Tuesday, 6 January 2009

Non-Compliance with Interim Measures

A few days before Christmas the Court passed judgment in the case of Aleksanyan v. Russia. The applicant in the case was the former head of the legal department of the now dissolved Russian energy giant Yukos (one of their gas stations on the photo). In 2006 he was arrested in the context of the proceedings against the company's executives for fraud and embezzlement. Aleksanyan was diagnosed as being HIV-positive within a few months after his arrest and by October 2007 he had developed AIDS. Doctors concluded that he needed medical treatment in a specialist hospital.

Among many other aspects, two are notable in this case in which the Court found multiple violations. The first is a violation of Article 34: the obligation for state parties not to hinder the effective exercise of the right of individual application. In two interim measures the Court had requested Russia to transfer the applicant to an external special hospital and to form a bipartisan medical commission to diagnose the patient and suggest treatment. It took Russia over two months to transfer the applicant to a hospital, of which it was not even certain that it could provide the specialist treatment. It refused to set up a commission. As to the first point, the Court considered that Russia's refusal for two months to transfer had put the patient in great danger. As to the second measure, the Court noted that the applicant could not have - in his state of health - collected the necessary information himself and that therefore the refusal to set up a commission to do so hindered his effective right of petition.

The other point is that the Court, in line with a relatively recent trend, indicated under Article 46 ECHR (obligation to abide by the Court's judgments) that the only possibility for Russia to comply with the judgment was to replace the detention with other less stringent measures. In paras. 238-239 the Court elegantly and clearly summed up its current position:

238. The Court notes that the applicant did not request any pecuniary compensation under Article 41 of the Convention. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], cited above; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).
239. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above; see also Abbasov v. Azerbaijan, no. 24271/05, §§ 35 et seq., 17 January 2008).

Let's see how much further the Court will take this welcome approach!

2 comments:

Jan Kratochvíl said...

There is a troubling aspect to this case found in par. 148: "the Contracting States are bound to provide all medical care that their resources might permit". This is the first time that the Court said that article 3 in detention setting might not be absolute but is resources dependent. This is a considerable retrogression from previous case-law. Hopefully this is just an isolated case and strictly circumscribed to its special circumstances (the victim was a wealthy person who was able to buy the needed medication by himself without any problems).

Antoine Buyse said...

Dear Jan,

Thanks for pointing out this aspect. Let us hope this is indeed an exception, although the approach used here does reflect the right to health as a socio-economic right (in which phrases such as "to the maximum of their available resources" are much more common). In the ECHR context, one might hope that there is a difference between a certain minimum level (with which every country needs to comply) and a more variable range of extras, although it is difficult to construe that legally in the Article 3 context.