European Court of Human Rights

Information Note on the Court’s case-law No. 177

August-September 2014

Gross v. Switzerland [GC] - 67810/10

Judgment 30.9.2014 [GC] See: [2014] ECHR 1287

Article 35

Article 35-3

Abuse of the right of petition

Failure to inform Court of applicant’s death in proceedings concerning her ability to obtain drug enabling her to commit suicide: inadmissible

Facts - For many years the applicant had expressed the wish to end her life, as she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She had decided to end her life by taking a lethal dose of sodium pentobarbital. As she had encountered difficulties in obtaining a prescription for the substance in question, she had lodged an application with the European Court in 2010.

In a judgment of 14 May 2013 (see Information Note 163), a Chamber of the Court held that there had been a violation of Article 8 of the Convention. The case was referred to the Grand Chamber.

The Court was not made aware of the applicant’s death until January 2014, when informed by the Government that, while preparing their written submissions, they had enquired about the applicant’s situation and learned of her death and the circumstances thereof. In October 2011 the applicant had obtained a prescription from a doctor for a lethal dose of sodium pentobarbital and had ended her life by imbibing the prescribed substance on 10 November 2011. According to a police report of 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide and that no third person could be deemed criminally liable in that context.

Law - Article 35 § 3 (a): An application could be rejected as an abuse of the right of individual application if, among other reasons, it had been knowingly based on untrue facts. The submission of incomplete, and thus misleading, information could also amount to an abuse of the right of application, especially if the information concerned the core of the case and the applicant had failed to provide a sufficient explanation for the failure to disclose the relevant information. The same applied if new, important developments had occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant had failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty.

Counsel for the applicant had explained that he had only had contact with his client via an intermediary, who - at her request - had purposely refrained from notifying counsel of her death. However, bearing in mind the particular nature of the present case, the fact that counsel for the applicant had had no direct contact with his client but had agreed to communicate with her indirectly through an intermediary gave rise to a number of concerns regarding his role as a legal representative in the proceedings before it. In addition to the duties of an applicant to cooperate with the Court and to keep it informed of all circumstances relevant to his or her application, a representative bore a particular responsibility not to make misleading submissions.

It transpired from counsel’s explanation that the applicant had not only failed to inform him, and by implication the Court, of the fact that she had obtained the required medical prescription, but had also taken special precautions to prevent information about her death from being disclosed to counsel and eventually to the Court in order to stop the latter discontinuing the proceedings in her case. The fact and the circumstances of the applicant’s death did indeed concern the very core of the matter underlying her complaint under the Convention. It was also conceivable that had those facts been known to the Chamber they might have had a decisive influence on its judgment of 14 May 2013 concluding that there had been a violation of Article 8 of the Convention. There was no need for the Grand Chamber to speculate on this, however, since in any event the Chamber’s judgment of 14 May 2013 had not become final.

The applicant’s motive for withholding the relevant information had allegedly been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. Whilst such a motive might be understandable from the applicant’s perspective in the exceptional situation in which she found herself, the Court found it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant had intended to mislead the Court on a matter concerning the very core of her complaint under the Convention.

Accordingly, the applicant’s conduct constituted an abuse of the right of individual application.

Conclusion: inadmissible (nine votes to eight).

 

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