Man’s justice is not perfect, not even that of the European Court of Human Rights (ECHR). In a striking turn of events, it appears that the Court made a manifest legal error in the well known Lambert judgment (Lambert and others v. France, n°46043/14, Grand Chamber, 5 June 2014) by wrongly referring to its own case-law. In the Lambert case, that Court ruled that the French authorities could stop the artificial hydration and nutrition of Mr Lambert.
Glass v. United Kingdom judgment (n° 61827/00, Fourth Section, 9 March 2004) is one of the most important decisions the Court refers to in Lambert to support its decision. Indeed, the Court quotes Glass five times. In Glass, similarly to in Lambert, the mother of a child hospitalized for respiratory disorders complained about the the medical team’s decision to administer to her minor son, against her will, a high dose of morphine that risked causing his death. The doctors elected to not resuscitate him in the event of a respiratory crisis. Wishing to defend her son’s life, the patient’s mother brought her case to the ECtHR, as in the Lambert case.
In Glass, the Court ruled that: “the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention.” It “unanimously [held] that there [had] been a violation of Article 8 of the Convention.” Under this precedent, doctors should either respect the will of a patient’s parent or obtain an injunction against the parent’s decision. This precedent supports the position of Lambert’s parents. However, in the Lambert judgment the Grand Chamber stated erroneously that, in the Glass judgment, the Court “held that there had been no violation of Article 8 of the Convention.” (Paragraph 138). This error is found in the “general considerations” presenting the case law and supporting the Court’s decision. It is impossible to accurately determine the implications of this error on the Court’s reasoning, but it allows the Grand Chamber to affirm, in support of its own conclusion, that “it did not find a violation of the Convention in any of these cases.” (Paragraph 139).
This is an obvious and appalling error that is hard to explain. How can the highest European Court, in such a sensitive matter, ignore its own case law, while introducing a significant error into the heart of its argument?
And, what will become of this judgment?
It is not possible to appeal: the decision was made by the Grand Chamber and is definitive.
The Rules of Court provide the opportunity to “rectify clerical errors, errors in calculation or obvious mistakes,” (Rule 81), but this procedure is not aimed at correcting legal error. The Rules of Court also provide for the possibility to “revise” a decision (Rule 80); that is to say, to rule again on the case “in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party.” This procedure is also difficult to apply here because the error of the Grand Chamber is not a new fact.
There is no procedure to rectify a mistake of law from the Grand Chamber. Nevertheless, one cannot imagine that this error will stay; it shall be removed. Thus, the Lambert case is not closed at the ECtHR.
To limit the consequences of this error, some will argue that only the final decision of the Court matters (i.e. the operative words) and that an error of reasoning does not affect the final decision. The Court would have to admit openly that its decision is not strictly deduced from the legal reasoning. Indeed, the Court, after having decided on the merits, built its reasoning in order to explain the decision and to develop its doctrinal corpus. This teleological method may have provided the opportunity for error to arise.
Others will say that to err is human. This is true, but the life of a man is at stake. In any case, this error is humiliating; it reminds us that justice is human. And it is because of the fallibility of human justice that the Court should remain humble.