The ECHR Made a Legal Error in the Lambert Case

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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.

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Tilman says

June 29, 2015

It seems that in the meantime, the Court has corrected the error through the application of Rule 81. I just checked the judgment on HUDOC and now it reads (para 138): "there had been a violation of Article 8 of the Convention".

Pierre Laurent says

June 29, 2015

Yes, it has been changed, but the new writing is not satisfying.

It reads:
“139. The Court observes that, with the exception of the violations of Article 8 in Glass and Koch, cited above, it did not find a violation of the Convention in any of these cases”.

In short, it reads: The Court observes that with the exception of 2 cases, it did not find a violation of the Convention in any of these 5 cases.

It is hard to understand the exact meaning and purpose of this sentence. It cannot be said that it is a neutral description of the case-law.

i do not want to think that its purpose is to convince that the Court could continue, in Lambert, to find no violation of the Convention...

Jakob Cornides says

June 29, 2015

The issue of euthanasia is not as trivial as the issue of abortion.

In regard to abortion, all hinges on the question whether the unborn child (or the fetus, or the embryo) is a human being. As a human being, it has a right to life that must be respected unconditionally, and that settles the matter.

The issue of euthanasia is more complex. The (undoubtedly good) intention of the French law that was applicable in the case of Vincent Lambert is to protect terminally ill patients against "therapeutic obstination", i.e. against the excessive use of therapies that would in any case prolong the patient's life only by a few hours. Stop these futile and costly efforts, the law says, and let him die in peace.

The fundamental problem of the case is how this law was applied by the French authorities. Vincent Lambert was not terminally ill. He was very severely handicapped - but could, if properly cared for, have lived for many more years. What he was receiving was not (excessive) therapy, but very basic care: food and hydration. The French courts have decided that this supply with food and water was "obstinate therapy" and endorsed a doctor's decision, based on the patient's hypothetical will, to cut it off.

As a result, Mr. Lambert will starve to death.

The ECtHR, in turn, has decided that this starving to death of a patient, on the basis of his presumed (but not explicitly declared)will, violates neither Article 2 nor Article 3 of the Convention.

This was clearly a case of euthanasia, not therapeutic obstination. The problem was not that the patient was going to die soon despite the (excessive) efforts to save his life, but - on the contrary - that there wan NO reason to expect his death any time soon.

The error highlighted by Grégor Puppinck makes the Court look rather careless - but such a mistake on a minute detail looks rather small if compared to the possibility that a helpless man can be starved to death against his will, and the ECtHR finding no problem with it...

Geraldo Vidigal says

June 30, 2015

Also, note that this is very minor compared to what the US Supreme Court has been doing, which is to substantially revise the legal reasoning in its judgments, including some issued a decade ago: