Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Procedural aspect);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;André Potocki;Angelika Nußberger;Dmitry Dedov;George Nicolaou;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković;Pere Pastor Vilanova

The applicant was born in 1975 and is detained in Sofia Prison.

On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide.

The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S.

By decision of 9 July 1999 a police officer ordered the applicant’s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee’s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time.

On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next.

On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant’s detention for twenty-four hours from 8 p.m.

On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day.

The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant’s right to the assistance of a lawyer and does not bear his signature.

The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests.

He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders.

The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant’s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold-up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident.

On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold-up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements:

“I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov.

I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence.

I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.”

On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims.

On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date.

On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S.

On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva.

Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence.

On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again.

On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh.

On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.

On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court.

The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.

On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant’s placement under the “special” prison regime.

Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.

The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias.

The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the reexamination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidencegathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias.

The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.

On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered.

The Court of Appeal observed that the accused’s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial statements, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him.

The Court of Appeal turned its attention to the applicant’s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events.

The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests.

The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds.

The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant’s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant’s detention in police custody.

By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken.

Furthermore, in endorsing the Court of Appeal’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused’s rights had been fully respected.

The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.

The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.

According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity.

The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules.

The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 48 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.

According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison’s activity coordinator.

Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population.

The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet.

The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.

Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant’s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books.

According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting.

Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population.

Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void.


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr M.H.A., is an Afghan national who was born in 1994 and lives in Soesterberg. The duty judge decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Mr W. Boelens, a lawyer practising in Utrecht.

The applicant was born in Uruzgan, Afghanistan, but lived in Kabul for three years prior to leaving the country. He is a Muslim of Hazara ethnicity. The applicant entered the Netherlands on 5 April 2011 after travelling through Pakistan, Iran, Greece, Italy and France.

The applicant lodged his first asylum application in the Netherlands on 17 May 2011. He submitted, inter alia, that he had left Afghanistan as he had feared that he would face acts of revenge after being involved in an incident in his brother’s shop in Kabul, where he had, in self-defence, wounded a man who had later died. That asylum application was rejected, with a final decision being handed down on 23 October 2013 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).

On 9 April 2013 the applicant was taken to immigration detention. After indicating that he wished to make a new asylum application he was transferred to the asylum application centre (aanmeldcentrum) at Schiphol, where he lodged his second asylum application on 16 July 2013.

In an interview with the immigration authorities on the same day, the applicant stated that he had converted to Christianity. He submitted that his first encounter with the Christian religion had been in Greece, that he had been to church twice in the Netherlands and so already had a certain interest in Christianity. He stated that after he had been taken into immigration detention, he had been given a Bible, which he had started to read, and that he had later converted. On 12 May 2013 he had been baptised, while in detention. In support of his statement, the applicant submitted a baptism certificate dated 12 May 2013, issued by the Kores Church in Apeldoorn, and a letter dated 8 July 2013 from a minister, Ms A., of the Netherlands Protestant Church, stating that the applicant had attended and participated in Bible groups.

The Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicant’s new asylum request on 22 July 2013, finding that his conversion was not credible. He referred to the proceedings on the applicant’s first asylum application, where he had not mentioned any interest in Christianity and had described himself as a practising Muslim. The Deputy Minister also referred to a lack of detail about the timing of the applicant’s decision to convert and several statements made during his interview that were vague and inconsistent. These included the statement that he did not know the date of his baptism and that he belonged to the Catholic Church, which he had later retracted by saying that he was a Protestant. He had also sometimes given inadequate answers when asked about the reason for his conversion, such as the statement that those who accept Jesus Christ did not harm others and that Islam represented violence, which he had failed to explain convincingly. The Deputy Minister added that knowledge of the Bible could be easily acquired, that it was relatively easy to join a church community and that it was known, ex officio, that the Kores Church readily carried out baptisms.

Following a hearing on 7 January 2014, which was held in the presence of the applicant and counsel, the Regional Court of The Hague dismissed an appeal by the applicant on 11 February 2014. Noting the various documents that had been submitted by the applicant, including a letter dated 13 December 2013 from the Elim Foundation (Stichting Elim) stating that the applicant had participated in meetings and activities at the Elim evangelical church and that there were no doubts about the sincerity of his belief, the court found that the applicant had introduced new facts in support of his latest asylum application. Nevertheless, the Regional Court concluded that the Deputy Minister had acted reasonably in coming to the conclusion that the applicant’s conversion lacked credibility. In that regard it took into account the fact that the applicant’s statements about the reasons for his decision to become a Christian had been vague, and that it could be expected from a convert to provide details about the process of conversion, especially if the person was from a country where conversion from the predominant religion could lead to punishment or be socially unacceptable. The Regional Court also rejected the applicant’s argument that he ran a risk of treatment in violation of Article 3 of the Convention in Kabul because of his Hazara ethnicity.

A further appeal by the applicant was dismissed on 14 July 2014 by the Administrative Jurisdiction Division. On 9 July 2015 the applicant was again taken to immigration detention.

On 13 July 2015 the applicant lodged a third asylum application. In an interview with the immigration authorities on 22 July 2015, in the presence of his counsel, the applicant stated that his faith had deepened since his conversion, that he had been expanding his knowledge of Christianity, and that he had been attending Bible studies and services at two churches, the Huis van Vrede (“The House of Peace”) and the International Christian Fellowship, both based in Utrecht. The applicant submitted that his conversion had given him peace and happiness and that the concepts of forgiveness and love appealed to him. Therefore, he had a deep-rooted internal motivation for his conversion. The applicant added that he had not informed anyone in Afghanistan about his conversion. He also submitted several documents, including a letter from the Dutch Council for Refugees (Vereniging VluchtelingenWerk Nederland), stating that the applicant had shown clear developments in his conversion process. He also submitted letters from ministers at the House of Peace and the International Christian Fellowship, stating that the applicant was an active member of those churches and attended their services, with the latter also stating that there were no doubts as to the sincerity of his conversion. He also submitted a letter from a Ms Z., confirming his attendance at Bible study groups.

On 24 July 2015 the applicant was notified of the Deputy Minister’s intention to declare the new asylum application inadmissible as no new elements or findings had arisen or been presented by the applicant that gave cause to reach a different decision than on the previous application. In that regard the Deputy Minister held, inter alia, that up to that point the asylum statements presented by the applicant had not been believed, including his conversion to Christianity. While there was no doubt that the applicant had been involved in church activities, that in itself did not contradict the finding that his conversion lacked credibility. The letters submitted by the applicant had not provided any insight as to how the authors of those letters had determined that a genuine conversion had taken place. They merely mentioned a number of religious aspects and matters of fact, such as the applicant’s attendance at church and Bible study meetings. The Deputy Minister held that, in general, the making of a plausible case for a genuine conversion involved convincing statements about the process of conversion and about the knowledge of Christianity. It was assumed that a decision to convert to another religion was preceded by a profound internal process. It was therefore expected of the applicant that he could describe that internal process in a convincing way. The Deputy Minister considered that the applicant’s statements about the course of events during the alleged process of conversion, namely that he had found peace and that that had been given to him by God, had not in any way demonstrated a deep-rooted conviction, but had rather been mere platitudes.

On 26 July 2015 the Deputy Minister declared the applicant’s third asylum application inadmissible. He also held that a letter from a friend of the applicant’s, written after notification of the Deputy Minister’s intention to declare the application inadmissible, in which the range of the applicant’s religious activities had been described, did not provide any further support for the applicant’s alleged conversion.

A hearing was held by the Regional Court of The Hague, sitting in Haarlem, on 13 August 2015, in the presence of the applicant and his counsel. On 21 August 2015 the Regional Court dismissed the applicant’s appeal and an accompanying application for a provisional measure of a stay of removal pending the appeal proceedings. It found that the applicant’s account of the reasons for and the process of his conversion continued to be insufficient, given that his statements in that connection were limited and of a general nature only. The court also held that the applicant’s statements had been unable to show that the intensification of his alleged conversion had been considered and deliberate. That was not altered by the fact that the applicant had in the meantime acquired more knowledge about the Bible and had been able to give an account of the activities undertaken by him in order, allegedly, to deepen his beliefs. The court considered that the statements made by the applicant in support of his third asylum application had not constituted new facts or altered circumstances that would allow for a judicial examination of the impugned decision in the same way as if it had been a rejection of a first application for asylum. The Regional Court also found that the letters, declarations and reports submitted by the applicant with his third asylum application had similarly not constituted new facts or altered circumstances. While it accepted that a declaration by a religious organisation might be capable of corroborating a conversion, the Regional Court held that it was nevertheless incumbent on the applicant himself to provide a convincing account of his conversion and of the process leading up to it. As to the report introduced by the applicant into the appeal proceedings by the Gift Foundation (Stichting Gave), an interdenominational organisation supporting churches in their contacts with refugees and asylum seekers, which stated that the applicant’s conversion was genuine, the Regional Court held that the applicant had failed to demonstrate why he had not been able to introduce that report into the proceedings during his previous asylum application. Furthermore, it found that the report had also provided insufficient insight into the reasons for the applicant’s conversion and the process of that conversion, and that it had been drafted by a person who was not a psychologist of religion, but who had nevertheless used a model developed by such a psychologist to assess the applicant’s conversion. For that reason, the report could not be given the same weight as if it had been drawn up by a psychologist of religion. As the sincerity of the applicant’s conversion was given no credence, the Regional Court did not find it necessary to examine documents on the general security situation for Christians in Afghanistan submitted by the applicant. Lastly, the Regional Court held that documents submitted by the applicant had failed to demonstrate that the security situation in Kabul had worsened for the Hazara ethnic group.

A further appeal by the applicant was dismissed on 29 September 2015 by the Administrative Jurisdiction Division. No further appeal lay against that decision.

The applicant’s removal to Kabul was scheduled for 14 December 2015.

The application was lodged with the Court on 13 December 2015. On 14 December 2015 the duty judge decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Afghanistan for the duration of the proceedings before it (Rule 39 of the Rules of Court).

The most recent official country assessment report on Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs was published on 17 September 2014. The relevant parts of the report read:

“Hazaras

There are about 2.7 million Hazaras in Afghanistan – about 9% of the total Afghan population. Hazaras live mainly in the central mountainous part of Afghanistan and in the north, in the mountains of Badakhshan.

Hazaras form a Shiite minority in Afghanistan. In the past they have often been victims of discrimination on political, religious and racial grounds. During the Taliban regime abuses against the Hazara population took place in central Afghanistan in particular. This is also the reason that Hazaras are concerned about reconciliation talks with the Taliban. Because Hazaras made an important contribution to the victory over the Taliban, their situation has meanwhile improved. They have made economic and political progress since 2001. The Hazara population is represented in government institutions more than in the past.

... Social discrimination (in the shape of extortion through illegal taxation, forced conscription, forced labour, physical abuse and detention) of Hazaras is widespread, especially in areas where they form a minority. Violent incidents inspired by discrimination can still occur. For example, tensions between Kuchi and Hazaras occasionally surface. No major incidents have occurred during the reporting period.”

The “Country of Origin Information Report: Afghanistan – Security Situation Update”, published in January 2016 by the European Asylum Support Office of the European Union, states the following in relation to the ethnic composition of the current population of Kabul:

“Kabul is an ethnically diverse city, with communities of almost all ethnicities present in the country. Pashtuns, Tajiks, Hazaras, Uzbeks, Turkmen, Baluchs, Sikhs and Hindus all reside there with no group clearly dominating. As people tend to move to areas where they already have family or into particular districts as part of a larger group with the same ethnicity, different neighbourhoods have become associated with different ethnic groups.”

The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan of 19 April 2016 provide the following on the situation of the Hazaras in Afghanistan:

“III. Eligibility for International Protection

UNHCR considers that in relation to individuals with the profiles outlined in this Section a particularly careful examination of possible risks is required. ...

A. Potential Risk Profiles

Members of (Minority) Ethnic Groups

... As a result of a variety of historical population movements, both forced and voluntary, some members of ethnic groups now reside outside areas where they traditionally represented a majority. ... a member of an ethnic group or clan constituting a minority at the national level may not face any discrimination on the grounds of ethnicity in areas where this ethnic group or clan represents the local majority.

b) Hazaras

Hazaras have been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Hazaras have historically been marginalized and discriminated against by the Pashtuns. While they were reported to have made significant economic and political advances since the 2001 fall of the Taliban regime, more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs [Anti-Government Elements].

e) Summary

... UNHCR considers that individuals who belong to one of Afghanistan’’s area of origin, and the history of inter-ethnic relations in that area.

International protection needs based on ethnicity/race may overlap with those based on religion and/or (imputed) political opinion. Due consideration should also be given to whether other risk profiles outlined in these Guidelines apply to the person concerned.”


Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr Hacı İnan, is a Turkish national, who was born in 1959 and is serving a prison sentence in Bolu F-type prison. He is represented before the Court by Mr N. Özdemir, a lawyer practising in Diyarbakır.

The Turkish Government (“the Government”) are represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the applicant’s submissions, he was arrested at gunpoint by police officers from the anti-terrorist branch of the Istanbul Security Directorate on 18 May 2000. The arrest and custody report drafted by the police indicate that he was taken into custody on 21 May 2000. According to this report, during the arrest, officers used force as the applicant attempted to flee.

Between 24 and 26 May 2000 the applicant made statements to the police. He was questioned, in particular, about his alleged links to Hizbullah, an illegal organisation, and complicity in a homicide.

On 27 May 2000 the applicant was referred to a doctor at the end of his detention in police custody. According to the medical report issued in respect of the applicant, he had sustained injuries to the right and left sides of his back and his left elbow. The doctor concluded that these injuries rendered the applicant unfit to carry out daily activities for three days.

On the same day the applicant was brought before a public prosecutor and then before the duty judge at the Istanbul State Security Court. He denied his statements taken in police custody, alleging that he had been tortured. The judge ordered the applicant’s detention on remand on suspicion of membership of Hizbullah and committing offences on its behalf.

On 8 June 2000 the public prosecutor filed a bill of indictment against the applicant, along with a number of other persons, with the Istanbul State Security Court. The applicant was charged with attempting to undermine the constitutional order, an offence proscribed under Article 146 § 1 of the former Criminal Code.

In 2001 the case against the applicant and his co-accused was joined with another case brought against a number of other persons who had been charged with membership of Hizbullah.

State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Istanbul Assize Court.

On 3 September 2009 the applicant maintained before the Istanbul Assize Court that his police statements did not reflect the truth, as he had been subject to ill-treatment during his detention in police custody.

On 27 October 2010 the applicant’s lawyer submitted to the firstinstance court that the applicant’s police statements as well as a number of documents in the case file should not be used as evidence against him as the applicant had been subjected to torture in police custody. He further noted that no investigation had been initiated into the applicant’s allegations of ill-treatment.

On 4 January 2011 the Istanbul Assize Court ordered the applicant’s release pending trial. However, he was not released from prison on account of other charges against him.

On 18 October 2011 the applicant was released from prison.

On 16 February 2012 the Istanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment without the possibility of parole. With the final decision the Assize Court issued an order for the applicant’s arrest.

On 15 May 2013 the Court of Cassation upheld the judgment of 16 February 2012 in so far as it concerned the applicant.

According to the applicant’s submissions, meanwhile, in 2000, he lodged a petition with the Fatih public prosecutor’s office against the police officers who had allegedly inflicted torture on him. During the same year, the Fatih public prosecutor initiated an investigation into the allegations of ill-treatment of the applicant, along with six other persons, who were the applicant’s co-accused.

On 25 December 2002 the Fatih public prosecutor decided not to bring criminal proceedings against the police officers suspected of torture and inhuman treatment, holding that there was insufficient evidence in support of the complainants’ allegations. In his decision, the public prosecutor also decided that the decision be served on the complainants in accordance with Article 164 of the former Code of Criminal Procedure. According to this decision, within the context of the investigation, the Fatih public prosecutor examined the medical reports issued in respect of the complainants and obtained statements of a number of police officers who had been on duty at the time of the complainants’ detention in police custody. There is nothing in the case file demonstrating that the applicant lodged an appeal against the decision of the Fatih public prosecutor.

A description of the relevant domestic law can be found in Nurettin Aldemir and Others v. Turkey, nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, § 23, 18 December 2007; Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 11-15, 16 October 2012); and Müdür Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 1926, 26 March 2013).


Preliminary objection allowed (Article 34 - Locus standi);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect) (Conditional)

Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Erik Møse;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mark Villiger;Nona Tsotsoria;Vincent A. De Gaetano

The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976.

Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d’État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below).

From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of ChâlonsenChampagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in BercksurMer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube.

In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received 87 speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair.

As Vincent Lambert’s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Act of 22 April 2005 on patients’ rights and end-of-life issues (see paragraph 54 below). Rachel Lambert, the patient’s wife, was involved in the procedure.

The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient’s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013.

On 9 May 2013 the applicants applied to the urgent-applications judge of the ChâlonsenChampagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom (référé liberté)), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.

In an order dated 11 May 2013 the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert’s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes.

The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.

In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert’s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended care facility within a nursing home.

Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert’s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of maintaining it.

On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment.

On conclusion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 13 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a sevenpage summary of which was read out to the family, observed in particular that Vincent Lambert’s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient’s life by continuing to treat him with artificial nutrition and hydration amounted to unreasonable obstinacy.

On 13 January 2014 the applicants made a further urgent application to the ChâlonsenChampagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert’s nutrition and hydration and an order for his immediate transfer to a specialised extended care facility in Oberhausbergen run by the association AmrésoBethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert’s nephew, intervened in the proceedings as third parties.

The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014 it suspended the implementation of Dr Kariger’s decision of 11 January 2014.

The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provision for individuals to object to potentially life-prolonging treatment. It likewise did not prevent the doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, from withdrawing that treatment, subject to supervision by the Medical Council, the hospital’s ethics committee, where applicable, and the administrative and criminal courts.

The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Act of 22 April 2005 and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and required recourse to invasive techniques to administer them – constituted a form of treatment.

Observing that Dr Kariger’s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert’s wishes.

The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 13 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger’s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert’s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended care facility in Oberhausbergen.

In three applications lodged on 31 January 2014 Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d’État. The applicants lodged a cross-appeal, requesting Vincent Lambert’s immediate transfer to the specialised extended care facility. The National Union of Associations of Head Injury and Brain Damage Victims’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party.

At the hearing on the urgent application held on 6 February 2014 the President of the Judicial Division of the Conseil d’État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly.

The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d’État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the Leonetti bill:

“While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.”

The Conseil d’État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d’État defined in the following terms the role of the urgentapplications judge called upon to rule on the basis of Article L. 5212 of the Administrative Courts Code:

“Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘plain and obvious’ test, the necessary measures to protect fundamental freedoms.

However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient’s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgentapplications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court’s decision.”

The Conseil d’État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 11105, L. 11114 and R. 412737) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d’État stated as follows:

“It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end-of-life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must at all events preserve the patient’s dignity and dispense palliative care.

Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111-4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Act of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient’s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.”

The Conseil d’Étatwithdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert’s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient’s entire medical file – were to give their opinion on Vincent Lambert’s current condition and provide the Conseil d’État with all relevant information as to the prospect of any change.

The Conseil d’État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows:

“(i) to describe Mr. Lambert’s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital;

(ii) to express an opinion as to whether the patient’s brain damage is irreversible and as to the clinical prognosis;

(iii) to determine whether the patient is capable of communicating, by whatever means, with those around him;

(iv) to assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.”

The Conseil d’État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Act of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, referred to above, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state.

Lastly, the Conseil d’État rejected the applicants’ request for Vincent Lambert to be transferred to a specialised extended care facility (see paragraph 29 above).

The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 13 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014 they met all the parties (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert.

On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d’État.

The experts found that Vincent Lambert’s clinical condition corresponded to a vegetative state, without any signs pointing to a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011.

The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient’s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis.

In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him.

The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were nonconscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment.

On 22 and 29 April and 5 May 2014 the Conseil d’État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Act of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee.

The National Medical Council made clear in particular that, in using the expression “no other effect than to sustain life artificially” in Article L. 11105 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person’s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent.

Mr Leonetti stressed that the Act was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature, in the title of the Act, had referred to “patients’ rights and endoflife issues” rather than “patients’ rights in endoflife situations”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified.

The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another’s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Act of 22 April 2005 was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state.

The National Ethics Advisory Committee conducted an indepth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states and addressed the ethical issues arising out of such situations. It recommended in particular a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation.

A hearing took place on 20 June 2014 before the Conseil d’État. In his submissions the public rapporteur stressed, in particular, the following:

“... [t]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient’s life, but is resolving to withdraw when there is nothing more to be done.”

The Conseil d’État delivered its judgment on 24 June 2014. After granting leave to MarieGeneviève Lambert, Vincent Lambert’s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d’État examined in turn the applicants’ arguments based on the Convention and on domestic law.

On the first point the Conseil d’État reiterated that, where the urgentapplications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above).

In the case before it the Conseil d’État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention:

“Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law.

Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8...”

The Conseil d’État also rejected the applicants’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it.

Regarding the application of the relevant provisions of the Public Health Code, the Conseil d’État held as follows:

“Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy.

In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors, which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient’s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis, the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient’s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient’s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient...”

The Conseil d’État

In that connection the Conseil d’État ruled as follows:

“Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert’s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient’s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert’s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted with any irregularity.

Secondly, the experts’ findings indicate that ‘Mr Lambert’s current clinical condition corresponds to a vegetative state’, with ‘swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem’ and ‘continued ability to breathe unaided’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient’s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert’s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘a deterioration in the [patient’s] state of consciousness since that time’.

Furthermore, according to the findings set out in the experts’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function’ and ‘major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible.

Furthermore, the experts concluded that ‘the lengthy period of progression, the patient’s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs’ pointed to a ‘poor clinical prognosis’.

Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘conscious awareness of suffering’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive.

These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert’s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d’État subsequent to submission of the experts’ report do nothing to invalidate the experts’ conclusions. While it can be seen from the experts’ report, as just indicated, that Mr Lambert’s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision.

Thirdly, the provisions of the Public Health Code allow account to be taken of a patient’s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert’s brothers. While these remarks were not made in the presence of Mr Lambert’s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert’s siblings stated that the remarks concerned were in keeping with their brother’s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident.

Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient’s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert’s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert’s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert’s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these differentd that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision.

It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d’État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful.”

Accordingly, the Conseil d’État set aside the Administrative Court’s judgment and dismissed the applicants’ claims.