CONCURRING OPINION OF JUDGE SILVIS

The applicant ended her life by imbibing a lethal dose of sodium pentobarbital on medical prescription while a complaint concerning the denial of her right to obtain such a prescription was pending before the Court. Without having been informed about the change of circumstances, including her death, the Chamber dealt with the case and found a violation of Article 8 of the Convention, on account of a lack of clarity in Swiss law, one and a half years after the applicant had died. However, the Chamber ’ s judgment never became final since the case was referred to the Grand Chamber. It was only after that referral that the Court was notified that the applicant had already obtained the lethal drugs and had subsequently died. Counsel for the applicant had not informed the Court of this, explaining that he had not even been aware of the change in circumstances of his client. I voted in favour of declaring the application inadmissible on the ground of abuse of the right of petition. To my mind, the alternative of just striking the case out would not have sufficiently emphasised the importance of keeping the Court fully informed of new circumstances concerning the core of a complaint.

I would have preferred the Grand Chamber not to establish that the applicant herself had deliberately misled the Court. To my mind, there was no need to establish with “sufficient certainty” the applicant ’ s personal intentions, assuming – implicitly – that she herself was fully aware of the requirements of the Rules of Court. It is preferable for the Court not to enter into the particular way clients and their professional representatives before the Court communicate with each other, as it is clearly set out in Rule 44C that they must participate effectively. Knowledge of the client ’ s circumstances could therefore legitimately be imputed to her counsel. As a professional, acting on behalf of his client, counsel bears the responsibility of disclosing relevant new information (Rule 47 § 6 until 6 May 2013, now Rule 47 § 7). When this responsibility is not adequately assumed, without sufficient explanation, and the new information in question concerns the core of the complaint, then I would think that the conclusion that there has been an abuse of the right of petition should inevitably follow (see Hüttner v. Germany ( dec. ), no. 23130/04, 1 9 June 2006; Predescu v. Romania , no. 21447/03, §§ 25-26, 2 December 2008; and Kowal v. Poland ( dec. ), no. 2912/11, 18 September 2012).

Why did the Court seek to establish whether the applicant herself had deliberately misled the Court? This appears to be a consequence of the Court ’ s earlier case-law restricting findings of an abuse of the right of petition to cases where there has been an underlying intention on the part of an applicant to mislead. By thus setting the threshold for finding an abuse of the right of petition unnecessarily high in my view, even in an extraordinary case like this, the Grand Chamber has forced itself to undertake the rather speculative exercise of establishing with “sufficient certainty” her state of mind and, implicitly, her procedural legal awareness.

In Nold v. Germany (no. 27250/02, § 87, 29 June 2006) the applicant ’ s intention to knowingly mislead the Court was not yet a necessary condition for finding an abuse of the right of application, since that condition was still subject to exceptions in extraordinary case s as in earlier jurisprudence. In the case of Centro Europa 7 S.r.l . and Di Stefano v. Italy ([GC], no. 38433/09, § 97, ECHR 2012) , the Grand Chamber recently found that withholding information could amount to abuse of the right of petitio n, but that “even in such cases, the applicant ’ s intention to mislead the Court must always be established with sufficient certainty ” . It seems, as has been confirmed in the present judgment, that the Grand Chamber has closed the door to the possibility of reaching a finding of abuse of the right of petition in extraordinary cases without explicitly establishing “with sufficient certainty” that the applicant intended to mislead the Court. I regret this restriction and would have favoured a change in the opposite direction since rules of procedural “hygiene” are weakened when made exclusively dependent on subjective motives as opposed to objectively verifiable reasons.

JOINT DISSENTING OPINION OF JUDGES SPIELMANN, ZIEMELE, BERRO, ZUPANČIČ, HAJIYEV, TSOTSORIA, SICILIANOS AND KELLER

1 . While we agree that the Court cannot condone the behaviour of the applicant ’ s representatives in this case, we are unable to share the view of the majority of the Grand Chamber that the present application is inadmissible under Article 35 § 3 (a) of the Convention on account of an abuse of the right of individual application. Unlike the majority, we consider that the threshold required for a finding of abuse of the right of individual petition has not been reached.

2 . The Court ’ s case-law on the abuse of rights is clear. Applications can only be regarded as an abuse of the right of individual application in exceptional circumstances. The Court has, for instance, held that “except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts” (see Knyazev v. Russia , no. 25948/05, § 79, 8 November 2007, and Aleksanyan v. Russia , no. 46468/06, § 117, 22 December 2008).

3 . In the present case, it is necessary to determine whether the behaviour of the applicant ’ s lawyer, of Mr F., or of the applicant herself is decisive.

4 . In a previous case , the Court found that counsel ’ s negligent lack of awareness of the commutation of their client ’ s life sentence and their failure to inform the Court once they learned of this fact constituted abuse of the right of individual petition (see Bekauri v. Georgia (preliminary objection), no. 14102/02, §§ 23-25, 10 April 2012 ) . In another case, in which a supposed applicant had already died at the time of the submission of his application to the Court, and his signature on the application form had in fact been forged by his wife, the Court found that the forgery and the deliberate concealment of the applicant ’ s death constituted an abuse of the right of individual petition and that the application should accordingly be rejected pursuant to Article 35 § 3. In that judgment, however, the Court held that “an application may only be rejected as abusive within the meaning of Article 35 § 3 of the Convention in extraordinary circumstances, such as if an application was deliberately grounded on a description of facts omitting or distorting events of central importance” (see Andrianova and Others v. Ukraine , no. 10319/04, § 9, 12 December 2013). However, the circumstances of the present case do not indicate any intent to mislead the Court on the part of the applicant ’ s counsel, who – at the applicant ’ s request – had no direct contact with his client.

5 . Second ly , we note that, according to the Court ’ s case-law, a finding of abuse of the right of individual petition is only possible if an applicant intentionally misled the Court, “ especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information” (see A.L. v. Poland , n o. 28609/08, § 47, 18 February 2014, with further references). We consider that this intent must be established with a sufficient degree of certainty (see Miro ļ ubovs and Others v. Latvia , no. 798/05, § 63, 15 September 2009) and, at least to a certain degree, be attributable to the individual applicant in a given case (see, by contrast, Bekauri , cited above, §§ 21-25 ). In order to penalise an abuse of process by an applicant ’ s representatives, the Court can use a tool more closely tailored to such situations by banning them from representing future applicants (Rule 36 § 4 (b) of the Rules of Court; see also Petrović v. Serbia ( dec. ) , no s . 56551/11 and 10 other s , 18 October 2011).

6 . The majority accepted that the necessary intent was present owing to the fact that the applicant ’ s intermediary, Mr F., “purposely refrained” from informing the applicant ’ s counsel of her death (see paragraph 32 of the present judgment). The majority also expressed concern regarding the fact that the applicant ’ s counsel had failed to maintain direct contact with her (see paragraph 33 of the present judgment). However, the decisive factor here should not be the intent of the applicant ’ s representatives. Whatever their role in concealing the applicant ’ s death from the Court, this cannot be attributed to the applicant.

7 . Furthermore, we draw attention to the pejorative nature of the majority ’ s finding. The inadmissibility of an application due to the abuse of the right of individual petition carries a certain stigma. Ms Gross, deceased, was unable to submit her own views regarding the majority ’ s assessment and her memory is now burdened with the stigmati s ing effect of the present judgment.

8 . Lastly, we are mindful of the fact that the qualification “abuse of rights” is reserved for cases which cause the Court to “ waste its efforts on matters obviously outside the scope of its real mission, which is to ensure the observance of the solemn, Convention-related, engagements undertaken by the States Parties” (see Petrović , cited above ). In the present context, we note that the number of assisted suicides is high and unlikely to abate in the near future. In the case of Switzerland, for example, the number of foreign residents who travel to the country to seek assistance in taking their own lives is not negligible. Accordingly, we do not consider the Court ’ s efforts to have been wasted: the issue of assisted suicide is likely to engender future applications to the Court and thus certainly merits examination. We observe that there is undoubtedly a European dimension to this issue: travel to Switzerland by people wishing to end their lives, for the purpose of availing themselves of the services of assisted-suicide organisations, has triggered heated discussions in various Contracting States. [1]

9 . In our view, the Court should have expressed serious doubts as to the question whether the applicant intended to mislead the Court, but should have ultimately left this issue open as the application could have been struck out under Article 37 § 1 (c) of the Convention. The applicant passed away without leaving any heirs or descendants. Under the specific circumstances of the case, the Court should have decided that it was no longer justified to continue its examination within the meaning of Article 37 § 1 (c), without qualifying Ms Gross ’ s behaviour as an abuse of rights.

[1] . See, for example, the debate in the United Kingdom surrounding the draft Assisted Dying Bill [HL] 2014- 20 15 , which is currently before the House of Lords.