufficient to conclude that Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, did not provide sufficient guidelines ensuring clarity as to the extent of this right. Conclusion: violation four votes to three. This list may be incomplete Last Update: 22 January Ref: This site uses cookies to improve your experience.

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