Making subsidiarity work: Struggling with procedural review – A.K. v. Latvia

The applicant in AK v Latvia is unhappy with the fact that she gave birth to a daughter with Down’s syndrome. She claims that the she was denied access to important medical information in the form of an antenatal screening test owing to negligence of her gynaecologist, in violation of article 8 ECHR.

Third party interventions by the Association des Paralysés de France and the European Centre for Law and Justice show that in some circles there was an expectation/fear that this might be treated as a ‘wrongful birth’ case, or a case about access to abortion. However, the Court remained far from these controversial issues underlying the case and did not even address the substance of the applicant’s right of access to health information.

Instead, the case is noteworthy mostly as evidence of the Court’s struggle with the implications of subsidiarity and the modalities of procedure-type review in this context.

Protocol 15 has not yet entered into force, yet we must assume that inside the Court, there is a lot of reflection and discussion as to the implications of its emphasis on subsidiarity. Briefly, such reflections may take two directions. One – controversial – track concerns the question of whether the Court should make even more use of the margin of appreciation doctrine than it currently does. Another- far less controversial- path is about strategies to make States Parties take up their first line responsibilities for the protection of Convention rights.

In both scenarios, the argument has been made that increased use of procedure-type review could be a way forward. Among those who want to see a less intrusive Court, the idea is that when the Court reviews domestic procedure and finds that the claims based on Convention rights have been carefully considered at the domestic level, there is no reason why the Court should conduct an additional substantive review. Those want to see better human rights protection at the domestic level, put forward the reverse idea, namely that when the review of the domestic procedure that was supposed to address the claims based on Convention rights shows serious deficiencies at this level, this should automatically lead to the finding of a violation, without the need for additional substantive review.

In the case of AK v Latvia, we are faced with the latter scenario. Quoting Koch v. Germany, the Court states that

It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity. (…) In these circumstances, the Court considers it appropriate to address first the procedural aspect of the applicant’s complaint, namely the question whether her rights under Article 8 of the Convention were sufficiently respected in the context of the civil proceedings in which she sought compensation. (para. 86)

A majority of six judges find that

the domestic courts’ approach to the applicant’s claim discloses the appearance of arbitrariness. The cumulative effect of the failings identified was that the domestic courts did not properly examine the applicant’s claim that she had not received medical care and information in accordance with domestic law in a manner sufficient to ensure the protection of her interests. There has accordingly been a violation of Article 8 of the Convention in its procedural aspect. (para. 94)

In the preceding paragraph, following another reference to the principle of subsidiarity, they had already concluded that ‘in the circumstances of the present case, it is appropriate for the Court to limit itself to examining the procedural aspect of Article 8’ (para. 93)

The procedural deficiencies in this case concern the treatment of the allegation that the applicant’s medical record had disappeared for a number of months, a few factual discrepancies (e.g. was she in the 17th, 18th or 19th week of her pregnancy?), the refusal to hear the applicant as a witness, and a few elements in the case file that appear to not have been adequately examined or addressed (e.g. if an appointment for the test was made and the applicant failed to show up, why was there no reference to this in the records of later appointments with the same doctor).

All in all, it is a list of shortcomings that cumulatively lead to the conclusion of arbitrariness in the domestic procedure. Judge Mahoney, dissenting, strongly disagrees with this conclusion, stating that

Even if my colleagues can be taken to have identified some factors showing that that treatment was less than ideal, to my mind those factors, even taken cumulatively, come nowhere near “disclosing the appearance of arbitrariness” or grounding a conclusion that “the domestic courts did not examine the applicant’s claim… in a manner sufficient to ensure the protection of her interests” for the purpose of Article 8 of the Convention.

More interesting however than this difference in assessment of the elements of the case file, is the underlying difference of opinion on the type of review. Mahoney states that

the approach taken by the majority in evaluating the procedural treatment of the applicant’s case by the national courts, notably the latter’s assessment of the evidence, amounts to making this, international, Court act as a fourth-instance national court – to be precise, as a supplementary cassation-appeal court overruling a lower court’s decision on perceived procedural shortcomings

Clearly, the procedural review in AK v Latvia differs from that in Koch v Germany, where the domestic courts refused to examine the merits of the applicant’s claim (a complaint about the refusal of euthanasia for his wife). This was a clear case where the domestic courts had not played their role as protectors of Convention rights in the subsidiarity arrangement. In AK v Latvia however, the applicant’s right had been the focus of the domestic procedure, and several of the procedural shortcomings listed (in particular the issue of the medical records) had already been considered at the domestic level. The link between the particular procedural shortcomings and a failure to adequately consider whether the applicant’s right was violated, is not self-evident, nor is it explicitly made by the Court.

Procedural review under substantive provisions is on the rise in the European Court of Human Rights[1], and article 8 is without doubt the champion in this field. Yet in most such cases, the procedural shortcomings highlighted by the Court are of a less technical character, addressing instead broader issues of principle, such as the participation of the applicant in the domestic proceedings, the proper assessment of relevant information and expertise, or the taking into account of relevant specificities (such as minority status). Moreover, in those cases the Court has not stopped its analysis at the finding of procedural shortcomings and hence did not base a finding of a violation solely on those procedural shortcomings.

In my opinion, Mahoney has a point in that the procedural deficiencies in this case are not manifestly of the type that merits the qualification ‘arbitrary’. They are however sufficiently serious to reduce the state’s margin of appreciation. Instead of basing its finding of a violation on the procedural deficiencies as such, the Court would have been more convincing if it had taken these as a basis to justify a thorough substantive scrutiny of the question whether the applicant’s right of access to medical information had been violated. I submit that in such a scenario, the message of subsidiarity would still get across, i.e. that if they want to avoid the finding of a violation in Strasbourg, domestic authorities should take care that allegations of violations of Convention rights are adequately assessed at the domestic level.

 

[1]See Eva Brems, “Procedural protection: an examination of procedural safeguards read into substantive Convention rights”, in Eva Brems en Janneke Gerards (eds.), Shaping Rights in the ECHR;The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge University Press, 2013, 137-161; also Eva Brems and Laurens Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights”, Human Rights Quarterly, 2013, 176-200.

 

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