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Ms. Martine Gardenal is a general practitioner practicing homeopathic medicine in Saint-Germain-en-Laye. She is not a health care provider under contract with the national health insurance (Assurance Maladie).
On December 14th 2005, she is condemned by the regional medical council to 6 months suspension of delivering care to members of the national health insurance following a complain of the national health insurance. On March 21th 2007, the sentence is confirmed by the national medical council. On January 24th 2008, the administrative supreme court (conseil d’etat) rejected her appeal.
On July 11th 2008, the applicant submitted her case to the European Court of Human Rights arguing that the refusal by the plaintiff to communicate her transcripts of patients interrogation was a violation of article 6-1 of the Convention. She added that the fact that judges of the national medical council belong to the national health insurance was another violation of article 6-1 and that her loss of revenues a violation of article 1 Protocole no 1. The applicant was represented by Me Laurent Hincker (Strasbourg).
On February 18th 2010, the Court found in judgment Baccichetti v. France (22584/06) a violation of article 6-1 of the Convention because the plaintiff didn’t communicate to the applicant a report submitted to the judges of the national medical council.
Surprisingly, on December 2nd 2010, Judge Karel Jungwiert (Czech Republic) of the 5th section of the Court deemed the case Gardenal v. France (35040/08) inadmissible. The registrar of the Court also informed the applicant that no ground for the decision will be given and that it will destroy all archives regarding the case in 1 year.
On October 22th 2008, Mr. Bertrand Rappaz was condemned to more than 5 years in jail for various offenses resulting from his activity as a farmer of marijuana. On March 2010, he was jailed at the prison des Iles in Sion.
A long time non violent and environment activist, he began an hunger strike to protest against the criminalization of the farming of marijuana and its lengthy sentence. Following a deterioration of his health, he made several requests for his sentence to be temporarily suspended for health reason (art. 92 of penal code).
He was temporarily released 2 times, and stopped his hunger strike. Once jailed again, he started a new hunger strike and was hospitalized in the penitentiary wing of the university hospital of Geneva.
On November 10th 2010, a judge ordered Dr. Hans Wolff, head of the penitentiary wing to practice forced feeding on the applicant but the doctor refused to carry it out.
On December 7th 2010, his last request (6B_1022/2010) was rejected by the federal tribunal on the ground that the “medical treatment” that he could receive will be the same whether he is detained or free. The tribunal didn’t take into account that the detained applicant was on hunger strike to protest against his detention and that Dr. Hans Wolff refused to carry out forced feeding. Moreover the ruling didn’t specify what kind of “medical treatment” the applicant could receive.
Swiss doctors and nurses associations already alerted that the forced feeding of a hunger strike patient is against the international ethics standard set by the World Medical Association (Declaration of Malta).
On December 14th 2010, the applicant filed an urgent motion under article 39 [fr], requesting that the Court order the Swiss government to temporarily suspend his sentence pending the decision of the Court. The applicant complained that the refusal to suspend his sentence was a violation of articles 2 and 3 of the Convention.
On December 16th 2010, Judge Christos Rozakis refused to grant the request. Surprisingly, Judge Christos Rozakis officially requested the applicant to stop his hunger strike thereby renouncing to his right to freedom of expression (art.10). Both decisions were unmotivated and the name of the judge is not revealed (see below). The applicant is represented by Me Aba Neeman (Monthey).
Following the decision of the Court, the applicant ceased his hunger strike and filed a complain for damages for his condition of detention in the penitentiary wing.
On January 26th 2011, Mr. Frank Schürmann the representative of the Swiss confederation for the ECHR announced the selection of 3 candidates for the election of the Judge for Switzerland (2011-2020). This Judge will be the 5th for Switzerland in the history of the Court. He will replace Judge Malinverni (2007-2011) who took office on January 19th 2007 after being elected on June 27th 2006.
The first Judge for Switzerland was Antoine Fabre (1963-1975), the 2nd Denise Bindschedler-Robert (1975-1991) and the 3rd Luzius Wildhaber (1991-2006).
According to the appendix AS/Jur(2008)52 of the report 11767 of the Committee on Legal Affairs and Human Rights of the Assembly, the previous selection process in 2006 was not respecting any of the 5 principles surveyed. There was no call for candidature in the specialized press. The selection process was not made public and lacked any formal legal basis. Moreover, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.
Therefore the previous selection process in 2006 didn’t meet the criteria of fairness, transparency and consistency required by Recommendation 1649 (2004) even though the representative of the Swiss confederation claimed the opposite.
On January 27th 2009, a Resolution 1646 (2009) was adopted by the Assembly (PACE) underlining “the importance of appropriate national selection procedures in order to ensure and reinforce the quality, efficacy and authority of the Court“, asking that “the selection bodies/panels (and those advising on selection) are themselves as gender-balanced as possible” and warning : “In addition, in the absence of a fair, transparent and consistent national selection procedure, the Assembly may reject such lists.”
The selection process in 2010 didn’t meet again the criteria. There was no call for candidature in the specialized press. The selection process was again done in secret without any formal legal basis. Again, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.
The call for candidature (see below) attracted only… 12 candidates. 6 candidates were removed by the government from the selection process. The gender balance of the selection panel is secret as the whole process. Interestingly, Mr. Frank Schürmann the representative of the Swiss government refused to communicate any document relating to this selection process and the list of the 12 candidates.
Switzerland is home to 8,500 lawyers and 1,089 professional judges but the federal council didn’t select any lawyer as candidate. Instead the federal council proposed 2 lower court judges out of its 3 candidates in violation with point 4.5 of Resolution 1646 (2009) which states : “if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge“. In 2006, the only candidate who was a judge Giusep Nay received only 13% of the vote of the Assembly.
The 3rd candidate, Ms. Helen Keller seems then the only real candidate of the Swiss government. After M. Walter Kalin (Switzerland) resigned for an unknown reason, she was nominated by the Swiss government for the election of the member of the Human Rights Committee (CCPR). On July 28th 2008, she was “elected” without vote…by being the only candidate (press release from Swiss govt). After being again nominated by the Swiss government, she was “reelected” on September 2th 2010 as one of the 9 members among 18 candidates. Her mandate will expire on December 31th 2014.
MP Priti Patel declared at the House of Commons that the public have referring to the ECHR judges “disdain for the unelected bureaucrats in Strasbourg“. Judge Jean-Paul Costa answered in an interview : “Well it’s not necessarily pejorative to be a bureaucrat or to be unelected..After all high civil servants are unelected bureaucrats..When I shave myself in the morning, I see my face in the glass and I don’t see myself an unelected bureaucrat.“
Whether or not the Assembly (PACE) will reject the list of candidates submitted by the Swiss government will be a test on the pledged commitment to a “fair, transparent and consistent” selection process. It will also have lasting consequences on the legitimacy of the Court.
Update :
On April 12th 2011, Ms. Helen Keller was elected by 103 members of the Assembly on 318 representatives (only 160 were voting). It will be her first position ever as a judge. In an interview to SwissInfo, Judge Keller declared that she will resign from being a member of the Human Rights Committee (CCPR) which will trigger the 3rd elections in the last 3 years for the U.N post (4 years mandate).
On May 7th 2009 at 08:50, Mr. Mosashvili was arrested for entering Monaco despite his administrative ban of the country (art. 23 executive order 3153 1964). He was placed in police custody for up to 24 hours under the control of prosecutor general (art. 60-1 of the code of penal procedure).
He was then brought the same day at 14:30 to the prosecutor general (art. 252) who issued an “arrest warrant” for his detention at the local jail (art. 162) for up to 6 days awaiting special speedy trial (art. 399). There is no provision in the code to grant bail to suspect or to motivate the “arrest warrant” for pretrial detention.
On May 8th 2009, he was brought to the tribunal and sentenced to one month in jail. On May 18th 2009, the appeal court rejected his appeal. On November 5th 2009, the applicant lost his appeal to the supreme court.
On May 4th 2010, he filed an application to the European Court of Human Rights arguing that the control of the police custody and the issue of an “arrest warrant” by the prosecutor general were violations of article 5-3 of the Convention. According to the applicant, the prosecutor general in Monaco being under the control of the executive branch, lacks the independence needed to have any “judicial power“.
He also complained of a violation of article 6-1 of the Convention on the ground that the supreme court allows the prosecutor general to submit his brief 4 months late in violation of article 479 and the prosecutor general is responsible of transmitting the briefs to the supreme court without any deadline (art. 485). The applicant was represented by Me Regis Bergonzi (Monaco).
Update :
On March 23rd 2011, Mr Philippe Narmino head of the justice department of Monaco revealed that he has been informed by an unknown source that the application was found inadmissible by an unknown Judge of the ECHR in February 2011.
On May 30th 2011, Mr. Erik Fribergh of the registrar of the Court refused to communicate us the decision as well as the name of the Judge who took it. On July 22th 2011, Me Regis Bergonzi refused to communicate us the decision because it was “vague“.
European Court of Human Rights News 