ECHR ● The impossibility of using donations deposited in a bank account under the prism of the right to life

ECHR, Sect. III, Pitsiladi and Vasilellis v. Greece, 6 June 2023, 5049/14 and 5122/14 [French] (non-violation of Article 2 • Right to life • Positive obligations of the State)

SUMMARY

In support of their application to the European Court of Human Rights (ECHR), the applicants claimed that the fact that they had been unable to access the money in a bank account from a fund-raising and transfer it to a hospital in the United States so that their son, who was suffering from a serious illness, could undergo treatment there, had led to his death, in breach of the right to life protected by Article 2 of the Convention.

At the material time, the legislative framework for collecting donations dating from 1931 did not cover the case of collecting money from bank accounts.

The national authorities amended it, but the applicants complained that 8 months had elapsed before they did so. As a result, the Minister's authorisation to transfer the sum was granted 8 and a half months after the claimants' application, i.e. approximately 1 month after the date set for the therapy to begin in the United States.

The applicants' son died two days after the Minister's decision. They argued that if the Minister had given his authorisation in time, their son's illness would probably have been treated or his life prolonged.

The ECHR examined the applicants' complaint from the point of view of the State's positive obligations to establish a regulatory framework for the protection of its citizens' health, and concluded that there had been no violation of Article 2 of the Convention.

It found that the national authorities had acted in good faith in amending the 1931 law to allow the applicants access to donations, and that it was impossible to establish a causal link between the authorities' conduct and the child's death.

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The judgment of 6 June 2023 was not adopted unanimously (six votes to one).

In his dissenting opinion, the judge also considered that the respondent State had duly fulfilled its positive obligations to provide adequate services within the public healthcare system.

The reason why he did not agree with the majority was that, in his view, the categorical restrictions imposed by archaic legislation led to unjustified interference by the State with the applicants' efforts to use funds raised by private individuals to obtain, as soon as possible, the best possible treatment for their son's life-threatening illness. Interference seen as an infringement of the right to life as guaranteed by Article 2 of the Convention.

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This case is noteworthy for at least two reasons.

Firstly, it raised for the first time the question of whether the positive obligations incumbent on the State under Article 2 § 1 of the Convention, which provides that "Everyone's right to life shall be protected by law", include the obligation to fund public health (the State's preliminary objection concerning the incompatibility ratione materiae of the applications with the provisions of the Convention). In the final analysis, the Court did not answer this question.

Secondly, it is an illustration of the mobilisation of the right to life in less obvious areas, in this case banking.

In the domestic action for compensation brought against the bank and its employees, the claimants argued that the unlawful blocking of the account and the bank's refusal to transfer the amount deposited in it had made it impossible to treat their son abroad and had led to his death.

The Court of First Instance agreed, holding that the employees in question, who had chosen to protect other legal assets by violating the fundamental rights to human dignity and life, were responsible for their son's death. The Court also held the bank liable for the omissions of its employees.

The Court of Appeal then overturned the judgement and rejected the claimants' claims for compensation, holding that the bank had not acted unlawfully in refusing to transfer the sums, and that the conduct of its employees was in accordance with the law, who would otherwise have incurred criminal and disciplinary liability, which was ultimately upheld by the Supreme Court.

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