The case that divided Strasbourg: Vasiliauskas v Lithuania

Isabelle La Gallez
Isabelle Le Gallez

On the 20th October 2015, the ECtHR Grand Chamber decided a case involving criminal acts which took place some 60 years ago. In Vasiliauskas v Lithuania (35343/05), not only were the facts politically and legally interesting, but more fascinating still was the 9:8 split between the 17 judges of the Grand Chamber. Such splits being a notable rarity for the court.

Background

The facts of the case had their origin in the power struggle between Stalin and Hitler over control of the Baltic States in the 1940s. Stalin won this battle, annexing Lithuania and subsuming it into the Soviet Union. This led to the rise of a partisan movement dedicated to the restoration of an independent Lithuania. Various Soviet organisations sought to suppress the resistance. The Applicant, Mr Vytaytas Vasiliauskas, served for 25 years in two such organisations rising to the rank of Lieutenant Colonel in the KGB. The particular offences which concerned the domestic courts were the ‘liquidation’ (para.26) of two partisans, J.A. and A.A. on the 2nd January 1953 by a group of soldiers which included the Applicant.

Following the collapse of the Soviet Union and the gaining of Lithuanian independence in 1990, questions were raised about the horrific incidents that occurred under the previous regime. Nearly 50 years after their deaths, an investigation commenced into the deaths of J.A. and A.A.  As a result of this investigation in 2004 the Applicant was charged with genocide under Art.99 of the Lithuanian Criminal Code of 2003 [LCC], found guilty and sentenced to six years imprisonment.

Court of Appeal

On appeal in September 2004 the conviction was upheld. The Applicant contended that his actions did not, according to the law as it stood in 1953, amount to genocide. In assessing these arguments, the court sought to establish what the applicable law was at the time the offences were committed. In 1948 the United Nations had passed The Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). The key Article of this convention is Art.II which it is worth reproducing in full:

‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial , religious  group’ (emphasis added).

It was the Applicant’s argument that his killing of the Lithuanian partisans fell outside the ambit of the Convention’s definition of genocide. However, the Court of Appeal relying on Article 99 LCC which, in addition to those groups defined by the Genocide Convention also included ‘political groups’ and which thus brought the crimes of the Applicant within the grasp of the law. The Applicant appealed once more.

Supreme Court

In February 2005, the Supreme Court of Lithuania dismissed the appeal and upheld the conviction. The applicant once again argued that the LCC defined a broader interpretation of genocide than the Genocide Convention and therefore it did not ‘correspond to the norms of international law’ (para.38). This was categorically rejected by the Court, which also held that even if the national law was too broad, the Applicant’s conviction was still legal as the partisans could be classed as being a part of a ‘national’ group as included in Art.II of the Genocide Convention.

It is worth highlighting the key questions that the Court was required to examine:

  • Were the Applicant’s rights under Article 7 ECHR; ‘no punishment without law’ (nullum crimen sine lege) infringed by the Respondent?
  • And if so, how?

The ECtHR

The Applicant argued that the Lithuanian courts ‘had [wrongly] applied the criminal law retroactively’ (para.123). The Respondent, relying on both the Genocide Convention and the U.N. Resolution of 1946, contended that the partisans were not only ‘political’ but also ‘nationals’ and that genocide was a crime in 1953. Fundamentally their argument was that the lack of the word ‘political’ in Art.II of the Genocide Convention was ‘not decisive’ (para.138) since the broader meaning found legitimacy in relation to customary international law. The main question for the Court was whether the Applicant in 1953, could ‘reasonably have foreseen himself being charged and convicted of a crime under international law’ (para.141). The Court held that there was no violation of the applicant’s rights under Art.7.1 ECHR.

The Majority Decision

The Court predictably started by highlighting the fundamental importance of the ECHR and specifically Art.7. They noted that Art.7 clearly prohibits retrospective application of criminal law but affirmed that there is always a level of judicial interpretation with any law and further that they must ‘adapt to changing circumstances’ (para.155). They rejected the non-retroactive law mantra and stated that when there has been a change in ‘political regime on a national territory’ (para.159) that it is fully within the boundaries of law that one can ‘bring criminal proceedings against those who have committed crimes under a former regime’ (para.159). Art.7 then required them to assess whether there was a legal basis, which was sufficiently clear in 1953 for the Applicant’s conviction.

The majority stated that it was crystal clear that genocide was considered a crime under international law at that time and that the Soviet Union under whose authority the Applicant acted, was a signatory to the Genocide Convention.

The majority then discussed whether the crime the Applicant committed could be classed as genocide. They concluded that ‘political’ was indeed left out of Art.II of the Genocide Convention but then considered whether the inclusion of ‘political’ could find support from customary international law. The Court concluded that given the plethora of opinions in this area that they could not find a ‘sufficiently strong basis’ (para.175) to find in this respect.

The Court proceeded to discuss the Respondent’s claim that the deceased formed ‘part’ of the ‘national’ group as protected in Art.II. There is little clarification in past case law regarding what ‘in part’ really entails but the Court concluded that the phrase involves a requirement as to substantiality. Due to lack of clarity on this issue it can merely be inferred that they did not view the deceased as ‘part’ of the ‘national group’.

This reasoning led to the majority finding that:

  • National courts can give genocide a broader interpretation than that embodied in the Genocide Convention, but they cannot use this discretion to convict under any broader concept retrospectively.
  • In relation to the need to be able to foresee an act constituting a crime, the Court found that even with legal advice at the time it was unlikely that the applicant would have foreseen that his actions could constitute genocide.
  • They supported this decision by reference to EU law, stating that both ECHR law and EU law recognise the seriousness of the crime of genocide and thus there should be ‘stringent requirements’ (para.185) that need to be met before a conviction is imposed.
  • Therefore Art.7.1 has been infringed and cannot be justified using Art.7.2
  • The Applicant was entitled to damages of €10,072 plus legal fees.
The Plentiful Dissentions

Judges Villiger, Power-Forde, Pinto de Albuquerque and Kuris

This minority group disagreed with the majority about whether the Applicant’s conviction was in line with the law as it stood in 1953. They concluded that the law was sufficiently clear and believed there was no issue with the lack of the word ‘political’ in the Genocide Convention, since the deceased partisans clearly constituted a ‘part’ of the ‘national’ group.

They felt that the Applicant could easily have foreseen his conviction at the time the criminal act was committed. They cited the Applicant’s direct intent to eliminate such persons as the deceased and, unlike the majority, felt that if the Applicant had sought legal advice, that he would have been informed that his acts ‘bore the essential characteristics of the crime of genocide as it stood under international law at the time’ (para.30 of their dissenting opinion). This minority viewed the majority’s verdict on Art.7 infringement as ‘a matter of regret’ (para. 38 of their dissenting judgment).

Judge Ziemele

Judge Ziemele agreed with the above dissention but felt the need to criticise the majority’s interpretations of EU Law on what constitutes ‘in part’ saying their interpretation is clearly ‘more nuanced’ (para.17 per Judge Ziemele).

Judges Sajo, Vucinic and Turkovic

This dissention numbers a mere eight lines and refers to a decision made by the Constitutional Court in March 2014. In summary, these judges use Arts.35.1 and 35.4 of the ECHR to deem this claim inadmissible.

Comments

It is clear that there is more going on than mere differing interpretations of the words in the relevant law and conventions. The minority highlighted that legal theory is playing a role, when they question the formalistic approach adopted by the majority. The minority looked upon the use of formalism in this case as repugnant, especially Judge Kuris. He felt that the majority was expounding an image of ‘Courts in their ivory towers dealing with law’ (para.8, Judge Kuris) without looking at the impact of their decisions. In the eyes of Judge Kuris and perhaps the other dissenting judges the function of the court is ‘more importantly, about dealing with human justice’ (para.8, Judge Kuris). This denotes flavours of natural law in its 21st Century form with human rights constituting the ‘higher law’.

Viewing the law through the filter of natural law it seems only right that the Applicant who took part in the murder of not only the two deceased but as an active part in the bigger scheme that killed 20,000 people who embodied the partisan movement, should not be allowed to rely on his human rights when he flagrantly ignored those who he oppressed. This case proves that issues arise when judges take different stances as to the purpose of law in cases like these or of law more generally.

Isabelle Le Gallez is a 3rd Year Law Student at the School of Law, University of Sussex

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How Vulnerable is ‘Vulnerable’? Hotak v Southwark LBC [2015] UKSC 30

Alex Latham
Alex Latham

The case concerned the proper approach to s.189(1)(c) of the Housing Act 1996, which affords ‘priority need’ status to a person who is ‘vulnerable’ as a result of old age, disability, or ‘other special reason’. The assessment of priority need is a crucial step in determining whether a homeless person is entitled to accommodation. The key question was what is meant by vulnerable.

Previously, the leading case was Pereira, where Hobhouse LJ described the test as:

‘… whether [the applicant] is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.’

Since Pereira, local authorities (LAs) have tended to treat this phrase as an authoritative definition, and it was repeated in the Secretary of State’s 2002 Code of Guidance.

There was also an argument about the relevance of the so-called ‘public sector equality duty’ contained in s.149 of the Equality Act 2010, which places public authorities under an obligation to ‘remove or minimise disadvantages suffered by’ and ‘take steps to meet the needs of’ persons who share a ‘relevant protected characteristic’, such as a disability.

The Facts

There were three appellants:

Johnson claimed to suffer from depression, although Solihull MBC disputed this. Denying his application, Solihull said he ‘would not be less able to fend for himself than an ordinary homeless person’.

Hotak had significant learning difficulties and was reliant on his brother for routine tasks such as washing, dressing and cooking. Southwark LBC decided he was not vulnerable because, if homeless, his brother would provide him with the necessary support.

Kanu suffered from hepatitis B, psychosis and suicidal ideation. Southwark LBC decided that he would not ‘be at risk of injury or detriment greater than another ordinary street homeless person’.

The Issues

There were three principal issues:

  • Does the vulnerability assessment require a comparison and, if so, who is the appropriate comparator?
  • Is it permissible to take into account the support which would be provided by a family member of an applicant if he were homeless?
  • What effect does the public sector equality duty have on the determination of priority need?

Lord Neuberger gave the speech for the majority; Baroness Hale delivered a partially dissenting judgment.

Vulnerable Compared to Whom?

Counsel for Johnson had argued that there was no need for a comparator, but this argument was given short shrift. Everyone who is homeless could be described as ‘vulnerable’: s.189(1)(c) therefore has ‘a necessary implication of relativity’, referring to homeless people who are more vulnerable than others would be in the same position.

Nevertheless, there is an ambiguity in the Pereira formulation. On one hand, it could be interpreted as comparing the applicant with an ordinary person, who happened for whatever reason to become homeless. On the other, the comparator could be a typical member of the class of homeless people (an ordinary ‘homeless person’). The LAs in all three cases took the latter approach; in the Johnson case, Solihull even went so far as to cite statistics showing the high rate of mental health problems among homeless people, concluding that this ‘clearly shows that the fact that [Mr Johnson is] suffering from depression does not necessarily mean that [he is] vulnerable’.

The Court was clear that the LAs had taken the wrong approach. The proper comparator is not an ordinary ‘homeless person’, but an ordinary person if made homeless. Leaving the standard dependent on the characteristics of those who happen to be homeless would lead to ‘arbitrary and unpredictable outcomes’.

The Relevance of Support from Family Members

Counsel for Hotak had argued that Southwark should not have taken into account the support that he was receiving from his brother. The majority disagreed. The assessment of vulnerability is ‘contextual and practical’, and so should take into consideration all relevant facts, including the support that would be available to the applicant if he were homeless.

Lord Neuberger did recognise that this was capable of leading to a ‘distasteful’ outcome. Since the duty to house is owed to the applicant’s entire household, there may be cases where a family member who refused to look after an applicant would herself be housed as a member of the applicant’s household, while a similarly situated family member who was willing to assist the applicant would find herself without accommodation. However, to interpret the statute differently to avoid this possibility ‘would involve the tail wagging the dog’; the potential counterintuitive result does not justify a ‘judicially created legislative exception’.

Baroness Hale disagreed. Although she accepted that it is proper to take into account statutory services which will be available to the applicant, she felt that family support was different. She was particularly troubled by the idea that refusing support might result in an offer of accommodation: ‘Why on earth would Parliament want to give such a heartless person priority and priority over the person who was fulfilling his familial duties?’

The Public Sector Equality Duty

Lord Neuberger did not believe that there had been a violation of the public sector equality duty, though he took the opportunity to lay down guidance on the relevance of the duty for homelessness applications. The duty requires officers to ‘focus very sharply’ on the extent and likely effect of any disability from which a homeless applicant may suffer. While an officer need not make express reference to the duty, ‘there will undoubtedly be cases where [an otherwise lawful] review… will be held unlawful because it does not comply with the equality duty’.

Resolutions of the Appeals

Johnson: Solihull had reasonably concluded that Johnson did not actually suffer from depression, so that their referral to the wrong comparator in their decision letter was irrelevant to the outcome. Appeal dismissed.

Hotak: Counsel had agreed that the appeal turned entirely on the question of whether Southwark had been entitled to take into account his brother’s support when making their decision. However, Southwark had used the wrong comparator, and Hotak appeared to have a strong case for priority need. Southwark were invited to make further submissions as to why its decision should not be quashed.

Kanu: It was ‘quite conceivable that the review would have gone the other way if the right comparator had been used’. Appeal allowed.

Comments

This decision is to be welcomed. No longer will LAs be able to say (to quote Baroness Hale) “you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. A high correlation between rough sleeping and mental health and substance dependency problems should never have been a reason to deny that people with such conditions are vulnerable.

Even if we were to take the ordinary ‘homeless person’ as a comparator, there can be no justification for the comparison – drawn by both LAs – to the ordinary ‘street homeless person’. Not all homeless people are rough sleepers, and so this comparator restricts priority need to those who are more vulnerable than a particularly vulnerable subset of already vulnerable persons. The fact that this comparison was made in all three cases is indicative of the extent that LAs will go to minimise the number of homelessness applications that they accept. I suspect that, following Hotak, a number of homelessness decisions up and down the country will have suddenly found themselves vulnerable.

On the issue of third party support, Lord Neuberger’s interpretation seems correct. The purpose of the vulnerability criterion is to pick out, from amongst all applicants who are old, disabled etc., those who are in particular need. The question is a counter-factual one: ‘what would happen to this applicant were he to become homeless?’ In making that assessment LAs should be allowed to take into account any relevant facts. While Baroness Hale’s proposed distinction between support from statutory agencies and support from family members might make for sound policy, I cannot see how it can be read into the statute. It is also worth pointing out that the ‘contextual and practical’ approach cuts both ways: just as LAs are entitled to consider support that is likely to be provided by family members, so they must consider any practical difficulties that an applicant might have in accessing statutory support. They cannot simply assume that he will receive the support that he is entitled to.

Finally, and despite my general agreement with the decision, I find the comments on the effect of the public sector equality duty puzzling. Lord Neuberger tells us that LAs must examine very carefully the nature and likely effect of any disability that an applicant might have. While this is true, is it not precisely what s.189(1)(c) already requires? I cannot see how an adequate inquiry could be conducted without such careful scrutiny, and thus do not understand what the Equality Act adds.

Alex Latham is Lecturer at Welfare Law at the University of Sussex and Academic Lead of the Sussex Pro Bono Housing Project

IPR2: An intellectual property formula for access to health technologies

 

Phoebe Li
Phoebe Li

Earlier this month, the Australian High Court unanimously ruled that an isolated gene code was not a ‘patentable invention’ (D’ARCY v Myriad Genetics Inc & ANOR [2015] HCA 35). It echoed the US Supreme Court decision in Myriad in 2013. In this case the genetic diagnostic patent BRCA 1 was decided invalid, yet BRCA 1 has long been used exclusively by Myriad Genetics in the genetic diagnostic testing market for detecting breast cancer and ovarian cancer. From the 1980s, the US courts have been adopting a broad ‘everything-under-the-sun-is-patentable’ approach to granting biotech patents after the Diamond v Chakrabarty case.  It is after the Myriad case, in conjunction with Mayo v Prothemeus and the Alice case, that we observe a shift towards narrowing down the scope of patentability, all suggesting a need to redress the imbalance between individual monopolistic rights and social responsibilities in the intellectual property (IP) system. In an East Asian Confucius setting the individual’s responsibilities have been hailed as paramount to their intrinsic value and their contributions to society. It is from within the family or the community that an individual is shaped and thus, when considering the role and the rights of an individual, the impacts or implications on the community would need to be reflected upon. I still remember an old slogan: ‘Ask not what your nation has done for you; but ask yourself what you have done for your nation’. Against this backdrop the rights of an individual are never absolute. As an immigrant to the UK myself, one of the major cultural shocks has been the comparative wide array of ‘rights’ as opposed to ‘responsibilities’ in the Western world. Due to the fact that balance and equilibrium have been embedded in my philosophy,  I am at times disoriented with the over-emphasis of ‘rights’ and the absence of corresponding associated ‘responsibilities’ towards society. Various alleged rights could be claimed under the heading of human rights and human dignity. Most of the time the alleged rights are sensible, while others do require a bit of imagination. In this post I will be delineating the contour of IP responsibilities particularly in the context of patents and 3D printing health technologies.  I will introduce a balanced IP formula which requires the organic interplay between IP rights and IP responsibilities (IPR2).

Medical applications of 3D printing

Throughout history and across the globe, human beings have been constantly trapped in the restless pursuit of a better, longer, or even perpetual life. In this digital age, while healthcare can now be delivered by digitisation, the possibility of scanning and reproducing oneself is not so remote. Recently, scientists reproduced human tissues, skins, bones, and even organs in the laboratory via 3-Dimensional printing technology (3D printing). 3D printed organs (such as a bladder derived from autologous cells) have been implanted into patients’ bodies. Although the technology to print off a fully-functional complex organ, such as the heart or kidney, would need at least 15-20 years to mature, scientists are now able to print liver cells on-chip for use in drug toxicity tests. By significantly reducing  the cost of clinical trials, new drug innovation would be more efficiently accelerated compared to traditional clinical trials which involve human subject research.  It is anticipated that once the printing technologies are ready to replicate and to implant a fully-functional organ into the human body, patients would not have to be put on a long waiting list for organ implantation. This could relieve the Government’s  health burden by resolving the shortage of transplantable human organs on the market.

Barriers and access to technology

Yet there is no free lunch on the market. Scientists have already been securing monopolies over these technologies by attracting royalties that must be paid by those who want to use these patented 3D printing technologies as a medical device to print an organ. In the end the price would not necessarily be as affordable as we would like. Looking back at the access to medicines (ATM) campaign and the BRCA 1 and BRCA 2 genetic diagnosis technology in recent patent history, the conflicts between intellectual property rights (IPRs) and the human right to health have been repeatedly threatening the justification for individual private ownership over intangible intellectual property. For those fortunate or rich enough to afford the patented drugs, or patented diagnostic technologies, like Angelina Jolie, a bad medical report does not necessarily mean the end of the world. But for those less fortunate or deprived, receiving a negative medical report would be tantamount to hearing a death sentence. This is why legitimacy of patent exclusivity is being mooted. Is it legitimate to grant monopolies over key technologies which could save lives?  Is it okay to block the way to recovery when scientists are given the key to cure? To what extent is the commercialisation or instrumentalisation of such technologies justifiable? Should monopolies be absolute? What are the associated social responsibilities accompanying individual ownership once granted? While patent monopolies are indeed a critical tool for innovation, over-protection will surely stifle creativity and have a detrimental effect on competition and access to information. In the EU, there is a morality clause in determining patentability, though the lack of clarity in defining morality often leads to a superficial application of the test. In the Harvard/Onco-mouse case it was held that, from a utilitarian perspective, a patent could be granted as long as the benefits to human kind outweigh the sufferings of the animal and that an ‘abhorrent’ threshold was introduced to the suffering/benefit test. The ‘abhorrent’ test is obviously based on the perspective of a reasonable European citizen, perhaps from a middle-class background, but not specifically the view of a reasonable man from a deprived community in other jurisdictions, let alone the abhorrent feelings mice would experience when injected with cancer cells for the purpose of being used as an experimental tool. In a globalised market, it would be intriguing to find out what a universal ‘abhorrent’ threshold is like, if any such thing exists. Recent cases WARF/Stem Cells, Brustle v Greenpeace, International Stem Cell Corporation v. Comptroller General of Patents, Designs and Trade Marks, further examined the interpretation of morality through the lens of the definition of a human embryo – whether human embryonic stem cells (HESCs) were involved in the development of technology. The European Patent Convention (EPC) also provides another limitation to patentability: the medical treatment exemption. Yet the interpretation of medical treatment, again, leads to a rather restrictive approach in filtering patentability.

A balanced IP formula: IPR2 = IP rights + IP responsibilities

The unique social and bioethical implications of medical 3D printing technologies demand more holistic reflections on the role of patents. IP rights are not absolute but, rather, form a social contract comprising ‘gives and takes’. These should dance with IP responsibilities constantly carving and fine-tuning each other for the optimal balance of IPRs. IP responsibilities are expected to be discharged in tandem with the granting of monopolistic IP rights. Upon receiving exclusivity rights, right holders are obliged to fulfill their social responsibilities of benefit sharing, diffusion of technology and technology transfer embedded in the WTO Agreement on Trade Related-Aspects of Intellectual Property Rights (TRIPS Agreement). In the same vein, the UK Nuffield Council on Bioethics has proposed a ‘Public ethics’ approach as opposed to the traditional piecemeal ‘individual interests’ approach, in relation to biotechnology innovation and regulation. Economists including Joseph Stiglitz and Keith Maskus also reflect on the inefficiency of over-reliance on the patent system for innovation.  A portfolio approach, or a comprehension approach, is proposed to complement the downsides of patent monopoly. Patents are not the sole solution for research and development of science and technology. Instead, alternative types of incentive such as prizes and government funding are desirable in order to foster an efficient market. From the history of extending the terms of IP protection as well as the new extended terms of IP protection in bilateral and regional trade agreements, there are ongoing initiatives to consolidating market exclusivity. There seem to be increasing hurdles to taking advantage of the full flexibilities of IP, yet a sustainable IPR system would require mutual underpinning of IP rights and IP responsibilities in order to strike a balance between IP rights and human rights to health.

Phoebe Li is a Lecturer in Law at Sussex Law School. She is currently working on intellectual property for digital health and 3D printing. Her papers may be downloaded at: http://ssrn.com/author=2009958.