JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, BIANKU AND NU ß BERGER

We have voted against the finding of the majority that it is not necessary to examine the complaint under Article 3, taken alone or in conjunction with Article 13 of the Convention.

Firstly, we consider that the finding under Article 2 does not cover the violation of Article 3 in Mr Câmpeanu’s case. As the facts of the case reveal, Mr Câmpeanu was diagnosed as HIV-positive when he was 5 years old, was later diagnosed with “profound intellectual disability” (see paragraph 7 of the judgment) and developed pulmonary tuberculosis, pneumonia and chronic hepatitis. It seems clear from the facts of the case that the particular situation of Mr Câmpeanu did not meet with an appropriate response or treatment on the part of the competent authorities. On that basis the majority rightly find a violation of Article 2 of the Convention. While we agree with this conclusion, we do not agree that no separate issues arise under Article 3 of the Convention. We are of the opinion that the Romanian authorities should have taken concrete steps to protect Mr Câmpeanu from the suffering related to his condition, and of which the authorities were perfectly aware (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001–V). Mr Câmpeanu’s death was the result of a long period during which the authorities’ response to his situation was insufficient and inadequate; during this time he clearly suffered a violation of his Article 3 substantive rights, having received neither appropriate medical treatment nor even food and adequate shelter in the medical centres where he was kept. The “psychiatric and physical degradation” of Mr Câmpeanu when he was admitted to the Cetate-Dolj Medical and Social Care Centre (see paragraph 14 of the judgment) or when he was visited by the Centre for Legal Resources team at the Poiana Mare Neuropsychiatric Hospital (see paragraph 23 of the judgment) were evidence of long periods of neglect based on a complete lack of compassion.

Therefore, this case has to be distinguished from those cases in which the death, or threats to the life, of the applicants have been a direct and immediate consequence of the use of force and in which the Court has found no separate issue under Article 3, having regard to its finding of a breach of Article 2 (see, for example, Nikolova and Velichkova v. Bulgaria , no. 7888/03, 20 December 2007, and Shchiborshch and Kuzmina v. Russia , no. 5269/08, 16 January 2014).

Finding a separate violation of Article 3 could also contribute to enhancing the protection under Article 2 in such cases. If over a long period of time the positive obligations under Article 3 are not fulfilled by the authorities and no appropriate treatment is provided for the most vulnerable individuals, it might be too late to save these individuals’ lives and thus to fulfil the authorities’ obligations under Article 2.

Secondly, we find it regrettable that the Court has omitted the opportunity to clarify further the question of locus standi of a non-governmental organisation in connection with a complaint on the basis of Article 3. The gist of the case lies in determining the extent to which the most vulnerable persons’ interests can be defended before the Court by non-governmental organisations acting on their behalf, but without having any “close link” or “personal interest” as required by the Court’s case-law. The situation concerning Article 2 complaints is fundamentally different from Article 3 complaints in this respect. Article 2 complaints based on the victim’s death can never be brought before the Court by the victims themselves, whereas this is not true for Article 3 complaints. This is one of the aspects highlighted by the majority in their finding on the locus standi of the applicant (see paragraph 112 of the judgment). A separate analysis of the complaint of a violation of Article 3 of the Convention would have enabled the Court also to elaborate explicitly on the related questions in respect of Article 3.

JOINT PARTLY DISSENTING OPINION OF JUDGES ZIEMELE AND BIANKU

1. We regrettably do not agree with the conclusion of the majority that there is no need for a separate ruling concerning Article 14 taken together with Article 2 in this case.

2. Turning to the circumstances of the case, we are stunned by the situation of Mr Câmpeanu. He was born in September 1985 and was of Roma ethnicity. His father was unknown and he was abandoned by his mother at birth; he was diagnosed at the age of 5 with HIV and later with profound intellectual disability and other acute medical problems. It would be very difficult to find another case examined by the Court in which the vulnerability of an applicant is based on so many grounds covered by Article 14 of the Convention. In our opinion, just one of these grounds would suffice to require the national authorities to devote particular attention to Mr Câmpeanu’s situation. The facts of the case, as set out in the judgment, clearly indicate that the measures taken by the authorities were totally inadequate in addressing Mr Câmpeanu’s circumstances.

3. It is rather worrying that only two weeks after Mr Câmpeanu turned eighteen, the Dolj County Child Protection Panel, without any individual assessment of his extremely particular situation, suggested that he should no longer be cared for by the State as he was not enrolled in any form of education at the time. This would suffice to conclude that his situation was considered to be the same as that of any other orphan who turns eighteen in perfectly good health and is able to look after himself or herself. The confusion that followed as to the identification of the appropriate institution to deal with Mr Câmpeanu’s condition is a sign of a lack of understanding and a careless approach to Mr Câmpeanu’s special needs (see paragraphs 8 ‑ 22 of the judgment). In addition, and this in our opinion is crucial to the Article 14 analysis, it appears that the staff at the Poiana Mare Neuropsychiatric Hospital refused to help Mr Câmpeanu, allegedly for fear that they would contract HIV.

4. In view of the above, and also taking into account the special nature of the State’s obligations as regards persons with disabilities (see, among other authorities, Jasinskis v. Latvia , no. 45744/08, 21 December 2010, and Kiyutin v. Russia , no. 2700/10, ECHR 2011), we are of the opinion that in the case of Mr Câmpeanu, a person who was in an extremely vulnerable position and completely dependent on the State institutions, there has been a violation of Article 14 taken together with Article 2 of the Convention.

[1] . See Judge Bonello’s separate opinion in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011. I have already had the opportunity to draw attention to this unfortunate method of reasoning and the problems it raises in my separate opinions appended to the judgments of Fabris v. France [GC], no. 16574/08, ECHR 2013, and De Souza Ribeiro v. France [GC], no. 22689/07, ECHR 2012.

[2] . Evolutive interpretation of human rights treaty law has been the position adopted by the Court since Tyrer v. the United Kingdom , 25 April 1978, § 31, Series A no. 26, as well as by the Inter-American Court of Human Rights since The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law , Advisory Opinion OC–16/99, 1 October 1999, §114, Series A No. 16, and The “Street Children” (Villagrán-Morales et al.) v. Guatemala (merits), judgment of 19 November 1999, § 193, Series C No. 63, and the United Nations Human Rights Committee, since Judge v. Canada , no. 829/1998, communication of 5 August 2002, UN Doc. CCPR/C/78/D/829/1998, paragraph 10.3.

[3] . See Airey v. Ireland , 9 October 1979, § 24, Series A no. 32, and in general international law, among many other references, Lighthouses Case between France and Greece , judgment no. 22 (1934), PCIJ , Series A/B no. 62, p. 27, Territorial Dispute (Libyan Arab Jamahiriya/Chad) , judgment, ICJ Reports 1994, p. 21, and Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 231.

[4] . The Court established this principle in Wemhoff v. Germany , 27 June 1968, p. 23, § 8, Series A no. 7. The Inter-American Court of Human Rights did the same in Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) , Advisory Opinion OC-5/85, 13 November 1985, § 52, Series A No. 5, and Baena Ricardo et al. v. Panama (merits, reparations and costs), judgment of 2 February 2001, § 189, Series C No. 72. There is therefore no in dubio mitius presumptive rule that human rights treaties should be interpreted in such a way as to minimise encroachment on State sovereignty.

[5] . See S.P., D.P., A.T. v. the United Kingdom , no. 23715/94, Commission decision of 20 May 1996, unreported; İlhan v. Turkey [GC], no. 22277/93, § 55, ECHR 2000-VII; and Y.F. v. Turkey , no. 24209/94, § 29, ECHR 2003-IX.

[6] . It is worth pointing out that the Court has applied Article 14 to grounds of discrimination not explicitly mentioned in that provision, such as sexual orientation (see Salgueiro da Silva Mouta v. Portugal , no. 33290/96, ECHR 1999-IX) and mental or physical disabilities (see Glor v. Switzerland , no. 13444/04, § 53, ECHR 2009). This latter judgment is particularly important in view of the fact that it made explicit reference to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as the basis for “the existence of a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment” despite the fact that the relevant events had taken place before the adoption of the CRPD by the General Assembly, and regardless of the fact that the respondent State had not signed it. On two other occasions, the Court has referred to the CRPD, even though the relevant events had occurred before the respondent States signed it (see Alajos Kiss v. Hungary , no. 38832/06, § 44, 20 May 2010, and Jasinskis v. Latvia , no. 45744/08, § 40, 21 December 2010).

[7] . Although Mr Câmpeanu’s “wholly different” factual situation was acknowledged by the Court itself in paragraph 108 of the judgment, it drew no legal inferences from this acknowledgment.

[8] . The equation of different situations would amount to “indirect discrimination”, which occurs when a provision, criterion or practice would put persons with a characteristic associated with a prohibited ground at a particular disadvantage compared with other persons. For the various facets of the principle of equality, and the Convention obligation to extend favourable provisions to persons who are discriminated against, see my separate opinion in Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013.

[9] . On reverse or positive discrimination in favour of minorities and vulnerable persons who do not have access to basic public goods, such as education and justice, as a basic requirement of justice, see Dworkin, Taking Rights Seriously , 1977, pp. 223-40; A Matter of Principle , 1986, pp. 293-33; Freedom’s Law: The Moral Reading of the American Constitution , 1996, pp. 26-29; Law’s Empire , 1998, pp. 386-97; and Sovereign Virtue: The Theory and Practice of Equality , 2001, pp. 409-26.

[10] . See the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 34, § 10, Series A no. 6: “certain legal inequalities tend only to correct factual inequalities”. Thus, the State obligation to counterbalance factual inequalities and pay special attention to the most vulnerable emanates directly from the Convention. Within the European framework, see Article 15, paragraph 3, of the Revised European Social Charter; Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, and especially its Action Line no. 12 on legal protection, referring to objective (i): “to ensure effective access to justice for persons with disabilities on an equal basis with others” and to the specific action to be taken by member States (iv): “to encourage non-governmental advocacy networks working in defence of people with disabilities’ human rights”; Recommendation 1592 (2003) of the Parliamentary Assembly towards full social inclusion of people with disabilities; Recommendation No. R (99) 4 of the Committee of Ministers to member States on principles concerning the legal protection of incapable adults; the Handbook on European non-discrimination law , 2010, p. 78, jointly produced by the European Court of Human Rights and the European Union Agency for Fundamental Rights; the Fundamental Rights Agency, Access to justice in Europe: an overview of challenges and opportunities , 2011, pp. 37-54; the European Network of Equality Bodies, Influencing the law through legal proceedings – The powers and practices of equality bodies , 2010, p. 6; and the European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 7, 13 December 2002, paragraph 25. In the universal context, see also Article 13 of the CRPD, which imposes an obligation to “facilitate” access to and participation in justice for persons with disabilities, and the Committee on the Rights of Persons with Disabilities’ General Comment No. 1 (2014), CRPD/C/GC/1, 19 May 2014, paragraphs 24-31 and 34, on State obligations deriving from the United Nations Convention, in particular the obligation to provide support in the exercise of legal capacity.

[11] . In a way, the principle of good faith in the performance of treaties (Article 31 of the Vienna Convention on the Law of Treaties) is also engaged, since the respondent State cannot plead its own wrong. But this principle alone could not have resolved the procedural question raised by the present case, which required not only differentiation of the situation of extremely vulnerable persons, but also a measure of positive discrimination which could provide them with access to the right of which they had been deprived. Only the principle of equality, in its positive facet, could go that far.

[12] . A similar approach was rightly suggested to the Court by the Council of Europe Commissioner for Human Rights in his submissions to the Grand Chamber (14 October 2011, paragraph 39).

[13] . This condition is formulated explicitly in Rule 96 (b) in fine of the Rules of Procedure of the United Nations Human Rights Committee.

[14] . This is not the moment to take a position on the dispute about the alleged non-existence of a general method of treaty interpretation and the alleged methodological difference between the interpretation of international human rights law and other international law, or between contractual and law-making treaties. In a perfunctory way, I would add at this juncture that I depart from the traditional position that there are “self-contained regimes” within international law (see, for example, Case of the SS “Wimbledon” (1923), PCIJ , Series A no. 1, p. 15, and Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) , Judgment, ICJ Reports 1980, p. 40). Without prejudice to the tenets of a systemic interpretation of treaties, I do not think that rigid boundaries can be established between international human rights law and other international law (see, for example, the recent practice of the ICJ in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Merits, Judgment, ICJ Reports 2010, pp. 662-73), and therefore I assume that the same interpretative methods can be applied in both fields of international law. One of the practical consequences of this assumption is that I favour cross-fertilisation of soft-law instruments and case-law of international courts and supervisory bodies. International courts are not isolated “little empires”, as Judges Pellonpää and Bratza put it in their concurring opinion appended to Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI.

[15] . In the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, p. 6, the ICJ stated that it “can take account of moral principles only in so far as these are given sufficient expression in legal form”. On textual fidelity or Gesetztreu as a limit for judge-made law, see Esser, Vorverständnis und Methodenwahl in der Rechtsfindung. Rationalitätsgrundlagen richterlicher Entscheidungspraxis , 1970, pp. 196-99, 283-89; Kriele, Recht, Vernunft, Wirklichkeit , 1990, pp. 519-38; and Dworkin, Justice in Robes , 2006, pp. 118-38.

[16] . See Demir and Baykara v. Turkey [GC], no. 34503/97, § 71, ECHR 2008. In fact, at the plenary session of the Consultative Assembly on 7 September 1949 (see the Travaux Préparatoires of the Convention, “References to the notion of the general principles of law recognised by civilised nations” (CDH(74)37)), Mr Teitgen stated: “organised international protection shall have as its aim, among other things, to ensure that internal laws on guaranteed freedoms are in conformity with the fundamental principles of law recognised by civilised nations. What are these principles? They are laid down in much doctrinal work and by a jurisprudence which is their authority. These are the principles and legal rules which, since they are formulated and sanctioned by the internal law of all civilised nations at any given moment, can therefore be regarded as constituting a principle of general common law, applicable throughout the whole of international society.”

[17] . If this is true for national judges, it is even truer for international judges, in the light of Article 38 (1) (c) of the ICJ Statute, the preamble to the Vienna Convention on the Law of Treaties, and the UNIDROIT Principles of International Commercial Contracts. On principles as “norm-sources”, see, among others, Pellet, annotation of Article 38, and Kolb, note on General Principles of Procedural Law, in Zimmermann et al., The Statute of the International Court of Justice: A Commentary , 2006, pp. 766-73 and 794-805 respectively; Thirlway, The Law and Procedure of the International Court of Justice: fifty years of jusrisprudence , vol. I, 2013, pp. 232-46, and vol. II, 2013, pp. 1,201-05; and Larenz and Canaris, Methodenlehre der Rechtswissenschaft , 1995, pp. 240-41.

[18] . On principles as Optimierungsgebote in domestic law, see, for example, the contributions by Alexy and Koch in Alexy et al., Elemente einer juristischen Begründungslehre , 2003, pp. 217-98; Alexy, A Theory of Constitutional Rights , 2009, pp. 401 and 405; and in international law, Ducoulombier, Les conflits de droits fondamentaux devant la Cour européenne des droits de l'Homme , 2011, pp. 564-67.

[19] . See Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification , 2009, pp. 279 and 285.

[20] . The most emblematic advocate of this working method, Justice Holmes, argued that principles do not solve cases. Law is, in his view, what the courts say it is, by deciding first the case and determining afterwards the grounds for the decision. His voice was not alone. In his autobiography, Justice Douglas relates that Chief Justice Hughes once told him: “Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” For this reason, Justice Frankfurter would say: “The Constitution is the Supreme Court”. To all this, Rawls gave the famous rebuttal: “The Constitution is not what the Court says it is” ( Political Liberalism , 1993, p. 237).

[21] . Principles are “starting-points” for case sifting and for shaping the case rule, on the basis of a “universal rationality-bound concept of legal rationality” (Esser, Vorverständnis und Methodenwahl , cited above, p. 212, and Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts: Rechtsvergleichende Beiträge zur Rechtsquellen- und Interpretationslehre , 1990, pp. 183-86). Hence, a judicial decision deals with matters of principle, not matters of compromise and strategy resolved according to arguments of political policy, general welfare or public interest (Dworkin, Freedom’s Law , cited above, p. 83, and A Matter of Principle , cited above, p. 11). In this context, the publication of separate opinions plays the important role of avoiding the fiction of unanimity which in reality results from a negotiation that sacrifices the best possible solution to the lowest common denominator (Kriele, Theorie der Rechtsgewinnung entwickelt am Problem der Verfassungsinterpretation , 1976, p. 309).

[22] . Without entering into the dispute over the applicability of general discursive coherence criteria to the field of legal reasoning, it is worth mentioning the fundamental work by Alexy and Peczenik, who listed the following ten criteria by reference to which discursive coherence can be evaluated: (1) the number of supportive relations, (2) the length of the supportive chains, (3) the strength of the support, (4) the connection between supportive chains, (5) priority orders between arguments, (6) reciprocal justification, (7) generality, (8) conceptual cross-connections, (9) number of cases a theory covers, and (10) diversity of fields of life to which the theory is applicable (Alexy and Peczenik, “The Concept of Coherence and Its Significance for Discursive Rationality”, in Ratio Juris , 1990, pp. 130-47). One of the basic criteria formulated by the authors was that “When justifying a statement, one should support it with a chain of reasons as long as possible”. In fact, the use of legal principles implies a special onus of argumentation and justification imposed on the judge (see Larenz and Canaris, Methodenlehre , cited above, p. 247; Bydlinski, Grundzüge der juristischen Methodenlehre , 2005, p. 72; and Progl, Der Prinzipienbegriff: Seine Bedeutung für die juristische Argumentation und seine Verwendung in den Urteilen des Bundesgerichtshofes für Zivilsachen , 2001, p. 132).

[23] . See Esser, Grundsatz und Norm , cited above, pp. 235-41; and Dworkin, Taking Rights Seriously , cited above, pp. 22-28, 90-100, 273-78, and Justice in Robes , cited above, pp. 80 ‑ 81, 248-50, on the two different types of argumentation based on arguments of principle and arguments of utilitarian or ideal policy.

[24] . The consideration of consequences in legal reasoning results not only from the finalistic structure of legal provisions, as Esser has demonstrated in his Vorverständnis und Methodenwahl , cited above, p. 143, but more generally from the use of such arguments as the ad absurdum argument and such maxims as summum ius summa iniuria , as Perelman explained in Logique juridique. Nouvelle rhétorique , 1979, pp. 87-96, and as Deckert expounded in her list of twenty-three arguments drawn from consequences, in Folgenorientierung in der Rechtsanwendung , 1995, p. 252.

[25] . “Normative” is used here in the sense of “universalisable”, as for example in Kaufmann, Das Verfahren der Rechtsgewinnung. Eine rationale Analyse , 1999, p. 85, and MacCormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning , 2005, pp. 148 ‑ 49.

[26] . As Wittgenstein put it in Philosophische Untersuchungen , 1953, Part I, § 593, one of the main causes of intellectual error is a “unilateral diet” ( einseitige Diät ), where one feeds one’s thought with only one kind of example. This “pragmatic error” ( pragmatische Fehler ) is frequent in legal reasoning (F. Haft, Juristiche Rhetorik , 2009, p. 149).

[27] . At this juncture it is useful to remember the words of Cardozo on the courts’ failure to put forward a comprehensive definition of the due process clause: “The question is how long we are to be satisfied with a series of ad hoc conclusions. It is all very well to go on pricking the lines, but the time must come when we shall do prudently to look them over, and see whether they make a pattern or a medley of scraps and patches” ( Selected Writings , 1947, p. 311).

[28] . See Maria Cruz Achabal Puertas v. Spain , United Nations Human Rights Committee, Communication No. 1945/2010, 18 June 2013, where the author was informed that a Committee of the Court, composed of three judges, had decided to declare her application inadmissible, since it did not find “any appearance of a violation of the rights and freedoms guaranteed by the Convention or its Protocols”, but the Human Rights Committee concluded that “the limited reasoning contained in the succinct terms of the Court’s letter does not allow the Committee to assume that the examination included sufficient consideration of the merits”, and therefore decided there was no obstacle to its examining the communication under Article 5, paragraph 2 (a), of the Optional Protocol to the International Covenant on Civil and Political Rights and found that that the facts before it disclosed a violation of Article 7 of the Covenant, read independently and in conjunction with Article 2, paragraph 3, of the Covenant. The materials submitted to the Court by the author were similar to those presented to the Human Rights Committee. The Court cannot, as it so frequently does, require the domestic courts to indicate with sufficient clarity the grounds on which they base their decision, while at the same time not living up to the same standards itself. One could read the Human Rights Committee’s message as implying that the limits of forbearance of an unacceptable policy of judicial pragmatism have been reached, as Schwarzenberger once wrote ( International Law as applied by International Courts and Tribunals , volume IV, 1986, p. 627).

[29] . See page 8 of the applicant association’s submissions to the Grand Chamber of 3 June 2013.

[30] . Dworkin, A Matter of Principle , 1986, p. 33.