01 15 01 2018 LawTotal

(2018) 1 LAW RNI No. APENG/2005/18975 Annual Subscription Rs.
1500/-
ISSN 2277 – 8829
A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma
ADVISERS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India), R.V.R. Chandrasekhara Rao (Professor,
Politics), Boggarapu Sitaramaiah (Lawyer and Freedom Fighter, Hyderabad), K. Subba Rao (Senior Advocate, Bangalore),
Umesh Chandra (Sr. Advt., Lucknow), Ravi Kiran Jain (Sr. Advt., Allahabad), K. Pratap Reddy (Sr. Advt., Hyderabad),
Sagar Dhara (Engineer, Hyderabad), Kuchelar (Lawyer & labor leader, Madras), Dr. Koenraad Elst (Indologist, Belgium)
Volume 14: Part 1 15 January 2018 No. 1

CONTENTS YES, ONE SHOULDN’T SELL HIS SOUL
1. Yes, One shouldn’t sell His Soul 1
2. Historical inevitability or 2,
Electoral corruption? (73) [IMS] 83
3. Political Trouble in India: The four rebel judges Chief Justice of India
1910-1917, J.C. Ker (31) 3-6
Certainly what Justice Chelameswar and the other three Apex Judges –
4. Judicial Review in India (4) one may call them Sishta Chatushtaya in Indian terminology – felt and said
Dr. R.V.R. Chandrasekhara Rao 7-17 in this regard is quite agreeable and commendable too. But the forum they
5. Another Step toward selected to vent out their grievances or hurt feelings is not proper and
Armageddon, Dr. Paul Craig Roberts 18 sadly they have acted against their own Judges’ Code of Conduct which
6. Vietnam War: Full Horror was widely discussed and unanimously approved by all the Supreme
of Imperialism, Steve Jones 19-22 Judges as also several other judges of the High Courts long back. True, as
7. Lopes de Sousa Fernandes K.G. Kannabiran once derided, even a Code of Conduct may not be that
v. Portugal [ECHR-Strasbourg] use or bar in cases of ‘soul-searching’, or ‘soul-suppressing’ even, but the
(Grand Chamber) (medical negligence) 23-62
point remains that these four Judges were ill-advised, to say the least, to
take the unprecedented step of calling a press conference, that a badly
8. Beyond Vietnam, managed one, and venting out their hurt feelings. They could instead have
Martin Luther King Jr. 63-72
achieved their purpose more fruitfully and without infringing their own
9. Rosa Luxemburg & Karl ethical code by addressing a detailed Memorandum to the President of
Liebknecht, Jörg Luyken 73-74 India in this regard together with a request that in case of need the same
10. Order Prevails in Berlin may be discussed in the Parliament even. In India the President may be a
(1919) (Rosa Luxemburg) 75-77 figure head no doubt, but certainly he is the constitutionally designated
11. Amnesty International is Head of State and, all the more important, he is the actual employer of all
barking up the Wrong Tree, these Judges. He would have certainly discussed it with his Prime Minister,
Dr. Paul Craig Roberts 78 the latter with his Cabinet colleagues, and perhaps even consulted the
12. NATO Expansion: What opposition, and this would not have stayed a secret for long. In case of non-
Gorbachev heard (Svetlana consideration on positive lines, certainly, much hullabaloo would have
Savranskaya & Tom Blanton) 79-82
arisen in the Indian political scenario. After all, these Judges also accepted
the Chief Justice to be the Master of Roster and were aggrieved only about
13. Poems, Kaifi Azmi 84
the alleged misuse of powers by the incumbent Chief Justice – they did not
Editorial Office: 6-3-1243/156, even suggest a committee to decide the roster – and so could have waited a
M.S. Makta, Opposite Raj Bhavan, little bit more. Heavens would not have fallen down by then; now little
Hyderabad - 500 082. Ph: 040-23300284 wonder if their good-intentioned revolt might prove counter-productive
E-mail: mani.bal44@gmail.com even. For the current rulers at the helm they have provided a good
Processing: Sai Likhita Printers, Chintal opportunity to further debase the judicial system and if these four senior
Basti, Hyderabad-4; Ph: 040 - 65545979; Judges are superseded tomorrow one need not be surprised even. This
Printed at Pragati Offset Pvt. Ltd., Red does not mean that the issues they raised are any the less trivial or
Hills, Hyderabad - 500 004. Ph: 23380000 vexatious. Judge Loya’s suspicious death and the manner of its cover-up is
Annual Subscription: Rs. 1500/- quite dangerous to the judicial system in the country, which is looked on
Abroad: $25 (e-subscription only) hitherto as a last resort for the common man to get some life-saver. One
Life Subscription: Rs. 15,000/- feels a radical reform of the judicial system in India is called for. ♣♣♣
Please donate Rs. 50/- or more. 1
NOTE: The opinions and comments in the editorials are exclusively the Editor’s and need not necessarily
reflect the approval or consent of all or any of the editorial advisors or of the publisher even - IMS.
HAPPY NEW YEAR AND HAPPY SANKRANTI (PONGAL) TO ALL!

2 (2018) 1 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

[Tracing the history of Andhra, Visalandhra and separate Telangana movements] - I. Mallikarjuna Sharma♣
It may be summed up of the Kakinada Congress the earlier decisions of the Congress to have
now that to a large extent it confirmed the unshaken accepted the demand for linguistic reorganization of
loyalty and admiration of overwhelming masses of the provinces in the country and accordingly
the Congress delegates and ordinary people toward establish various provincial committees of the
Mahatma Gandhi and the noncooperation movement, Congress on that basis and in having established the
which by then has been suspended and per Gandhi’s Andhra Provincial Committee in that course. They
directions a constructive programme (Khadi and allied seem to have not tried in any manner to influence
activities) was to be undertaken more for the time being. the Government of India to effect any such actual
But at the same time it sought to build a bridge reorganization of the provinces or at least formation
between the pro-changers i.e. Swarajists headed by of Andhra Province and just left the matter at that
Motilal Nehru and C.R. Das and no-changers like point and plunged into the national movement with
Rajaji, Prakasam Pantulu et al. Though the Council all strength and initiative at hand.
entry program of the Swarajists was not officially However, as usual, many other conferences were
accepted, the Swarajists too were permitted to carry also held at Kakinada like the Women’s
out their measures in a non-controversial manner. Conference, the Khilafat Conference, etc. but not
As for as the Hindu-Muslim problem was the All India Muslim League Conference which
concerned, though everybody stressed on the was about the same dates held at Bombay – “The
importance of Hindu-Muslim unity for the progress 16th annual session of All India Muslim League was
and success of the national movement, it appears held on 30-31 December 1924 at Bombay under the
there was a definite impact of the worsening presidency of Sir Raza Ali”. So far as we are
communal relations in the country, in the wake of concerned, we may be more interested in the conduct
the Malabar atrocities of the Moplahs and also the of the First Hyderabad Political Conference at Kakinada
fanatic attitude of the pro-Khilafat Muslim leaders around the same dates as the Congress session, which is of
of the Congress, even of the President Elect, Mr. seminal significance because these Hyderabad Political
Maulana Mohammed Ali declaring that he was a Conferences, which had to be invariably held outside
Muslim first and an [Indian] nationalist next. It may the Hyderabad State due to the oppressive policies
be true that the noted Maratha [Brahmin] musician and measures of the Nizam Nawab, in turn gave rise
Vishnu Digambar Paluskar had attended the to the emergence of the Hyderabad State Congress. It may
Kakinada Congress, may be he had also sung Ram be noted that –
Dhun and Vande Mataram in the Congress, though “The Nizam's government had banned all
in the current news reports of Andhra Patrika of political meetings and conferences in the state
those days his name or any such news was not and the first Hyderabad Political Conference in
mentioned anywhere, but certainly there was no 1923 had to be organised outside the state in
report anywhere of any tussle or bad blood arising between Kakinada. Every effort was made to prevent any
the President Elect Mohammed Ali and the singer with the serious nationalist political activity in
former objecting to the singing of Vande Mataram song Hyderabad.
etc. As such, it is difficult to confirm the version of “When the AICC held its session at Kakinada in
Mr. V. Sundaram in this regard. 1923 under Maulana Mohammed Ali, a
As for the Andhra delegates of the Kakinada delegation under the leadership of Vaman Naik
Congress were concerned it appears that they were attended the session from Hyderabad State.
more immersed in the national political problems Dr. Burugula Ramakrishna Rao who was among
and controversies and seem to have virtually taken the members of the delegation translated the
Hindi and Urdu speeches delivered by the
♣
Continued from Law Animated World, 15 December 2017 leaders from North India into Telugu as per Mrs.
issue; emphases in bold ours - IMS. Sarojini Naidu's instructions.”
(Go to p. 83→)
Law Animated World, 15 January 2018 2
POLITICAL TROUBLE IN INDIA, 1907-
1907-1917
1917
James Campbell Ker♣
CHAPTER VIII: and generally in helping on the [196]
PARIS revolutionary propaganda with her advice, and
what was probably more valuable with her
THE OLD PARIS GROUP
money. She was at this time one of the recognised
In the last chapter mention has been made of leaders of the revolutionary movement in Paris,
the departure from London for Paris of V.V.S. and was said to be regarded by the Hindus as an
Aiyar in April, 1910, and Virendranath incarnation of some deity, presumably Kali. Her
Chattopadhyaya in June. In Paris, which now paper called the Bande Mataram (see page 113),
became the centre of the European group, a small copies of which were regularly despatched to
circle of Indian revolutionaries had already India, was frankly revolutionary. Like many of
collected; the most prominent of these at this time the so-called leaders she had a very exaggerated idea
were Krishnavarma, of whom an account ahs of her own importance, and was constantly quarelling
already been given (see page 170), a Parsi lady with Krishnavarma, Chattopadhyaya and others
called Madame Cama, a young Punjabi named of her party.
Har Dayal, and S.R. Rana, a Rajput of Kathiawar. HAR DAYAL
MADAME CAMA Har Dayal was a very clever young man; he
Mrs. Bhikaji Rustom Cama, the wife of a Parsi was born about 1884, sone of the late Lala Gauri
solicitor, was born about 1875, the daughter of Dayal, Kayasth by caste, a reader in the District
Sorabji Framji Patel of Germany, Scotland, Paris Court at Delhi. In Delhi Har Dayal became a
and London; after visiting America in 1907 and B.A., and at Lahore in the examination for the
London in 1908, she settled down in Paris about M.A. degree he was first of his year. In one of the
the middle of 1909. On November 24th, 1908, she examinations which he passed his English papers
attended one of the India House meetings in were so good that they were retained by a high
London, and after a lecture by B.C. Pal on Hindu education authority to whose notice they came as
politics she made a speech in which she advised her models of excellence. He was selected for a State
hearers to follow the self-sacrificing examples of scholarship tenable for three years in England,
political assassins of Bengal (whom she named, each and in 1905 he went to Oxford, residing in St.
name being greeted with loud cheers) and to be John’s College till 1907. When the scholarship
prepared for death. She also displayed a national had only six months to run he threw it up on the
flag woven in silk and gold with the inscription ground that he was unwilling to accept any favour
“In Memory of the Martyrs of 1908.” At another at the hands of Government; but he had not done
meeting in the following month she made a very badly out of it as he had held it for two years and
violent speech which was afterwards reprinted in a half. He was back in Lahore at the beginning of
the Free Hindustan, and copies of the speech, in 1908, and in April of that year he and a party of
the form of a leaflet purporting to be signed by youths he had collected stayed with Lala
her, were afterwards sent in large numbers to Lajpatrai for a few days. He tried to impress his
India. Coming to Paris in May, 1909, she ideas on the Punjabi extremists, but when he said
interested herself chiefly in the business of that true Nationalism required that one should not
preparing and forwarding to India seditious help Government even by working as a pleader,
literature in the form of newspapers and leaflets, this was too much for them (most of them being
pleaders themselves) and even the Punjabee
th
♣
Continued from Law Animated World, 31 December 2017 newspaper, in an article published on August 5 ,
issue; photos and emphases in bold ours - IMS. 1908, repudiated him as a quixotic dreamer. The
3 Law Animated World, 15 January 2018

4 Political Trouble in India : 1907-1917 (J.C. Ker) (2018) 1 LAW
same month he left again for Europe, and after revolutionary funds and to young Indian
staying for a time in London, Oxford, Paris and revolutionaries visiting Paris.
Geneva he returned to Paris towards the end of SUPPLY OF ARMS
1909. In April 1910, he went to Algiers for his
health – he suffers from consumption – and The activities of the Paris party were mainly
returned in July. In the following October he literary, but they had already taken some steps
went to Martinique, and from there passed on to which had serious consequences. They befriended
the United States in January, 1911. While he was Hem Chandra Das when he [198] was in Paris to
in Geneva he edited Madame Cama’s paper, the learn bomb-making (see page 143), and it was
Bande Mataram, and in Paris he stayed during through S.R. Rana that the Browning pistols used
one visit with Krishnavarma and during the other in the Nasik murder were purchased here for the
with S.R. Rana. He has always been well off for London group (see page 184). It was the facility
money mostly received from his wife’s family; he with which arms could be procured that made Paris
is married to the daughter of Gopal Chand, a such a dangerous centre, and Chattopadhyaya lost
wealthy resident of Agra, whose father was one no time in attempting to take advantage of it. On
Prime Minister in Patiala State. June 17th, 1910, he wrote a letter to a youth
named Srikishen of Hyderabad (Deccan) headed
S.R. RANA “Chez Madame B.R. Cama, 25, rue de Ponthieu,
Sardarsinghji Rewabhai Rana was born about Paris,” telling him not to go to Calcutta till he
1878, and is a claimant to the chiefship of the heard from him, and promising to send a detailed
State of Limbdi in Kathiawar. He was educated at letter next week. Next week the promised letter
the Elphinstone College, Bombay, and obtained came in a figure cipher the key of which, to one
the B.A. degree in 1898. He then went to London who understood it, was indicated in the previous
and studied Law at Gray’s Inn, at the same time letter. When deciphered it read as follows:-
earning his living by doing business for the firm “There was no letter from last week. Most
of Jivanchand Ootamchand Jhaveri, pearl anxious here. Before you go to Calcutta write to
merchants of Paris and Surat. About 1899 he me and let me know how things are getting on in
went to Paris to join the firm, and took up his Hyderabad. When you go to Calcutta please see
residence at 46, rue Blanche, his palce of business my friend Bejoy Chandra Chatterji who will be
being 56, rue Lafayette. He took with him to introduced by Gannu. Speak to him privately
about affairs and ask him to introduce you to
Paris a German woman named Therese Liszt
Sukumar Mitter, sone of Krishna Kumar Mitter.
whose acquaintance he had made in London; she Tell him, that is Sukumar, that I am prepared to
is known as Mrs Rana, though he is already send rifles from here, but it is necessary to start a
married to an Indian lady whom he left behind in secondhand furniture shop in Calcutta or in
Kathiawar. Rana first came to notice in 1905 Chandernagore. We could then keep sending pieces of
through the support he gave to Krishnavarma’s furniture for a few months containing nothing, but
anti-British scholarship scheme by offering three afterwards containing required articles. As regards
“Travelling Fellowships” of Rs. 2,000 each. Not money that (will?) be sent to Madame Cama, and
as regards all instructions it would be best to
long after Krishnavarma came over to Paris he
send them by some trusted friend who may be
and Rana quarrelled on the subject of Mrs Rana, coming here. As for myself and Rau we had to run
as the former did not wish her to be taken into away because warrants are out. When you go see
their confidence saying that she was “a white Gannu, she will tell you all.”
woman and of low class”. After this Rana became
V. CHATTOPADHYAYA
a supporter of Madame Cama, and took her side
against Krishnavarma; his importance lies mainly Of the persons concerned in this plot, the
in the help he has been able to give to the writer of the letter, Virendranath Chattopadhyaya

(2018) 1 LAW Political Trouble in India : 1907-1917 (J.C. Ker) 5
Aiyar with each of whom he shared lodgings at

different times. He also became a close friend of
Chattopadhyaya with whose sister Mrinalini he
was in constant and affectionate correspondence.
In 1930 Satyagraha He was recalled to India by his father, who had
Virendra Gandhi with Sarojini Naidu heard of his doings, and reached Hyderabad in
(a grandiloquent form of the more familiar June, 1910. Owing to the fact that he had been
Chatterji), is the eldest son, born in 1880, of the recently taking a very leading part in the inner
late Dr. Aghorenath Chatterji, D.Sc. (Edin.), ex- councils of the revolutionaries (anarchists),
Principal and Professor of Science of the Nizam’s arrangements were made to have his correspondence
College, Hyderabad State. Virendranath is a B.A. examined, and the letters mentioned above were
of Calcutta University and went to England in intercepted. In consequence of this the houses of
[199] 1902 to study for the Indian Civil Service K.K. Mitter and Dr. Agorenath Chatterji were searched
but failed twice; he became a student of the on August 16th, 1910, but no further treasonable
Middle Temple but was expelled by the Benchers correspondence [200] was discovered; a considerable
on account of the views expressed by him in a number of letters from Srikishen to Mrinalini
letter to the Times of 6th July, 1909, in support of were found, but many recent letters had evidently
Savarkar. While in London he was completely been destroyed or got out of the way before the
under Savarkar’s influence, but in Paris he search was made. Thus the scheme which was the
most practical of any devised by Chattopadhyaya ended
aspired to become the leader. He is full of
in failure.
imagination, like many Bengalis, and was continually
propagating elaborate schemes of revolution which were V.V.S. AIYAR
not of the slightest practical value; as Madame Cama The Madrassi V.V.S. Aiyar was more successful.
sometimes said of him he was “all talk and no Varaganeni Venkatesa Subramania Aiyar, to give
work.” him his full name, is a native of Trichinopoly and
CHATTOPADHYAYA’S RELATIVES a B.A. of Madras University. After passing his
The person called “Gannu” in the cipher letter law examinations he practised for two years as a
is one of his sisters, Miss Mrinalini Chatterji. pleader in his native town; he went to Rangoon in
(Another sister not connected with this conspiracy 1907, and in the following year to England. His
is the celebrated poetess Mrs. Sarojini Naidu). close association with Savarkar has already been
Mrinalini was already known to be an advanced noticed, and it was reported that, in the
Nationalist, and a friend of Miss Kumudini discussions as to the methods to be followed in
Mitter, editress of the seditious Suprabhat bringing about a revolution which took place
magazine (see page 87). Sukumar, mentioned in after Savarkar’s arrest, V.V.S. Aiyar was the most
prominent advocate of the methods of violence and
the letter, is of course Kumudini’s brother, and
assassination laid down by him. After six months
B.C. Chatterji, a Calcutta barrister well known as
of Paris, during which he associated chiefly with
an extremist.
Madame Cama, Aiyar left quietly in October
C. SRIKISHEN 1910, letting it be understood that he was going
The full name of the addressee of the letter is via Geneva to Berlin. He came out, however, to
C. Srikishen Balmokand, son of Rai Balmokand, India, and getting through disguised as a
a judge in Hyderabad State. He was educated in Mahomedan turned up in Pondicherry where he
the Nizam’s College, and went to England in was first noticed in December, 1910. Pondicherry
1908 to read for the bar. In London he was a was already a refuge for seditious agitators, of
regular attender at the “India House” meetings whom the most prominent was Arabindo Ghose
and was much in the company of Savarkar and (see page 152). Here Aiyar continued his

6 Political Trouble in India : 1907-1917 (J.C. Ker) (2018) 1 LAW
revolutionary work, maintaining a regular must be thrased and mauled and killed
correspondence with Madame Cama who sent wherever he is found. With gentlemen we can
him a subsidy of 50 francs a month. be gentlemen, but not with rogues and
scoundrels. It is no infamy if an Indian pupil
SEDITIOUS LEAFLETS
shoots down his English professor, if an Indian
About the end of May a leaflet in Tamil clerk shoots down an English superior, if an
language appeared at Madura and other places in Indian barrister shoots down the English
the South of the Madras Presidency, entitled “A Judge, an Indian patient shoots down an
word of advice to the Aryans,” in which the English doctor. In a meeting or in a bungalow,
writer said, “Swear in the presence of God that on the railway or in a carriage, in a shop or in a
you will remove this sinner of a Feringhi from church, in a garden or at a fair, wherever an
our country, and firmly establish Swaraj therein! opportunity comes, Englishmen ought to be
Take an oath that, as long as the Feringhi killed. No distinction should be made between
exercises authority in our land of Bharat, you will officers and private people. The great Nana
regard life as a trifle. Beat the white English Feringhi Sahib understood this, and our friends the
you get hold [201] of, even as you beat a dog, and Bengalis [202] have also begun to understand.
kill him with a knife, a stick, a stone or even with the Blessed be their efforts! Long be their arms!
hand given by God.” The word Feringhi is used Now indeed we may say to the Englishman:
here as an abusive term for European. Within a “Don’t shout till you are out of the wood.”
fortnight this leaflet was followed by another in THE PARIS PARTY
the same language called, “the Oath of admission
Information received from London tended in
into the Abhinav Bharat Society.” It purported to
the same direction; a well-informed correspondent
be printed at the same place, “the Feringhi- writing on June 3rd expressed a strong suspicion that the
destroyer press,” and it was afterwards found that Paris party was meditating some outrage in connection
the type used in both leaflets was the same as that with the Coronation; he added that if any outrage
in which the Dharma newspaper of Pondicherry was contemplated, as he suspected, it was more
was printed. On the whole there was little doubt likely to take place in India than in England. As
that Aiyar was the author. showing that the Paris party was in close touch
INCITEMENT TO MURDER with Aiyar at this time it may be mentioned that
As the time of the Royal Coronation in Madame Cama is known to have posted letters to
England approached it became evident that the Aiyar on the 4th of April and on the 6th and 21st of
Paris revolutionaries (anarchists) were intent May, 1911. (to be continued)
upon doing something to mar the celebration. The *****

April, 1911, number of the Bande Mataram,
Madame Cama’s paper, which came out about the Read and subscribe to:
end of May, was one of the most violent that ever Analytical
appeared. It began with an “In Memoriam” notice to
the three men executed for the Nasik murder, described MONTHLY REVIEW
the recent murder of Head Constable Sirish Chandra Editor: SUBHAS AIKAT
Chakravarti and the attempted bomb outrage in
Annual subscription : Rs. 350/-
Dalhousie Square as good news from Calcutta,
Contact for details:
and concluded in an article on these events with
the following hysterical appeal:- CORNERSTONE PUBLICATIONS,
Dealing with villains like these, an Indian must Ramesh Dutta Sarani, P.O. Hijli Cooperative,
throw to the winds all the ordinary rules of KHARAGPUR - 721 306 (W.B.)
warfare. The Englishman is a snake and he

JUDICIAL REVIEW IN INDIA
[A Study In Constitutional Theory And Judicial Practice]
- Prof. R.V.R. Chandrasekhara Rao♣
C H A P T E R - III idea of a federal Constitution for India which was

to have included a Bill of Rights as well. In other
IDEAS ON JUDICIAL REVIEW IN words, the place of the doctrine in relation to the
internal structure of the Government as envisaged
THE MAKING OF THE 1935 ACT: by the Constitution and apart from the Colonial
The Federal Idea and its status of the Constitution, will form the subject of
Significance to Judicial review enquiry.
Since a federation was proposed, what was the
The foregoing chapter dealt with the scope and
attitude of the British Government and Indian
operation of Judicial review up to the
opinion towards the scope of Judicial interference
Constitution Act of 1919. The limitations to
in matters of the Constitution? So also, when a
which Indian law-making were subjected were
Bill of Rights was proposed, how was it intended
the limitations imposed upon a Colonial law-
to be safeguarded? Was Judicial review meant to
making body. As we have pointed out earlier, the
perform the task? And if Judicial interpretation of
concept may be a necessity for completely
the Constitution was to safeguard the instrument,
independent law-making bodies also.1
what were the views of the Constitution-makers
A written Constitution may impose limitations (whether directly or indirectly concerned) as to
on the legislature so that it cannot amend the the implications of the doctrine of Judicial
Constitution by passing ordinary laws and this review? For example, were they willing to confer
will usually involve judicial review. And a federal the privilege of interpretation at all rungs of the
type of Constitution which involves a division of power
between a centre and federating units needs to be
Judicial ladder, and in what may were Laws to be
specially protected from being amended by reviewed when the law was still in the form of a
legislatures in the process of law-making; and Bill or after its passing? These issues we shall
this may be done by providing for a special procedure consider under the following heads:-
for amendment, which may necessitate subjecting I. Federation and Judicial Review.
laws, allegedly contravening the Constitution to Judicial II. Fundamental Rights and Judicial Review.
scrutiny.
Initially, a note of caution must be introduced.
Such is the theoretical basis for Judicial review It must be realized that the Constitution-makers
in Constitutions providing for a list of individual did not concentrate on the issue of Judicial review
rights, too. In other words, the nature of the in any academic manner and that what they
Government outlined by the Constitution itself sought was a modus operandi for their
might necessitate Judicial review. In the case of a Constitution. They recognised, of course, the part
Colonial Constitution – (1) the Constitution being the doctrine was to play, and expressed their
colonial, and (ii) the structure of governments views generally, insofar as the doctrine’s role
proposed by the Constitution – say a federal elsewhere, notably in America and Canada, made
structure – may necessitate review for both reasons. them realise the problems [relating to] the
In this Chapter, we are concerned with the doctrine. First we shall face the issues as the
study of Judicial review as it evolved with the various bodies responsible for the making of the
first Indian Federation saw them. The study of
♣
Continued from Law Animated World, 31 December 2017 Judicial review under the 1935 Act will follow
issue; emphases in bold ours - IMS. later. It was in the process of making the Constitution
1
Supra, Ch. I & Ch. II, p. … that the problems relating to the doctrine were faced for

8 Judicial Review in India (R.V.R. Chandrasekhara Rao) (2018) 1 LAW
the first time by the Constitution-makers. After the non-justiciable setup, i.e. the confirmation of the
passing of the 1935 Act, Judicial review as existing setup, as a stop gap arrangement, clearly
practised by Courts affords us another study of foreseeing the possible need for a stricter
the doctrine. delimitation of legislative power, when a true All
I. FEDERATION AND JUDICIAL REVIEW India Federation was to be formed, with the
joining of the Princely States. The following
1) The Views of the Simon Commission: quotation makes the point clear. “There is,
Social and Political factors together led to the therefore, no need for us to consider now upon
idea of the creation of an All Indian Federation, what principles in the future a more strict
with the possibility of Indian India joining it. One delimitation should be based. It may well be that,
could very well have imagined that with the as the federal system takes shape and especially if
creation of a Constitution with a federal structure, the adhesion of a number of Indian States should
an entirely new and wider scope for Judicial take place, the matter may have to be
review was to be made available to the Courts. In reconsidered.”5
fact, this was to be so, ultimately. But the All the same, it can be said that the Simon
development of the concept of a federation began,
Commission proposed a Federal setup on the
strangely enough, by an express rejection of the role of
existing model for the immediate future. We
review by Courts. As mentioned earlier, the Simon
cannot over-emphasise the fact that in this the
Commission recommending an Indian Federation
Commission did not evolve a new concept of a
stuck to the system of division of legislative
Federation. The idea of a Federation was mooted
power, already existing under the “1919 Act”,
in the Montagu-Chelmsford Report;6 and the
under which the Courts had no authority to
Reforms of 1919 carried the germs of federation.7
enquire into the ‘vires’ of legislation, of either the
But federalism was conceived as a possible
Central or the Provincial legislatures, even
means by which true responsible governments
though a ..real division of power was made.2
could be established. The desire to install
The Simon Commission was particularly impressed responsible governments in the provinces was put
with that system on the ground that it prevented into effect by making, to some extent, certain
litigation over the exercise of legislative power. A desire legislative powers the exclusive domain of the
to limit the scope of litigation, led the provinces (though no judicial protection was
Commission to envisage a federation without the given to the domain). Thus, consideration of
institution of Judicial review.3 provincial autonomy led to devolution of
As we shall notice at a later stage, a similar legislative power under the 1919 Act. The same
disinclination to subject legislative authority to consideration appeared to have influenced the
Judicial review, almost amounting to a general Simon Commission too. That is why the existing
distrust of the institution, resulted in the non- system, of “reserved” and “transferred” halves of
adoption of fundamental rights under the 1935 the provincial legislative field (which restricted
Act4 but one cannot positively assert that the free responsible Government), was not favoured
Simon Commission proposed an all Indian
5
Federation, wherein the justiciability of the fields Ibid., p. 127.
of legislation was forever derived. The 6
M.C. Report (cmd. 9109)
Commission appeared to have recommended a 7
The Act of 1919 envisaged the entrusting of certain
legislative power to the provinces, by devolution. This
2
Report of the Indian Statutory Commission, 1930, Vol. ii, was divided into two halves, one to be administered by
Recommendations, p. 82 (Cod. 3566). responsible ministers (transferred half) and the other to be
3
Ibid. administered by Civil Servants, responsible to the
4
See, Infra, p. 113. Governor (reserved half).

(2018) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao) 9
by the Commission.8 The aim was to enable envisaged a strict delimitation of the legislative
responsible government to go on and insofar as a fields, while at the same time, proposing a
federal structure was congenial to accomplish that aim, concurrent field.11 The subsequent Committee
such a structure was recommended. But whether the incorporated, in its recommendations, most of the
federal structure itself should be truly erected views of the First Committee, though not
without a justiciable delimitation of legislative favouring the proposal of a concurrent field.12
powers was a point considered neither in the True, the attitude of Indian opinion towards the
Montagu-Chelmsford Report nor in the Simon place of Judicial review was evident.
Report. The idea of federation was not conceived
for its own sake but Prof. Coupland holds a The view, that the Nehru Report (i.e. the
different view. According to him, the view that Report drafted by the Committee appointed by
the Simon proposals were more or less a the All Parties Conference) could not be reported
“harmonious sequel,” to the Montague as having proposed a true federation, is expressed
Chelmsford Report is wrong.9 The former’s stress by Prof. Coupland.13 While it is true, that the
on the issue of a federation, was, to Prof. Report was vague as to the concept of an All
Coupland, a significant and original contribution India Federation with the Indian States joining in,
demonstrative of the desire to create a federation. the vagueness pertains only to the geographical
The Montagu-Chelmsford Report, says Prof. extent of the federation. The idea that India should
Coupland, “had asked for an extension of be a Dominion with a federal form of Government was
14
devolution in order to facilitate responsible unmistakably emphasised in that Report. Prof.
Government, whereas its successor (Simon Coupland calls this intention to create a
Report) was asking for more responsible federation a vague one because “Devolution was
Government in the first place in order to facilitate carried no further than the Act of 1919 had
devolution.”10 It is submitted that this distinction carried it. The schedule of Central and Provincial
is not well-founded. If the Simon Commission’s subjects not named therein were allotted by the
aim was to facilitate devolution, why did it not Constitution to the Centre. Nor was the Central
recommend the incorporation of Judicial review? Legislature based on the federal principle. The
On the one hand it recommended entrusting the lower house was still to be elected by General
“reserved” half in the provinces to responsible British Indian constituencies, and, if the upper
ministers, but on the other it stuck to the same house was to be elected by the Provincial
mode of devolution. Responsible Government in Councils, each Province would not be given the
the provinces was thus the main concern of the same number of seats, like the provinces or states
Simon Commission, too. in the Canadian, Australian or American
Federation, but a number proportionate to its
2) Indian Opinion: population.”15 Does Prof. Coupland imply, that all
That a large section of Indian opinion favoured the characteristics be enumerated need necessarily be
a federation, was evidenced in the Report of the there to make a setup federal in nature? Surely, equal
All Parties Conference. The Report of the First representation of the federating units is never a
Committee of the All Parties Conference
11
The Second Committee in its report, referred to the
8 recommendation of the First Committee about the
The Simon Commission recommended that the existing
system, of ‘transferred’ and ‘reserved’ halves of legislative concurrent field. All Parties Conference, 1928, pp. 95-96.
12
power in the provinces, should be done away with. Cf. Ibid.
Indian Statutory Commission Report, Vol. ii, p. 16. 13
R. Coupland, Op. Cit., pp. 93-94.
9
R. Coupland, The Indian Problem, 1833-1935, Report on 14
All Parties Conference 1928, p. 89 and p. 100.
the Constitutional Problem in India, Part I, F. 107. 15
10 R. Coupland, Op. Cit., p. 94.
Ibid., p. 101.

16
necessary concomitant of a federation. It is the Judicial review. That the Nehru Report had
nature of the distribution of legislative power that borrowed readily from the Canadian Constitution
decides the presence or absence of the federal was made clear by the use of the now well-known
principle. Prof. Coupland does not show that the phrase: “for greater certainty, but not so as to
nature of distribution envisaged by the Nehru restrict the generality of the foregoing terms of
Report was non-federal. He is strikingly vague on this section,”17 in describing the powers of the
this matter. His words are: “Devolution was federal legislature. The Nehru Report, thus,
carried no further than the Act of 1919 had contained an intended but implied recognition of
carried it. The schedules of central and provincial the institution of Judicial review.
subjects were practically the same as the existing 3) The Round Table Conference: First Session:-
schedules and all subjects not named therein were
allotted the Constitution to the Centre.” The We shall now examine the attitude at the
essence of the federal principle does not depend on the Round Table Conference. The Conference, through
extent of devolution, nor is it violated when the its various Committees, definitely, arrived at the
residuary powers are vested in the Centre. Canada position that the institution of Judicial review should
affords us a striking example where the go hand in hand with the proposed federation.
Dominion Parliament enjoys the residuary field. At the first session of the R.T.C., the Sub-
The point is, whether the allotment of powers in a Committee on Provincial Constitutions allocated
federation is exclusive or not, and, if exclusive, whether the whole of the provincial sphere to the
any one of such Legislatures can unilaterally alter the provincial legislatures abolishing the distinction
allotment. The Nehru Committee’s idea of a between ‘reserved’ and ‘transferred’ subjects;
federation, should be tested in this light. All the thus affirming the Simon proposals.18 But the
evidence points to a statutory and strict Sub-Committee did not make it clear what was to
delimitation of powers conferred not by happen if, as under the 1919 Act, the Central
devolution but by the terms of the Constitution Legislature legislated on provincial matters.
itself. The role of Courts as interpreters of the Another sub-committee, the Sub-Committee on
Constitution was made explicit. And, when once Federal Structure, while alluding to the powers of
judicial review was established to protect a the federal legislature declared that “Provision
division of legislative power, the federal principle should be made by some constitutional procedure
could be said to have been present. No doubt, the for addition from time to time to the list of federal
Nehru Report did not contain a specific and subjects.”19 This suggests that any increase in
straightforward provision for Judicial review, but federal powers was to be accomplished only by a
sections 13 (d) and 34, which provided that the special procedure, further implying a bar on the
powers of the Central Legislature and the federal legislature going beyond its power by
Provincial Legislature were to extend to matters ordinary legislation. At another place the Sub-
enumerated in Schedules I and II respectively, Committee, implied by suggestion a division of
read with Section 49 (v), which conferred the legislative fields of a more exclusive nature than
jurisdiction on the Supreme Court over the was prevailing, when it agreed “as to the
matters “arising under this Constitution or
17
involving its interpretations,” amply justify a All Parties Conference, 1928, ‘The recommendations’,
conclusion that a justiciable delimitation was Article 13 at 105-106.
18
proposed. The British North American Act, itself Report of Sub-Committee, No. II (Provincial Constitutions),
had no more of provisions directly sanctioning R.T.C. 1st Session, 12th November, 1930 – 19th January,
1931 (Proceedings, p. 301).
16 19
For example, in Canada, the provinces do not have Sub-Committee, (i) (Federal Structure), Interim Report,
equality of representation in the Senate. R.T.C., 1st Session (Proceedings, p. 202).

classification as federal, central or provincial of an explicit and direct question whether judicial
all subjects which are at present within the review should be provided for or not. The
competence of the Indian Legislature.”20 The questions reveal the existence of two mutually
British Prime Minister’s Declaration at the end of contradictory concepts:
the First Session of the R.T.C., that “the authority (a) the feeling that judicial review should
of the Federal Government will be limited to the necessarily accompany the concept of
provisions required to secure its administration of federalism,
federal subjects and to discharge its responsibility (b) the already existing practice of non-
for subjects defined in the Constitution as of All justiciable federal system which had the
India Concern,21 also reveals the acceptance of blessings of the Simon Commission
the idea of a rigid division of legislative power. Questions of this character were freely
But none of these statements referred to the role of the discussed with reference to, and in the light of,
Judiciary as the Guardian of the legislative fields. This the proposal to establish a federal system.
was to come from the Second Session of the
But such a discussion was described as
R.T.C.
‘surprising’, by one writer on the subject.242 To
4) The Second Session of the R.T.C. him, the talk about a Federal Constitution, at the
The Federal Structure Committee, which First Session of the R.T.C., meant that “in a
discussed the distribution of legislative powers, moment, the ideal of federation was brought
posed several questions, two of which are most down from the clouds but not yet quite to earth.”
relevant in this context. In view of the clear statements in the Nehru
The Federal Structure Committee, which Report it can be stated with confidence that even
discussed the distribution of legislative powers, before the R.T.C., the idea of a federation was
posed several questions, two of which are most seriously canvassed by the Indian side. But the
relevant in this context. above authorities’ opinion can be applied to the
British Government’s attitude towards the idea of
(i) “Is the Constitution to declare in terms that a federal India. On this the R.T.C. clearly marked
the legislative powers of the federal and
a departure from the Simon Commission view of
provincial legislatures are confined
an Indian Federation. The acceptance of Judicial
respectively to the spheres of Federal (and
protection of legislative fields in the proposed
Central) subjects and provincial subjects.”22
federation could be discerned in the attitude of
(ii) “Is the question of ‘Ultra vires’ legislation to the British contingent at the First R.T.C. Possibly,
be left exclusively to the Courts, or is any the willingness of the Indian Princes to join in an
machinery practicable which would prevent
All Indian Federation, taken together with the
the question of ‘ultra vires’ arising, or of surprising unity of outlook exhibited by all the Indian
restricting inconvenience when it does leaders on the issue of a Federation, impressed upon
arise.23 H.M.’s Government the need to agree to a strict
While the first was only by ‘implication’ a delimitation of legislative fields. The fact that the
question whether Judicial review should protect two questions, which raised the issue of recognition or
the respective legislative fields, the second was non-recognition of Judicial review, were presented by
the Lord Chancellor at the Second R.T.C. also
20
Ibid., p. 222. justifies our explanation.25
21
Declaration by Prime Minister, The R.T.C., Proceedings, If the first session of the R.T.C. made the
p. 507. Government aware of the desirability of incorporating
22
Federal Structure and Minorities Committees, Proceedings,
Para i, Head 6, p. 295. R.T.C., 2nd Session Proceedings. 24
R. Coupland, Op. Cit., p. 115.
23 25
Ibid. These are the questions quoted supra, pp. 91-92.

Judicial review in the future federation, the second sphere of the concurrent field the main feature of
session convinced the Government of the inevitability of the existing system…”29,
such incorporation. And with this attitude, the and when dealing with the Concurrent List the
Government presented the proposals on Indian Committee observed:
Constitutional Reform, popularly known as the “This [the inclusion of the Concurrent List] in
“White Paper”.26 effect preserves in the limited sphere of the
Concurrent field the existing legislative relation
(5) The White Paper and the
between the Centre and the Provinces which
Parliamentary Joint Committee:
excited the admiration of the Statutory
The “White Paper” issued by the British Commission…”30
Government after the R.T.C. contemplated Thus, if the Concurrent field proposed was, to
Judicial review as the basis of the proposed that extent, comparable to the Concurrent
federation.27 The rejection of the Simon proposals Jurisdiction exercised by the Centre and the
on this issue was thus complete. The Provinces under the 1919 Constitution, was it
Parliamentary Joint Committee also affirmed the intended by the Joint Committee, motivated by the
“White Paper” point of view.28 The allocation of distrust towards the practice of Judicial review,
federal and provincial lists was made exclusively that that practice [judicial review] was to be excluded
in the federal and provincial legislatures as far as the Concurrent list was concerned? If so it is
respectively, and Courts were to declare laws hard to justify how the Committee could have had so
‘ultra vires’ if legislatures trespassed into each intended, when one has in mind that the justiciability
others’ domains. Judicial enquiry into the of issues involving the Central and Provincial Lists was
exercise of the powers under the federal and made their very protector.
provincial lists was allowed. But as regards the An examination of the analogy between the
Concurrent list, over which Central and nature of legislative distribution under the 1919
Provincial Legislatures were to exercise Act and the Concurrent Field proposal, which
Concurrent Jurisdiction, the Joint Committee held a was resorted to by the Joint Committee Report, is
different view. It conceived the Concurrent List as necessary.
being completely outside the scope of Judicial review. The position under the 1919 Act was that though
The Committee’s assertion that the creation of a devolution of the Legislative field was made, the
Concurrent List would to that extent retain the whole legislative sphere was concurrent in the sense that
existing type of legislative jurisdiction, once the Centre could legislate on the field devolved upon the
again exhibited the general suspicion towards provinces, provided the Governor General’s assent
Judicial review. The idea that the proposed was obtained, and even the absence of such
Concurrent field was to resemble the existing consent would not make the law invalid; so also
system deserves a closer examination in order to provinces could legislate on the field devolved upon the
discover the intended scope of Judicial review. centre, subject to the Governor General’s assent.
The comparison between the existing system and Insofar as the proposed Concurrent List was
the proposed Concurrent List may be illustrated concerned the White Paper observed: “In the
by the following quotations. event of a conflict between a federal law and a
“As we shall explain our recommendations will provincial law in the Concurrent field, the federal
have the effect of preserving on the limited law will prevail, unless the provincial law was
reserved for, and has received, the assent of the
26
Proposals for Indian Constitutional Reform, (Cmd. 4268)
27 29
Ibid., Introduction, para 52. Report of Joint Committee on Indian Constitutional
28 Reform, Op. Cit., p. 143.
Report of [the] Joint Committee on Indian Constitutional
30
Reform, Session 1933-34, Vol. 1, Part I, p. 142. Ibid., p. 145.

Governor General. The Federal Legislature will scrutiny. Since the later two lists were to be
have no power to repeal or amend a provincial justiciable, the issue whether a statute fall within
law to which the Governor General has thus the Concurrent List, was to be a matter for the
assented, save with the prior sanction of the Courts to decide. In a case where a party asserted
Governor General.”31 that it fell in one of the other two lists. Hence the
The consent of the Governor General validating analogy was erroneous because it was an analogy
a provincial law over a topic on which the Centre between a whole legislative field (not being
legislated, created a situation which compared justiciable) and a part of a whole, the other part
well with the above situation under the 1919 Act. being justiciable.
The analogy appears correct thus far. Thus, in a way, when considered from the
But it is really the following test that should intentions of the “White Paper” and the Joint
determine the truth in the analogy. Committee’s Report the proposed Concurrent
What happened when a central law and a Field was self-defeating. That recourse to judicial
provincial law clashed with each other under the delimitation in respect of Lists I and II would
1919 Act? Irrespective of not being empowered increase litigation and that a Concurrent Field
to determine the individual validity, the Courts would put the weight on the other side, was the
were not empowered to pronounce inconsistency point of those documents. But by its very nature,
between a Central and a Provincial Enactment. the Concurrent field was to come under the
The 1919 Act only provided one thing, that was operation of judicial review. The analogy was to a
large extent false from the point of view of the Joint
Executive Consent, before the Centre or a unit
ventured to enter into fields devolved upon the Committee’s own recommendation on another
others hence it was for the Executive to see that no allied matter. The Committee recommended that
inconsistent laws existed side by side.
over the proposed Concurrent Field the Central
Government was to have no executive authority
Now, by virtue of the analogy adopted, was it to dictate to Provincial Governments, except for a
intended that the fact of repugnancy between a Central
and a Provincial Enactment over a subject on the
few specified subjects.34 Under the 1919 Act
Concurrent List, was none of the Judiciary’s concern legally there was no bar on the Governor General
to establish? Such an intention of non-justiciability giving orders to the provinces, for the
of repugnancy would mean less scope for Judicial administration of law – i.e. even the case of laws
review. Mr. Rajagopala Aiyangar (as he then dealing with subjects devolved upon the
was) in his standard Commentary on the 1935 provinces.35 The Joint Committee by the above
Act, published before the Federal Court came into recommendation had shown that in the nature of
existence, expressed the view that the fact of the administrative relationship that was to
32
repugnancy was for the Judiciary to establish. Later develop between the Centre and the Provinces,
on the Federal Court endorsed the view. 33 insofarf as the Concurrent Field was concerned,
there was intended to be an entirely different
Anyway, the real defect of the analogy lies in
setup from that which was prevailing.
the fact that the Concurrent List which was to
exist side by side with the Central and Provincial The freedom from Central direction was to be
Lists was by nature within the domain of Judicial given because otherwise “…the provinces might
feel that they were exposed to dangerous
31
Proposals for Indian Constitutional Reform, Op. Cit., encroachment….” Thus, the recognition of the
“The Proposals”, Proposal 114, last paragraph. desire for autonomy which made a statutory
32
M. Rajagopala Aiyangar, The Government of India Act,
34
1935, p. 136. Report of the Joint Committee, Op. Cit., para 220.
33 35
Infra, Chapter V. D.N. Bannerjea, The Indian Constitution, pp. 390-392.

delimitation of legislative fields possible (though the legislatures at his discretion.38 The Joint
the Joint Committee was of opinion that the Committee felt that this procedure would result in
Concurrent Field was non-justiciable), also made lessening the scope of judicial review. Though
the Committee recommend a statutory that was not the precise motive that led the Joint
delimitation of administrative jurisdiction even in Committee to approve this procedure (the motive
the Concurrent Field. In other words, in the being the desire to avoid offence to Hindu and
legislative distribution under the 1919 Act, by which in Muslim Groups by not allocating the ‘residue’ to
a way the whole field was concurrent, there was no the units or the Centre respectively39), yet the
statutory delimitation of either the legislative or the feeling that the allocation of the residue to the
administrative aspects of the power, whereas under the
new system even over the limited Concurrent Field a
Governor General would derogate from the
justiciable delimitation of the administrative aspect was judicial protection of a statutory delimitation of
to follow. A federal order to the provinces as to legislative powers was strong in the Joint
the administration of a law dealing with matters Committee. It observed, “We are conscious of the
on the Concurrent List (with certain exceptions)36 objection to this proposal. It is inconsistent with
could be held ‘ultra vires’ although under the our desire to see a statutory delimitation of
1919 setup it could not have been impugned. legislative jurisdictions, and the power vested in
Thus, the nature of administrative relationship under the Governor General necessarily empowers him
the two systems is entirely different. not merely to allocate an un-enumerated subject,
but also, in so doing, to determine exclusively
THE RESIDUARY FIELD:-
that a given legislative project is not, in fact
The allocation of the residuary field of covered by the enumeration as it stands, - a
legislation has always a bearing on the scope of question which might well be open to argument
judicial review. Whether the allocation is made to though we assume that in practice the Governor
the Centre or to the units, enactments could General should seek an advisory opinion of the
become subject to review on two grounds. Federal Court.”40 Thus the second category of
(a) An enactment purporting to deal with a challenge as analysed above, was to be beyond the
subject on one of the lists and passed by scope of judicial review. If the Governor General was
what is claimed to be a competent legislature to have such power, then not only was the residuary
could be impugned on the grounds that the field to elude judicial scrutiny but the enumerated fields
subject is not covered by any of the lists and themselves were to lose judicial protection to a large
is hence a residuary one, over which the said extent.
legislature has no competence. While Section 104 of the Government of India
(b) An enactment passed by the legislature Act, 1935 empowered the Governor General to
competent to legislate over the residuary administer the residuary field, it did not clarify
field could also be impugned on the ground the issue whether the Governor General’s
that the subject is covered by one of the lists decision, that a particular item was ‘residuary’
over which the said legislature has no
was conclusive or not. In other words, it did not
competence.
clarify whether an executive decision that an item did
It was recommended by the White Paper, and not belong to any of the enumerated lists was justiciable
the Joint Committee, that the residuary field was or not.
not to be given to the Centre or the units.37 The
38
Governor General was to be empowered to allot Ibid.
any matter not enumerated in the lists, to any of 39
Report of the Joint Committee, Op. Cit., p. 144.
See also, Committee on Federal Structure, 2nd Report,
36
Part II, Concurrent List, Government of India Act, 1935. Para 38, R.T.C., 2nd Session, Proceedings.
37 40
Proposals on Indian Constitutional Reform, Op. Cit. Report of the Joint Committee, Op. Cit., p. 144.

Some writers, probably relying upon the litigation. Examining the suggestion that judicial
Report of the Joint Committee, interpreted Sec. review should protect the proposed provisions against
104 in that light i.e. that the Governor General’s discriminatory legislation, the Commission pointed to
decision was final.41 But some other writers held the possible increase in litigation and the danger of
the contrary view. What they regarded as beyond empowering Courts to invalidate laws containing
review was only the Governor General’s decision in discriminatory provisions: “If a law court has
allocating a ‘residuary’ subject to the centre or the jurisdiction to dispose of well-founded claims
provinces, but his decision as to what was a ‘residuary’ based on solid grounds, it is also bound to listen
subject – i.e. that a certain subject was not covered by to far fetched complaints with no real substance
the three lists – in itself was not beyond judicial behind them.”44 The generalization that a sort of
42
review. The latter view was based upon the distrust towards judicial review was characteristic
argument that we advanced before: that the of those who officially sponsored the 1935 Act
justiciability of the Lists would ‘ipso facto’ make can thus be supported.
any decision affecting them justiciable. On the other hand Indian opinion was
II. FUNDAMENTAL RIGHTS AND unanimously in favour of fundamental rights forming
JUDICIAL REVIEW part of the constitutional document. The All Parties
Conference started by affirming the Resolution
A statutory enumeration of fundamental rights
passed at the Madras Session of the All India
obviously implies extensive scope for judicial
Congress which laid down that the basis of any
review, for without that they will be no more than Indian Constitution must be a declaration of
pious declarations which would be observed more fundamental rights.45 Lest misunderstanding
in their breach by the legislatures. Hence a survey might arise that what the Congress Party
of the attitudes adopted towards the concept of conceived was only in the nature of a formal
judicial review could not very well be made declaration of rights it must be stressed that the
without making an enquiry into the attitudes belief that those rights should be effectively
adopted towards the inclusion of a list of rights protected by the judicial organ was strongly
by the makers of the first federal Constitution of expressed in the Report of the All Parties
India. Conference. Under its Recommendations the
We find that it was precisely the recognition Conference listed certain fundamental rights, the
that without extending judicial protection through first of which read: “All powers of government and
judicial review, such enumeration of a list of all authority, legislative, executive and judicial are
rights would be redundant, that made the Simon derived from the people and the same shall be
Commission advise against the inclusion of exercised in the Commonwealth of India through
fundamental rights. The Report said, “Abstract the organisation established by or under and in
46
declarations are useless, unless there exists the accordance with this Constitution.” And the
will and the means to make them effective,”43 and Supreme Court according to the Conference’s
referring to judicial protection as a means of Scheme was to have original jurisdiction in matters
47
making them effective the Commission arising out of constitutional interpretation.”
apprehended that it would only increase
44
Ibid., p. 130.
41
S.N. Bose, The Working Constitution of India, p. 219. 45
All Parties Conference 1928, p. 89. It is important to
M. Ramaswamy, The Law of the Indian Constitution, p. 231. remember that in 1932 the All India Congress Party
Eddy & Lawton, India’s New Constitution, p. 112. passed a declaration of Fundamental Rights. Cf. also
42 Appendix, Coupland.
N.R. Aiyangar, The Government of India Act, 1935, p. 133.
43 46
Report of Indian Statutory Commission, Op. Cit., Vol. ii, Ibid., p. 101.
47
p. 23. Ibid., p. 112.

At the R.T.C. it was assumed that the a general restriction on federal and provincial
Constitution for India would include fundamental legislatures not to make laws subjecting British
rights. During the proceedings of the Minorities subjects to any discrimination in respect of
Committee when no agreement was reached taxation or holding of property on grounds of
Mahatma Gandhi proposed inclusion of a clause religion, descent, caste or place of birth. This was
for the protection of Minorities amongst to be a form of fundamental right of the subject
fundamental rights.48 In the Provisions for a protected by judicial review.53
Settlement of the Communal Problem put forward The Report of the Joint Committee clearly
Jointly by Muslims, Depressed Classes, Indian
showed a prejudice against a statutory declaration
Christians, Anglo-Indians and Europeans, it was
of rights. It feared the legal effect of such
made clear that all those groups were also in
declaration which will “impose an embarrassing
favour of enumeration of rights. Further, in those
restrictions on the powers of the Legislature and
proposals the procedure for challenging any law
create a grave risk that a large number of laws
in the Supreme Court for contravention of
may be declared invalid by the Courts because [of
fundamental rights was expressly mentioned.49
incompatibility] with one or other of the rights so
Also, during the Second Session of the R.T.C. declared.”54
members while discussing the Federal Court
emphatically asserted the need for such rights.50 The rights that the Joint Committee was willing
Yet in certain quarters the issue was not clearly to provide in the Constitution Act may be
presented at all. illustrated by a few examples.
For example, the Memorandum on the While the White Paper recommended a
“Declaration of Rights” submitted by the Anglo- declaration of a right of British subjects against
Indian members of the R.T.C. did not seem to discrimination,55 the Joint Committee feared that
imply judicial protection of the rights which it such a declaration might be a sweeping one and
asked for. The last paragraph of the advised the inclusion of a right much narrower in
Memorandum says: “Should the Federal scope. Further, such a right was to be based upon
Government or any Provincial Government fail to the then existing section 96 of the Government of
comply in any or all of the foregoing provisions, India Act, 1915. That section provided that: “no
an appeal shall lie in the case of an order of the native of British India nor any subject of His
Federal Government to the Secretary of State for Majesty resident therein, shall by reason only of
India or any other higher tribunal, and in the case his religion, place of birth, descent, colour or any
of Provincial Government to the Federal one of them be disabled from holding any office,
Government in the first place, and from the order under the Crown in India.” Thus the proposed
of the Federal Government to the Secretary of provision against discrimination, though wider in
State for India or any other higher tribunal.”51 scope than section 96 of the 1915 Act, was to
assume the form of that Section. As the right
The British Government finally decided not to conferred by that section was not subject to
incorporate a bill of rights.52 The Statutory judicial review, was it intended by the Joint
Commission’s recommendations were accepted. Committee that the declaration proposed should
The White Paper included as one of its proposals also be immune from judicial review?56 The
48
Minorities Committee, Proceedings, p. 530, R.T.C. 2nd 53
Cf. infra, next page.
Session. 54
49 Report of the Joint Committee, Op. Cit., Vol. I, Part I,
R.T.C., 2nd Session, Appendix III. page 216.
50
Ibid., Appendix II, pp. 566-567. 55
Proposals of the Indian Constitutional Reform, Op. Cit.,
51
R.T.C. 2nd Session, Proceedings, Appendix. ‘Proposals’, Proposal 122.
52 56
Cf. infra, next page. Report of the Joint Committee, Op. Cit., Vol. I, Part I, p. 216.

succeeding part of the Committee’s Report which

concurred with the White Paper proposals, that AN APPEAL
certain types of discrimination (like laws giving We request all our readers, friends and well-
relief to agricultural lands from sale or mortgage) wishers to liberally contribute for, subscribe to,
were not to be invalidated on the grounds of and advertise in this unique type of journal and
contravening the above right57, suggests that the also aid in increasing its circulation. Please
above right was not intended to be subject to mind that now the journal is running on heavy
judicial review. losses. We also request that scholarly articles
on any aspect of law and society, preferably
Secondly, while accepting the need for with some comparative study, be sent. Life
including a right against expropriation of private subscription for this journal: Rs. 15,000/- and
property without compensation the Committee, at the annual subscription for the year 2018: Rs. 1500/-.
same time, thought that legislation transferring Any annual subscription will count for one
volume i.e. January to December of the year, and
property to public ownership should obtain the back-issues of the year will be supplied to the
prior consent of the Governor General.58 A similar subscriber (subject to availability - in any case e-
executive consent was proposed to protect landed copies will be sent). - I.M. Sharma, Editor.
property secured by grants made by the Crown. It ADVERTISEMENT TARIFF:
*****
seems then, that insofar as expropriatory Full inner cover page : Rs. 15,000/-
legislation provided for the transfer of private Ordinary full page : Rs. 12,000/-
property to public ownership judicial review was Ordinary half page : Rs. 6,000/-
to be confined to the procedural question whether Cheques/DDs to be sent in favour of:
the required executive consent has been obtained. LAW ANIMATED WORLD,
But it was also possible to take the view that H. No. 6-3-243/156, M.S. Makta,
while every expropriation of private property Opposite Raj Bhavan,
without compensation was subject to judicial HYDERABAD - 500 082.
review, legislation transferring such property to Ph: 040-23300284; Email: mani.bal44@gmail.com
public ownership was put under a further
limitation in that executive consent had to be
obtained, thus permitting review on the Read and subscribe to:
procedural question as well.
FRONTIER
Apart from the foregoing rights the Committee Editor: TIMIR BASU
did not envisage a broad enumeration of rights. A radical leftist weekly being published
It recommended that a list of rights could be since the last 45 years from Calcutta
formulated in a ceremonial declaration to Annual subscription : Rs. 300/-; US $60
be made by the King Emperor.59 The Committee Associate Membership : Rs. 600/- (annual)
did not explain of what use such a declaration Life subscription : Rs. 4000/-; US $600
Advertisement Tariff –
could have been. Indeed the very same Outer Cover : Rs. 4000/-
Committee expressed the view at the outset that Inner cover : Rs. 3500/-
any pious declaration of fundamental rights, Full page : Rs. 2500/-
“without strict enforceable provisions, was of Half page : Rs. 1500/-.
little use.” {END OF CHAPTER 3} For details contact:
***** FRONTIER,
61 Mott Lane, KOLKATA - 700 013 (W.B.)
57 Ph: 033 - 22653202; E-mail: frontierweekly@hotmail.com
Ibid., pp. 216-217.
58 frontierweekly@yahoo.co.in
Ibid., p. 217. Website: www.geocities.com/frontierweekly
59
Ibid., p. 216.

ANOTHER STEP TOWARD ARMAGEDDON
- Dr. Paul Craig Roberts♣
The US military/security complex has taken another military/security complex needs an enemy
step toward Armageddon. The Pentagon has prepared sufficient to justify its vast budget and power, and
a nuclear posture review (NPR) that gives the OK to the Western media has accommodated that selfish
development of smaller “useable” nuclear weapons and and dangerous need.
permits their use in response to a non-nuclear attack. Russia today is far stronger and better armed than
As Reagan and Gorbachev understood, but the the Soviet Union ever was. Russia also has an alliance
warmongers who have taken over America do with China, an economic and military power. This
not, there are far too many nuclear weapons already. alliance was created by Washington’s threats against
Some scientists have concluded that even the use both countries. Europe and Japan need to understand
of 10 percent of either the US or Russian arsenal that they have responsibility for the resurrection of the
would suffice to destroy life on earth. Cold War in a far more dangerous form than existed in
It is reckless and irresponsible for Washington to the 20th century. Europe and Japan, whose political
make such a decision in the wake of years of aggressive leaders are owned by Washington, have taken
actions taken against Russia. The Clinton criminal money from Washington and sold out their
regime broke Washington’s promise that NATO peoples along with the rest of humanity. The
would not move one each to the East. The George entirety of the Western World is devoid of intelligent
W. Bush criminal regime pulled out of the ABM political leadership. This leaves countries like Russia,
China and Iran with the challenge of preserving life on
Treaty and changed US war doctrine to elevate earth as the Western World pushes humanity toward
the use of nuclear weapons from retaliation to Armageddon.
first strike. The Obama criminal regime launched ***
a frontal propaganda attack on Russia with crazed US Has to Buy Russian Natural Gas
Hillary’s denunciation of President Putin as “the as Consumer Prices Soar {RT, 10 January 2018}
new Hitler.” In an effort to evict Russia from its A storm on the US east coast caused a price hike, but no
naval base in Crimea, the criminal Obama regime worries — Russia to the rescue (and sweet profit).
overthrew the Ukrainian government during the An LNG tanker belonging to French energy
Sochi Olympics and installed a Washington company Engie is now shipping from the British port
puppet. US missile bases have been established of Isle of Grain to an American terminal, Everett,
on Russia’s border, and NATO conducts war located near Boston. The gas being shipped is from
games against Russia on Russian borders. Russia’s Yamal LNG plant…… due to arrive in the
US on January 22. ...the deal was signed because of
This is insanity. These and other gratuitous
rising gas prices – to an unprecedented $6,300 per a
provocations have convinced the Russian military’s thousand cubic meters – on the east coast of the US.
Operation Command that Washington is planning a
Extreme weather conditions, in particular a snow
surprise nuclear attack on Russia. The Russian
storm, led to the price hike.
government has replied to these provocations US sanctions against the Russian energy sector do not
with the statement that Russia will never again fight a directly ban supplies of LNG to America from Moscow.
war on its own territory. However, Washington has repeatedly stressed it wants
Those such as myself and Stephen Cohen, who to oust Russia as Europe’s key gas supplier and has
point out that Washington’s reckless and irresponsible imposed sanctions that hinder the financing of
behavior has created an enemy out of a country that Gazprom’s projects with Brussels. The tanker was
very much wanted to be friends, do not get much loaded in the British port just after Russian tanker
Christophe de Margerie arrived in the UK in December
attention from the presstitute media. The US
with the first batch of Russian LNG. [Russia bails out UK
and US energy incompetence and is still Demonized – comments Dr. Paul
♣
Courtesy: Dr. Paul Craig Roberts at www.paulcraigroberts.org; Craig Roberts]
dated 11 January 2018; emphases in bold ours - IMS.
*****
VIETNAM WAR: FULL HORROR OF IMPERIALISM
- Steve Jones♣
The Vietnam War: eye-opening the events following the end of the Second World
documentary shows full horror of War. The former colonial masters sought to reassert
imperialism French power in Indochina (as the region including
Vietnam, Cambodia, Laos and other adjoining
countries was called) after the defeat of the
Japanese, who had taken direct control of
Vietnam in 1945 after the fall of Vichy France
and its stooge regime in Saigon.
Indochina had been under colonial rule by the
French since 1883, and they now wanted a return
to the pre-war status, starting with Vietnam. The
communist Viet Minh forces based in the North, led by
Ho Chi Minh, had fought the Japanese and now
believed that the West would in turn support
independence from colonial rule. The US was hostile to
attempts by the French to reassert their colonial
position in Vietnam but did not act. In September
1945, Ho Chi Minh declared that Vietnam was now an
The Vietnam War - a 17-hour US documentary independent country and that colonial domination was
spread over ten episodes, recently broadcast in ended. However, French and British forces
Britain in a truncated form on the BBC - may well quickly moved to retake control and reimposed
be the best such film yet produced on this still- French authority. For the next nine years a bloody
controversial subject. civil war would take place between the French, based in
the south, and the Viet Minh in the north of the country.
The documentary, by Ken Burns and Lynn
Like many colonial powers, the French believed
Novick, took over ten years to finish and makes
that their “superiority” would be the telling factor
available an astonishing quantity of rare archive film
in maintaining power and defeating the
and photographic footage, much of which will be
insurgents.
new even to those already familiar with the
subject. What separates this new documentary At the battle of Dien Bien Phu in the spring of 1954
from most previous efforts - of both fact and they found out differently. The documentary
fiction - is that finally the North Vietnamese are given shows the French forces confidently smiling and
at least something approaching equal weight in the unaware that they were being lured into an
story. This is in sharp contrast to high profile obvious trap where they would be surrounded and
Hollywood films like Apocalypse Now and Full Metal cut off. After a two-month siege, the remnants of the
Jacket, where the emphasis is clearly just on the French forces surrendered, soundly beaten.
Americans. The US lost 58,318 men during the war – The shattering defeat at Dien Bien Phu would be a
but, over a thirty-year period of struggle, three million key factor in the resignation of the French government,
Vietnamese troops and civilians were also killed. with the incoming regime coming out against a
FIGHTING FOR INDEPENDENCE continuation of the “dirty” war. As fate would have
The series rightly begins not with the start of it, the defeat would also act as a trigger in the growing
movement for Algerian independence, a bloody struggle
direct US military intervention in 1960, but with
that would occupy the French over the next few years.
♣
Courtesy: Steve Jones at http://www.marxist.com/; dated The 1954 Geneva Accords spelt the official end of
8 January 2018; emphases in bold ours - IMS. French involvement in Indochina. Vietnam was

20 Vietnam War: Full Horror of Imperialism (Steve Jones) (2018) 1 LAW
divided into two states: the North under Ho Chi Minh documentary notes that far from stabilising the
and the South under the technical rule of the old situation, these events opened up a period of coup after
emperor based in Saigon. coup, with a “revolving door” of governments coming
and going.
MISSION CREEP
The understanding was that, after a brief period, a

free election would be held in South Vietnam and
everybody expected Ho Chi Minh to win that election
and reunify the country. However, the stooge regime
of prime minister Ngo Dinh Diem - which had used a
rigged referendum to take full power in 1955 -
promptly cancelled elections, with Ngo Dinh Diem
being made president for good measure.
In effect the French had just been replaced by
ruthless and corrupt agents of a US administration that
now wished to use Vietnam to prevent what they called
the Domino Effect: a process where one country
after another in the region would fall to the
communists, just as China had done, unless
“action” was taken. It is at this point, as we move from the second
to the third episode of the documentary, that we enter
The Ngo Dinh Diem regime was brutal in carrying
more familiar territory from an historical point of view.
out repression, not only against communists but against
anyone who might be a threat, including Buddhists.
Space does not allow even a brief outline of what
The images of Buddhist monks setting light to happened over the next decade. However, the
themselves in protest would been seen around the remaining eight parts of the documentary present
world. It was a severe embarrassment to the US a vivid depiction of how the US, often lying to its own
people, were sucked ever more deeply into sending more
government. and more troops into Vietnam to fight the North
By 1963, the US had grown more than tired of Ngo Vietnamese insurgency, now being led by the newly-
Dinh Diem, who was seen as hopelessly corrupt formed National Liberation Front. The US started by
and useless. They backed a military coup (the sending just a few so-called “advisers” to back the
documentary is a bit vague on whether Washington South Vietnamese forces. As has been seen with
gave this the OK, but evidence suggests they must so many other imperialist interventions over the
st years, however, ‘mission creep’ quickly set in. In the
have) and on 1 November, Ngo Dinh Diem was
removed by force. Within a few hours, the puppet end, the Americans were dispatching thousands and
president was shot dead by the military. The thousands of new troops each month to hold the line.

(2018) 1 LAW Vietnam War: Full Horror of Imperialism (Steve Jones) 21
Armed with the might of the most powerful Over time, the war would trigger huge movements
country on earth, the US ruling class could not of opposition inside US universities (and around the
understand how they could not simply and quickly world), and also in the black ghettos of the main
crush the peasant army of the North Vietnamese. As cities of America, where the bulk of the draftees
one Saigon official later put it: they (the were coming from. Millions were being
communists) were fighting for something; what were we politicised. Even those who had joined the US army
fighting for? and fought with great valour soon started to openly
The US military commanders are rightly portrayed question the war. One moving scene shows US
as clueless, fighting the battles as if they were General veterans of the conflict, now organised, marching in
Custer - and with the same outcome. Unable to Washington against the war and arriving outside a
understand how to defeat the enemy in battle, and White House that has been fenced-off on the
with no obvious winnable targets to be taken and orders of Nixon to stop them getting any further.
held, they resorted to the one tangible measure of The soldiers start throwing their medals over the
victory and defeat left to them: the body count. barrier. One soldier points out that he has some of
The US became obsessed with recording the the highest medals that can be given in armed
numbers of enemy troops killed in order to report back conflict before shouting out the names of his dead
their supposed victories. Of course, in battle after comrades. Asking what do these medals mean for
battle, nothing was really ever won. One interviewee them, he then throws the lot over the fence as
in the documentary describes a long bloody battle well. The movement against the war would prove to be
to take a hill, with many soldiers killed, only to a telling factor, acting as a focal point for the wider
then all march away afterwards. He notes that he discontent against the system that was starting to
suspects no American has ever stepped foot on emerge in the US and internationally.
that hill since. So hopeless was the progress in
SECRETS AND LIES
Vietnam that officials in Saigon started joking
about organising parties so that people could have Time and again, the US government knowingly
a look at “the light at the end of the tunnel”. hid things from the general public and even from
Congress itself. Mass bombing campaigns were illegally
TROUBLE AT HOME conducted, both in Vietnam and later in Cambodia.
The war was also being lost at home, however, as When Nixon discovered that many of the secrets
the conflict started to impact on those back in about the war were set to come out in the press in the
America. The military draft was widely seen as form of published extracts from a leaked copy of the so-
targeting poor people, whereas the rich could called Pentagon Papers, a secret Department of
always find ways of avoiding it. “If you have the Defense analysis of the whole history of the
dough, you don’t go.” One marine talks in the conflict, the President tried to get a White House
documentary about how, after he was drafted, he black ops unit, “the plumbers,” to burgle an office
met black and Latino people for the first time and soon where it was believed a copy of the papers was
realised that they all had two things in common: they being kept safe. The fact that in the documentary
you can hear an audio recording of Nixon actually
were working class and they were poor. The war
saying that this burglary should be done is still quite
was being photographed and filmed by journalists and
then shown on TV each night. No war had ever been so shocking, despite all that would happen soon after
subjected to media coverage as this one and the impact following the break in, on 17th June 1972, at the
was telling. Much of the film footage we see in the DNC offices in the Watergate hotel in Washington.
documentary is harrowing and at times unwatchable, The documentary is at pains to emphasise that
such is the violence and brutality of what is taking senior politicians, including all the various presidents,
place. No wonder such an effort would be made in from Kennedy to Johnson to Nixon, knew quite
future conflicts to limit and control the media; this was quickly that they would not be able to win the war and
one lesson the armed forces would learn from Vietnam. the task was simply to find a way out “with honour”.

22 Vietnam War: Full Horror of Imperialism (Steve Jones) (2018) 1 LAW
Army commanders all conceded that a ground war was modern-day interviews with those from both sides who
hopeless and were reduced to demanding more and were involved in one way or another.
more bombing raids, killing soldiers and civilians Many are intensely moving. The mother of a
alike. Some were even demanding the use of thermo- young man who has gone to fight in Vietnam
nuclear weapons. describes her dread when hearing the sound of a
car drawing up and stopping, in case it was army
representatives arriving to tell her that her son
was dead. Another man, back in the US having
finished his term of duty, describes how he sat in
his chair with a gun in his hand trying to decide
which way to blow his brains out because he
could not live with what happened. A North
Vietnamese veteran describes how he could
accept the death of his brother but not that of his
brother’s wife-to-be, who could not take the loss
and killed herself.
One area that the documentary does not give
sufficient attention to is the impact that the defeat of
the US would later have on America itself. For years
America struggled to come to terms with the fact that they
had been defeated and everybody knew it. The
documentary tries to suggest that in retrospect both
sides could see that the war had been a “terrible
tragedy” and a “huge waste” for which both must take
responsibility. This is WRONG. The blame for the
brutal conflict lies solely with the imperialists, starting
with the French and later the US.
They all hoped that the sheer weight of losses on the In the 1980s the US tried to rewrite history so that
side of the North Vietnamese would be enough to force the Vietnam war would not been seen as a defeat. One
them to negotiate the settlement. After years of talks, particular obsession was the myth of secret US
a deal would be struck, but by then it was only a prisoners apparently still in Vietnam waiting to
matter of time before the North Vietnam forces pushed be rescued by square-jawed Americans from their
for a final victory. Nixon had finally been forced to brutal keepers. Many in the film express the hope
withdraw all US forces under the illusion of arming the
Vietnamese army of the South (the ARVN) to fight for
that lessons were learnt. What the American military
did learn was that, in future conflicts, it would be best to
itself - something that was never going to work
lie and hide from the public what was happening and why
without the help of US troops. He had promised – be it over Kuwait, Iraq, or Afghanistan. The
Saigon that the US would act if the North invaded collapse of the Soviet Union would embolden the US
the South. When that finally happened in 1975, ruling class into believing that the Vietnam war was just
the US did nothing other than to evacuate their a one-off blip and that US forces could do what they like
own staff from the country. The fear of continued with impunity. The fiasco of the Iraq war and the
division within the US itself was enough to prevent any quagmire of Afghanistan, however, would once again
military intervention, promised or not. bring people out onto the streets to protest and
challenge the system. In that sense the story told by
HISTORY REPEATS ITSELF this excellent documentary is more relevant today than
The documentary gains much of its power not ever.
from the often-graphic film footage but from the *****

(2018) 1 LAW Lopes de Sousa Fernandes v. Portugal [ECHR-SB-GC] F-1
(2018) 1 LAW F-1 (ECHR-SB-GC) emergency department as he was suffering from

violent headaches. The doctors on duty diagnosed
EUROPEAN COURT psychological disorders and prescribed tranquilisers.
OF HUMAN RIGHTS The following day the patient was examined by a new
medical team which discovered that he had bacterial
AT STRASBOURG meningitis. He was transferred to the intensive care
Tuesday, 19 December 2017 unit, where he remained until 5 December 1997. He
(Application No. 56080/13) was then moved to a general medical ward, where he
was diagnosed with two duodenal ulcers and treated
by Doctor J.V. He left hospital on 13 December 1997
but his pain persisted. He went a further three times to
the emergency department of the CHVNG and was
hospitalised twice. Laboratory tests revealed, among
other things, the presence of the Clostridium difficile
BETWEEN:
bacterium. On 3 February 1998 he was discharged by
LOPES DE SOUSA FERNANDES … Applicant Doctor J.V., who prescribed treatment and referred
v. him to the hospital’s outpatient department for follow-
PORTUGAL … Respondent. up. On 17 February 1998 Mr Fernandes was admitted
Citation: Lopes de Sousa Fernandes v. Portugal♣ to Santo António General Hospital in Oporto, where
he died on 8 March 1998. According to the certificate
(2018) 1 LAW F-1 (ECHR-SB-GC)
produced by the hospital, Mr Fernandes died from
*** septicaemia.
SUMMARY: On 13 August 1998 Ms Lopes de Sousa Fernandes wrote a
joint letter to the Ministry of Health, the regional health
Case of Lopes de Sousa Fernandes v. Portugal
authority for the North region and the Medical
Grand Chamber judgment concerning the death Association, complaining that she had received no response
of a patient from post-operative complications explaining the sudden deterioration in her husband’s health
The European Court of Human Rights has delivered and his subsequent death. On 20 September 2000 the
a Grand Chamber judgment in the case of Lopes de Inspector General for Health ordered an investigation.
Sousa Fernandes v. Portugal (application no. 56080/13) A report issued in July 2006 concluded that there were no
at a public hearing on 19 December 2017 at 10.30 a.m. grounds for a finding of disciplinary liability for negligence
in the Human Rights Building, Strasbourg. against the health-care professionals concerned. The report
further stated that the decision by Dr J.V. to refer the
The case concerns the death of Ms Lopes de Sousa
patient for outpatient treatment had not been
Fernandes’s husband following a series of medical
appropriate and sufficient and that the patient should
problems that arose after surgery.
have remained in hospital under close medical
PRINCIPAL FACTS AND COMPLAINTS supervision. The Inspector General therefore ordered the
The applicant, Maria Isabel Lopes de Sousa opening of disciplinary proceedings against the doctor in
Fernandes, is a Portuguese national who was born in question, which were stayed pending the outcome of the
1969 and lives in Vila Nova de Gaia (Portugal). On criminal proceedings. Dr J.V., who was charged with
27 November 1997 Ms Lopes de Sousa Fernandes’s homicide by negligence, was acquitted in January 2009.
husband (Mr Fernandes) underwent surgery to remove The District Court found that there was no evidence that
nasal polyps in Vila Nova de Gaia Hospital he bore any responsibility for the patient’s death.
(CHVNG). He returned home the next day. On On 28 December 2001 it was decided to take no
29 November 1997 he went to the hospital’s further action on Ms Lopes de Sousa Fernandes’s
complaint to the Medical Council, on the ground that
♣
Courtesy: ECHR at http://www.echr.coe.int/ - This there was no evidence of misconduct or medical
summary does not bind the Court. Grand Chamber negligence. An appeal by the applicant to the Medical
judgments are final (Article 44 of the Convention). Association’s National Disciplinary Council was
Emphases in bold ours - IMS. declared inadmissible as being out of time.

F-2 Lopes de Sousa Fernandes v. Portugal [ECHR-SB-GC] (2018) 1 LAW
On 6 March 2003 Ms Lopes de Sousa Fernandes medical treatment are limited to a duty to regulate,
brought an unsuccessful action in the Oporto that is to say, a duty to put in place an effective
Administrative and Fiscal Court, claiming regulatory framework compelling hospitals, whether
compensation on account of her husband’s death. Her private or public, to adopt appropriate measures for
appeal to the Supreme Administrative Court was the protection of patients’ lives.
dismissed in February 2013. Even in cases where medical negligence is
Relying on Article 2 (right to life) of the European established, the Court would normally find a
Convention on Human Rights, Ms Lopes de Sousa substantive violation of Article 2 only if the relevant
Fernandes complained about her husband’s death in regulatory framework failed to ensure proper
hospital, alleging that it was caused by negligence and protection of the patient’s life. Where a Contracting
carelessness on the part of the medical staff. She also State has made adequate provision for securing high
maintained that the authorities did not properly professional standards among health professionals and
elucidate the precise cause of the sudden deterioration the protection of the lives of patients, matters such as
in her husband’s health. an error of judgment on the part of a health
Under Articles 6 § 1 (right to a fair hearing within a professional or negligent coordination among health
reasonable time) and 13 (right to an effective remedy), professionals in the treatment of a particular patient
she complained about the length and outcome of the cannot be considered sufficient of themselves to call a
domestic proceedings. Contracting State to account from the standpoint of its
PROCEDURE positive obligations under Article 2 of the Convention
to protect life.
The application was lodged with the European
Court of Human Rights on 23 August 2013. In its The question whether there has been a failure by the
Chamber judgment of 15 December 2015 the Court State in its regulatory duties calls for a concrete rather
held by a majority (five votes to two) that there had than an abstract assessment of the alleged
been a violation of the substantive aspect (right to life) deficiencies. In this regard, the Court’s task is not
of Article 2 of the Convention, and unanimously that normally to review the relevant law and practice in
there had been a violation of the procedural aspect of abstracto, but to determine whether the manner in
that Article (investigation into the death). which they were applied to, or affected, the applicant
On 11 March 2016 the Government requested that the gave rise to a violation of the Convention. Therefore,
case be referred to the Grand Chamber under Article 43 of
the mere fact that the regulatory framework may be
the Convention (referral to the Grand Chamber), and on
deficient in some respect is not sufficient in itself to
2 May 2016 the panel of the Grand Chamber accepted raise an issue under Article 2. It must be shown to
that request. A hearing took place on 16 November 2016.
have operated to the patient’s detriment.
The United Kingdom and Irish Governments were It must, moreover, be emphasised that the States’
given leave to intervene as third parties in the written obligation to regulate must be understood in a broader
procedure. sense which includes the duty to ensure the effective
functioning of that regulatory framework. The
LAW, FINDINGS AND CONCLUSION:
regulatory duties thus encompass necessary measures
Article 2 - Positive obligations to ensure implementation, including supervision and
Article 2-1: Life – Alleged medical negligence enforcement.
resulting in patient’s death: no violation
On the basis of this broader understanding of the
Effective investigation – Failure to conduct adequate
States’ obligation to provide a regulatory framework,
and timely inquiry into death resulting from suspected the Court has accepted that, in the very exceptional
medical negligence: violation circumstances described at (a) and (b) below, the
Law – Article 2 responsibility of the State under the substantive limb
(a) Substantive limb: After reviewing its case-law in of Article 2 of the Convention may be engaged in
medical negligence cases, the Court considered it respect of the acts and omissions of health-care
necessary to clarify its approach as follows. providers, namely where:
In the context of alleged medical negligence, the (a) an individual patient’s life is knowingly put in
States’ substantive positive obligations relating to danger by denial of access to life-saving

emergency treatment; this exception does not measures for the protection of patients’ lives. Having
extend to circumstances where a patient is regard to the detailed rules and standards laid down in
considered to have received deficient, incorrect the domestic law and practice of the respondent State
or delayed treatment; or in the area under consideration, the Court considered
(b) where a systemic or structural dysfunction in that the relevant regulatory framework did not
hospital services results in a patient being disclose any shortcomings as regards the State’s
deprived of access to life-saving emergency obligation to protect the applicant’s husband’s right to
treatment and the authorities knew about or life.
ought to have known about that risk and failed Conclusion: no violation (fifteen votes to two).
to take the necessary measures to prevent that
risk from materialising, thus putting the (b) Procedural limb: The Grand Chamber reiterated
patients’ lives, including that of the particular that the procedural obligation under Article 2 in the
patient concerned, in danger. context of health care required, inter alia, that the
proceedings be completed within a reasonable time. Apart
The Court was aware that on the facts it may
sometimes not be easy to distinguish between cases involving from the concern for the respect of the rights
mere medical negligence and those where there is a denial of inherent in Article 2 in each individual case, the
access to life-saving emergency treatment, particularly since prompt examination of cases concerning medical
there may be a combination of factors which contribute to a negligence in a hospital setting was also important for the
patient’s death. For a case to fall in the latter category, safety of all users of health-care services. The length of
the following factors, taken cumulatively, must be all three sets of domestic proceedings in the
met: (i) the acts and omissions of the health-care providers applicant’s case (disciplinary, criminal and civil)
must go beyond a mere error or medical negligence, in so far had been unreasonable.
as those health-care providers, in breach of their In addition, for the purposes of the procedural
professional obligations, deny a patient emergency obligation of Article 2, the scope of an investigation faced
medical treatment despite being fully aware that the with complex issues arising in a medical context could not
person’s life is at risk if that treatment is not given; be interpreted as being limited to the time and direct cause
(ii) the dysfunction at issue must be objectively and genuinely of the individual’s death. Where there was a prima
identifiable as systemic or structural in order to be facie arguable claim of a chain of events possibly
attributable to the State authorities, and must not merely triggered by an allegedly negligent act that may
comprise individual instances where something may have contributed to the death of a patient, in
have been dysfunctional in the sense of going wrong particular if an allegation of a hospital-acquired
or functioning badly; (iii) there must be a link between the
infection is concerned, the authorities may be
dysfunction complained of and the harm which the patient
expected to conduct a thorough examination into
sustained; and (iv) the dysfunction at issue must have
resulted from the failure of the State to meet its obligation to
the matter. No such examination had been
provide a regulatory framework in the broader sense conducted in the instant case in which the domestic
indicated above. courts, instead of carrying out an overall assessment,
approached the chain of events as a succession of medical
The Court found on the facts that there was not incidents, without paying particular attention to how they
sufficient evidence of (i) a denial of healthcare, (ii) a may have related to each other.
systemic or structural dysfunction affecting the hospitals
In sum, the domestic system as a whole, when faced
where the applicant’s husband was treated or (iii) a
with an arguable case of medical negligence
fault attributable to the health-care professionals going
beyond a mere error or medical negligence or failure by the
resulting in the death of the applicant’s husband,
health-care professionals to discharge their professional had failed to provide an adequate and timely response
obligations to provide emergency medical treatment. The consonant with the State’s obligation under Article 2.
case thus concerned allegations of medical negligence Conclusion: violation (unanimously).
which meant that Portugal’s substantive positive Article 41: EUR 23,000 in respect of non-pecuniary
obligations were limited to the setting-up of an damage; claim in respect of pecuniary damage
adequate regulatory framework compelling hospitals, dismissed.
whether private or public, to adopt appropriate ***

and Fundamental Freedoms (“the Convention”)

by a Portuguese national, Ms Maria Isabel Lopes
de Sousa Fernandes (“the applicant”), on 23
GRAND CHAMBER August 2013.
CASE OF LOPES DE SOUSA FERNANDES v. 2. The applicant complained under Article 2 of the
PORTUGAL Convention about the death of her husband in hospital
as a result of a hospital-acquired infection and of
(Application no. 56080/13)
carelessness and medical negligence. She further
complained that the authorities to which she had
JUDGMENT
applied had failed to elucidate the precise cause of the
STRASBOURG sudden deterioration in her husband’s state of health.
19 December 2017 Relying on Articles 6 § 1 and 13 of the Convention, the
applicant also complained about the duration and
This judgment is final but it may be subject to editorial outcome of the domestic proceedings she had brought
revision. in that connection.
In the case of Lopes de Sousa Fernandes v. Portugal,
3. The application was allocated to the First Section
The European Court of Human Rights, sitting and then to the Fourth Section of the Court (Rule 52 §
as a Grand Chamber composed of: 1). A Chamber of that Section composed of
Guido Raimondi, President, András Sajó, President, Vincent A. De Gaetano,
Angelika Nußberger, Nona Tsotsoria, Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos, Krzysztof Wojtyczek, Iulia Antoanella Motocand
Ganna Yudkivska, Gabriele Kucsko- Stadlmayer, judges, and
Robert Spano, Françoise Elens-Passos, Section Registrar,
Luis López Guerra, delivered a judgment on 15 December 2015. The
Mirjana Lazarova Trajkovska, Court unanimously declared the application admissible.
Işıl Karakaş, It held, by a majority, that there had been a violation of
Nebojša Vučinić, the substantive aspect of Article 2 of the Convention. It
Paulo Pinto de Albuquerque, concluded, unanimously, that there had been a violation
Helen Keller, of the procedural aspect of Article 2 of the Convention.
Ksenija Turković, The joint dissenting opinion of Judges Sajó and
Yonko Grozev, Tsotsoria was annexed to the judgment.
Pere Pastor Vilanova, 4. On 10 March 2016 the Government requested the
Alena Poláčková, referral of the case to the Grand Chamber under Article
Pauliine Koskelo, 43 of the Convention and Rule 73. On 2 May 2016
Georgios A. Serghides, judges, the panel of the Grand Chamber granted the request.
and Roderick Liddell, Registrar, 5. The composition of the Grand Chamber was
Having deliberated in private on 16 November determined according to the provisions of Article
2016 and on 20 September 2017, 26 §§ 4 and 5 of the Convention and Rule 24 of
the Rules of Court.
Delivers the following judgment, which was
adopted on the last-mentioned date: 6. By letter dated 2 June 2016 the applicant was
invited to complete and return to the Registry by
PROCEDURE 23 June 2016 an authority form authorising an
1. The case originated in an application advocate to represent her in the proceedings
(no. 56080/13) against the Portuguese Republic before the Court, in accordance with Rule 36 §§ 2
lodged with the Court under Article 34 of the and 4 of the Rules of Court. On 22 June 2016 the
Convention for the Protection of Human Rights applicant submitted an authority form authorising

Mr Sá Fernandes, a lawyer practising in Lisbon, of Vila Nova de Gaia Hospital (“the CHVNG”) for a
to represent her in the proceedings before the nasal polypectomy. He underwent the operation on 27
Court. The applicant was granted legal aid on 8 November 1997 and was discharged from hospital on
December 2016. 28 November 1997 at 10 a.m.
7. The applicant and the Government each filed 12. On 29 November 1997, at 1 a.m., the applicant took
further written observations on the merits (Rule 59 § 1). her husband to the emergency department of the
CHVNG because he was suffering from violent
8. In addition, third-party comments were received headaches and was in an agitated state. There he
from the United Kingdom and Irish Governments,
was examined by the doctors on duty, in
which had been given leave by the President to particular by a neurologist. The doctors considered
intervene in the written procedure (Article 36 § 2 that Mr Fernandes was suffering from psychological
of the Convention and Rule 44 § 3). problems and prescribed tranquilisers. The
9. A hearing took place in public in the Human applicant claims that they recommended her
Rights Building, Strasbourg, on 16 November 2016 husband’s discharge but that she objected.
(Rule 59 § 3). 13. In the morning Mr Fernandes was examined
There appeared before the Court: by the new medical team on duty. At 10 a.m. he
(a) for the Government underwent a lumbar puncture which revealed that he
MsM.F. DA GRAÇA CARVALHO, Deputy had bacterial meningitis. He was transferred to the
Attorney-General,Agent, hospital’s intensive care unit.
MsA. GARCIA MARQUES, lawyer at the Office 14. On 30 November 1997 a scan revealed a
of the Agent, cerebral oedema. On 2 December 1997 another scan
MsM.E. SOUSA PINA, retired doctor from the revealed that the cerebral oedema had diminished.
National Health Service, Advisers;
15. On 5 December 1997, following an improvement
(b) for the applicant in his clinical condition, Mr Fernandes was
MrR. SÁ FERNANDES, lawyer,Counsel,
transferred to the hospital’s general D. ward, where he
MsI. ROGEIRO, lawyer,
was under the care of Dr J.V. He was diagnosed
MsA. MARTINS, lawyer,
MrD. MACHADO, doctor, Advisers. with two duodenal ulcers on 10 December 1997.
The Court heard addresses by Mr Sá 16. Mr Fernandes was discharged from hospital on
13 December 1997 as his condition was considered
Fernandes and Ms da Graça Carvalho and their
replies to the questions from judges. to be stable. A follow-up scan as an outpatient
was recommended.
THE FACTS
17. On 18 December 1997 Mr Fernandes, who was
I. THE CIRCUMSTANCES OF THE CASE suffering from vertigo and headaches, was
10. The applicant was born in 1969 and lives in admitted to the emergency department of the CHVNG.
Vila Nova de Gaia. The applicant’s husband, Mr He was examined by Dr J.V., who kept him under
António Rui Calisto Fernandes, was born in observation because he had acute diarrhoea,
1957. He died on 8 March 1998 following a abdominal pain and severe anaemia. Mr Fernandes
series of medical problems that occurred after he received blood transfusions.
had undergone minor surgery for the removal of 18. On 19 December 1997 an endoscopy was
nasal polyps. performed on Mr Fernandes, confirming that he
A. The sequence of events leading to had a gastroduodenal ulcer.
the death of the applicant’s husband 19. On 23 December 1997 Mr Fernandes was
1. Treatment in Vila Nova de Gaia Hospital discharged from hospital. He was prescribed a
11. On 26 November 1997 Mr Fernandes was special diet and medication. A medical appointment
admitted to the ear, nose and throat (ENT) department was fixed for 9 February 1998.

20. The applicant’s husband continued to suffer 26. On 7 March 1998 at 1 p.m. the applicant’s
from severe abdominal pain and diarrhoea. On husband was placed on oxygen because he had
9 January 1998 he returned to the emergency difficulty breathing. At 3 p.m. Mr Fernandes was
department of the CHVNG. He was examined by Dr examined by a general physician and
J.V., who did not consider it necessary to admit him. subsequently by a surgeon. The latter decided that
Mr Fernandes therefore returned home the same day. urgent surgery was needed as there was widespread
21. On 25 January 1998 Mr Fernandes was peritonitis. Mr Fernandes was taken to the
readmitted to the CHVNG. A colonoscopy operating theatre at 4 p.m. and was brought out
revealed infectious ulcerative colitis. Bacteriological again a few minutes later in order to be prepared
tests showed the presence of the Clostridium for surgery, in particular by being given a blood
difficile bacterium. Mr Fernandes was placed on a transfusion. He re-entered the operating theatre at
drip and treated with antibiotics. 8 p.m. He died the following day at 2.55 a.m.
22. At the request of the applicant and her 27. According to the death certificate issued by
husband, Dr J.V. discharged the latter on 3 Santo António Hospital, the applicant’s husband
February 1998. Dr J.V. prescribed oral treatment died from septicaemia caused by peritonitis and a
and referred Mr Fernandes for further treatment perforated viscus.
in the hospital’s outpatient department. B. Proceedings brought by the applicant
2. Treatment in Santo António General Hospital 28. On 13 August 1998 the applicant wrote a joint
in Oporto letter to the Ministry of Health, the regional health
23. On 17 February 1998 Mr Fernandes was authority for the North region and the Medical
admitted to Santo António General Hospital in Association, stating that she had received no
Oporto after he was found to be suffering from response from the hospitals to explain the sudden
chronic diarrhoea and microcytic anaemia. He deterioration in her husband’s health and his death.
underwent various examinations including a 1. Proceedings before the Inspectorate General
colonoscopy, an endoscopy and blood tests. The for Health
medical team considered several possible causes, 29. On 30 October and 23 December 1998 the
including an infection with the Clostridium difficile
regional health authority for the North region sent
bacterium, but all these possibilities were
the applicant copies of the reports drawn up by
subsequently ruled out. However, a cytomegalovirus
the CHVNG and Santo António Hospital on the
was detected and treatment was given.
basis of her husband’s medical records.
24. On 5 March 1998 Mr Fernandes was
30. On 30 May 2000 the applicant requested an
examined by a doctor who judged the situation to
update on progress in the proceedings from the
be under control.
regional health authority, stating that she had still
25. On 6 March 1998 Mr Fernandes’s condition received no clear explanations concerning the
deteriorated. He was examined by a doctor who
events preceding her husband’s death. In a letter
suspected a possible perforated viscus. An X-ray and of 5 July 2000 the authority informed her that the
an abdominal ultrasound were carried out. The
file had been sent to the Inspectorate General for
latter showed ascites in the abdomen but did not
Health (Inspeção-Geral da Saúde – “the IGS”)
confirm the initial diagnosis. At 5.30 p.m. the
with a view to the opening of an investigation.
applicant’s husband was examined by another
doctor who detected some resistance to abdominal 31. By an order of 20 September 2000 the Inspector
palpation. A gas analysis showed metabolic General for Health ordered an investigation (processo
alkalosis, but there were no signs of hypocalcaemia. de averiguações).
A sigmoidoscopy was performed which showed that 32. On 6 November 2001 an inspector was
the applicant’s husband had rectocolitis. appointed to head the investigation.

33. On 7 February 2002 the IGS informed the assistance in terms of his diagnosis, supervision and
applicant that evidence would be taken from the treatment. The report further noted that his
members of the medical team which had treated discharge had been justified on each occasion in
her husband and that an expert medical report view of the improvement in his state of health.
would be prepared. The report concluded as follows:
34. The applicant gave evidence on 3 April 2002. “The results of the investigation ... following the
reopening of the proceedings and the fresh
35. On 23 September 2002 expert medical reports inquiries and medical reports do not indicate that
were requested. Reports prepared by experts in there was any negligent or careless conduct in breach of
the fields of internal medicine, gastroenterology good medical practice. There is therefore no need to
and general surgery were submitted in November take legal or disciplinary action against any persons
2002. According to the reports, in view of the involved in the [patient’s] care ...”
deterioration in his state of health after the nasal 42. Taking this report into account, the Inspector
polypectomy, it would not have been possible to General for Health made a fresh order discontinuing
save the applicant’s husband’s life. the proceedings on 27 December 2005.
36. The report of the investigation was submitted on 28 43. In a letter of 1 February 2006 the applicant
November 2002. It found, on the basis of the expert appealed against that order, complaining of unclear
medical reports received, that the treatment points and omissions. She also raised the
administered to the applicant’s husband had been possibility that the sudden deterioration in her
appropriate. husband’s health and his eventual death might
37. In an order of 12 December 2002 the Inspector have been caused by bacteria present in the
General for Health declared the investigation closed, operating theatre on the day of the nasal
finding that there had been no medical negligence polypectomy, that the diagnoses may have been
and that there were no grounds for instituting made in haste and that there may have been
disciplinary proceedings against the doctors who had negligence and carelessness in the medical
treated the applicant’s husband. treatment administered to her husband. She
38. In a letter of 17 February 2003 the applicant further complained that the internal medicine and
appealed against the order. She argued that the final gastroenterology reports had been prepared each
report had not answered her questions, time by the same experts. The applicant therefore
requested the reopening of the investigation and the
complaining about areas of uncertainty and about
preparation of a fresh expert medical report.
the duration of the investigation and its findings.
39. On 28 March 2003 the Inspector General for 44. The Inspector General for Health wrote to the
Health informed the applicant that he had set aside
applicant on 2 March 2006 informing her that he
the order of 12 December 2002 and ordered the had set aside his previous order and ordered fresh
reopening of the investigation. expert assessments to be carried out by different
experts in the fields of internal medicine and
40. On 26 September 2005, in view of the
gastroenterology.
questions raised by the applicant, the medical experts
were requested to provide additional information. 45. The applicant gave evidence again on 27
April 2006.
41. A new investigation report was submitted on 23
November 2005, clarifying the facts and taking 46. The medical experts submitted their reports
account of the answers provided by the three on 20 May and 10 July 2006. The expert in
medical experts. The report stated that there were gastroenterology stated that it was possible, albeit
no grounds for criticising the health-care personnel who rare, for a nasal polypectomy to cause meningitis. He
had been involved in the care of the applicant’s husband further considered that the applicant’s husband
in the CHVNG and Santo António Hospital, as the had received appropriate treatment but that his
patient had received proper and appropriate medical discharge on 3 February 1998 may not have been wise

in view of his clinical condition. The expert 48. In the light of this report the Inspector General
concluded that the applicant’s husband had made an order on 26 July 2006 for the opening of
suffered a series of complications which were disciplinary proceedings against Dr J.V.
uncommon but could occur, and that he had 49. By a letter dated 31 July 2006 the applicant
received proper medical care at the CHVNG. As to the was informed that the disciplinary proceedings
care in Santo António Hospital, the expert initiated against Dr J.V. would be stayed pending
considered that the condition of the applicant’s the outcome of the criminal proceedings (see
husband had been extremely complicated and had paragraphs 59-68 below).
given rise to doubts as to the best way to proceed. 2. Proceedings before the Medical Association
In his report, the expert in internal medicine
rejected the idea of a hospital-acquired infection 50. In the meantime, on 31 August 1998, the
on the grounds that, had that been the case, the Medical Association acknowledged receipt of the
antibiotics administered to the patient would have applicant’s letter of 13 August 1998, informing
had no effect. In his view, the meningitis had her that steps would be taken in response to it.
developed unexpectedly. He further took the view 51. The case was referred to the Medical Association’s
that the applicant’s husband’s discharge on 3 February regional disciplinary council for the North region. The
1998 had been appropriate but that he should have latter obtained the patient’s medical records and
continued to be monitored as an outpatient. sought the opinions of four specialist panels:
gastroenterology, infectious diseases, general surgery
47. On 25 July 2006 a report was drawn up on and ear, nose and throat (ENT).
completion of the investigation, which concluded
52. In its report of 14 July 1999, the gastroenterology
as follows:
panel issued the following conclusions:
“...
“...
The content of the most recent expert medical
A simple X-ray of the abdomen performed the
reports shows ... that there are no grounds for a day before the patient’s death did not detect any
finding of disciplinary liability for negligence against
dilatation or perforation of the colon.
any of the health-care professionals involved in A.’s
The patient’s death was caused by peritonitis as a result
medical treatment...
of the perforation of the duodenal ulcer. The difficulties
... the decision by the assistant doctor [J.V.] to refer in diagnosing the condition were understandable in
the patient for outpatient treatment was not view of the patient’s serious clinical condition
appropriate and sufficient from a clinical viewpoint
and the fact that his abdominal pains were
in so far as, in order to prevent a recurrence of explained by the inflammatory disease in the
the colitis caused by Clostridium difficile ..., colon.
the patient should have remained in hospital under
The role of the corticosteroids in aggravating or
close medical supervision ...
reactivating the peptic ulcer ... is not currently
... considered a risk factor ... However, given that
Hence, the doctor in question did not act with the the patient had already experienced one episode
necessary care and diligence, thereby incurring of intestinal bleeding, there would have been
disciplinary liability on account of his negligent grounds for weighing up the use of these drugs.
conduct in the medical assistance provided ... ...
in D. ward of the CHVNG’s medical The decisions to discharge the patient [from hospital]
department between 25 January and 3 may have delayed the diagnosis or the commencement of
February 1998. treatment. Nevertheless, after examining the
The medical opinions make no criticisms of the documents submitted to me, I am unable to confirm
assistance provided in the gastroenterology whether these discharge decisions adversely affected his
department of Santo António General Hospital in diagnosis or programme of treatment.
Oporto ...” ...”

53. The conclusions of the report of 17 April 2000 by given careful consideration and the patient had to
the infectious-diseases panel read as follows: be prepared by means of various measures.
...”
“1. In our opinion the diagnosis of meningitis,
most likely resulting from the nasal polypectomy, was 55. In a report dated 1 August 2001 the ENT
inexplicably delayed. The fact that there was no panel concluded as follows:
one on the medical team trained in this type of
“1. Meningitis following micro-endoscopic surgery for
diagnosis (for example, a specialist in
nasal polyps is described as one of the (major)
infectious diseases) may be regarded as the
complications of this type of surgery, estimated in the
only explanation for such an incident. literature to occur in between 0.6% and 1% of
However, this was not the immediate cause of the cases. These figures will be higher in the event of
patient’s death. a repeat operation, as in the present case (surgery
2. In our view, too long a period elapsed was performed in 1993 as stated on page 314 of the
between the diagnosis of the perforation in the file concerning the operation).
duodenal ulcer and surgery. 2. The post-operative CT scan of the brain
3. The procedure has been undermined to an carried out on 29 November 1997 does not show
incalculable extent by the fact that no autopsy any discontinuity in the bones at the base of the
was performed, although an autopsy is mandatory skull ... which suggests that no invasive endocranial
(mandatória) in cases of this type in order to shed surgery was carried out.
light on the chain of events.”
3. The description of the surgery performed on the
In its report the panel further held as follows: patient on 26 November 1997 (page 310 of the
“The inhuman conditions described in this process, file) does not give any indication of clinical malpractice
as regards how the patient was treated, are another or negligence.
example of the situation encountered on a daily 4. No ENT procedures were performed during any of
basis in our hospitals; a reflection of the the patient’s subsequent stays in Vila Nova de Gaia
appalling structural and operational conditions Hospital or in Santo António Hospital.”
which require urgent analysis and change. 56. In an order of 28 December 2001 the regional
This board of the Infectious-Diseases Panel of disciplinary council for the North region decided, after
the Medical Association must have a having examined the conclusions of the different
fundamental role in advocating the rights of specialist panels, to take no further action on the
patients and doctors in order to create better applicant’s complaint, on the ground that there was
conditions of care for the former and better no evidence of misconduct or medical negligence.
working conditions for the latter.
57. The disciplinary council observed the
We reiterate, once more, the need to consider the
creation of infectious-diseases departments/units in
following:
hospitals of the same type as Vila Nova de Gaia (i) meningitis was a complication that could arise in
Hospital, in order to improve the quality of care between 0.6% and 1% of cases following a nasal
in this regard.” polypectomy; the figures were liable to be higher
54. In a report of 24 April 2001 the general-surgery for a repeat operation, as in the case in question;
panel found that there had been no negligence or (ii) the applicant’s husband had received appropriate
medical malpractice in the hospitals concerned. The treatment during his various hospital stays;
report read as follows: (iii) the patient’s bacterial meningitis (Pseudomonas) had
“1. A perforated duodenal ulcer requires immediate been treated properly;
surgery. In the present situation the perforated ulcer (iv) although the infectious-diseases panel had
... was difficult, if not impossible, to diagnose given the suggested that the presence of a specialist in that
clinical context in which it occurred. Furthermore, in discipline might have enabled a diagnosis to be
view of the seriousness of the patient’s clinical made sooner, this had not been a decisive factor in
condition, the approach to surgery had to be the development of the clinical situation;

(v) the perforation of the duodenal ulcer had been the cause the IGS. The court also sought the opinion of the
of the peritonitis. This had been difficult to diagnose Medical Association’s Disciplinary Council.
in view of the patient’s serious clinical condition,
a fact acknowledged by the gastroenterology and 64. On 15 January 2009 the District Court acquitted
general-surgery panels; Dr J.V. of the charges against him. In particular, it
(vi) although the infectious-diseases panel had took the view that the findings made by the IGS
considered that too long a period had elapsed in its order of 26 July 2006 could not be taken
between the diagnosis of the perforated duodenal into consideration as they had not been confirmed
ulcer and surgery, the time taken to prepare for the by the five medical experts who had given
operation had been justified since the patient had evidence during the trial.
been suffering from intestinal disease and had
severe anaemia, sepsis and a fluid and electrolyte
65. As to the facts, the District Court considered, inter
imbalance, as noted by the general-surgery panel. alia, the following to be established:
58. On 29 April 2002 the applicant lodged an appeal “The patient’s hospitalisation on 18 December
1997 ... was not the result of a lack of medical
against that order with the Medical Association’s
supervision of his clinical condition ... since it
National Disciplinary Council. On 18 March 2003 was unconnected to the complications arising out
the appeal was declared inadmissible as being out of
of the meningitis. In fact, it resulted from acute
time. anaemia caused by intestinal bleeding from a
3. Criminal proceedings before the duodenal ulcer; ...
Vila Nova de Gaia District Court The decisions to discharge the patient on 13 and
59. On 29 April 2002 the applicant lodged a complaint 23 December 1997 were appropriate, given that,
for negligent homicide with the Oporto criminal
in the former case, the problem of bacterial
meningitis had been resolved, [the patient] had
investigation and prosecution department.
completed the course of antibiotics, he no longer
60. She gave evidence on 7 June 2002. had any symptoms or fever, had a slightly
61. By order of the Criminal Investigation Court increased white-blood cell count, a falling
of 27 September 2002 the applicant was given leave neutrophil count and normal sedimentation rate,
to intervene in the proceedings as an assistant to the and was not complaining ... and, in the latter
public prosecutor (assistente). case, that is to say, the patient’s hospitalisation
from 18 to 23 December 1997, the patient was
62. On 7 December 2007 the public prosecutor’s not complaining of abdominal pain, diarrhoea or
office made its submissions, charging Dr J.V. with bleeding ... with the result that it was possible to
homicide by gross (grosseira) negligence. In support of continue treating his ulcer with a dietary regime
their decision the prosecuting authorities referred while monitoring him on an outpatient basis ...
to the report appended to the IGS order of 25 July When the patient was admitted to Santo António
2006. They considered that Dr J.V. should not Hospital, laboratory tests were carried out
have discharged the applicant’s husband on 3 for Clostridium difficile. The results were
February 1998 in so far as the patient’s clinical negative on two occasions.”
condition had been problematic and he had been 66. On the subject of the surgery preceding the
infected with the Clostridium difficile bacterium. death of the applicant’s husband, the District
63. The case was referred to the Vila Nova de Gaia Court observed as follows:
District Court. During the trial the court heard “... the patient was in a very serious clinical state,
evidence from the applicant, the accused, eight with septic shock and multiple organ
doctors who had been involved in treating the dysfunction. For that reason, he was placed on
applicant’s husband in the CHVNG and in Santo artificial ventilation and vasoactive drugs and
António Hospital, and the five medical experts fluids were administered ..., together with
appointed in the context of the proceedings before hydrocortisone to deal with possible acute

adrenal insufficiency (falência supra-renal (iii) that the administering of excessive doses of
aguda), and broad-spectrum antibiotics; medication and the lack of a suitable
... in this medical context the patient’s prospects prophylactic had caused the duodenal ulcer
of survival were very uncertain, in view of the which had led to her husband’s death.
septic shock and multiple organ dysfunction; 70. In the context of these proceedings the
... a simple abdominal X-ray and an abdominal applicant was granted legal aid in the form of
and pelvic ultrasound scan were therefore exemption from payment of the court fees and the fees
requested, which did not reveal a perforation of of a lawyer of her own choosing.
the intestine.”
71. Between 4 and 24 April 2003 the eight doctors
67. In the District Court’s view, it had not been contested their standing to be sued (ilegitimidade
demonstrated that the care provided to the applicant’s passiva), relying on Article 2 of Legislative
husband during his stay in hospital from 25 January to
Decree no. 48051 of 21 November 1967.
3 February 1998 had not been in accordance with good
medical practice, or that he should have been kept 72. On 16 April 2007 the court gave a preparatory
in hospital for longer. The court therefore decision (despacho saneador) specifying which
concluded that there was no causal link between the facts were considered to be established and which
treatment administered by Dr J.V. to the applicant’s remained to be established. In accordance with
husband in the CHVNG and his death, which had Article 2 of Legislative Decree no. 48051 of 21
been caused by a perforated viscus that was November 1967 it further held that the doctors
unconnected to the colonic disease treated by the among the defendants did not have standing in so
accused. It held: far as they had been sued only for negligent
“...there was no evidence to show that the conduct. Accordingly, it declared the claim
treatment administered by the accused for the admissible only in respect of the hospitals.
Clostridium difficile infection was incomplete, 73. On 17 January 2011 the applicant gave
that the patient was discharged prematurely on 3 evidence.
February 1998 or, in sum, that the accused was
responsible for the death of the patient on 8 74. During the three hearings the court heard
March 1998.” evidence from the following witnesses:
68. The applicant did not appeal against that (i) eleven doctors who had been involved in
judgment.
treating the applicant’s husband during his
various stays in the CHVNG and Santo
4. Proceedings before the Oporto António Hospital;
Administrative and Fiscal Court (ii) the general practitioner of the applicant’s
69. On 6 March 2003 the applicant brought an husband;
action in the Oporto Administrative and Fiscal (iii) two doctors who were friends of the family;
Court against the CHVNG, Santo António (iv) the inspector who had written the final report
Hospital and the eight doctors who had been on completion of the investigation within the
involved in treating her husband while he was in IGS; and
hospital, claiming compensation for the damage (v) the medical experts in gastroenterology and
she had suffered on account of her husband’s internal medicine whose reports had formed
death. She alleged, inter alia, the basis for the last IGS decision.
(i) that her husband’s meningitis had been caused 75. On 24 May 2011 the court made an order
by Pseudomonas cepacia bacteria which, she concerning the facts. Taking into account the
alleged, had been present in the operating medical records of the applicant’s husband and
theatre during the nasal polypectomy; the various statements made by the witnesses who
(ii) that the meningitis had been diagnosed too had given evidence, the court considered it
late, allowing the illness to become serious; established, inter alia,

(i) that a polypectomy was a straightforward surgical inflammatory bowel disease. Medication was
operation which posed minimal risk and that the prescribed in keeping with that diagnosis.
patient had been informed accordingly; ...
(ii) that the operating theatre had been aseptic and While in Santo António Hospital he was kept
sterilised at the time of the polypectomy; under observation, received daily medication and
(iii) that the origin of the bacterium linked to the underwent various tests.
patient’s meningitis had not been proven. ...
The court dismissed the possibility of a hospital- On 6 March 1998 ... nothing had made it possible
acquired infection, pointing out that in that case to predict the gastroduodenal perforation ... the
the prescribed treatment would have had no tests carried out that day ... did not confirm the
effect; existence of any duodenal perforation such that
(iv) that the medication prescribed in the the situation had to be kept under review;
CHVNG and Santo António Hospital could ...
cause intestinal problems and hence could
It was not until 7 March 1998 that the patient’s
give rise to colitis;
acute abdominal syndrome was diagnosed,
(v) that the applicant’s husband had been treated calling for urgent surgery ... it was only during
with drugs to protect his stomach in the the operation that the patient was found to be
CHVNG; suffering from a duodenal perforation;
(vi) that the gastroduodenal perforation had not been ...
detected until the operation was being performed;
The perforation had occurred 24 hours before
and
surgery.”
(vii) that the applicant’s husband had died from
septicaemia caused by peritonitis resulting 77. The judgment concluded as follows:
from a perforated viscus. “ ... in view of the facts that have been
76. On 23 January 2012 the Oporto Administrative established, it is not possible to determine at what
point the defendants, by their actions or omissions,
and Fiscal Court delivered a judgment in which it
breached the rules of good medical practice ...
dismissed the applicant’s claims. On the facts, the
It is considered established that [Mr Fernandes’s]
judgment stated, inter alia, as follows: death was caused by sepsis due to peritonitis resulting
“The Pseudomonas bacterium was resistant to from the perforation of his duodenal ulcer...
the various antibiotics that were tried ... No doubts persisted regarding the diagnosis of
When the patient attended Vila Nova de Gaia meningitis, the procedure adopted, the sequence
Hospital on 18 December 1997 he had of treatment and the resolution of the problem, as
completely recovered from his bacterial all the various after-effects were duly explained.
meningitis. Hence there were no differences of opinion regarding
... the need to prescribe and use antibiotics in the context
On 25 January 1998 the patient again attended of [Mr Fernandes’s] meningitis and other
Vila Nova de Gaia Hospital, where he was conditions, although it was explained that colitis
diagnosed with pseudomembranous colitis is a bacterial imbalance caused by antibiotics
caused by Clostridium difficile ... The colitis was (the very ones which have undesirable effects on
successfully treated in that hospital ...; intestinal flora).
Throughout his stay in Vila Nova de Gaia Nevertheless, it was not possible to determine the
Hospital he was given treatment to protect his agent or identify the cause of the bacterium
stomach. linked to the meningitis and it could therefore not
be established with certainty whether the sinus surgery
...
was the source of the problem or was simply one factor
When he was admitted (to Santo António causing the infection. The other factors and
Hospital on 17 February 1998) he had chronic circumstances preceding the operation ... thus
diarrhoea ... and was diagnosed with suspected cease to be relevant.

It is nonetheless surprising that the death of the allegations that have not been proven, and in
claimant’s husband should have occurred ... given that particular the allegation that the meningitis was
he had been strong and in good health and that caused by the Pseudomonas bacterium, allegedly
the microsurgery on his sinuses was a acquired in hospital ... and that the patient did not
straightforward operation. However, it has not receive appropriate prophylactic treatment to
been demonstrated that the therapy or medication protect his stomach during his treatment with
administered to [Mr Fernandes] at any point was antibiotics.
unsuited to his clinical condition. There was therefore Accordingly, these claims can be summed up as
no breach of the rules of good medical practice (either allegations of medical negligence which are
by action or omission). Accordingly, one of the unsupported by the established facts.”
cumulative conditions for establishing civil
liability, namely an unlawful act, is absent.” II. RELEVANT DOMESTIC LAW & PRACTICE
A. Criminal law
78. The applicant appealed against the judgment to the
Supreme Administrative Court. She contested the 80. The relevant provisions of the Criminal Code
facts deemed to be established, arguing that only read as follows:
by studying the circumstances before, during and Article 137
after the operation would it be possible to “1. Anyone who kills another person through
understand what type of bacterium her husband negligence shall be punishable by imprisonment
had contracted. She further reiterated that her for a period of up to three years or to a fine.
husband had contracted a hospital-acquired infection 2. Gross negligence shall be punishable by
and had not received adequate treatment either in the imprisonment for up to five years.”
CHVNG or in Santo António Hospital. Article 150
79. On 26 February 2013 the Supreme Administrative “...
Court dismissed the applicant’s claims, upholding the 2. Where the persons referred to in the previous
judgment of the Oporto Administrative and Fiscal paragraph, in pursuit of the aims indicated
Court. It first of all declined to review the facts therein, perform surgery or provide treatment in
considered by the lower court to have been a manner which breaches the rules of good
established, on the grounds that the hearings had medical practice and thereby endangers a
not been recorded and that no new documents had patient’s life or health or creates a risk of serious
been submitted which could cast doubt on the bodily harm, their conduct shall be punishable by
evidence forming the basis for the court’s a period of imprisonment up to two years or by
decision. The Supreme Administrative Court up to 24 day-fines, unless a heavier penalty has
been imposed under another provision of the
summed up its judgment as follows:
law.”
“The lower court considered, in sum, that it had
81. The head of the relevant health-care establishment
not been possible to identify the nature and
has a duty to inform the competent judicial authority of
origin of the bacterium that caused the
any suspicious death of a hospital patient, by
meningitis and that it had not been demonstrated
that the illnesses subsequent to [the patient’s] forwarding the medical records so as to enable an
treatment and recovery from that illness ... had investigation to be carried out to establish the
been the consequence of incorrect diagnosis or circumstances of death (Article 51 of Legislative
treatment. Decree no. 11/98 of 24 January 1998 on forensic
For that reason it found that no breach of the medical matters). An autopsy is performed in cases of
rules of good medical practice had been violent or unexplained deaths, except where the
demonstrated that might have caused the clinical data and other elements are sufficiently
patient’s death. convincing to preclude any suspicion of a crime;
The claimant takes a different view of the matter. in that case, no autopsy needs to be carried out
However, she bases her arguments mainly on (Article 54).

B. CIVIL AND ADMINISTRATIVE LAW present Code, internal regulations, or any other
applicable provision, shall be considered to have
82. The relevant provision of the Civil Code reads
committed a disciplinary offence.”
as follows:
Article 487 86. The Disciplinary Regulations governing
“1. It is for the injured party to prove liability for public officials and employees, in force at the
damage through negligence (culpa), unless there is a material time, were contained in Legislative
legal presumption of it. Decree no. 24/84 of 16 January 1984. Article 3 §
2. In the absence of any other legal criteria, 1 characterised a disciplinary offence as follows:
negligence is assessed with reference to the diligence of “A disciplinary offence consists in the failure,
the bonus pater familias, in view of the not exceeding the status of a fault, by a public
circumstances of the case.” official or employee to comply with one of the
83. At the material time the State’s non- general or specific obligations attaching to his or
her functions.”
contractual liability was governed by Legislative
Decree no. 48051 of 21 November 1967, Article 87. The duty of diligence was defined in Article 3 §
2 of which read as follows: 6 as follows:
“1. The State and other public-law entities shall “The duty of diligence consists in being familiar
be liable in civil law vis-à-vis third parties for with the relevant regulations and with the
any acts infringing those parties’ rights or the instructions from one’s hierarchical superiors,
legal provisions designed to protect their while possessing and perfecting the technical
interests, as the result of unlawful acts committed skills and working methods required to perform
negligently by State or public agencies or one’s duties correctly and efficiently.”
officials in the performance of their duties or as a D. Regulatory framework in the field of health care
consequence thereof.
88. Article 64 of the Portuguese Constitution
2. Where they have paid compensation under the
guarantees the right to health and to a national
terms of the preceding paragraph, the State and
other public-law entities shall be entitled to claim universal health-care service focused on providing free
reimbursement (direito de regresso) from those health care while taking account of citizens’
in charge of the agencies or the officials economic and social circumstances.
responsible, if these have not performed their 89. The Health Act, which was approved by virtue
duties with the requisite care and diligence.” of Law no. 48/90 of 24 August 1990, establishes
84. Article 6 of the aforementioned Legislative the principle whereby health care is dispensed by State
Decree reads: services and establishments and by other public or
“ For the purposes of the present Legislative private, profit-making or non-profit entities under State
Decree, legal acts which infringe the relevant supervision (section I, paragraph 4).
legal and regulatory norms or general principles 90. Under Basic Principle XIV of the Act, the
shall be deemed unlawful, as shall material acts users of the health-care system have, among other
which infringe the said norms or principles or the rights, the right freely to choose their doctor and
technical rules or principles of due caution which health-care establishment, the right to receive or
must be taken into account.”
refuse the treatment offered, the right to be
C. Relevant disciplinary provisions treated in an appropriate and humane manner,
85. Article 2 of the Disciplinary Regulations for promptly and with respect, the right to be
Doctors defines a disciplinary offence as follows: informed of their situation, of possible alternative
“A doctor who, by action or omission, fails, either treatments and of the likely development of their
intentionally or by negligence, to comply with one or condition, and the right to complain of the
more of the duties arising out of the Medical manner in which they have been treated and to
Association Statute, the Code of Ethics, the receive compensation for any damage suffered.

91. The rules applying the framework Health Act equipment; and observance of professional ethics by
are laid down by Legislative Decree no. 11/93 of all those working in hospitals.
15 January 1993, which approved the National 95. Article 27 of Legislative Decree no. 73/90 of
Health-care System Regulations (Estatuto do 6 March 1990 on Medical Careers lays down the
sistema nacional de saúde). Under Article 38, the duties of hospital doctors. It reads, inter alia, as
State has the task of supervising health-care follows:
establishments; the Ministry of Health is “(a) Reception of patients, duly registered in the
responsible for setting health-care standards, outpatient records, with recourse to
without prejudice to the functions assigned to the hospitalisation where necessary, and provision of
Medical Association and the Pharmacists’ appropriate information to the patient’s general
Association. practitioner in the form of a confidential written
92. The Hospital Management Act, established by report.
Legislative Decree no. 19/88 of 21 January 1988 (b) Diagnosis and treatment of patients,
and in force until 2002, stated in its preamble as supported by an effective professional
follows: relationship with the patient’s general
practitioner and with the other doctors involved
“All citizens have the right to expect hospitals in his or her treatment outside the hospital.
(institutions whose social purpose must never be
(c) Reception in hospital emergency
forgotten) to provide treatment of a standard that
departments.
can reasonably be expected having regard to the
...”
respect due to citizens and the human and
material resources available. Assessment of the 96. Article 7 of Legislative Decree no. 373/79 of
services provided in hospitals, in terms of 8 September 1979 on the status of medical
cost-effectiveness but also and perhaps above all practitioners laid down the duties of health
in terms of quality assurance, is an increasingly professionals, including ensuring continuous
complex and essential task, one to which the professional development and contributing to the
authorities must give full attention and which establishment and preservation of sound technical
must be addressed within the management of
and human working conditions, with a view to
hospitals.”
providing an effective service and enhancing the
93. Article 3 § 2 of the aforementioned Legislative prestige of the health-care service to which they
Decree provided, in particular, for the Minister of belonged.
Health to: 97. Relevant legislation concerning the health
“... define standards and criteria for service sector also includes the General Regulations on
provision in hospitals, establish guidelines to be Hospitals, approved by Order no. 48358 of 27
followed by service provision plans and
April 1968, which lay down the forms of
programmes, monitor their implementation and
evaluate the results obtained and the quality of
organisation and operation applicable to all
the health care provided to the population, and hospitals, without prejudice to the fact that each
request any information and documentation establishment has its own local regulations.
needed for this purpose.” 98. At the relevant time, under Legislative Decree
94. The principles governing service provision, set out no. 291/93 of 24 August 1993, the Inspectorate
in Article 6 of that Legislative Decree, included: General for Health was a department within the
respect for patients’ rights; promptness and quality of Ministry of Health with technical and
the assistance provided within the limits of the administrative autonomy (Article 1) which was
available resources; lawful and efficient use of responsible, among other tasks, for supervising
those resources; deployment of best endeavours the activities and operation of health-care
to provide the services, as far as possible, with the establishments (Article 3 § 1 (a)), and instituting
necessary organisational structures, personnel and disciplinary proceedings (Article 3 § 2 (b)). The

IGS was headed by an Inspector General whose must draw inspiration in the course of their professional
tasks included ordering the opening of practice. According to the principle of independence
investigative proceedings and issuing a decision of doctors, the latter, in the exercise of their
when they had been completed (Article 5 (h)). profession, are “technically and ethically
Under the terms of Legislative Decree no. independent and accountable for their acts; they
275/2007 of 30 June 2007, the Inspectorate may not, in performing their clinical duties,
General for Health became the Inspectorate receive technical or ethical directions from
General for Health-Care Activities (IGAS). The persons outside the medical profession”, a
IGAS has wider-ranging powers which extend to provision which “does not conflict with the
private bodies. existence of institutional technical hierarchies
99. The Medical Association was governed at the established by law or by contract; a doctor may in
material time by the Medical Association Statute, no circumstances be forced to perform acts
adopted by Legislative Decree no. 282/77 of 5 against his or her will.”
July 1977 as amended by Legislative Decree 103. In Portugal an Infectious-Diseases Control Plan
no.217/94 of 20 August 1994. It is an (1988-98) was under way in late 1997. In the
independent body which is responsible for framework of this plan, a publication entitled
maintaining standards among members of the Livro da mão cor-de-rosa (Book of the pink
medical profession and ensuring observance of hand), containing a set of recommendations for
the Medical Code of Ethics. To be able to exercise the prevention and control of nosocomial
their profession doctors must be registered with the infections acquired in health-care establishments,
Medical Association; in this context, emphasis is was issued in 1996.
placed upon the need for them to observe the
104. In the introduction to the 1996 report
professional standards governing their profession.
reference was made to the following information:
100. The Medical Association also has disciplinary “In 1988 the Infectious-Diseases Control Plan was
powers, although these do not preclude other initiated .... It was aimed at developing the methods to
disciplinary procedures provided for by law be used in the study of infections .... The first study
(Article 3 of the Disciplinary Regulations for concerning the prevalence of infection was
Doctors, approved by Legislative Decree carried out in 1988 with 10,177 patients from 71
no. 217/94 of 20 August 1994). The regional hospitals; this was followed by a second study in
disciplinary councils are responsible for 1993, with 9,331 patients from 65 hospitals.
instituting disciplinary proceedings against Other studies were also carried out with regard to
doctors in their region (Article 4). The decisions the incidence of urinary-tract infections in
of the regional disciplinary councils are open to patients with catheters, surgical infections, and
nosocomial pneumonia in intensive care, for
appeal before the National Disciplinary Council
example. These studies show that, at any given
(Conselho Nacional de Disciplina) within an time, approximately 30 % of hospital inpatients
eight-day period (Articles 44 and 45). have an infection and one-third of them acquired
101. The specialist panels (Colégios de the infection while in hospital.”
especialidades) are bodies within the Medical 105. The report’s recommendations required each
Association composed of specialists in different health-care establishment to define a comprehensive
branches of medicine (Article 87 of the Medical infectious-diseases control programme, which was to
Association Statute). They are tasked, among be coordinated and implemented by one of the
other duties, with giving opinions to the interdisciplinary infectious-diseases control
Association’s National Executive Council. commissions created that same year under an
102. The Code of Ethics contains the rules of an ethical instruction issued by the Directorate General for
nature which doctors must observe and from which they Health.

106. The infectious-diseases control commissions realization of this right shall include those
were established under an instruction issued by necessary for:
the Directorate General for Health on 23 October (a) The provision for the reduction of the
1996. According to Article 4 of this instruction stillbirth-rate and of infant mortality
these commissions were required, among other and for the healthy development of the
tasks, to “define, implement and monitor a system child;
of epidemiological surveillance addressing (b) The improvement of all aspects of
structures, processes and outcomes with regard to environmental and industrial hygiene;
situations posing the gravest threats, propose (c) The prevention, treatment and control
recommendations and standards for the of epidemic, endemic, occupational and
prevention and control of infectious diseases and other diseases;
the corresponding monitoring arrangements, carry (d) The creation of conditions which would
assure to all medical service and
out epidemiological inquiries and disseminate the
medical attention in the event of
information within the establishment, and sickness.”
contribute to training within the service and to
other training actions undertaken by the 111. In its General Comment No. 14 on the right
establishment in the field of infection control.” to the highest attainable standard of health, the
Committee on Economic, Social and Cultural
107. A working group dedicated to the issue of Rights (CESCR) held as follows:
hospital-acquired infections was established in “9. ... the right to health must be understood as a
Vila Nova de Gaia Hospital in 1994. It published, right to the enjoyment of a variety of facilities, goods,
from at least 1996 onwards, an information services and conditions necessary for the realization of
booklet on these issues and the procedures to be the highest attainable standard of health.”
adopted. In this connection the CESCR required that the
108. In the meantime, the Council of Europe necessary public-health and health-care facilities
recommendations concerning the control of infectious should satisfy the following criteria: availability,
diseases, and in particular Recommendation no. R accessibility, acceptability and quality.
(84) 20 (see paragraph 116 below), were The CESCR stressed that the obligations to
circulated to public and private hospitals. protect included, inter alia, the duties of States to
109. The aforementioned Plan (see paragraph 103 adopt legislation or to take other measures
above) was replaced by the National Infectious- ensuring equal access to health care and health-
Diseases Control Programme adopted on 14 May related services provided by third parties, as well
1999. as to ensure that medical practitioners and other
health professionals met appropriate standards of
III. INTERNATIONAL LAW AND PRACTICE
education, skill and ethical codes of conduct
A. UNITED NATIONS (paragraph 35).
1. The International Covenant on Economic, It also required that any person or group that
Social and Cultural Rights was the victim of a violation of the right to health
110. Article 12 of the International Covenant on should have access to effective judicial or other
Economic, Social and Cultural Rights provides: appropriate remedies at both national and
“1. The States Parties to the present Covenant international levels (paragraph 59).
recognize the right of everyone to the 2. The documents of the World Health Organisation
enjoyment of the highest attainable (WHO)
standard of physical and mental health. 112. The relevant parts of the World Health
2. The steps to be taken by the State Parties to Organisation’s Declaration on the Promotion of
the present Covenant to achieve the full Patients’ Rights in Europe (1994) read as follows:

“5.1 Everyone has the right to receive such 2. The Oviedo Convention on Human Rights
health care as is appropriate to his or her health and Biomedicine
needs, including preventive care and activities 115. The Convention for the Protection of Human
aimed at health promotion. Services should be Rights and Dignity of the Human Being with
continuously available and accessible to all regard to the Application of Biology and
equitably, without discrimination and
Medicine (known as the Oviedo Convention on
according to the financial, human and material
Human Rights and Biomedicine), which was
resources which can be made available in a
given society.
adopted in 1997 and entered into force on
... 1 December 1999, has been ratified by twenty-
nine of the Council of Europe member States. Its
6.5 ... Where patients feel that their rights have relevant provisions read as follows:
not been respected they should be enabled to
lodge a complaint ... Patients have the right to Article 3 – Equitable access to health care
have their complaints examined and dealt with “Parties, taking into account health needs and
in a thorough, just, effective and prompt way available resources, shall take appropriate
and to be informed about their outcome.” measures with a view to providing, within
their jurisdiction, equitable access to health
113. The WHO has also adopted a number of
care of appropriate quality.”
technical medical guidelines relating to safe
Article 4: Professional standards
health care and surgical facilities, such as the
WHO guidelines for safe surgery (2009), which “Any intervention in the health field,
provide checklists and set out ten objectives and including research, must be carried out in
accordance with relevant professional
recommendations, including the use of methods
obligations and standards.”
known to minimise the risk of surgical site
infection and the establishment, by hospitals and Article 24: Compensation for undue damage
public health systems, of routine surgical “The person who has suffered undue damage
surveillance. resulting from an intervention is entitled to a
fair compensation according to the conditions
B. COUNCIL OF EUROPE and procedures prescribed by law.”
1. The European Social Charter Article 25: Sanctions
114. Article 11 of the European Social Charter, “Parties shall provide for appropriate
1961, entitled “The right to protection of health”, sanctions to be applied in the event of
reads as follows: infringement of the provisions contained in
“With a view to ensuring the effective exercise this Convention.”
of the right to protection of health, the 3. Recommendation Rec(84)20 on the
Contracting Parties undertake, either directly prevention of hospital infections
or in co-operation with public or private 116. The Committee of Ministers, in its
organisations, to take appropriate measures
Recommendation Rec(84)20 on the prevention of
designed inter alia:
hospital infections, recommended to the
1. to remove as far as possible the causes of Governments of member States that they promote
ill-health;
the application of the strategy for the prevention
2. to provide advisory and educational of hospital infections described in detail in the
facilities for the promotion of health and Appendix to the Recommendation.
the encouragement of individual
responsibility in matters of health; C. The Inter-American Court of Human Rights
3. to prevent as far as possible epidemic, 117. The relevant provisions of the American
endemic and other diseases.” Convention on Human Rights read as follows:

Article 4 established by national laws and practices. A

“1. Every person has the right to have his life high level of human health protection shall be
respected. This right shall be protected by law ensured in the definition and implementation
and, in general, from the moment of of all Union policies and activities.”
conception. No one shall be arbitrarily B. Council Recommendation on patient safety,
deprived of his life. including the prevention and control of
...” healthcare associated infections
Article 5 120. On 9 June 2009 Council Recommendation
“1. Every person has the right to have his on patient safety, including the prevention and
physical, mental, and moral integrity control of healthcare associated infections
respected. (2009/C 151/01) was adopted. In particular, the
...” text recommends that Member States:
118. In the case of Suárez Peralta v. Ecuador “I. 1. ...
(Preliminary objections, merits, reparations and (d) [regularly review and update] safety
costs, Judgment of 21 May 2013, Series C No. standards and/or best practices applicable to
261), which concerned allegations of medical healthcare provided on their territory;
negligence, the Inter-American Court of Human ...
Rights reiterated the obligation of the State to (f) [include] a specific approach to promote safe
guarantee the right to personal integrity in the practices to prevent the most commonly
context of health, as follows: occurring adverse events such as medication-
related events, healthcare associated infections
“132. ... States must establish an adequate and complications during or after surgical
normative framework that regulates the provision intervention.”
of health care services, establishing quality
8.
standards for public and private institutions that
...
allow any risk of the violation of personal
integrity during the provision of these services to (a) implement prevention and control measures
be avoided. In addition, the State must create at national or regional level to support the
official supervision and control mechanisms for containment of healthcare associated infections
health care facilities, as well as procedures for and in particular:
the administrative and judicial protection of ...
victims, the effectiveness of which will evidently (iii) to make guidelines and recommendations
depend on the way these are implemented by the available at national level.”
competent administration.”
121. The text also recommends informing
IV. EUROPEAN UNION LAW patients about:
A. Charter of Fundamental Rights of “I. 2. (b) (iii) complaints procedures and
the European Union available remedies and redress and the terms and
119. The relevant provisions of the Charter of conditions applicable;”
Fundamental Rights of the European Union read V. COMPARATIVE LAW
as follows:
122. It transpires from the materials available to
Article 2 – Right to life the Court on the legislation of member States of
“1. Everyone has the right to life.” the Council of Europe that all of the thirty-one
Article 35 –Healthcare member States surveyed offer a civil remedy with
“Everyone has the right of access to the possibility to claim compensation for medical
preventive health care and the right to benefit negligence in either the civil or the administrative
from medical treatment under the conditions courts. In the majority of countries, liability can

be both contractual and extra-contractual (for questions concerning the admissibility of an application
instance, in Austria, Azerbaijan, Bosnia and under Article 35 § 4 of the Convention, as that
Herzegovina, Bulgaria, Estonia, Georgia, Germany, provision enables the Court to dismiss
Italy, Luxembourg, Monaco, Poland, Spain and applications it considers inadmissible “at any
Switzerland). Tort liability is the exclusive or main stage of the proceedings”. Therefore, even at the
form of liability in Lithuania, Malta, Moldova, merits stage and subject to Rule 55, the Court
Serbia, Russia, Ukraine and the United Kingdom. may reconsider a decision to declare an
123. It is also a common feature of all countries that application admissible where it concludes that it
medical negligence can amount to a criminal offence, should have been declared inadmissible for one of
either as manslaughter or as unintentional bodily injury the reasons given in the first three paragraphs of
or another offence against health (such as failure to Article 35 of the Convention (see, for
provide assistance). In several countries, medical example, Muršić v. Croatia [GC], no. 7334/13, § 69,
negligence constitutes a distinct offence (for instance, in ECHR 2016).
Armenia, Bosnia and Herzegovina, Croatia, Slovenia, 128. Although the respondent State did not raise
the former Yugoslav Republic of Macedonia and
any objection before the Grand Chamber based
Ukraine).
on the six-month time limit as it had done
124. The great majority of the countries surveyed previously before the Chamber, this issue, as a
have professional bodies (that is, medical public policy rule, calls for consideration by the
councils, chambers, associations) with the power Court of its own motion (see Sabri Güneş v.
to impose disciplinary sanctions. In the absence Turkey [GC], no. 27396/06, § 29, 29 June 2012).
of such bodies sanctions may be imposed by the
129. The Court reiterates that the object of the six-
head of the health establishment concerned or the
month time-limit under Article 35 § 1 is to promote
Ministry of Health (for example, in Armenia and legal certainty, by ensuring that cases raising issues
Russia). In certain countries, even if disciplinary
under the Convention are dealt with in a
proceedings exist, they appear to play no role in reasonable time and that past decisions are not
medical negligence cases, or only a very limited continually open to challenge. It marks out the
one (for example, Azerbaijan and Estonia). temporal limits of supervision carried out by the
125. Administrative complaints to various State organs of the Convention and signals to both
supervisory bodies (such as the Ministry of Health, individuals and State authorities the period
the Health Inspectorate, the Health Board, and so on) beyond which such supervision is no longer
are possible in some countries including Bulgaria, possible (ibid., §§ 39 and 40).
Croatia, Estonia and Hungary. In Azerbaijan,
130. In this regard the Court emphasises that the
Russia, Spain and Ukraine a breach of the rules requirements contained in Article 35 § 1 concerning the
and regulations relating to health care constitutes exhaustion of domestic remedies and the six-month
an administrative offence. period are closely interrelated (see Jeronovičs v.
126. Finally, apart from contentious proceedings, Latvia [GC], no. 44898/10, § 75, ECHR 2016), since
several countries provide for a system of they are not only combined in the same Article,
settlement, mediation or no-fault compensation but also expressed in a single sentence whose
schemes (for example, Austria, Belgium, France, grammatical construction implies such a
Germany, Poland and the United Kingdom). correlation (see Gregačević v. Croatia, no. 58331/09,
§ 35, 10 July 2012, and the references cited therein).
THE LAW
I. PRELIMINARY ISSUES 131. Thus, as a rule, the six-month period runs from
the date of the final decision in the process of exhaustion
A. Compliance with the six-month rule of domestic remedies (see Blokhin v. Russia [GC],
127. The Court reiterates that the Grand Chamber no. 47152/06, § 106, ECHR 2016). Article 35 § 1
is not precluded from examining, where appropriate, cannot therefore be interpreted in a manner which

would require an applicant to inform the Court of mere fault, omission or negligence – civil or
his complaint before his position in connection administrative proceedings aimed solely at awarding
with the matter has been finally settled at the damages, rather than ensuring the identification and
domestic level, otherwise the principle of punishment of those responsible, were not adequate and
effective remedies capable of providing redress for
subsidiarity would be breached (see Mocanu and
Others v. Romania [GC], nos. 10865/09, 45886/07 complaints based on the substantive aspect of
and 32431/08, § 260, ECHR 2014 (extracts)). Articles 2 and 3 of the Convention (see Jeronovičs,
§ 76, and Mocanu and Others, § 227, both cited
132. However, this provision allows only above). It has further held that the Contracting
remedies which are normal and effective to be Parties’ obligation under Articles 2 and 3 of the
taken into account as an applicant cannot extend Convention to conduct an investigation capable
the strict time-limit imposed under the of leading to the identification and punishment of
Convention by seeking to make inappropriate or those responsible in cases of assault could be
misconceived applications to bodies or rendered illusory if, in respect of complaints
institutions which have no power or competence under those Articles, an applicant were required
to offer effective redress for the complaint in to bring an action leading only to an award of
issue under the Convention (see, for example, damages (see Jeronovičs, cited above, § 77).
Fernie v. the United Kingdom (dec.), no. 14881/04,
5 January 2006; Beiere v. Latvia, no. 30954/05, § 136. In cases such as these, therefore, the Court
38, 29 November 2011; and, a contrario, Hizb ut- considered that any subsequent civil proceedings
tahrir and Others v. Germany (dec.), no. 31098/08, undertaken by the applicant were not an adequate
§§ 58-59, 12 June 2012, and Petrović v. Serbia, and effective remedy within the meaning of
no. 40485/08, § 60, 15 July 2014). Article 35 § 1 which the applicants had to exhaust
and which should therefore be taken into account
133. The Court observes that in the Chamber for the purposes of the six-month time-limit.
judgment the Government’s objection as regards Accordingly, the Court dismissed those cases as
the six-month time limit was dismissed because having been lodged out of time (see, among
the application had been lodged on 23 August others, Jørgensen and Others v. Denmark (dec.),
2013, that is, within six months following the no. 30173/12, § 63, 28 June 2016; Narin v.
final domestic decision, namely the Supreme Turkey, no. 18907/02, § 49, 15 December 2009;
Administrative Court judgment delivered on 26 and Bedir v. Turkey (dec.), no. 25070/02, 2
February 2013 following the proceedings for civil October 2007).
liability.
137. By contrast, in medical negligence cases the
134. At the outset, the Court stresses that Court has considered that the procedural
determining whether a domestic procedure obligation imposed by Article 2, which concerns
constitutes an effective remedy within the the requirement to set up an effective judicial
meaning of Article 35 § 1, which an applicant system, will be satisfied if the legal system
must exhaust and which should therefore be taken affords victims a remedy in the civil courts, either
into account for the purposes of the six-month alone or in conjunction with a remedy in the
time-limit, depends on a number of factors, criminal courts, enabling any responsibility of the
notably the applicant’s complaint, the scope of doctors concerned to be established and any
the obligations of the State under that particular appropriate civil redress to be obtained. It has
Convention provision, the available remedies in also accepted that disciplinary measures may also
the respondent State and the specific be envisaged (see Calvelli and Ciglio v.
circumstances of the case. Italy [GC], no. 32967/96, § 51, ECHR 2002-I,
135. For example, the Court has held that, in the and Vo v. France [GC], no. 53924/00, § 90,
area of unlawful use of force by State agents – and not ECHR 2004-VIII). In such cases, therefore, the

Court, having regard to the particular features of a Ireland [GC], no. 35810/09, § 121, ECHR 2014
respondent State’s legal system, has required the (extracts)).
applicants to exhaust the legal avenues whereby II. ALLEGED VIOLATION OF ARTICLE 2
they could have their complaints duly OF THE CONVENTION
considered. This is because of the rebuttable
143. The applicant alleged a breach of her
presumption that any of those procedures, notably
husband’s right to life. She claimed that her
civil redress, are in principle apt to satisfy the
husband had been the victim of a hospital-
State’s obligation under Article 2 of the
acquired infection and that the medical personnel
Convention to provide an effective judicial
had been careless and negligent in their diagnoses
system.
and treatment and in discharging her husband
138. In the present case, the applicant used all the from hospital. In particular, she complained of
avenues of redress that were available to her in the
delays in providing him with treatment and of the
Portuguese legal system. The Court finds that none of
administration of medication in excessive doses.
the proceedings instituted by her can be regarded as
inappropriate or misconceived applications to bodies
She did not, however, call into question her
or institutions with no power or competence to husband’s discharge from hospital authorised by
offer effective redress for the complaint in issue Dr J.V. on 3 February 1998, that decision having
under the Convention. Nor has it been demonstrated been taken with her assent and that of her
that, at the time when the applicant brought an
husband. She further complained that the
action for compensation – the most appropriate authorities to which she had applied had failed to
avenue for establishing any alleged causal link elucidate the precise cause of the sudden
between the initial surgery and Mr Fernandes’s deterioration in the health of her husband, who
tragic death three months later and for shedding had previously been perfectly fit. She also
light on the extent of the doctors’ alleged complained about the length of the domestic
responsibility for his death – it was obvious that proceedings and the fact that she had not been
these proceedings would be bound to fail from the outset informed of the exact cause of her husband’s
and hence should not be taken into account for the death.
calculation of the six-month period (see, for 144. The applicant relied on Articles 2, 6 § 1 and
example, Musayeva and Others v. Russia (dec.), 13 of the Convention, the first of which reads as
no. 74239/01, 1 June 2006, and Rezgui v. follows:
France(dec.), no. 49859/99, ECHR 2000-XI). “1. Everyone’s right to life shall be
139. In the light of the above the Court considers, protected by law.”
like the Chamber (see paragraph 133 above), that 145. Reiterating that the Court was master of the
the application was not lodged out of time. characterisation to be given in law to the facts of
B. Government’s preliminary objection the case and finding that these complaints
140. The Government asked the Court to declare covered the same ground, the Chamber found it
the application inadmissible as being manifestly appropriate to examine the applicant’s allegations solely
under Article 2 of the Convention. The Grand Chamber
ill-founded (see paragraph 213 below).
agrees with this approach. It will therefore proceed
141. The applicant did not specifically comment in the same manner (see Bouyid v. Belgium [GC],
on this issue. no. 23380/09, § 55, ECHR 2015).
142. The Court considers that the preliminary A. THE SUBSTANTIVE ASPECT
objection raised by the Government is so closely
linked to the substance of the applicant’s 1. The Chamber judgment
complaint that it must be joined to the merits of 146. The Chamber held that there had been a violation
the application (see, for example, O’Keeffe v. of the substantive aspect of Article 2 of the Convention.

It noted that the second gastroenterology expert was the absence of the timely medical treatment
who gave evidence before the IGS, and also the which, in the circumstances of each case, could
ENT and infectious-diseases panels in the reasonably have been expected and whose
proceedings before the Medical Association, had absence had contributed significantly to the chain
all indicated that meningitis was a complication of events which put at risk the life of patients
that could arise in exceptional cases after a who, in the end, had died. She stressed that in
polypectomy. The Chamber further noted that these various situations the Court had emphasised
doubts had been expressed by the infectious- that there was no call to speculate on what the
diseases panel in the Medical Association victims’ chances of survival might have been if
proceedings as to the promptness with which the the failings identified had not occurred; what
patient’s meningitis had been diagnosed. counted was the unreasonable risk to which, in
147. The Chamber held the view that the mere fact the circumstances of each case, the patient had
that the patient had undergone a surgical operation been exposed and which had contributed to the
presenting a risk of infectious meningitis should have chain of events leading to his or her death. The
warranted immediate medical intervention in applicant observed that, in determining the
conformity with the medical protocol on post-operative relevant facts, the Court had applied the “beyond
supervision. However, this had not been done.
reasonable doubt” test, according to which the
Without wishing to speculate on the chances of requisite proof could follow from a sufficiently
survival of the applicant’s husband if his persuasive combination of inferences and
meningitis had been diagnosed earlier, it
presumptions. She submitted, contrary to the
considered that the lack of coordination between the
Portuguese Government’s view, that the Chamber
ENT department and the emergency unit at the hospital
disclosed failings in the public hospital service, depriving judgment provided a concrete application of these
the patient of the possibility of accessing appropriate principles to the facts of the case. The applicant
emergency care. This fact was considered sufficient emphasised in this connection that the Court had
to find that the State had failed in its obligation to subsequently applied the same principles in
protect the physical integrity of Mr Fernandes. the Elena Cojocaru case, cited above.
2. THE PARTIES’ SUBMISSIONS 149. The applicant agreed with the facts as laid down
in the Chamber judgment as well as the reasoning
(a) THE APPLICANT
adopted in finding a substantive violation of Article 2 of
148. The applicant submitted that, according to the the Convention. She further submitted that the Court
more recent understanding of Article 2 of the should also take into account at least one other
Convention (she referred to Dodov v. Bulgaria, aggravating factor. In this connection the applicant
no. 59548/00, 17 January 2008; Mehmet Şentürk argued that, irrespective of the origin of the bacterium
and Bekir Şentürk v. Turkey, no. 13423/09, ECHR which caused the meningitis, the treatment had not been
2013; Arskaya v. Ukraine, no. 45076/05, 5 December administered as promptly as the situation demanded.
2013; Asiye Genç v. Turkey, no. 24109/07, 27 January The emergency team which had taken charge of the
2015; and Elena Cojocaru v. Romania, no. 74114/12, applicant’s husband at the CHNVG had been
22 March 2016), for the Court to find that there had entirely unaware of, or else had disregarded, the fact
been a violation of Article 2 under its substantive limb, that a nasal polypectomy had been performed two days
it had to be established that in concrete terms the earlier in the same hospital, and instead had treated
promptness and diligence which could reasonably have the patient on the assumption that he was suffering
been expected in the circumstances of the case had been from psychological problems. The applicant contended
lacking and, further, that this failing had contributed to that the patient had not received any treatment
putting the victim’s life at risk. The applicant noted between his arrival at the emergency department at
that in the aforementioned cases the factor which about 1.30 a.m., and 10 a.m., when the lumbar
had weighed most heavily in the Court’s judgment puncture had been performed.

150. The applicant submitted that while the resulting perforated viscus, called for urgent
bacterial meningitis had not been the immediate surgery in order to avoid the onset of
cause of her husband’s death, it was undeniable uncontrollable septicaemia, as in the present case.
that this event had given rise to the succession of There was thus no reasonable explanation for the
clinical complications which had continued up to fact that the surgery had not been performed until
his death on 8 March 1998 as a direct result of 8 p.m. the following day. To that extent, the
septicaemia caused by peritonitis. She argued that applicant submitted that this circumstance formed
the clinical complications from which her husband had part of the series of unjustifiable delays in the delivery
suffered between 29 November 1997 and 8 March 1998 of appropriate medical treatment to her husband,
could not be viewed in isolation from each other, as which had deprived him of the possibility of
though there was no connection between them. access to such care. This constituted a further
Relying on the report which formed the basis for violation of the substantive limb of Article 2 of the
the final report of the IGS, the applicant Convention. In this connection she argued that
submitted that, in the present case, there had been a even if the need for surgery had not become
series of clinical complications (opportunistic apparent until 7 March, this still did not explain
infections, ulcers and other illnesses or why a surgeon had not been called until 3 p.m.,
pathological symptoms), each of which could be thus leaving the patient without effective
attributed to a greater or lesser extent to a assistance until that time, and why he had been
previous event in the chain. She emphasised that taken to the operating theatre without the
the starting-point in this chain of events had been an necessary preparation, with the result that he had
occurrence of meningitis, attributable to a hospital- to be taken out of the theatre and then returned
acquired bacterium, which had not been treated there around 8 p.m., by which time he had been in
with the promptness the situation demanded, with a very serious condition, between life and death.
the consequent need to intensify the antibiotic
(b) THE GOVERNMENT
treatment, resulting in a worsening of the victim’s
state of health. This had contributed to the 152. The Government submitted at the outset that
appearance of complications – and in particular of the validity of the contention underpinning the
opportunistic infections and ulcers – which, applicant’s complaint – that the entire course of her
occurring in succession, had resulted in the deceased husband’s clinical treatment had been
patient’s death. marked by a series of interconnected
shortcomings and errors – had not been
151. The applicant further submitted that there demonstrated in any of the proceedings at domestic
had been other instances of medical negligence, such level. It had never been proven that the death of the
as the four occasions on which her husband had been applicant’s husband was attributable to medical
imprudently discharged from hospital (13 December negligence. They argued that the Chamber judgment
1997, 23 December 1997, 9 January 1998 and 3 had accepted that no medical negligence had been
February 1998). In addition, she argued that the established and that the death of the applicant’s
direct cause of her husband’s death on 8 March 1998 husband had not been caused by an event
undeniably amounted to medical negligence. She occurring on 29 November 1997, an event
alleged that there had been an inexplicable delay in identified and characterised by the Chamber as a
performing surgery, which should have taken place lack of coordination between the ENT department
on 6 March but had in fact not been performed and the emergency department of the first
until 7 March at 8 p.m., by which time it had been hospital. This, according to the Chamber, attested
too late to cure the peritonitis which had set in. In to “failings in the public hospital service” and had
this connection she contended that it was “deprived the patient of the possibility of access
undisputed that peritonitis, attributable in her to appropriate emergency care”. Notwithstanding
husband’s case to a duodenal ulcer and the the absence of medical negligence and of a causal link

the Chamber had deemed this finding to be confirmed the allegations made by the applicant. The
“sufficient for the Court to consider that the State latter, in the Government’s view, had disputed the
failed in its obligation to protect his physical diagnoses made, the medications prescribed, the
integrity” in breach of the substantive aspect of Article timing of the operation and the discharge
2 of the Convention. decisions, with the exception of the discharge
153. The Government, referring to the Court’s granted on 3 February 1998 which she and her
case-law (Byrzykowski v. Poland, no. 11562/05, § husband had themselves requested. However, the
104, 27 June 2006; Eugenia Lazăr v. Romania, Government stressed that the conclusion reached by
no. 32146/05, §§ 68-72, 16 February 2010; Centre the various domestic bodies, which had heard
for Legal Resources on behalf of Valentin evidence from a great number of doctors and
Câmpeanu v. Romania [GC], no. 47848/08, § 130, other experts, was that the assistance which the
doctors concerned had provided to the patient had
ECHR 2014; and Powell v. the United Kingdom
disclosed no negligent conduct, and no errors had been
(dec.), no. 45305/99, ECHR 2000-V), maintained
committed. The Government further asserted that
that in the area of health care the positive obligation
all necessary care and treatment had been provided to
arising for the Contracting States under Article 2 of the
Convention with a view to preventing death caused by the applicant’s husband; in particular, there had
medical negligence was essentially of a procedural been no manifest failure to provide essential care or
nature and involved a duty to put in place a refusal to admit and attend to the patient. Having
regulatory structure requiring that hospitals, be regard to the regulatory framework, they
they private or public, take appropriate steps to considered that the circumstances of the present case
ensure that patients’ lives were protected. In view did not reveal any failure on the part of the Portuguese
authorities to comply with the positive obligation
of the facts of the case and the Court’s case-law,
imposed upon them by virtue of Article 2 of the
the Government submitted that the conclusion of
Convention.
the Chamber judgment raised serious doubts in
that regard. 156. The Government reiterated that the Chamber
judgment had been insufficiently reasoned and that it
154. In the Government’s submission, the health- had departed from the Court’s existing line of case-law
care system in Portugal at the material time was
in an area of fundamental importance, thereby
supported by a comprehensive and appropriate
regulatory scheme; patients were covered by a creating legal uncertainty for the State. They argued
charter which included their rights and that in finding a violation of the right to life under the
obligations, and could present and formally lodge substantive limb of Article 2, in the absence of medical
negligence, of any established causal link with the
complaints; doctors were subject to ethical rules patient’s death, or of any failure to provide treatment
and, in the performance of their duties, were by refusing to admit or attend to the patient, but simply
required to comply with good medical practice on the basis of a possible lack of coordination between
and apply technical and scientific knowledge in hospital services that had no consequences for the
accordance with best practice and the relevant value protected by the rule, the Chamber had acted
clinical protocols. Moreover, all hospital activity as a fourth instance and had expanded the Court’s area
was subjected to a system of supervision and doctors of competence to include the assessment in abstracto of
who failed to comply with the duty of diligence or the the functioning of domestic health-care services. This
ethical rules were liable to disciplinary measures; in the should not be its role.
event of an allegation of negligence resulting in the
death of a patient, criminal proceedings for the crime
3. THE THIRD-PARTY INTERVENERS
of negligent homicide could be instituted and an (A) THE UNITED KINGDOM GOVERNMENT
action for civil liability could be brought. 157. The United Kingdom Government noted that
155. They noted that no expert opinions, documents the present case raised questions as to the extent
or other evidence submitted at the domestic level had to which a Contracting State could be in breach of

the substantive aspect of Article 2 of the because there had been medical negligence).
Convention as a result of deficiencies in the Finally, the United Kingdom Government
provision of medical treatment. In this regard observed that the Turkish cases referred to above
they submitted that Contracting States had a positive and the case of Elena Cojocaru, cited above,
obligation under Article 2 § 1 to make regulations suggested that there could be a breach of the
compelling hospitals to adopt appropriate measures for substantive aspect of Article 2 where there was a
the protection of their patients’ lives. A failure to dysfunction in the health-care system. However, they
discharge that obligation to regulate medical were of the view that a dysfunction in the
treatment could amount to a breach of the management of a particular hospital or hospital
substantive aspect of Article 2, where that failure department, or dysfunctional coordination between two
led to the death of a person within the Contracting different hospitals, would not of itself be sufficient to
State’s jurisdiction. However, in the view of the engage the Contracting State’s obligations under the
substantive aspect of Article 2, unless it was
United Kingdom Government, deficiencies in the
provision of medical treatment by health-care established that the dysfunction was the result of
professionals and hospital staff did not engage the a failure by the Contracting State to meet its
responsibility of the Contracting State under the regulatory obligations referred to above.
substantive aspect of Article 2, but could only engage the (b) THE GOVERNMENT OF IRELAND
procedural aspect of Article 2. The United Kingdom
Government, referring to a number of cases 159. The Government of Ireland provided the
determined by this Court, emphasised that Court with a detailed account of the regulation of
previous cases had been decided consistently with medical practice in Ireland. They submitted that
Ireland had made adequate provision for securing high
these general principles.
professional standards among health professionals and
158. As to the substantive aspect of Article 2 in the protection of the lives of patients. The Chamber
connection with a failure to provide health care, the judgment appeared to suggest however that,
United Kingdom Government emphasised that the notwithstanding this, a Contracting State might still be
Convention contained no express provision recognising found to be in breach of Article 2 by reason of an error
a right to the provision of any kind of health care, nor a of judgment on the part of a health professional. The
right to be provided with health care of any particular Government of Ireland submitted that the
standard. In this connection they submitted that Chamber judgment further suggested that, even
the Court, in Mehmet Şentürk and Bekir where a case had been rigorously examined by an
Şentürk and Asiye Genç, both cited above, had adequate national system and no error identified,
relied on an obiter dictum in Cyprus v. Turkey the Court might nevertheless substitute its own
([GC], no. 25781/94, ECHR 2001-IV), which reasoning for that of the national courts and tribunals.
concerned a claim of denial of medical treatment In this regard they submitted that the Chamber
to a whole section of a population. They further judgment in this case represented a departure from
considered that in any event the circumstances in established jurisprudence.
the aforementioned cases had been particular and 160. Analysing the medical negligence and
severe. The United Kingdom Government further health-care cases dealt with by the Court over the
noted that in these cases, and also in the case of last sixteen years, the Government of Ireland
Aydoğdu v. Turkey (no. 40448/06, 30 August submitted that there was a consistent approach by the
2016), the Court had applied the Osman line of Court in relation to the application of Article 2 in both
case-law (see Osman v. the United Kingdom, 28 its substantive and procedural aspects. According to
October 1998, Reports of Judgments and them, the principles which emerged were as follows:
Decisions 1998-VIII). They maintained that this (1) where a Contracting State had made adequate
case-law could not be extended to cases where provision for securing high professional standards
medical treatment had been provided to a person among health professionals and the protection of
but had been provided deficiently (for example, the lives of patients, matters such as an error of

judgment on the part of a health professional or treatment of persons deprived of their liberty or
negligent coordination among health professionals in of particularly vulnerable persons under the care
the treatment of a particular patient were not of the State, where the State has direct
sufficient of themselves to call a Contracting State to responsibility for the welfare of these individuals
account from the standpoint of its positive obligations (see, for example, Slimani v. France, no. 57671/00,
under Article 2 of the Convention to protect life; ECHR 2004-IX (extracts), and Centre for Legal
(2) there might be an exception where the negligence Resources on behalf of Valentin Câmpeanu, cited
attributable to that hospital’s medical staff went beyond above, §§ 143-44). Such circumstances are not in
a mere error or medical negligence. These issue in the present case.
circumstances seemed to occur where the (i) GENERAL PRINCIPLES
domestic courts found the relevant staff in a
hospital setting responsible and liable for more 164. The Court reiterates that the first sentence of
than negligence and/or where there was a denial Article 2, which ranks as one of the most fundamental
of care/medical treatment simpliciter, resulting in provisions in the Convention and also enshrines one of
the patient’s life being put in danger. the basic values of the democratic societies making up
the Council of Europe, requires the State not only
161. The Government of Ireland submitted that no
to refrain from the “intentional” taking of life, but
such exception had existed in the facts of the present
case. They underlined the pertinence of the
also to take appropriate steps to safeguard the
dissenting opinions annexed to the Chamber lives of those within its jurisdiction (see Calvelli
judgment, as well as Judge Sajó’s dissent in the and Ciglio, § 48, and Vo, § 88, both cited above).
case of Elena Cojocaru, cited above. In 165. The Court has stressed many times that,
conclusion, the Government of Ireland submitted although the right to health – recognised in
that the existing line of reasoning established in the numerous international instruments – is not as such
case-law prior to the current case should be adopted among the rights guaranteed under the Convention and
and continued in the case at hand. In their view any its Protocols (see Vasileva v. Bulgaria, no.
departure from this case-law would lead to legal 23796/10, § 63, 17 March 2016), the
uncertainty in the application of obligations under aforementioned positive obligation must be construed as
Article 2 and would undermine the validity of applying in the context of any activity, whether public
domestic efforts and authorities involved in the or not, in which the right to life may be at stake (see
regulation of health care, especially in circumstances Centre for Legal Resources on behalf of Valentin
where there was no causation between an alleged breach
Câmpeanu, cited above, § 130), including in the
of duty and an injury or death.
public-health sphere.
4. THE COURT’S ASSESSMENT 166. In the particular context of health care the
(a) Summary of the relevant case-law Court has interpreted the substantive positive
162. The Court is frequently called upon to rule on obligation of the State as requiring the latter to make
regulations compelling hospitals, whether private or
complaints alleging a violation of Article 2 of the
public, to adopt appropriate measures for the protection
Convention in the context of health care. A
of patients’ lives (see, among many other
considerable number of these cases concern authorities, Oyal v. Turkey, no. 4864/05, § 54, 23
allegations of negligence occurring in the context of March 2010, and Lambert and Others v. France [GC],
medical treatment in hospitals. In this regard the no. 46043/14, § 140, ECHR 2015 (extracts)).
Court considers that the present case provides an
opportunity to reaffirm and clarify the scope of the
167. However, it has not excluded the possibility that
the acts and omissions of the authorities in the context
substantive positive obligations of States in such cases.
of public health policies, may, in certain
163. The Court would emphasise at the outset circumstances, engage the Contacting Parties’
that different considerations arise in certain other responsibility under the substantive limb of Article 2
contexts, in particular with regard to the medical (see Powell, cited above).

(ii) CASE-LAW ON MEDICAL NEGLIGENCE were considered unfounded on the facts because no
medical negligence had been established at the domestic
168. In cases where allegations of medical level, notably by medical experts (see, for example,
negligence were made in the context of the Skraskowski v. Poland (dec.), no. 36420/97, 6 April
treatment of a patient, the Court has consistently 2000; Sieminska v. Poland, no. 37602/97, 29 March
emphasised that, where a Contracting State has made 2001; Buksa v. Poland (dec.), no. 75749/13, § 13, 31
adequate provision for securing high professional May 2016; and Mihu v. Romania, no. 36903/13, § 67,
standards among health professionals and the 1 March 2016). The Court reiterates that it is not for
protection of the lives of patients, matters such as an
it to speculate, on the basis of the medical information
error of judgment on the part of a health professional or
submitted to it, on whether the conclusions of the
negligent coordination among health professionals in
medical experts on which domestic court decisions were
the treatment of a particular patient are not sufficient of
themselves to call a Contracting State to account from founded were correct (see Sayan v. Turkey, no. 81277/
the standpoint of its positive obligations under Article 2 12, § 112, 11 October 2016, and Balcı v. Turkey (dec.),
of the Convention to protect life (see, among many no. 58194/10, § 45, 20 October 2015, and the cases
other authorities, Powell, cited above, and Sevim cited therein).
Güngör v. Turkey (dec.), no. 75173/01, 14 April 172. The Court has usually reviewed such factual
2009). issues under the procedural limb, considering that the
169. To date, in cases concerning medical events leading to the death of the patient and the
negligence, the Court has rarely found deficiencies in responsibility of the health professionals involved
the regulatory framework of member States as such were matters which must be addressed from the
(see Arskaya, cited above, § 91, and, a contrario, Z v. angle of the adequacy of the mechanisms that
Poland, no. 46132/08, §§ 110-12, 13 November 2012; were in place for shedding light on the course of
see also Altuğ and Others v. Turkey, no. 32086/07, § those events, allowing the facts of the case to be
73, 30 June 2015; Glass v. the United Kingdom, exposed to public scrutiny, not least for the
(dec.), no. 61827/00, 18 March 2003; andSevim benefit of the applicants (see, for example,
Güngör, cited above). Trzepalko v. Poland (dec.), no. 25124/09, § 24, 13
170. In the case of Arskaya v. Ukraine, cited September 2011; Oyal, cited above; Eugenia Lazăr,
above, the applicant alleged that her son, who had cited above, §§ 69-70; Rinkūnienė v. Lithuania (dec.),
been hospitalised for pneumonia and tuberculosis, no. 55779/08, 1 December 2009; and Zafer Öztürk v.
had died as a result of medical negligence on Turkey, no. 25774/09, § 46, 21 July 2015).
account of inadequate health-care regulations (iii) CASE-LAW ON DENIAL OF HEALTH CARE
concerning patients refusing to consent to
173. The Court has further held that an issue may
treatment. The Court, when finding a substantive arise under Article 2 where it is shown that the
violation of Article 2, noted that the local authorities of a Contracting State have put an
regulations governing patients’ admission to individual’s life at risk through the denial of the health
intensive care were inadequate. It further found care which they have undertaken to make
that there was a lack of appropriate rules for available to the population generally (see Cyprus
establishing patients’ decision-making capacity, v. Turkey, cited above, § 219).
including their informed consent to treatment. It 174. Until recently, the type of cases which were
considered therefore that the authorities had not examined by the Court with reference to the
taken sufficient steps to put in place a regulatory aforementioned principle concerned applicants
framework ensuring that the life of the applicant’s who were claiming that the State should pay for a
son was properly protected by law as required by particular form of conventional treatment because
Article 2 of the Convention (ibid. §§ 84-91). they were unable to meet the costs it entailed (see,
171. In a number of cases the Court has also addressed for example, Nitecki v. Poland (dec.), no. 65653/01,
the substance of the applicants’ medical negligence 21 March 2002; Pentiacova and Others v. Moldova
claims. However, in all those cases, such claims (dec.), no. 14462/03, ECHR 2005-I; Gheorghe v.

Romania (dec.), no. 19215/04, 22 September 2005; drug free of charge, in circumstances where the
and Wiater v. Poland (dec.), no. 42290/08, 15 May domestic courts had found that the individual in
2012) or that they should have access to question had such an entitlement.
unauthorised medicinal products for medical (iv) RECENT CASE-LAW DEVELOPMENTS
treatment (see Hristozov and Others v. Bulgaria,
nos. 47039/11 and 358/12, ECHR 2012 (extracts)). 177. The Court observes that the parties, in their
The Court did not find a breach of Article 2 in submissions, focused on some recent cases
any of these cases, either because it considered concerning a failure to provide emergency
that sufficient medical treatment and facilities had medical care in the context of pre- or post-natal
been provided to the applicants on an equal care.
footing with other persons in a similar situation 178. A substantive violation of Article 2 was
(see Nitecki and Gheorghe, both cited above) or found in the context of denial of health care in
because the applicants had failed to adduce any Mehmet Şentürk and Bekir Şentürk, cited above,
evidence that their lives had been put at risk where the first applicant’s wife, who was pregnant,
(see Pentiacova and Others, cited above). died in an ambulance because of the doctors’ refusal to
In Hristozov and Others, cited above, the Court carry out an urgent operation owing to her inability to
did not find fault with the regulations governing pay medical fees. In this connection the Court held
access to unauthorised medicinal products in that it was not disputed that the patient had arrived at
situations where conventional forms of medical the hospital in a serious condition and that she required
emergency surgery, failing which there were likely to be
treatment appeared insufficient, and considered
extremely grave consequences. While the Court did
that Article 2 of the Convention could not be
not want to speculate on the chances of survival
interpreted as requiring access to unauthorised
of the first applicant’s wife had she received
medicinal products for terminally-ill patients to
medical treatment, it considered that the medical
be regulated in a particular way (ibid. § 108).
staff had been fully aware that transferring the
175. In this connection the Court reiterates that patient to another hospital would put her life at
issues such as the allocation of public funds in the area risk. In this regard it took note that domestic law
of health care are not a matter on which the Court
did not have any provisions in this area capable of
should take a stand and that it is for the competent
preventing the failure to give the patient the
authorities of the Contracting States to consider
medical treatment she had required on account of
and decide how their limited resources should be
her condition. The Court therefore considered that
allocated, as those authorities are better placed
the first applicant’s wife, victim of a flagrant
than the Court to evaluate the relevant demands malfunctioning of the relevant hospital departments,
in view of the scarce resources and to take had been deprived of the possibility of access to
responsibility for the difficult choices which have appropriate emergency care (ibid. §§ 96-97).
to be made between worthy needs (see Wiater, § 179. In the case of Asiye Genç, cited above, the
39, Pentiacova and Others and Gheorghe, all applicant’s new-born baby died in an ambulance after
cited above). being refused admission to a number of public hospitals
176. The Court found a procedural violation in owing to a lack of space or adequate equipment in their
the case of Panaitescu v. Romania (no. 30909/06, neonatal units. The Court, considering that the
10 April 2012) where it considered that the State State had not sufficiently ensured the proper
had failed to prevent the applicant’s life from organisation and functioning of the public
being avoidably put at risk by not providing him hospital service, or more generally its health
with the appropriate health care as ordered by the protection system, held that the applicant’s son
national courts. This was a very exceptional case had been the victim of a dysfunction in the
which concerned the refusal of the domestic authorities hospital services, as he had been deprived of
to provide the patient with a particular, costly cancer access to appropriate emergency treatment. It

emphasised that the baby had not died because the lack of a regulatory framework laying down
there had been negligence or an error of judgment rules for hospitals to ensure protection of the lives
in his medical care, but because no treatment of premature babies. The Court, noting that, apart
whatsoever had been offered. The Court therefore from the negligent behaviour of the medical staff, there
concluded that there had been a refusal to provide was a causal link between the baby’s death and the
medical treatment, resulting in the patient’s life being above-mentioned structural problems, held that the
put in danger (ibid. §§ 80-82). baby had been the victim of negligence and structural
180. In Elena Cojocaru, cited above, the deficiencies. This had effectively prevented her
applicant’s pregnant daughter, who was suffering from receiving appropriate emergency treatment
from a serious pre-natal condition, died after a and amounted to a refusal to provide medical
doctor at the public hospital had refused to treatment, resulting in the patient’s life being put
perform an emergency C-section and she was in danger (ibid. § 88).
transferred to another hospital, 150 km away, 182. The predominant features which stand out in
without a doctor’s supervision. The new-born the aforementioned cases – apart from the case of
baby died two days later. The Court found that the Elena Cojocaru which follows the line taken in
circumstances in that case constituted a failure to the Chamber judgment in the present case – clearly
provide adequate emergency treatment (ibid. § 125) demonstrate that the Court has distinguished these
since, irrespective of the reason, the patient’s cases, where there is an arguable claim of a denial of
transfer had delayed the emergency treatment she immediate emergency care, from cases which concern
needed. The apparent lack of coordination of the allegations of mere medical negligence (see Mehmet
medical services and the delay in administering the Şentürk and Bekir Şentürk, §§ 85, 104 and
appropriate emergency treatment attested to a 105; Aydoğdu, §§ 62, 76 and 80; and Asiye Genç, §§
dysfunction in public hospital services (ibid. § 111). 73, 76 and 82, all cited above; see also M. v. Turkey,
no. 4050/10 (dec), 15 October 2013, and Sayan, cited
181. The case of Aydoğdu, cited above, concerned above, §§ 111-12, where the applicants were unable to
the death of a premature baby due to a substantiate the alleged denial of health care). Thus,
combination of circumstances, notably on the approach adopted in those cases cannot be
account of a dysfunction in the health system in a transposed to cases where the allegations concern mere
particular region of Turkey (ibid. §§ 55 and 76). medical negligence.
In that case the Court considered that the 183. These cases are, in the Court’s view,
authorities responsible for health care must have exceptional ones in which the fault attributable to the
been aware at the time of the events that there health-care providers went beyond a mere error or
was a real risk to the lives of multiple patients, medical negligence. They concerned circumstances
including the applicant’s baby, owing to a chronic where the medical staff, in breach of their
state of affairs which was common knowledge, professional obligations, failed to provide
and yet had failed to take any of the steps that emergency medical treatment despite being fully
could reasonably have been expected of them to aware that a person’s life would be put at risk if
avert that risk. The Court noted that the that treatment was not given (see Mehmet Şentürk
Government had not explained why taking such and Bekir Şentürk, cited above, § 104).
steps would have constituted an impossible or 184. Moreover, as observed by the United
disproportionate burden for them, bearing in mind Kingdom Government, the Court’s approach,
the operational choices that needed to be made in particularly in the case of Aydoğdu, cited above,
terms of priorities and resources (ibid. § 87). It is akin to the test which it applies when examining the
therefore held that Turkey had not taken substantive positive obligation of the State to undertake
sufficient care to ensure the proper organisation preventive operational measures to protect an
and functioning of the public hospital service in individual whose life is imminently at real risk (see, for
this region of the country, in particular because of general principles, Osman, cited above, §§ 115-

16). In Aydoğdu the failure to provide emergency by the State in its regulatory duties calls for a
medical treatment resulted from a dysfunction in concrete assessment of the alleged deficiencies
the hospital services in that particular region, a rather than an abstract one. In this regard, the
situation of which the authorities were or ought to Court reiterates that its task is not normally to review
have been aware but which they had failed to the relevant law and practice in abstracto, but to
address by undertaking the necessary measures to determine whether the manner in which they were
applied to, or affected, the applicant gave rise to a
prevent the lives of patients being put at risk. In
violation of the Convention (see Roman Zakharov v.
this regard the Court emphasises that the Russia [GC], no. 47143/06, § 164, ECHR 2015 and
dysfunctioning of the hospital services referred to
the cases cited therein). Therefore, the mere fact that
in Aydoğdu and Asiye Genç, both cited above, did the regulatory framework may be deficient in some
not concern negligent coordination between different respect is not sufficient in itself to raise an issue under
hospital services or between different hospitals vis-à-
Article 2 of the Convention. It must be shown to have
vis a particular patient. It concerned a structural issue
operated to the patient’s detriment (compare and
linked to the deficiencies in the regulatory framework
contrast Z v. Poland, cited above, §§ 110-12,
(see Aydoğdu, cited above, § 87).
and Arskaya, cited above, §§ 84-91).
(b) THE COURT’S APPROACH
189. It must, moreover, be emphasised that the
185. Having regard to its case-law summarised States’ obligation to regulate must be understood
above, the Court considers that the approach in a broader sense which includes the duty to
adopted hitherto should be clarified. ensure the effective functioning of that regulatory
186. In this regard the Court reaffirms that in the framework. The regulatory duties thus encompass
context of alleged medical negligence, the States’ necessary measures to ensure implementation,
substantive positive obligations relating to medical including supervision and enforcement.
treatment are limited to a duty to regulate, that is to 190. On the basis of this broader understanding of
say, a duty to put in place an effective regulatory the States’ obligation to provide a regulatory
framework compelling hospitals, whether private or framework, the Court has accepted that, in the very
public, to adopt appropriate measures for the exceptional circumstances described below, the
protection of patients’ lives. responsibility of the State under the substantive limb of
Article 2 of the Convention may be engaged in respect
187. Even in cases where medical negligence was
of the acts and omissions of health-care providers.
established, the Court would normally find a
substantive violation of Article 2 only if the relevant 191. The first type of exceptional circumstances
regulatory framework failed to ensure proper concerns a specific situation where an individual
protection of the patient’s life. The Court reaffirms patient’s life is knowingly put in danger by denial of
that where a Contracting State has made adequate access to life-saving emergency treatment (see, for
provision for securing high professional standards example, Mehmet Şentürk and Bekir Şentürk, and,
among health professionals and the protection of the by contrast, Sayan, both cited above). It does not
lives of patients, matters such as an error of extend to circumstances where a patient is
judgment on the part of a health professional or considered to have received deficient, incorrect or
negligent coordination among health professionals delayed treatment.
in the treatment of a particular patient cannot be
192. The second type of exceptional circumstances
considered sufficient of themselves to call a Contracting
State to account from the standpoint of its positive
arises where a systemic or structural dysfunction in
hospital services results in a patient being deprived of
obligations under Article 2 of the Convention to protect
life (see, among many other authorities, Powell access to life-saving emergency treatment and the
authorities knew about or ought to have known about
and Sevim Güngör, both cited above). that risk and failed to undertake the necessary measures
188. For the Court’s examination of a particular to prevent that risk from materialising, thus putting
case, the question whether there has been a failure the patients’ lives, including the life of the

particular patient concerned, in danger (see, for charge of treating him had failed to undertake the
example, Asiye Genç and Aydoğdu, both cited above). necessary measures to save her husband’s life. In
193. The Court is aware that on the facts it may particular, she claimed that her husband had been
sometimes not be easy to distinguish between infected at the hospital by the Pseudomonas
cases involving mere medical negligence and cepacia bacterium, which had caused her
those where there is a denial of access to life- husband’s meningitis; that a serious error of
saving emergency treatment, particularly since diagnosis had been made when her husband had
there may be a combination of factors which attended the emergency department of the
contribute to a patient’s death. CHVNG on 29 November 1997; that this delay in
194. However, the Court reiterates at this juncture diagnosis had allowed a life-threatening infection
that, for a case to fall into the latter category, the to develop, which had then had to be treated with
very high doses of medication with extremely
following factors, taken cumulatively, must be met.
Firstly, the acts and omissions of the health-care damaging gastrointestinal side-effects; that the
providers must go beyond a mere error or medical decision to discharge her husband from the
negligence, in so far as those health-care providers, CHVNG on various dates had not been
in breach of their professional obligations, deny a accompanied by the requisite medical follow-up;
patient emergency medical treatment despite and that the perforated duodenal ulcer had been
being fully aware that the person’s life is at risk if diagnosed well before the surgery performed on 7
that treatment is not given (see Mehmet Şentürk March 1998.
and Bekir Şentürk, cited above, § 104). 198. At the outset, the Court emphasises that it is
195. Secondly, the dysfunction at issue must be not for the Court to call into question the medical
professionals’ assessment of the health status of the now
objectively and genuinely identifiable as systemic or
deceased patient, or their decisions regarding how he
structural in order to be attributable to the State
should have been treated (see Glass, cited above).
authorities, and must not merely comprise
individual instances where something may have Those clinical assessments and decisions were
been dysfunctional in the sense of going wrong or made against the background of the patient’s state
functioning badly (see, in particular, Aydoğdu, cited of health at the time and the conclusions of the
above, § 87, and, by contrast, Eugenia Lazăr, cited medical staff as to what steps needed to be taken
above, §§ 69-70). for his treatment. In this connection the Court
observes that the medical treatment provided to the
196. Thirdly, there must be a link between the applicant’s husband was subjected to domestic scrutiny
dysfunction complained of and the harm which the and that none of the judicial or disciplinary bodies
patient sustained. Finally, the dysfunction at issue which examined the applicant’s allegations ultimately
must have resulted from the failure of the State to meet found any fault with his medical treatment. Moreover,
its obligation to provide a regulatory framework in the
while some experts voiced concerns or criticism
broader sense indicated above (see paragraph 189
with regard to certain aspects of his treatment,
above and, for example, Mehmet Şentürk and Bekir
none of the medical expert evidence conclusively
Şentürk, cited above, § 96, and Aydoğdu, cited above,
established the existence of medical negligence in the
§§ 87-88).
treatment of the applicant’s husband.
(c) Application of those criteria to the present case
199. The Court reiterates in this regard that, except
197. The Court observes that, in the instant case, the in cases of manifest arbitrariness or error, it is not the
applicant did not allege or imply that her husband’s Court’s function to call into question the findings of fact
death had been caused intentionally. She submitted made by the domestic authorities, particularly when
that her husband had lost his life as a result of a it comes to scientific expert assessments, which
hospital-acquired infection and of various by definition call for specific and detailed
instances of medical negligence which occurred knowledge of the subject (see Počkajevs v.
throughout his treatment, and that the doctors in Latvia (dec.), no. 76774/01, 21 October 2004). It

follows that the examination of the circumstances infectious-diseases panel. Finally, no similar views
leading to the death of the applicant’s husband and the were mentioned by any other experts who gave
alleged responsibility of the health professionals
involved are matters which must be addressed from the
evidence in the different proceedings at the
angle of the adequacy of the mechanisms in place for national level.
shedding light on the course of those events. These 202. It has not been demonstrated, either, that the
aspects fall to be examined under the procedural alleged fault attributable to the health-care
obligation of the State as addressed below (see, among professionals went beyond a mere error or
other authorities, Eugenia Lazăr, § 70; Powell (dec.); medical negligence or that the health-care
Sevim Güngör (dec.); and Mihu, § 68, all cited above). professionals involved in the treatment of the
200. The Court observes that in the present case the applicant’s husband failed, in breach of their
applicant did not complain that her husband had been professional obligations, to provide emergency
denied access to medical treatment in general or medical treatment to him despite being fully
emergency treatment in particular. Nor is there any aware that his life was at risk if that treatment
information in the case file which would suggest was not given. In this regard the Court, contrary to
such an issue in the present case. Rather, the the Chamber’s finding, considers that the alleged lack of
applicant complained that the medical treatment coordination between the ENT department of the
provided to her husband had been deficient because of CHVNG and the hospital’s emergency department does
the negligence of the doctors who had treated him. In not, by itself, amount to a dysfunction in hospital
the Court’s view, an alleged error in diagnosis services capable of engaging the State’s responsibility
leading to a delay in the administration of proper under Article 2. In the present case, the Court does
treatment, or an alleged delay in performing a not have at its disposal any evidence or other
particular medical intervention, cannot in themselves elements that would enable it to make any
constitute a basis for considering the facts of this case on findings or reach any conclusions establishing a
a par with those concerning denial of healthcare. situation of structural or systemic dysfunctions in
201. Moreover, the Court considers that no the health-care services in question.
sufficient evidence has been adduced in the present case 203. In view of the above considerations, the
to demonstrate that there existed, at the material time,
Court takes the view that the present case concerns
any systemic or structural dysfunction affecting the
allegations of medical negligence. In these
hospitals where the applicant’s husband was treated,
circumstances Portugal’s substantive positive
which the authorities knew or ought to have
obligations are limited to the setting-up of an adequate
known about and in respect of which they failed regulatory framework compelling hospitals, whether
to undertake the necessary preventive measures, private or public, to adopt appropriate measures for the
and that such a deficiency contributed decisively to the protection of patients’ lives (see paragraphs 186 and
death of the applicant’s husband (compare Asiye 189 above).
Genç, § 80, and Aydoğdu, § 87, both cited above).
204. Having regard to the detailed rules and
In this respect, while the Court does not disregard
the critical remarks which were made by the
standards laid down in the domestic law and
infectious-diseases panel (see paragraph 53 above), it
practice of the respondent State in the area under
observes, firstly, that this panel neither mentioned consideration (see paragraphs 88-109 above), the
any supporting evidence for these general remarks nor Court considers that the relevant regulatory
considered that this alleged deficiency contributed framework does not disclose any shortcomings as
decisively to the death of the applicant’s husband. regards the State’s obligation to protect the right to life
Secondly, these views were not endorsed by the of the applicant’s husband. Nor has the applicant
Medical Association’s regional disciplinary council for argued otherwise.
the North region in its decision, which was given 205. Therefore, the Court finds that there has been
after having examined the conclusions of five no violation of Article 2 of the Convention in its
different specialist panels, including that of the substantive aspect.

B. THE PROCEDURAL ASPECT shortcomings in the functioning of the system. In

1. THE CHAMBER JUDGMENT this regard she stressed that she had consistently
206. The Chamber found that there had been a set in motion the appropriate mechanisms at the
violation of the procedural aspect of Article 2 of the domestic level. According to the Court’s case-
Convention. It considered at the outset that the law, compliance with the procedural obligation under
Portuguese legal system provided citizens with Article 2 required: (i) that effective legal mechanisms
exist for establishing the facts and the responsibility of
means which, theoretically, met the requirements
those at fault; (ii) that the task of establishing such
of Article 2 of the Convention.
facts and responsibilities be assumed by impartial
207. With regard, however, to the effectiveness of persons; (iii) that the procedures concerned be set in
the mechanisms the Chamber noted, firstly, the motion and carried through in good time and with
excessive length of the domestic proceedings suitable promptness, without unnecessary or
before the IGS, the Vila Nova de Gaia District unjustified delays; and (iv) that any specific steps
Court and the Oporto Administrative and Fiscal required by the circumstances be taken.
Court, which did not meet the requirement of 209. In this regard the applicant did not contest that
promptness under the procedural limb of Article 2 the first two requirements had been satisfied in the
of the Convention. Secondly, it considered that circumstances of the present case. However, she
none of the decisions taken, nor any of the claimed that the national authorities had failed to react
experts’ assessments presented, had addressed to the situation with the necessary promptness,
satisfactorily the question of the possible causal responsiveness and diligence, as established in
link between the various illnesses suffered by the paragraphs 132-37 of the Chamber judgment,
patient two days after the surgery. The Chamber with which she agreed. She further considered
observed that in each set of proceedings the that there had been a number of failings which had
events had been described in chronological order compromised the decision-making process. Firstly, as
in isolation from each other. Finally, the Chamber the Chamber had noted, no comprehensive,
considered that if meningitis was a possible thorough and satisfactory assessment had been
complication following this type of surgery, then made by the domestic authorities. Secondly, as
the issue as to whether the applicant’s husband the Chamber had likewise emphasised, the risks
had been duly informed of the risks he faced so attendant on the intended surgery had not been
that he could give his informed consent had to be made clear to the patient. Thirdly, the authorities
addressed by the domestic courts. No explanation had not even tried to determine the origin of the
had been provided in the domestic proceedings bacterium which had caused the meningitis and,
regarding the pre- and post-operative medical fourthly, in the absence of a properly substantiated
protocol for this surgery. The Chamber therefore explanation for the chain of events in question an
considered that the domestic authorities had not dealt autopsy should have been mandatory.
with the applicant’s case concerning her husband’s
death in a manner compatible with the procedural (b) THE GOVERNMENT
requirements of Article 2 of the Convention. 210. The Government submitted that the death of a
2. THE PARTIES’ SUBMISSIONS patient in hospital could not be compared to the death
of someone who was under the control of the authorities
(a) THE APPLICANT
or the deaths of vulnerable persons in the care of public
208. The applicant submitted that where a death services. They considered that the death of a patient
occurred in a hospital without the cause being following a medical procedure in hospital did not
clarified, there was in principle an obligation to require the automatic institution of an inquiry,
establish an appropriate procedural mechanism particularly where the death did not give rise to doubts
for determining that cause, for holding any as to its cause or raise suspicions as to the existence of
persons at fault to account and for correcting any an intentional act or medical negligence. In the

Government’s view an examination of all the argued, the lengthy proceedings might breach Article 6
circumstances was, however, necessary in order § 1 of the Convention, which was incidentally the
to determine the cause of death, with the complaint lodged by the applicant.
performance of an autopsy being required only 213. The Government reiterated that, in
where it had not been possible to determine that accordance with the Court’s case-law, the
cause. The Government submitted that, in the obligation deriving from the procedural limb of Article
present case, there was no evidence or indication of 2 was one of means and not of result. In this regard, if
medical negligence, and the cause of death was known. some doubts had persisted concerning the events
They stated that, pursuant to Article 54 of surrounding the applicant’s husband’s death, this
Legislative Decree no. 11/98 of 24 January 1998, was simply because there were always situations
autopsies were undertaken in the event of violent death in which medical science was unable to predict,
or where the cause of death was unknown. diagnose or explain. However, this was not in any
211. They noted, nonetheless, that when the way attributable to a lack of effort on the part of
applicant had made her allegations, a number of the domestic authorities. The Government
proceedings of a different nature had been initiated and
had gone on to run their full course; all the actions that
therefore considered that the procedural obligations
were requested had been carried out, as had all the deriving from Article 2 of the Convention had been
appropriate steps that had been necessary in order to fulfilled in the present case. Accordingly, they called
help establish the facts and determine possible for the application to be rejected as inadmissible under
responsibilities. The Government provided a Article 35 § 4 of the Convention, on the ground that it
detailed description of the steps taken in the was manifestly ill-founded.
course of each set of proceedings. They 3. THE COURT’S ASSESSMENT
maintained that the courts and the disciplinary
(a) GENERAL PRINCIPLES
bodies involved in the present case had had a
clear and detailed set of facts at their disposal 214. The Court has interpreted the procedural
concerning, in particular, the causes of death, obligation of Article 2 in the context of health care as
which had allowed them to conclude without any requiring States to set up an effective and independent
doubt that there had been no medical negligence. judicial system so that the cause of death of patients in
the care of the medical profession, whether in the
In this connection the Government stressed that the
applicant had at every stage participated in the public or the private sector, can be determined and
proceedings, presented her arguments and evidence in those responsible made accountable (see, among other
full adversarial proceedings, lodged complaints and authorities, Šilih v. Slovenia [GC], no. 71463/01, §
appealed against decisions. Moreover, the judicial 192, 9 April 2009, and the cases cited therein).
proceedings had taken place before independent and 215. While, in some exceptional situations, where the
impartial judges and the hearings had been public.
fault attributable to the health-care providers went
212. The Government conceded that the proceedings beyond a mere error or medical negligence, the
had been lengthy. However, they considered that Court has considered that compliance with the
this had not stood in the way of effective observance of procedural obligation must include recourse to criminal
the procedural obligation. They argued that the law (see, for example, Mehmet Şentürk and Bekir
length of the criminal and civil proceedings and Şentürk, §§ 104-105, and Asiye Genç, § 73, both cited
those before the IGS could be attributed precisely above), in all other cases where the infringement of
to the efforts made by the competent authorities the right to life or to personal integrity is not
to address with rigour all the facts of the case and caused intentionally, the procedural obligation
all the doubts expressed by the applicant. In such imposed by Article 2 to set up an effective and
circumstances, the Government considered that independent judicial system does not necessarily require
the duration of the proceedings could not be a ground the provision of a criminal-law remedy (see paragraph
for finding a violation of the procedural obligation 137 above; see also Cevrioğlu v. Turkey, no. 69546/12,
under Article 2 of the Convention. At most, they § 54, 4 October 2016).

216. The Court reiterates that the choice of means essential to enable the institutions and medical
for ensuring the positive obligations under Article 2 is in staff concerned to remedy the potential
principle a matter that falls within the Contracting deficiencies and prevent similar errors. The
State’s margin of appreciation. There are different prompt examination of such cases is therefore
avenues for ensuring Convention rights, and even important for the safety of all users of health-care
if the State has failed to apply one particular services (see Oyal, cited above, § 76).
measure provided by domestic law, it may still
219. This is why the Court has held that, in Article
fulfil its positive duty by other means (see 2 cases, particularly in those concerning proceedings
Cevrioğlu, cited above, § 55). However, for this instituted to elucidate the circumstances of an
obligation to be satisfied, such proceedings must not individual’s death in a hospital setting, the lengthiness
only exist in theory but also operate effectively in of proceedings is a strong indication that the
practice (see, for example, Byrzykowski, cited proceedings were defective to the point of constituting a
above, § 105, and Spyra and Kranczkowski v. violation of the respondent State’s positive obligations
Poland, no. 19764/07, § 88, 25 September 2012). under the Convention, unless the State has provided
217. A requirement of independence of the domestic highly convincing and plausible reasons to justify
system set up to determine the cause of death of patients the length of the proceedings (see, for example,
in the care of the medical profession is implicit in this Bilbija and Blažević v. Croatia, no. 62870/13, § 107,
context. This requires not only a lack of 12 January 2016).
hierarchical or institutional connection but also 220. Unlike in cases concerning the lethal use of
that all parties tasked with conducting an force by State agents, where the competent
assessment in the proceedings for determining the authorities must of their own motion initiate
cause of death of patients enjoy formal and de investigations, in cases concerning medical negligence
facto independence from those implicated in the where the death is caused unintentionally, the States’
events (see Bajić v. Croatia, no. 41108/10, § 90, procedural obligations may come into play upon the
institution of proceedings by the deceased’s relatives
13 November 2012). This requirement is
(see Šilih, cited above, § 156).
particularly important when obtaining medical
reports from expert witnesses (see Karpisiewicz v. 221. Finally, the Court stresses that this procedural
obligation is not an obligation of result but of means
Poland (dec.), no. 14730/09, 11 December 2012),
only (ibid., § 193). Thus, the mere fact that
as the medical reports of expert witnesses are
proceedings concerning medical negligence have
very likely to carry crucial weight in a court’s
ended unfavourably for the person concerned
assessment of the highly complex issues of
does not in itself mean that the respondent State
medical negligence, which gives them a
particularly important role in the proceedings has failed in its positive obligation under Article
(see Bajić, cited above, § 95). 2 of the Convention (see Besen v. Turkey (dec.), no.
48915/09, § 38 in fine, 19 June 2012, and E.M. and
218. Likewise, the procedural obligation under Others v. Romania (dec.), no. 20192/07, § 50, 3 June
Article 2 in the context of health care requires, inter 2014).
alia, that the proceedings be completed within a (b) Application of these principles
reasonable time (see Šilih, cited above, § 196). In to the present case
that connection the Court emphasises that, apart
from the concern for the respect of the rights 222. The Court observes that the applicant’s
husband, who had been in good health, underwent a
inherent in Article 2 of the Convention in each
routine operation in hospital and ended up suffering
individual case, more general considerations also from bacterial meningitis, ulcers, colitis and other
call for a prompt examination of cases concerning medical complications which led to his death three
medical negligence in a hospital setting. months later from septicaemia caused by peritonitis and
Knowledge of the facts and of possible errors a perforated viscus. In view of the aforementioned
committed in the course of medical care is sequence of events, the Court considers that the

applicant had arguable grounds to suspect that her argued before the Grand Chamber – that she was
husband’s death could have been the result of medical placed at a procedural disadvantage vis-à-vis the
negligence. The respondent State’s duty to ensure medical institutions or doctors in any of these
compliance with the procedural obligations arising proceedings. It therefore remains to be ascertained
under Article 2, in the proceedings instituted with
whether the domestic proceedings were effective in
regard to her husband’s death, is therefore engaged in
terms of being thorough, prompt and concluded within
the present case (see Šilih, cited above, § 197). This
a reasonable time.
obligation came into play upon the institution of
proceedings by the applicant (ibid., § 156). 227. As regards the thoroughness, the Court finds
it appropriate to respond first to the specific
223. The Court notes that in cases of medical complaints raised by the applicant in her written
negligence Portuguese law provides, in addition to the
possibility of criminal proceedings, for the option of submissions regarding the lack of an autopsy and
bringing proceedings for civil liability in the of her husband’s consent to his operation (see
administrative courts against public hospitals. The paragraph 209 above). As regards the first of
hospitals may in turn be entitled to claim these issues, the Court agrees with the Chamber’s
reimbursement of the damages payable from the view that the cause of the applicant’s husband’s death
had not raised any doubts which would have required
officials who acted in breach of their professional
an autopsy to be performed under the statutory
duty. Furthermore, an application may be made to provisions in that regard. As to the second issue, in
the Ministry of Health and the Medical the absence of a specific substantive complaint on
Association seeking to establish disciplinary the matter, the Court finds that the domestic
liability on the part of members of the health-care judicial and other bodies cannot be faulted for not
profession. delving into that issue in depth (see, for
224. On this basis the Court concludes that the example, Vasileva, cited above, § 76).
Portuguese legal system offers litigants remedies which,
in theory, meet the requirements of the procedural 228. The Court will now proceed with the
obligations under Article 2. The applicant has not examination of the manner in which the domestic
argued otherwise. proceedings were conducted.
225. In the instant case, the applicant made use of all 229. As regards the proceedings before the IGS
of the procedures mentioned above. The question is the Court observes, firstly, that it took the IGS two
therefore whether, in the concrete circumstances of the years to order the opening of an investigation, and a
case, given the fundamental importance of the further year to appoint an inspector to head the
investigation. Secondly, evidence was heard from
right to life guaranteed under Article 2 of the
Convention and the particular weight the Court the applicant for the first time almost three years
has attached to the procedural requirement under and six months after she had contacted the
that provision, the legal system as a whole dealt authorities. The investigation before this body
therefore lacked promptness. The Court further
adequately with the case at hand (see Dodov, cited
above, § 86; Arskaya, cited above, § 66; and Kudra v. observes that the proceedings before the IGS had
Croatia, no. 13904/07, § 107, 18 December 2012). already lasted for slightly more than seven years
and ten months before the applicant was informed
226. At the outset the Court observes that the that the disciplinary proceedings initiated against
applicant did not contest the independence and
impartiality of the domestic authorities or the experts Dr J.V. would be stayed pending the outcome of
who gave evidence in the various proceedings. It the criminal proceedings. During this period the
further considers that the applicant did have the Inspector’s report was set aside twice by the
possibility to participate actively in the different Inspector General for Health in order to obtain
proceedings and availed herself of her procedural rights additional information or to order fresh expert
to influence their course. There is nothing in the assessments to be carried out by different experts
case file to demonstrate – nor has the applicant in the fields of internal medicine and

gastroenterology. The successive adoption of not deal with any of the other instances of alleged
such decisions within one set of proceedings medical negligence complained of by the applicant.
disclosed, in the particular circumstances of the This in itself is sufficient to consider that they were
present case, a deficiency in the manner in which the deficient. Having regard to the limited scope of the
Inspector General investigated the case. criminal proceedings, the applicant could not be
230. As to the proceedings before the Medical faulted for not appealing against the court’s
Association, the Court observes that the latter judgment. Secondly, the proceedings were neither
responded promptly to the applicant’s request by prompt nor was their overall duration reasonable. No
seeking the opinions of five of its specialist significant procedural steps – save for those
panels immediately after receiving the patient’s mentioned in paragraphs 60 and 61 above – were
medical records, and that the overall length of the undertaken by the prosecuting authorities
proceedings before the Medical Association was between 29 April 2002 and 7 December 2007, a
approximately four years and five months at two levels. period of almost five years and seven months.
This cannot be considered per se as unreasonable. The proceedings in total lasted for six years, eight
However, the Court cannot lose sight of the fact months and nineteen days.
that the proceedings before this specialised body 234. In view of the above shortcomings, the Court
consisted merely in examining the patient’s considers that the criminal proceedings in the present
medical records and the opinions of the specialist case were also ineffective for the purposes of Article 2.
panels. The proceedings were written and no The Court further finds it necessary to examine the
evidence was heard. Seen from this angle and in effectiveness of the action for compensation brought by
the absence of any explanation from the the applicant before the administrative courts.
Government, the duration of these proceedings was 235. As mentioned above (see paragraph 138
also unreasonable. above), in the Court’s view those proceedings
231. In view of the above, the Court considers were, in principle, capable of providing the most
that the disciplinary proceedings in the present case appropriate redress in relation to the death of the
can hardly be regarded as effective for the purposes of applicant’s husband. However, the Court does not
Article 2. It is further necessary to examine the consider that they did so in the instant case, for
effectiveness of the criminal proceedings. the following reasons.
232. In this connection the Court notes that, in the 236. The Court observes that the first striking
instant case, there is nothing to indicate that the feature of these proceedings is their considerable length.
death of the applicant’s husband was caused It notes that the compensation proceedings before
intentionally, and the circumstances in which it the Oporto Administrative and Fiscal Court
occurred were not such as to raise suspicions in commenced on 6 March 2003 and ended on 26
that regard. Therefore, Article 2 did not necessarily February 2013. They therefore lasted for nine
require a criminal-law remedy. However, if deemed years, eleven months and twenty-five days over
effective, such proceedings would by themselves two levels of jurisdiction. Contrary to the
be capable of satisfying the procedural obligation Government’s assertion, the case file does not
of Article 2 (see Šilih, cited above, § 202). suggest that such lengthy proceedings were justified by
233. The Court observes, firstly, that the the circumstances of the case. In particular, the Court
prosecuting authorities initiated criminal proceedings stresses that the Oporto Administrative and Fiscal
against Dr J.V. merely on the basis of the report Court took more than four years to give a
adopted by the Inspector in the proceedings before the preliminary decision, and a further four years to
IGS, without conducting any further investigation (see arrange the hearings. The Court considers that such
paragraph 62 above). As a result the criminal a lengthy time prolongs the ordeal of uncertainty not
proceedings were concerned only with the narrow issue only for the claimants but also for the medical
set out in the charges that had been brought, and did professionals concerned.

237. Secondly, the Court considers that, for the A. DAMAGE

purposes of the procedural obligation of Article 2, the
scope of an investigation faced with complex issues
241. In the proceedings before the Chamber, the
arising in a medical context cannot be interpreted as applicant claimed 174,580 euros (EUR) and EUR
being limited to the time and direct cause of the 100,000 respectively by way of pecuniary and
individual’s death. The Court cannot speculate on non-pecuniary damage.
the reasons why the origin of the bacterium which 242. With regard to the sum claimed in respect of
caused the applicant’s husband to contract pecuniary damage, the Chamber found, besides the
meningitis could not be established at domestic lack of evidence in support of the claim, no
level. It finds however that, where there is a prima causal link between the violation found and the
facie arguable claim of a chain of events possibly alleged pecuniary damage. Accordingly, it
triggered by an allegedly negligent act that may have
contributed to the death of a patient, in particular if an rejected that claim. By contrast, it considered that
allegation of a hospital-acquired infection is concerned, just satisfaction should be awarded on account of the
the authorities may be expected to conduct a thorough fact that the violation of the substantive and procedural
examination into the matter. The Court considers aspects of Article 2 had caused the applicant non-
that no such examination was conducted in the instant pecuniary damage by placing her in a position of
case, in which the domestic courts, instead of carrying distress and frustration. It awarded the applicant
out an overall assessment, approached the chain of EUR 39,000 under that head.
events as a succession of medical incidents, without 243. Before the Grand Chamber, in her observations
paying particular attention to how they may have of 31 August 2016, the applicant did not make any
related to each other. specific claims for just satisfaction. However, at the
238. In sum, the Court considers that the domestic hearing before the Grand Chamber the applicant’s
system as a whole, when faced with an arguable case of representative referred to her claim before the
medical negligence resulting in the death of the Chamber and emphasised that the applicant accepted
applicant’s husband, failed to provide an adequate and the decision made by the latter with regard to just
timely response consonant with the State’s obligation satisfaction.
under Article 2. Accordingly, there has been a
244. The Government did not comment on the
violation of the procedural aspect of that provision.
question of just satisfaction after it was raised by
C. CONCLUSION the applicant’s representative at the hearing
239. The Court reiterates that there has been no before the Grand Chamber.
violation of the substantive limb of Article 2 of the 245. The Court reiterates that Article 41 empowers it
Convention and that there has been a violation of the to afford the injured party such satisfaction as appears
procedural limb of Article 2 of the Convention. The to it to be appropriate (see Karácsony and Others v.
Court therefore dismisses the Government’s Hungary [GC], no. 42461/13, § 179, ECHR 2016
preliminary objection that the application is manifestly (extracts)).
ill-founded.
246. It observes in this regard that there is no
III. APPLICATION OF ARTICLE 41 doubt that a claim for just satisfaction was duly made
OF THE CONVENTION during the communication procedure before the
240. Article 41 of the Convention provides: Chamber, within the required time-limits (see, a
contrario, Schatschaschwili v. Germany [GC],
“If the Court finds that there has been a
no. 9154/10, § 167, ECHR 2015, and Nagmetov
violation of the Convention or the Protocols
thereto, and if the internal law of the High
v. Russia [GC], no. 35589/08, § 62, 30 March
Contracting Party concerned allows only 2017), leading to an award of compensation to the
partial reparation to be made, the Court shall, applicant in respect of non-pecuniary damage.
if necessary, afford just satisfaction to the 247. The Court further notes that, while the
injured party.” applicant did not make any fresh claim for just

satisfaction within the required time-limit in the 2. Holds, by fifteen votes to two, that there
proceedings before the Grand Chamber, she has been no violation of the substantive limb of
subsequently referred to her claim before the Article 2 of the Convention;
Chamber and affirmed that she accepted the 3. Holds, unanimously, that there has been a
decision made by the latter with regard to just violation of the procedural limb of Article 2 of
satisfaction. The Government, who had the the Convention;
opportunity to respond to this claim at the 4. Holds, by fifteen votes to two,
hearing, did not object.
(a) that the respondent State is to pay the
248. In view of the above, the Court is satisfied that applicant, within three months, the sum of
a “claim” for just satisfaction has been made before the EUR 23,000 (twenty-three thousand
Court in the present case. euros), plus any tax that may be
249. Like the Chamber, the Court does not chargeable on that amount, in respect of
discern any causal link between the violation non-pecuniary damage:
found and the unsubstantiated pecuniary damage (b) that from the expiry of the above-
alleged, and dismisses this claim. mentioned three months until
250. As regards non-pecuniary damage, the Court settlement simple interest shall be
payable on the above amount at a rate
observes that the State was not found liable for the
equal to the marginal lending rate of
death of the applicant’s husband. Nevertheless, it
the European Central Bank during the
considers that the applicant must have
default period plus three percentage
experienced severe distress and frustration on points;
account of the inadequacy and protracted nature
of the proceedings initiated by her in order to 5. Dismisses, by fifteen votes to two, the
remainder of the applicant’s claim for just
elucidate the circumstances surrounding the death
satisfaction.
of her husband. Ruling in equity, as required under
Article 41, the Court awards her EUR 23,000 under this Done in English and in French, and delivered
head. at a public hearing in the Human Rights Building,
Strasbourg, on 19 December 2017.
B. COSTS AND EXPENSES
Roderick Liddell Guido Raimondi
251. As the applicant, who was granted legal aid Registrar President
for the proceedings before the Grand Chamber, In accordance with Article 45 § 2 of the
submitted no claim for costs and expenses, the Convention and Rule 74 § 2 of the Rules of
Court makes no award under this head Court, the following separate opinions are
(see Perdigão v. Portugal [GC], no. 24768/06, § 87, annexed to this judgment:
16 November 2010).
(a) Partly concurring, partly dissenting opinion
C. DEFAULT INTEREST of Judge Pinto de Albuquerque;
252. The Court considers it appropriate that the (b) Partly dissenting opinion of Judge Serghides.
default interest rate should be based on the marginal G.R.
lending rate of the European Central Bank, to which R.L.
should be added three percentage points. [We regret to inform our readers that due to
space constraints, we are unable to give here the
FOR THESE REASONS, THE COURT
above two partly dissenting opinions; readers
1. Joins to the merits, unanimously, the interested in more than this Court Opinion can
Government’s preliminary objection that the find these opinions on the ECHR website: http://
application is manifestly ill-founded and www.echr.coe.int/]
dismisses it; *****

BEYOND VIETNAM
♣
- Martin Luther King Jr.
“I just learned that King was murdered exactly one Laymen Concerned About Vietnam. The recent
year to the day of his April 4th, 1967 Beyond Vietnam
statements of your executive committee are the
speech, which denounced not just Vietnam but all of
U.S. militarism. After which, the Washington Post, sentiments of my own heart, and I found myself
basically tried to fire King: “He has diminished his in full accord when I read its opening lines: “A
usefulness,” its editors said. King said no, not just to time comes when silence is betrayal.” That time has
LBJ but to the devil’s bargain that tempted even Du
Bois (with WWI): that domestic progress might be
come for us in relation to Vietnam.
achieved, but on condition that endless war is not The truth of these words is beyond doubt, but
questioned. Once he gave the speech, he was criticized the mission to which they call us is a most
by liberal allies white and black, who, pre-Tet, had bet
their hopes on that pact, including Jackie Robinson,
difficult one. Even when pressed by the demands
Roy Wilkins, and even Bayard Rustin, among others. of inner truth, men do not easily assume the task
Newspapers around the country, not just the WP, were of opposing their government’s policy, especially
near unanimous in their censure. Among many in time of war. Nor does the human spirit move
haunting things about that speech is the idea that time
is running out. We might be able to get right, but, King
without great difficulty against all the apathy of
said, history moves forward and there was such a thing conformist thought within one’s own bosom and
as being “too late.” “We may cry out desperately for in the surrounding world. Moreover, when the
time to pause in her passage, but time is deaf to every issues at hand seem as perplexing as they often
plea and rushes on. Over the bleached bones and
jumbled residue of numerous civilizations are written the
do in the case of this dreadful conflict, we are
pathetic words: ‘Too late.’” – Greg Grandin always on the verge of being mesmerized by
uncertainty. But we must move on.
Mr. Chairman, ladies and gentlemen, I need
not pause to say how very delighted I am to be Some of us who have already begun to break
here tonight, and how very delighted I am to see the silence of the night have found that the calling
you expressing your concern about the issues that to speak is often a vocation of agony, but we must
will be discussed tonight by turning out in such speak. We must speak with all the humility that is
large numbers. I also want to say that I consider it appropriate to our limited vision, but we must
a great honor to share this program with Dr. speak. And we must rejoice as well, for surely
Bennett, Dr. Commager, and Rabbi Heschel, this is the first time in our nation’s history that a
some of the most distinguished leaders and significant number of its religious leaders have
personalities of our nation. And of course it’s chosen to move beyond the prophesying of
always good to come back to Riverside Church. smooth patriotism to the high grounds of a firm
Over the last eight years, I have had the privilege dissent based upon the mandates of conscience
of preaching here almost every year in that and the reading of history. Perhaps a new spirit is
period, and it’s always a rich and rewarding rising among us. If it is, let us trace its movement,
experience to come to this great church and this and pray that our inner being may be sensitive to
great pulpit. its guidance. For we are deeply in need of a new way
beyond the darkness that seems so close around us.
I come to this great magnificent house of worship
tonight because my conscience leaves me no other Over the past two years, as I have moved to
choice. I join you in this meeting because I am in break the betrayal of my own silences and to
deepest agreement with the aims and work of the speak from the burnings of my own heart, as
organization that brought us together, Clergy and I have called for radical departures from the
destruction of Vietnam, many persons have questioned
♣
Courtesy: Greg Grandin & kingencyclopedia.stanford.edu; me about the wisdom of my path. At the heart of their
@jorgluyken at www.thelocal.de; dated 15 January concerns, this query has often loomed large and
2018; emphases in bold ours - IMS. loud: “Why are you speaking about the war, Dr.

64 Beyond Vietnam (Martin Luther King Jr.) (2018) 1 LAW
King? Why are you joining the voices of and I watched this program broken and
dissent?” “Peace and civil rights don’t mix,” they eviscerated as if it were some idle political
say. “Aren’t you hurting the cause of your people?” plaything on a society gone mad on war. And
they ask. And when I hear them, though I often I knew that America would never invest the necessary
understand the source of their concern, I am funds or energies in rehabilitation of its poor so long as
nevertheless greatly saddened, for such questions adventures like Vietnam continued to draw men and
mean that the inquirers have not really known skills and money like some demonic, destructive suction
tube. So I was increasingly compelled to see the war as
me, my commitment, or my calling. Indeed, their
an enemy of the poor and to attack it as such.
questions suggest that they do not know the world in
which they live. In the light of such tragic Perhaps a more tragic recognition of reality
misunderstanding, I deem it of signal importance took place when it became clear to me that the war
to state clearly, and I trust concisely, why I was doing far more than devastating the hopes of the
believe that the path from Dexter Avenue Baptist poor at home. It was sending their sons and their
Church – the church in Montgomery, Alabama, brothers and their husbands to fight and to die in
where I began my pastorate – leads clearly to this extraordinarily high proportions relative to the
sanctuary tonight. rest of the population. We were taking the black
young men who had been crippled by our society
I come to this platform tonight to make a
and sending them eight thousand miles away to
passionate plea to my beloved nation. This speech is
guarantee liberties in Southeast Asia which they
not addressed to Hanoi or to the National
had not found in southwest Georgia and East
Liberation Front. It is not addressed to China or
Harlem. So we have been repeatedly faced with
to Russia. Nor is it an attempt to overlook the
the cruel irony of watching Negro and white boys
ambiguity of the total situation and the need for a
on TV screens as they kill and die together for a
collective solution to the tragedy of Vietnam.
nation that has been unable to seat them together
Neither is it an attempt to make North Vietnam or
in the same schools. So we watch them in brutal
the National Liberation Front paragons of virtue,
solidarity burning the huts of a poor village, but
nor to overlook the role they must play in the
we realize that they would hardly live on the
successful resolution of the problem. While they
same block in Chicago. I could not be silent in the
both may have justifiable reasons to be suspicious
face of such cruel manipulation of the poor.
of the good faith of the United States, life and
history give eloquent testimony to the fact that My third reason moves to an even deeper level
conflicts are never resolved without trustful give and of awareness, for it grows out of my experience
take on both sides. Tonight, however, I wish not to in the ghettos of the North over the last three
speak with Hanoi and the National Liberation Front, years, especially the last three summers. As I have
but rather to my fellow Americans. walked among the desperate, rejected, and angry young
men, I have told them that Molotov cocktails and rifles
Since I am a preacher by calling, I suppose it
would not solve their problems. I have tried to offer
is not surprising that I have seven major reasons
them my deepest compassion while maintaining
for bringing Vietnam into the field of my moral
my conviction that social change comes most
vision. There is at the outset a very obvious and
meaningfully through nonviolent action. But they
almost facile connection between the war in
asked, and rightly so, “What about Vietnam?” They
Vietnam and the struggle I and others have been
asked if our own nation wasn’t using massive doses of
waging in America. A few years ago there was a
violence to solve its problems, to bring about the
shining moment in that struggle. It seemed as if changes it wanted. Their questions hit home, and
there was a real promise of hope for the poor, I knew that I could never again raise my voice against
both black and white, through the poverty the violence of the oppressed in the ghettos without
program. There were experiments, hopes, new having first spoken clearly to the greatest purveyor of
beginnings. Then came the buildup in Vietnam, violence in the world today: my own government. For the

(2018) 1 LAW Beyond Vietnam (Martin Luther King Jr.) 65
sake of those boys, for the sake of this But even if it were not present, I would yet
government, for the sake of the hundreds of have to live with the meaning of my commitment to the
thousands trembling under our violence, I cannot ministry of Jesus Christ. To me, the relationship of
be silent. this ministry to the making of peace is so obvious
For those who ask the question, “Aren’t you a that I sometimes marvel at those who ask me why
civil rights leader?” and thereby mean to exclude I am speaking against the war. Could it be that they
do not know that the Good News was meant for all men
me from the movement for peace, I have this
– for communist and capitalist, for their children
further answer. In 1957, when a group of us
and ours, for black and for white, for revolutionary
formed the Southern Christian Leadership
and conservative? Have they forgotten that my
Conference, we chose as our motto: “To save the ministry is in obedience to the one who loved his
soul of America.” We were convinced that we enemies so fully that he died for them? What then can
could not limit our vision to certain rights for I say to the Vietcong or to Castro or to Mao as
black people, but instead affirmed the conviction a faithful minister of this one? Can I threaten
that America would never be free or saved from them with death or must I not share with them my
itself until the descendants of its slaves were life?
loosed completely from the shackles they still
Finally, as I try to explain for you and for
wear. In a way we were agreeing with Langston
myself the road that leads from Montgomery to
Hughes, that black bard from Harlem, who had
this place, I would have offered all that was most
written earlier:
valid if I simply said that I must be true to my
O, yes, I say it plain, conviction that I share with all men the calling to
America never was America to me,
And yet I swear this oath – be a son of the living God. Beyond the calling of
America will be! race or nation or creed is this vocation of sonship
Now it should be incandescently clear that no and brotherhood. Because I believe that the Father is
one who has any concern for the integrity and life of deeply concerned, especially for His suffering and
helpless and outcast children, I come tonight to speak
America today can ignore the present war. If
for them. This I believe to be the privilege and the
America’s soul becomes totally poisoned, part of burden of all of us who deem ourselves bound by
the autopsy must read “Vietnam.” It can never be allegiances and loyalties which are broader and deeper
saved so long as it destroys the hopes of men the than nationalism and which go beyond our nation’s
world over. So it is that those of us who are yet self-defined goals and positions. We are called to
determined that “America will be” are led down speak for the weak, for the voiceless, for the victims of
the path of protest and dissent, working for the our nation, for those it calls “enemy,” for no
health of our land. document from human hands can make these
As if the weight of such a commitment to the humans any less our brothers.
life and health of America were not enough, And as I ponder the madness of Vietnam and
another burden of responsibility was placed upon search within myself for ways to understand and
me in 1954.∗ And I cannot forget that the Nobel respond in compassion, my mind goes constantly
Peace Prize was also a commission, a to the people of that peninsula. I speak now not of
commission to work harder than I had ever the soldiers of each side, not of the ideologies of
worked before for the brotherhood of man. This the Liberation Front, not of the junta in Saigon,
is a calling that takes me beyond national but simply of the people who have been living under
the curse of war for almost three continuous decades
allegiances.
now. I think of them, too, because it is clear to me
∗
that there will be no meaningful solution there until
King says “1954,” but most likely means 1964, the year some attempt is made to know them and hear their
he received the Nobel Peace Prize. broken cries.

They must see Americans as strange liberators. North. The peasants watched as all of this was
The Vietnamese people proclaimed their own presided over by United States influence and then
independence in 1954 – in 1945 rather – after a by increasing numbers of United States troops
combined French and Japanese occupation and who came to help quell the insurgency that
before the communist revolution in China. They were Diem’s methods had aroused. When Diem was
led by Ho Chi Minh. Even though they quoted the overthrown they may have been happy, but the
American Declaration of Independence in their own long line of military dictators seemed to offer no
document of freedom, we refused to recognize them. real change, especially in terms of their need for
Instead, we decided to support France in its land and peace.
reconquest of her former colony. Our government The only change came from America as we
felt then that the Vietnamese people were not increased our troop commitments in support of
ready for independence, and we again fell victim governments which were singularly corrupt, inept, and
to the deadly Western arrogance that has poisoned the without popular support. All the while the people
international atmosphere for so long. With that tragic read our leaflets and received the regular
decision we rejected a revolutionary government promises of peace and democracy and land
seeking self-determination and a government that had reform. Now they languish under our bombs and
been established not by China – for whom the consider us, not their fellow Vietnamese, the real
Vietnamese have no great love – but by clearly enemy. They move sadly and apathetically as we
indigenous forces that included some communists. herd them off the land of their fathers into
For the peasants this new government meant real concentration camps where minimal social needs
land reform, one of the most important needs in are rarely met. They know they must move on or
their lives. be destroyed by our bombs.
For nine years following 1945 we denied the people So they go, primarily women and children and
of Vietnam the right of independence. For nine years the aged. They watch as we poison their water, as
we vigorously supported the French in their we kill a million acres of their crops. They must weep
abortive effort to recolonize Vietnam. Before the as the bulldozers roar through their areas preparing to
end of the war we were meeting eighty percent of destroy the precious trees. They wander into the
the French war costs. Even before the French hospitals with at least twenty casualties from
were defeated at Dien Bien Phu, they began to American firepower for one Vietcong-inflicted
despair of their reckless action, but we did not. injury. So far we may have killed a million of them,
We encouraged them with our huge financial and mostly children. They wander into the towns and
military supplies to continue the war even after see thousands of the children, homeless, without
they had lost the will. Soon we would be paying clothes, running in packs on the streets like
almost the full costs of this tragic attempt at animals. They see the children degraded by our
recolonization. soldiers as they beg for food. They see the children
After the French were defeated, it looked as if selling their sisters to our soldiers, soliciting for their
independence and land reform would come again mothers.
through the Geneva Agreement. But instead there What do the peasants think as we ally
came the United States, determined that Ho ourselves with the landlords and as we refuse to
should not unify the temporarily divided nation, put any action into our many words concerning
and the peasants watched again as we supported land reform? What do they think as we test out
one of the most vicious modern dictators, our chosen our latest weapons on them, just as the Germans
man, Premier Diem. The peasants watched and tested out new medicine and new tortures in the
cringed and Diem ruthlessly rooted out all concentration camps of Europe? Where are the
opposition, supported their extortionist landlords, roots of the independent Vietnam we claim to be
and refused even to discuss reunification with the building? Is it among these voiceless ones?

We have destroyed their two most cherished percent communist, and yet insist on giving them
institutions: the family and the village. We have the blanket name? What must they be thinking
destroyed their land and their crops. We have when they know that we are aware of their
cooperated in the crushing of the nation’s only control of major sections of Vietnam, and yet we
noncommunist revolutionary political force, the appear ready to allow national elections in which
unified Buddhist Church. We have supported the this highly organized political parallel
enemies of the peasants of Saigon. We have government will not have a part? They ask how
corrupted their women and children and killed we can speak of free elections when the Saigon
their men. press is censored and controlled by the military
Now there is little left to build on, save bitterness. junta. And they are surely right to wonder what
Soon the only solid physical foundations kind of new government we plan to help form
remaining will be found at our military bases and without them, the only real party in real touch
in the concrete of the concentration camps we call with the peasants. They question our political
“fortified hamlets.” The peasants may well goals and they deny the reality of a peace
wonder if we plan to build our new Vietnam on settlement from which they will be excluded.
such grounds as these. Could we blame them for Their questions are frighteningly relevant. Is our
such thoughts? We must speak for them and raise nation planning to build on political myth again,
the questions they cannot raise. These, too, are and then shore it up upon the power of a new
violence?
our brothers.
Here is the true meaning and value of compassion
Perhaps a more difficult but no less necessary and nonviolence, when it helps us to see the enemy’s
task is to speak for those who have been point of view, to hear his questions, to know his
designated as our enemies. What of the National assessment of ourselves. For from his view we may
Liberation front, that strangely anonymous group indeed see the basic weaknesses of our own
we call “VC” or “communists”? What must they condition, and if we are mature, we may learn
think of the United States of America when they and grow and profit from the wisdom of the
realize that we permitted the repression and brothers who are called the opposition.
cruelty of Diem, which helped to bring them into So, too, with Hanoi. In the North, where our
being as a resistance group in the South? What do bombs now pummel the land, and our mines
they think of our condoning the violence which endanger the waterways, we are met by a deep
led to their own taking up of arms? How can they but understandable mistrust. To speak for them is
believe in our integrity when now we speak of to explain this lack of confidence in Western
“aggression from the North” as if there was worlds, and especially their distrust of American
nothing more essential to the war? How can they intentions now. In Hanoi are the men who led this
trust us when now we charge them with violence nation to independence against the Japanese and
after the murderous reign of Diem and charge the French, the men who sought membership in
them with violence while we pour every new the French Commonwealth and were betrayed by
weapon of death into their land? Surely we must the weakness of Paris and the willfulness of the
understand their feelings, even if we do not colonial armies. It was they who led a second
condone their actions. Surely we must see that the struggle against French domination at tremendous
men we supported pressed them to their violence. costs, and then were persuaded to give up the
Surely we must see that our own computerized land they controlled between the thirteenth and
plans of destruction simply dwarf their greatest seventeenth parallel as a temporary measure at
acts. Geneva. After 1954 they watched us conspire with
How do they judge us when our officials know Diem to prevent elections which could have surely
that their membership is less than twenty-five brought Ho Chi Minh to power over a unified Vietnam,

and they realized they had been betrayed again. wealthy, and the secure, while we create a hell for
When we ask why they do not leap to negotiate, the poor.
these things must be considered. Surely this madness must cease. We must stop
Also, it must be clear that the leaders of Hanoi now. I speak as a child of God and brother to the
considered the presence of American troops in suffering poor of Vietnam. I speak for those
support of the Diem regime to have been the whose land is being laid waste, whose homes are
initial military breach of the Geneva Agreement being destroy, whose culture is being subverted. I
concerning foreign troops. They remind us that speak for the poor in America who are paying the
they did not begin to send troops in large double price of smashed hopes at home, and dealt
numbers and even supplies into the South until death and corruption in Vietnam. I speak as a
American forces had moved into the tens of citizen of the world, for the world as it stands
thousands. aghast at the path we have taken. I speak as one
Hanoi remembers how our leaders refused to who loves America, to the leaders of our own
tell us the truth about the earlier North nation: The great initiative in this war is ours; the
Vietnamese overtures for peace, how the initiative to stop it must be ours.
president claimed that none existed when they This is the message of the great Buddhist
had clearly been made. Ho Chi Minh has watched leaders of Vietnam. Recently one of them wrote
as America has spoken of peace and built up its these words, and I quote:
forces, and now he has surely heard the “Each day the war goes on the hatred
increasing international rumors of American increased in the hearts of the Vietnamese and in
plans for an invasion of the north. He knows the the hearts of those of humanitarian instinct. The
bombing and shelling and mining we are doing Americans are forcing even their friends into
are part of traditional pre-invasion strategy. becoming their enemies. It is curious that the
Perhaps only his sense of humor and of irony can Americans, who calculate so carefully on the
save him when he hears the most powerful nation possibilities of military victory, do not realize that
of the world speaking of aggression as it drops in the process they are incurring deep
thousands of bombs on a poor, weak nation more psychological and political defeat. The image of
than eight hundred, or rather, eight thousand America will never again be the image of
miles away from its shores. revolution, freedom, and democracy, but the
At this point I should make it clear that while I image of violence and militarism.”
have tried to give a voice to the voiceless in If we continue, there will be no doubt in my
Vietnam and to understand the arguments of mind and in the mind of the world that we have
those who are called “enemy,” I am as deeply no honorable intentions in Vietnam. If we do not
concerned about our own troops there as anything stop our war against the people of Vietnam
else. For it occurs to me that what we are immediately, the world will be left with no other
submitting them to in Vietnam is not simply the alternative than to see this as some horrible,
brutalizing process that goes on in any war where clumsy, and deadly game we have decided to
armies face each other and seek to destroy. We play. The world now demands a maturity of
are adding cynicism to the process of death, for America that we may not be able to achieve. It
they must know after a short period there that demands that we admit we have been wrong from
none of the things we claim to be fighting for are the beginning of our adventure in Vietnam, that
really involved. Before long they must know that we have been detrimental to the life of the
their government has sent them into a struggle Vietnamese people. The situation is one in which
among Vietnamese, and the more sophisticated we must be ready to turn sharply from our present
surely realize that we are on the side of the ways. In order to atone for our sins and errors in

Vietnam, we should take the initiative in bringing I am pleased to say that this is a path now chosen
a halt to this tragic war. by more than seventy students at my own alma
I would like to suggest five concrete things mater, Morehouse College, and I recommend it to
that our government should do to begin the long all who find the American course in Vietnam a
and difficult process of extricating ourselves from dishonorable and unjust one. [applause] Moreover,
this nightmarish conflict: I would encourage all ministers of draft age to give up
their ministerial exemptions and seek status as
Number one: End all bombing in North and South
conscientious objectors. [applause] These are the times
Vietnam.
for real choices and not false ones. We are at the
Number two: Declare a unilateral cease-fire in the moment when our lives must be placed on the line if our
hope that such action will create the nation is to survive its own folly. Every man of
atmosphere for negotiation. humane convictions must decide on the protest
Three: Take immediate steps to prevent other that best suits his convictions, but we must all
battlegrounds in Southeast Asia by curtailing our protest.
military buildup in Thailand and our
interference in Laos. Now there is something seductively tempting
about stopping there and sending us all off on
Four: Realistically accept the fact that the
what in some circles has become a popular crusade
National Liberation Front has substantial
against the war in Vietnam. I say we must enter that
support in South Vietnam and must thereby
play a role in any meaningful negotiations and struggle, but I wish to go on now to say
any future Vietnam government. something even more disturbing.
Five: Set a date that we will remove all foreign The war in Vietnam is but a symptom of a far
troops from Vietnam in accordance with the 1954 deeper malady within the American spirit, and if we
Geneva Agreement. [sustained applause] ignore this sobering reality [applause], and if we
ignore this sobering reality, we will find ourselves
Part of our ongoing [applause continues], part of
organizing “clergy and laymen concerned” committees
our ongoing commitment might well express for the next generation. They will be concerned
itself in an offer to grant asylum to any about Guatemala and Peru. They will be
Vietnamese who fears for his life under a new concerned about Thailand and Cambodia. They
regime which included the Liberation Front. Then will be concerned about Mozambique and South
we must make what reparations we can for the Africa. We will be marching for these and a
damage we have done. We must provide the dozen other names and attending rallies without
medical aid that is badly needed, making it end unless there is a significant and profound
available in this country if necessary. Meanwhile change in American life and policy. [sustained
[applause], meanwhile, we in the churches and
applause] So such thoughts take us beyond
synagogues have a continuing task while we urge Vietnam, but not beyond our calling as sons of
our government to disengage itself from a the living God.
disgraceful commitment. We must continue to
raise our voices and our lives if our nation In 1957 a sensitive American official overseas
persists in its perverse ways in Vietnam. We must said that it seemed to him that our nation was on the
wrong side of a world revolution. During the past ten
be prepared to match actions with words by
seeking out every creative method of protest years we have seen emerge a pattern of suppression
which has now justified the presence of U.S. military
possible.
advisors in Venezuela. This need to maintain social
As we counsel young men concerning military stability for our investments accounts for the
service, we must clarify for them our nation’s counterrevolutionary action of American forces in
role in Vietnam and challenge them with the Guatemala. It tells why American helicopters are being
alternative of conscientious objection. [sustained applause] used against guerrillas in Cambodia and why American

napalm and Green Beret forces have already been A true revolution of values will lay hand on the
active against rebels in Peru. world order and say of war, “This way of settling
It is with such activity that the words of the late differences is not just.” This business of burning
John F. Kennedy come back to haunt us. Five years human beings with napalm, of filling our nation’s
ago he said, “Those who make peaceful revolution homes with orphans and widows, of injecting
impossible will make violent revolution inevitable.” poisonous drugs of hate into the veins of peoples
[applause] Increasingly, by choice or by accident, normally humane, of sending men home from
this is the role our nation has taken, the role of dark and bloody battlefields physically
those who make peaceful revolution impossible handicapped and psychologically deranged, cannot
by refusing to give up the privileges and the be reconciled with wisdom, justice, and love. A
nation that continues year after year to spend more
pleasures that come from the immense profits of money on military defense than on programs of social
overseas investments. I am convinced that if we uplift is approaching spiritual death. [sustained applause]
are to get on to the right side of the world revolution, we
as a nation must undergo a radical revolution of values.
America, the richest and most powerful nation
We must rapidly begin [applause], we must rapidly in the world, can well lead the way in this
begin the shift from a thing-oriented society to a revolution of values. There is nothing except a
person-oriented society. When machines and tragic death wish to prevent us from reordering
computers, profit motives and property rights, are our priorities so that the pursuit of peace will take
considered more important than people, the giant precedence over the pursuit of war. There is
triplets of racism, extreme materialism, and nothing to keep us from molding a recalcitrant
militarism are incapable of being conquered. status quo with bruised hands until we have
fashioned it into a brotherhood.
A true revolution of values will soon cause us to
This kind of positive revolution of values is our
question the fairness and justice of many of our past
best defense against communism. [applause] War is not
and present policies. On the one hand we are called
the answer. Communism will never be defeated by the
to play the Good Samaritan on life’s roadside, but
use of atomic bombs or nuclear weapons. Let us not
that will be only an initial act. One day we must
join those who shout war and, through their
come to see that the whole Jericho Road must be
misguided passions, urge the United States to
transformed so that men and women will not be
relinquish its participation in the United Nations.
constantly beaten and robbed as they make their
These are days which demand wise restraint and
journey on life’s highway. True compassion is more
calm reasonableness. We must not engage in a
than flinging a coin to a beggar. It comes to see than
negative anticommunism, but rather in a positive thrust
an edifice which produces beggars needs for democracy [applause], realizing that our greatest
restructuring. [applause] defense against communism is to take offensive
A true revolution of values will soon look uneasily action in behalf of justice. We must with positive
on the glaring contrast of poverty and wealth. With action seek to remove those conditions of poverty,
righteous indignation, it will look across the seas insecurity, and injustice, which are the fertile soil in
and see individual capitalists of the West which the seed of communism grows and develops.
investing huge sums of money in Asia, Africa, These are revolutionary times. All over the globe
and South America, only to take the profits out men are revolting against old systems of exploitation
with no concern for the social betterment of the and oppression, and out of the wounds of a frail
countries, and say, “This is not just.” It will look at world, new systems of justice and equality are being
our alliance with the landed gentry of South born. The shirtless and barefoot people of the land
America and say, “This is not just.” The Western are rising up as never before. The people who sat
arrogance of feeling that it has everything to teach in darkness have seen a great light. We in the West
others and nothing to learn from them is not just. must support these revolutions.
Law Animated World, 15 January 2018

70
It is a sad fact that because of comfort, perfected in us.” Let us hope that this spirit will
complacency, a morbid fear of communism, and become the order of the day.
our proneness to adjust to injustice, the Western We can no longer afford to worship the god of hate
nations that initiated so much of the revolutionary spirit or bow before the altar of retaliation. The oceans of
of the modern world have now become the arch
history are made turbulent by the ever-rising tides of
antirevolutionaries. This has driven many to feel hate. History is cluttered with the wreckage of nations
that only Marxism has a revolutionary spirit. and individuals that pursued this self-defeating path of
Therefore, communism is a judgment against our hate. As Arnold Toynbee says: “Love is the
failure to make democracy real and follow through on ultimate force that makes for the saving choice of
the revolutions that we initiated. Our only hope today life and good against the damning choice of death
lies in our ability to recapture the revolutionary and evil. Therefore the first hope in our inventory
spirit and go out into a sometimes hostile world must be the hope that love is going to have the
declaring eternal hostility to poverty, racism, and last word.”
militarism. With this powerful commitment we We are now faced with the fact, my friends,
shall boldly challenge the status quo and unjust that tomorrow is today. We are confronted with
mores, and thereby speed the day when “every
the fierce urgency of now. In this unfolding
valley shall be exalted, and every mountain and conundrum of life and history, there is such a
hill shall be made low [Audience:] (Yes); the thing as being too late. Procrastination is still the
crooked shall be made straight, and the rough
thief of time. Life often leaves us standing bare,
places plain.”
naked, and dejected with a lost opportunity. The
A genuine revolution of values means in the final tide in the affairs of men does not remain at flood
analysis that our loyalties must become ecumenical – it ebbs. We may cry out desperately for time to
rather than sectional. Every nation must now develop an
pause in her passage, but time is adamant to every
overriding loyalty to mankind as a whole in order to
plea and rushes on. Over the bleached bones and
preserve the best in their individual societies. jumbled residues of numerous civilizations are written
This call for a worldwide fellowship that lifts the pathetic words, “Too late.” There is an invisible
neighborly concern beyond one’s tribe, race, class, and book of life that faithfully records our vigilance
nation is in reality a call for an all-embracing and or our neglect. Omar Khayyam is right: “The moving
unconditional love for all mankind. This oft
finger writes, and having writ moves on.”
misunderstood, this oft misinterpreted concept, so
readily dismissed by the Nietzsches of the world We still have a choice today: nonviolent coexistence
or violent coannihilation. We must move past
as a weak and cowardly force, has now become an
absolute necessity for the survival of man. When
indecision to action. We must find new ways to
I speak of love I am not speaking of some sentimental speak for peace in Vietnam and justice
and weak response. I’m not speaking of that force throughout the developing world, a world that
which is just emotional bosh. I am speaking of borders on our doors. If we do not act, we shall
that force which all of the great religions have surely be dragged down the long, dark, and
seen as the supreme unifying principle of life. Love is shameful corridors of time reserved for those who
somehow the key that unlocks the door which possess power without compassion, might
leads to ultimate reality. This Hindu-Muslim- without morality, and strength without sight.
Christian-Jewish-Buddhist belief about ultimate reality Now let us begin. Now let us rededicate ourselves
is beautifully summed up in the first epistle of to the long and bitter, but beautiful, struggle for a new
Saint John: “Let us love one another (Yes), for world. This is the calling of the sons of God, and
love is God. (Yes) And every one that loveth is our brothers wait eagerly for our response. Shall
born of God and knoweth God. He that loveth not we say the odds are too great? Shall we tell them
knoweth not God, for God is love. . . . If we love the struggle is too hard? Will our message be that
one another, God dwelleth in us and his love is the forces of American life militate against their

arrival as full men, and we send our deepest

regrets? Or will there be another message – of
longing, of hope, of solidarity with their
yearnings, of commitment to their cause,
whatever the cost? The choice is ours, and though
we might prefer it otherwise, we must choose in this
crucial moment of human history.
As that noble bard of yesterday, James Russell
Lowell, eloquently stated:
Once to every man and nation comes a moment do decide,
In the strife of truth and Falsehood, for the good or evil side;
Some great cause, God’s new Messiah offering each the bloom or blight,
And the choice goes by forever ‘twixt that darkness and that light.
Though the cause of evil prosper, yet ‘tis truth alone is strong
Though her portions be the scaffold, and upon the throne be wrong
Yet that scaffold sways the future, and behind the dim unknown
Standeth God within the shadow, keeping watch above his own.
And if we will only make the right choice, we will be
able to transform this pending cosmic elegy into a
creative psalm of peace. If we will make the right
choice, we will be able to transform the jangling
discords of our world into a beautiful symphony
of brotherhood. If we will but make the right
choice, we will be able to speed up the day, all over
America and all over the world, when justice will roll
down like waters, and righteousness like a mighty
stream. [sustained applause]
*****
***
“President Donald J. Trump signed H.R. 267 into law on

January 8. Named the “Martin Luther King, Jr. National
Historical Park Act,” the law redesignates a National Historic
Site in Georgia - the state where King was born - as the Martin
Luther King, Jr. National Historical Park. The President also
signed a proclamation on January 12, 2018, that officially
designated the following Monday as the ‘Martin Luther King,
Jr., Federal Holiday’.” {White House despatch}
*****

IN MEMORY OF ROSA LUXEMBURG AND KARL LIEBKNECHT
♣
- Jörg Luyken
99 years since Rosa Luxemburg But she remained a member of the socialist
was murdered and dumped in a intellectual circles, disagreeing with her Russian
contemporaries on the importance of nationalism (she
Berlin canal
saw it as a bourgeois fascination). Just before the
turn of the century, she moved to Berlin, where
she became involved with the Social Democratic
party (SPD). She always remained on the far-left of
the party though, and when the SPD backed German
involvement in the First World War, she went into
opposition.
Liebknecht was six months Luxemburg’s junior.
Born in Leipzig in 1871, he grew up in a left-
wing household at a time when socialist parties
were banned in Germany. Also highly educated,
he studied law and political economy in Leipzig
Rosa Luxemburg and Karl Liebknecht. Photo: DPA and then Berlin. He forged a career as a lawyer
Monday marks the 99th anniversary of the extra- and writer, spending time in jail for his text
judicial killing of the two most prominent German “militarism and anti-militarism.” While in jail, he still
communists of the early twentieth century. But a managed to win election into the Prussian Landtag, and
memorial which took place on Sunday illustrates in 1912 he was elected to the Reichstag. Despite the
just how complicated their legacy is.
fact that he was a parliamentarian, he was sent off
On January 15th 1919, paramilitaries burst to the eastern front to engage in non-combat duties.
into an apartment in western Berlin and seized the Tasked to peel potatoes, fell trees and bury the
communist revolutionaries Rosa Luxemburg and dead, Liebknecht suffered physical breakdown. He
Karl Liebknecht. Although neither had an arrest was kicked out of the SPD in 1916, an act that
warrant against them, they were both taken brought him into political union with Luxemburg.
prisoner. Luxemburg was tortured and killed and her Along with other revolutionaries the pair set up
body was dumped in the Landwehr Canal in
the anti-war Spartacus League in 1916. In their illegal
Kreuzberg. Her corpse was only found months
communist underground, Liebknecht wrote and
later. Liebknecht was taken to the Tiergarten park
disseminated the revolutionary “Spartacus
in the west of the city, where he was executed
Letters”, calling for the overthrow of the government.
with a bullet in the head.
Although the group's activities remained secret,
Within a matter of hours the two figureheads of both openly called for the end to the war and
revolutionary socialism in Germany had been extra- were imprisoned for their radical opinions.
judicially murdered.
In the revolutionary fervour that brought about
In the case of Luxemburg, who was 47 at the the end of the war in 1918, the radicals were released
time, it can hardly be called a surprise that she from prison. At the very end of the year, they
died so young. Born in 1871 in Russian- transformed the Spartacus league into the Communist
controlled Poland, she was already involved in Party of Germany. In January, this new communist
revolutionary politics when she was in high organization was quick to exploit the chaos that
school and fled to Switzerland at the age of 18. had swept Germany with defeat on the western
front. They escalated demonstrations, with
♣
Courtesy: Jörg Luyken @jorgluyken at www.thelocal.de; Liebknecht provocatively declaring on January 6th that
dt. 15-01-2018; slightly edited; emphases in bold ours - IMS. the SPD government was no longer legitimate. By

74 In memory of Rosa Luxemburg and Karl Liebknecht (Jörg Luyken) (2018) 1 LAW
(←
← Carried from p. 77 →)
January 12th the protests had reached such a size Order Prevails in Berlin…
that the government called in the army to quell There is but one condition. The question of why
them. Liebknecht and Luxemburg went into the each defeat occurred must be answered. Did it occur
underground. But their days were numbered. After because the forward-storming combative energy
just three days paramilitaries from the of the masses collided with the barrier of unripe
conservative Freikorps found their hide out in the historical conditions, or was it that indecision,
Wilmersdorf district of western Berlin. While the vacillation, and internal frailty crippled the
suspicion that the assassinations were carried out on revolutionary impulse itself? Classic examples of
orders from the SPD government has persisted, it has both cases are the February revolution in France on the
never been proved. one hand and the March revolution in Germany on the
'Freedom to think differently' other. The courage of the Parisian proletariat in
the year 1848 has become a fountain of energy
for the class struggle of the entire international
proletariat. The deplorable events of the German
March revolution of the same year have weighed
down the whole development of modern
Germany like a ball and chain. In the particular
history of official German Social Democracy,
they have reverberated right up into the most
recent developments in the German revolution
and on into the dramatic crisis we have just
experienced.
The communist revolutionaries of 1919 may be long How does the defeat of "Spartacus week" appear in
gone, but they are far from forgotten. To this day, the the light of the above historical question? Was it a case
of raging, uncontrollable revolutionary energy colliding
deaths of Luxemburg and Liebknecht are
remembered during an annual left-wing march in with an insufficiently ripe situation, or was it a case of
weak and indecisive action?
Berlin. On Sunday, thousands of people turned out
for the march organized by Die Linke (the Left Both! The crisis had a dual nature. The
Party) to the graveyard in eastern Berlin where the contradiction between the powerful, decisive,
pair are buried… …. But this year it did not just aggressive offensive of the Berlin masses on the
memorialize the 99th anniversary of the deaths of one hand and the indecisive, half-hearted
Luxemburg and Liebknecht, it also marked 30 years vacillation of the Berlin leadership on the other is
since a different but related crime. In 1988 the mark of this latest episode. The leadership
opponents of communist rule in East Germany failed. But a new leadership can and must be created
turned up at the march carrying placards inscribed by the masses and from the masses. The masses are the
with famous quotes from Luxemburg. Most crucial factor. They are the rock on which the ultimate
poignantly, one protester carried the famous quote victory of the revolution will be built. The masses were
“freedom is always freedom for those who think up to the challenge, and out of this "defeat" they
differently.” Over the following days, more than a have forged a link in the chain of historic defeats, which
hundred people were arrested and threatened with is the pride and strength of international socialism. That
severe prison sentences or even deported to West is why future victories will spring from this "defeat."
Germany. …Luxemburg has earned a reputation as a "Order prevails in Berlin!" You foolish lackeys!
heroic female figure of early twentieth century history, Your "order" is built on sand. Tomorrow the
Anna Kaminsky, head of the Federal Foundation for revolution will "rise up again, clashing its weapons," and
Understanding the GDR, warned of the oppressive legacy to your horror ait will proclaim with trumpets blazing:
of her ideology too. I was, I am, I shall be!
***** *****

ORDER PREVAILS IN BERLIN (1919)
♣
- Rosa Luxemburg
Order Prevails in Berlin (1919) and Noske, and the officers of the "victorious
troops," who are being cheered by the petty-
bourgeois mob in Berlin waving handkerchiefs and
shouting "Hurrah!" The glory and honor of German
arms have been vindicated before world history. Those
who were routed in Flanders and the Argonne have
restored their reputation with a brilliant victory – over
three hundred "Spartacists" in the Vorwarts building.
The days when glorious German troops first
crossed into Belgium, and the days of General
von Emmich, the conqueror of Liege, pale before
the exploits of Reinhardt and Co. in the streets of
Berlin. The government’s rampaging troops
massacred the mediators who had tried to negotiate the
surrender of the Vorwarts building, using their rifle
butts to beat them beyond recognition. Prisoners
who were lined up against the wall and butchered
so violently that skull and brain tissue splattered
everywhere. In the sight of glorious deeds such as
Rosa Luxemburg / Image: public domain those, who would remember the ignominious
defeat at the hands of the French, British, and
Americans? Now "Spartacus" is the enemy, Berlin is
the place where our officers can savor triumph,
and Noske, "the worker," is the general who can
lead victories where Ludendorff failed.
Who is not reminded of that drunken celebration
by the "law and order" mob in Paris, that Bacchanal of
the bourgeoisie celebrated over the corpses of the
Communards? That same bourgeoisie who had just
The following editorial is the last known piece of writing
by Rosa Luxemburg. It was written just after the
shamefully capitulated to the Prussians and
Spartacus uprising was crushed by the German abandoned the capital to the invading enemy,
government and in the hours prior to the arrest and taking to their heels like abject cowards. Oh, how
murder of her and Karl Liebknecht by the Friekorps. the manly courage of those darling sons of the
"Order prevails in Warsaw!" declared Minister bourgeoisie, of the "golden youth," and of the
Sebastiani to the Paris Chamber of Deputies in officer corps flared back to life against the poorly
1831, when after having stormed the suburb of armed, starving Parisian proletariat and their
Praga, Paskevich’s marauding troops invaded the defenseless women and children. How these
Polish capital to begin their butchery of the courageous sons of Mars, who had buckled before the
rebels. foreign enemy, raged with bestial cruelty against
"Order prevails in Berlin!" So proclaims the defenseless people, prisoners, and the fallen.
bourgeois press triumphantly, so proclaim Ebert "Order prevails in Warsaw!" "Order prevails
in Paris!" "Order prevails in Berlin!" Every half-
♣
Courtesy: Rosa Luxemburg and www.marxists.com; century that is what the bulletins from the guardians of
dated 14/15 January 1919; emphases in bold ours - IMS. "order" proclaim from one center of the world-historic

76 Order Prevails in Berlin (1919) (Rosa Luxemburg) (2018) 1 LAW
struggle to the next. And the jubilant "victors" fail The countryside, from which a large percentage of
to notice that any "order" that needs to be rank-and-file soldiers come, has hardly been touched by
regularly maintained through bloody slaughter the revolution. So far, Berlin has remained
heads inexorably toward its historic destiny; its own virtually isolated from the rest of the country. The
demise. revolutionary centers in the provinces – the
What was this recent "Spartacus week" in Rhineland, the northern coast, Brunswick,
Berlin? What has it brought? What does it teach Saxony, Wurttemburg – have been heart and soul
us? While we are still in the midst of battle, while behind the Berlin workers, it is true. But for the
the counterrevolution is still howling about their time being they still do not march forward in
victory, revolutionary proletarians must take lockstep with one another, there is still no unity of
stock of what happened and measure the events action, which would make the forward thrust and
and their results against the great yardstick of fighting will of the Berlin working class incomparably
history. The revolution has no time to lose, it more effective. Furthermore, there is – and this is
continues to rush headlong over still-open graves, only the deeper cause of the political immaturity
past "victories" and "defeats," toward its great of the revolution – the economic struggle, the actual
goal. The first duty of fighters for international volcanic font that feeds the revolution, is only in its initial
socialism is to consciously follow the revolution’s stage. And that is the underlying reason why the
principles and its path. revolutionary class struggle is in its infancy.
From all this that flows the fact a decisive,
lasting victory could not be counted upon at this
moment. Does that mean that the past week’s
struggle was an "error"? The answer is yes if we were
talking about a premeditated "raid" or "putsch." But
what triggered this week of combat? As in all
previous cases, such as December 6 and
December 24, it was a brutal provocation by the
government. Like the bloodbath against defenseless
demonstrators in Chausseestrasse, like the
butchery of the sailors, this time the assault on the
Berlin police headquarters was the cause of all
the events that followed. The revolution does not
develop evenly of its own volition, in a clear field of
Spartacus uprising barricades [Image: Verlag J. J. Weber in Leipzig]
battle, according to a cunning plan devised by clever
Was the ultimate victory of the revolutionary "strategists."
proletariat to be expected in this conflict? Could The revolution’s enemies can also take the
we have expected the overthrow Ebert-Scheidemann
initiative, and indeed as a rule they exercise it
and the establishment of a socialist dictatorship?
Certainly not, if we carefully consider all the
more frequently than does the revolution. Faced
variables that weigh upon the question. The weak with the brazen provocation by Ebert-
link in the revolutionary cause is the political Scheidemann, the revolutionary workers were
immaturity of the masses of soldiers, who still allow forced to take up arms. Indeed, the honor of the
their officers to misuse them, against the people, revolution depended upon repelling the attack
immediately, with full-force in order to prevent the
for counterrevolutionary ends. This alone shows
that no lasting revolutionary victory was possible at this counterrevolution from being encouraged to press
juncture. On the other hand, the immaturity of the
forward, and lest the revolutionary ranks of the
military is itself a symptom of the general immaturity of proletariat and the moral credit of the German
the German revolution. revolution in the International be shaken.

(2017) 2 LAW Order Prevails in Berlin (1919) (Rosa Luxemburg) 77
The immediate and spontaneous outpouring of "war" – and this is another peculiar law of history
resistance from the Berlin masses flowed with – in which the ultimate victory can be prepared only by
such energy and determination that in the first a series of "defeats."
round the moral victory was won by the "streets." What does the entire history of socialism and
Now, it is one of the fundamental, inner laws of of all modern revolutions show us? The first
revolution that it never stands still, it never becomes
passive or docile at any stage, once the first step has
spark of class struggle in Europe, the revolt of the
been taken. The best defense is a strong blow. This is
silk weavers in Lyon in 1831, ended with a heavy
the elementary rule of any fight but it is defeat; the Chartist movement in Britain ended in
especially true at each and every stage of the defeat; the uprising of the Parisian proletariat in
revolution. It is a demonstration of the healthy the June days of 1848 ended with a crushing
instinct and fresh inner strength of the Berlin defeat; and the Paris commune ended with a
proletariat that it was not appeased by the terrible defeat. The whole road of socialism – so far
reinstatement of Eichorn (which it had as revolutionary struggles are concerned – is
paved with nothing but thunderous defeats. Yet, at the
demanded), rather the proletariat spontaneously
occupied the command posts of the counter-revolution: same time, history marches inexorably, step by step,
the bourgeois press, the semi-official press agency, toward final victory! Where would we be
the Vorwarts office. All these measures were a result of today without those "defeats," from which we
the masses’ instinctive realization that, for its part, the draw historical experience, understanding, power
counter-revolution would not accept defeat but would and idealism? Today, as we advance into the final
carry on with a general demonstration of its strength. battle of the proletarian class war, we stand on the
Here again we stand before one of the great foundation of those very defeats; and we can do
historical laws of the revolution against which are without any of them, because each one
smashed to pieces all the sophistry and arrogance contributes to our strength and understanding.
of the petty USPD variety "revolutionaries" who
look for any pretext to retreat from struggle. As
soon as the fundamental problem of the revolution has
been clearly posed – and in this revolution it is the
overthrow of the Ebert-Scheidemann government, the
primary obstacle to the victory of socialism –
then this basic problem will rise again and again
in its entirety. With the inevitability of a natural
law, every individual chapter in the struggle will
unveil this problem to its full extent regardless of
how unprepared the revolution is ready to solve it
or how unripe the situation may be. "Down with
Ebert-Scheidemann!" – this slogan springs forth Freikorps in Berlin 1919
inevitably in each revolutionary crisis as the only The revolutionary struggle is the very antithesis of
formula summing up all partial struggles. Thus the parliamentary struggle. In Germany, for four
automatically, by its own internal, objective decades we had nothing but parliamentary "victories."
logic, bringing each episode in the struggle to a We practically walked from victory to victory.
boil, whether one wants it to or not. And when faced with the great historical test of
Because of the contradiction in the early stages of August 4, 1914, the result was the devastating political
the revolutionary process between the task being and moral defeat, an outrageous debacle and rot
sharply posed and the absence of any preconditions to without parallel. To date, revolutions have given us
resolve it, individual battles of the revolution end nothing but defeats. Yet these unavoidable defeats pile up
in formal defeat. But revolution is the only form of guarantee upon guarantee of the future final victory.
(←
← Go to p. 74 ) (← Go to p. 74)

A.I. BARKING UP THE WRONG TREE
♣
- Dr. Paul Craig Roberts
Amnesty International Is nuclear Armageddon resulting from the
Barking Up The Wrong Tree neoconservative quest for US hegemony. Since the
I have received a letter from Margaret Huang, Clinton regime every US government has broken
tension-easing agreements that previous administrations
Amnesty International’s executive director. She is
had achieved with Moscow. During the Obama regime
fundraising on the basis of President Trump’s the gratuitous aggressions and false accusations against
“chilling disregard for our cherished human rights”
Russia became extreme.
and his exploitation of “hatred, misogyny, racism and
xenophobia,” by which he has “emboldened and Why doesn’t Amnesty International address
empowered the most violent segments of our the reckless and irresponsible acts of the US
society.” Considering the hostility of Identity government that are violating the rights of people
Politics toward Trump, one can understand why in numerous countries and pushing the world into
Ms. Huang frames her fundraiser in this way, but nuclear war? Instead, there have been times when
are the Trump deplorables the most empowered and Amnesty International aligns with Washington’s
violent segments of our society or is it the security propaganda against Washington’s victims. By
agencies, the police, the neoconservatives, the presstitute jumping on the military/security complex’s get Trump
media, and the Republican and Democratic parties? movement, human rights and environmental
John Kiriakou, Ray McGovern, Philip Giraldi, organizations have increased the likelihood that
Edward Snowden, and others inform us that it is rights and environment will be lost to war. There can
their former employers, the security agencies, that are be no doubt that Trump is undoing past environmental
empowered by unaccountability and violent by intent. protections and opening the environment and wildlife to
Certainly the security agencies are emboldened by more destruction. However, the worst destruction
everything they have gotten away with, including comes from war, especially nuclear war.
their conspiracy to destroy President Trump with Would things be different if the liberal/progressive/
their orchestration known as Russiagate. The left had rallied to Trump’s support in reducing tensions
violence that the US government has committed against with Russia, in normalizing the hostile relations
humanity since the Clinton regime attacked Serbia that Obama had established with Moscow?
was not committed by Trump deplorables. The violence Would the support of the liberal/progressive/left
that has destroyed in whole or part eight countries,
murdering, maiming, and displacing millions of peoples,
have helped Trump resist the pressures from the
was committed by the Clinton, George W. Bush, and neoconservative warmongers? In exchange for
Obama regimes, their secretaries of state such as Hillary support for his principal goal, would Trump have
Clinton, their national security advisers, their military and mitigated industry’s attacks on the environment and
security establishments, both parties in Congress. The vetoed the renewal of the Foreign Intelligence
murder of entire countries was endorsed by the Surveillance Act that violates human rights? – We
presstitute media and the heads of state of will never know, because the liberal/progressive/ left
Washington’s European, Canadian, Australian, and could not see beyond the end ot its nose to comprehend
Japanese vassals. Trump and his deplorables have a long what it means for the environment and for human rights
way to go to match this record of violence. for nuclear powers to be locked into mutual suspicion.
Whether she understands it or not, Ms. Huang Thanks to the failure of the liberal/progressive/left
with her letter is shifting the violence from where it and to the presstitute media to understand the stakes, the
belongs to where it does not. The consequence will be military/security complex has been successful in pushing
to increase violence and human rights violations. The Trump off his agenda…. damage that a mining company
most dangerous source of violence that we face is and offshore drilling can do to the environment is large,
but it pales in comparison to the damage from nuclear
♣
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org; weapons.
dated 15 January 2018; emphases in bold ours – IMS. *****

NATO EXPANSION : WHAT GORBACHEV HEARD
- Svetlana Savranskaya & Tom Blanton ♣
NATO Expansion: in 1990 were not at all narrowly limited to the

What Gorbachev Heard status of East German territory, and that
subsequent Soviet and Russian complaints about
being misled about NATO expansion were
founded in written contemporaneous memcons
and telcons at the highest levels.
The documents reinforce former CIA Director
Robert Gates’s criticism of “pressing ahead with
expansion of NATO eastward [in the 1990s], when
Gorbachev and others were led to believe that wouldn’t
1
happen.” The key phrase, buttressed by the
documents, is “led to believe.”
President George H.W. Bush had assured
Gorbachev during the Malta summit in December
Michail Gorbachev discussing German unification with
1989 that the U.S. would not take advantage (“I
Hans-Dietrich Genscher and Helmut Kohl in Russia, July have not jumped up and down on the Berlin
15, 1990. Photo: Bundesbildstelle / Presseund Informationsamt Wall”) of the revolutions in Eastern Europe to
der Bundesregierung.
harm Soviet interests; but neither Bush nor
Declassified documents show security assurances
against NATO expansion to Soviet leaders from Baker, Gorbachev at that point (or for that matter, West
Bush, Genscher, Kohl, Gates, Mitterrand, Thatcher, German Chancellor Helmut Kohl) expected so soon
Hurd, Major, and Woerner the collapse of East Germany or the speed of German
2
Slavic Studies Panel Addresses “Who Promised What unification.
to Whom on NATO Expansion?”
The first concrete assurances by Western
Washington D.C., December 12, 2017 – U.S. leaders on NATO began on January 31, 1990,
Secretary of State James Baker’s famous “not one when West German Foreign Minister Hans-
inch eastward” assurance about NATO expansion in his Dietrich Genscher opened the bidding with a
meeting with Soviet leader Mikhail Gorbachev on major public speech at Tutzing, in Bavaria, on
February 9, 1990, was part of a cascade of German unification. The U.S. Embassy in Bonn
assurances about Soviet security given by Western (see Document 1) informed Washington that
leaders to Gorbachev and other Soviet officials
Genscher made clear “that the changes in Eastern
throughout the process of German unification in 1990
and on into 1991, according to declassified U.S.,
Europe and the German unification process must
Soviet, German, British and French documents not lead to an ‘impairment of Soviet security
posted today by the National Security Archive at interests.’ Therefore, NATO should rule out an
George Washington University (https://nsarchive. ‘expansion of its territory towards the east, i.e.
gwu.edu/). moving it closer to the Soviet borders.’” The
Bonn cable also noted Genscher’s proposal to
The documents show that multiple national
leaders were considering and rejecting Central and 1
See Robert Gates, University of Virginia, Miller Center
Eastern European membership in NATO as of early
Oral History, George H.W. Bush Presidency, July 24,
1990 and through 1991, that discussions of NATO 2000, p. 101)
in the context of German unification negotiations 2
See Chapter 6, “The Malta Summit 1989,” in Svetlana
Savranskaya and Thomas Blanton, The Last Superpower
♣
Courtesy: Svetlana & Tom Blanton at nsarchive.gwu.edu; Summits (CEU Press, 2016), pp. 481-569. The comment
dated 12 December 2017; emphases in bold ours - IMS. about the Wall is on p. 538.

80 NATO Expansion: What Gorbachev heard (Svetlana Savranskaya & Tom Blanton) (2018) 1 LAW
leave the East German territory out of NATO Russians must have some assurance that if, for example,
military structures even in a unified Germany in the Polish Government left the Warsaw Pact one day,
NATO.3 they would not join NATO the next.” (See Document 2)
This latter idea of special status for the GDR Having met with Genscher on his way into
territory was codified in the final German unification discussions with the Soviets, Baker repeated
treaty signed on September 12, 1990, by the Two-Plus- exactly the Genscher formulation in his meeting
Four foreign ministers (see Document 25). The with Foreign Minister Eduard Shevardnadze on
former idea about “closer to the Soviet borders” February 9, 1990, (see Document 4); and even
is written down not in treaties but in multiple more importantly, face to face with Gorbachev.
memoranda of conversation between the Soviets Not once, but three times, Baker tried out the “not
and the highest-level Western interlocutors one inch eastward” formula with Gorbachev in the
(Genscher, Kohl, Baker, Gates, Bush, Mitterrand, February 9, 1990, meeting. He agreed with
Thatcher, Major, Woerner, and others) offering Gorbachev’s statement in response to the assurances
assurances throughout 1990 and into 1991 about that “NATO expansion is unacceptable.” Baker
protecting Soviet security interests and including assured Gorbachev that “neither the President nor I
the USSR in new European security structures. intend to extract any unilateral advantages from the
The two issues were related but not the same. processes that are taking place,” and that the
Subsequent analysis sometimes conflated the two Americans understood that “not only for the Soviet
and argued that the discussion did not involve all Union but for other European countries as well it is
important to have guarantees that if the United States
of Europe. The documents published below show
keeps its presence in Germany within the framework of
clearly that it did. NATO, not an inch of NATO’s present military
The “Tutzing formula” immediately became jurisdiction will spread in an eastern direction.” (See
the center of a flurry of important diplomatic Document 6)
discussions over the next 10 days in 1990, Afterwards, Baker wrote to Helmut Kohl who
leading to the crucial February 10, 1990, meeting would meet with the Soviet leader on the next day,
in Moscow between Kohl and Gorbachev when with much of the very same language. Baker
the West German leader achieved Soviet assent in reported: “And then I put the following question to
principle to German unification in NATO, as long him [Gorbachev]. Would you prefer to see a united
as NATO did not expand to the east. The Soviets Germany outside of NATO, independent and with no
would need much more time to work with their U.S. forces or would you prefer a unified Germany to be
domestic opinion (and financial aid from the tied to NATO, with assurances that NATO’s jurisdiction
would not shift one inch eastward from its present
West Germans) before formally signing the deal
position? He answered that the Soviet leadership was
in September 1990.
giving real thought to all such options [….] He then
The conversations before Kohl’s assurance added, ‘Certainly any extension of the zone of NATO
involved explicit discussion of NATO expansion, would be unacceptable.’” Baker added in parentheses,
the Central and East European countries, and how for Kohl’s benefit, “By implication, NATO in its current
to convince the Soviets to accept unification. For zone might be acceptable.” (See Document 8)
example, on February 6, 1990, when Genscher Well-briefed by the American secretary of state,
met with British Foreign Minister Douglas Hurd, the West German chancellor understood a key
the British record showed Genscher saying, “The Soviet bottom line, and assured Gorbachev on
February 10, 1990: “We believe that NATO should not
3
For background, context, and consequences of the Tutzing expand the sphere of its activity.” (See Document 9)
speech, see Frank Elbe, “The Diplomatic Path to After this meeting, Kohl could hardly contain his
Germany Unity,” Bulletin of the German Historical excitement at Gorbachev’s agreement in principle
Institute 46 (Spring 2010), pp. 33-46. Elbe was for German unification and, as part of the Helsinki
Genscher’s chief of staff at the time.
formula that states choose their own alliances, so

(2018) 1 LAW NATO Expansion: What Gorbachev heard (Svetlana Savranskaya & Tom Blanton) 81
Germany could choose NATO. Kohl described in dismantling the military blocs”; but Mitterrand
his memoirs walking all night around Moscow – continued the cascade of assurances by saying the
but still understanding there was a price still to pay. West must “create security conditions for you, as well as
All the Western foreign ministers were on board European security as a whole.” (See Document 19)
with Genscher, Kohl, and Baker. Next came the Mitterrand immediately wrote Bush in a “cher
British foreign minister, Douglas Hurd, on April 11, George” letter about his conversation with the
1990. At this point, the East Germans had voted Soviet leader, that “we would certainly not refuse to
overwhelmingly for the deutschmark and for rapid detail the guarantees that he would have a right to expect
unification, in the March 18 elections in which Kohl for his country’s security.” (See Document 20)
had surprised almost all observers with a real victory. At the Washington summit on May 31, 1990,
Kohl’s analyses (first explained to Bush on December Bush went out of his way to assure Gorbachev that
3, 1989) that the GDR’s collapse would open all Germany in NATO would never be directed at the USSR:
possibilities, that he had to run to get to the head of “Believe me, we are not pushing Germany towards
the train, that he needed U.S. backing, that unification unification, and it is not us who determines the pace
could happen faster than anyone thought possible – all of this process. And of course, we have no
turned out to be correct. Monetary union would intention, even in our thoughts, to harm the Soviet
proceed as early as July and the assurances about
Union in any fashion. That is why we are speaking in
security kept coming. Hurd reinforced the Baker- favor of German unification in NATO without ignoring the
Genscher-Kohl message in his meeting with wider context of the CSCE, taking the traditional
Gorbachev in Moscow, April 11, 1990, saying that
economic ties between the two German states into
Britain clearly “recognized the importance of doing
consideration. Such a model, in our view, corresponds to
nothing to prejudice Soviet interests and dignity.” (See
the Soviet interests as well.” (See Document 21)
Document 15)
The “Iron Lady” also pitched in, after the
The Baker conversation with Shevardnadze on
Washington summit, in her meeting with Gorbachev
May 4, 1990, as Baker described it in his own
in London on June 8, 1990. Thatcher anticipated the
report to President Bush, most eloquently described moves the Americans (with her support) would take in
what Western leaders were telling Gorbachev the early July NATO conference to support
exactly at the moment: “I used your speech and our Gorbachev with descriptions of the transformation of
recognition of the need to adapt NATO, politically NATO towards a more political, less militarily
and militarily, and to develop CSCE to reassure threatening, alliance. She said to Gorbachev: “We must
Shevardnadze that the process would not yield winners and find ways to give the Soviet Union confidence that its security
losers. Instead, it would produce a new legitimate would be assured…. CSCE could be an umbrella for all this,
European structure – one that would be inclusive, not as well as being the forum which brought the Soviet Union
exclusive.” (See Document 17) Baker said it again, fully into discussion about the future of Europe.” (See
directly to Gorbachev on May 18, 1990 in Moscow, Document 22) The NATO London Declaration on
giving Gorbachev his “nine points,” which included the July 5, 1990 had quite a positive effect on
transformation of NATO, strengthening European deliberations in Moscow, according to most accounts,
structures, keeping Germany non-nuclear, and taking giving Gorbachev significant ammunition to counter
Soviet security interests into account. Baker started off his hardliners at the Party Congress which was taking
his remarks, “Before saying a few words about the place at that moment. Some versions of this history
German issue, I wanted to emphasize that our policies assert that an advance copy was provided to
are not aimed at separating Eastern Europe from the Shevardnadze’s aides, while others describe just an
Soviet Union. We had that policy before. But today we alert that allowed those aides to take the wire service
are interested in building a stable Europe, and doing it copy and produce a Soviet positive assessment before
together with you.” (See Document 18) the military or hardliners could call it propaganda.
The French leader Francois Mitterrand was not in a As Kohl said to Gorbachev in Moscow on July 15,
mind-meld with the Americans, quite the contrary, 1990, as they worked out the final deal on German
as evidenced by his telling Gorbachev in Moscow on unification: “We know what awaits NATO in the
May 25, 1990, that he was “personally in favor of gradually future, and I think you are now in the know as well,”

82 NATO Expansion: What Gorbachev heard (Svetlana Savranskaya & Tom Blanton) (2018) 1 LAW
referring to the NATO London Declaration. (See leader responded, “Nothing of the sort will happen.”
Document 23) In his phone call to Gorbachev on July (See Document 28) When Russian Supreme Soviet
17, Bush meant to reinforce the success of the Kohl- deputies came to Brussels to see NATO and meet with
Gorbachev talks and the message of the London NATO secretary-general Manfred Woerner in July
Declaration. Bush explained: “So what we tried to do 1991, Woerner told the Russians that “We should not
was to take account of your concerns expressed to me allow […] the isolation of the USSR from the
and others, and we did it in the following ways: by our European community.” According to the Russian
joint declaration on non-aggression; in our invitation memorandum of conversation, “Woerner stressed that
to you to come to NATO; in our agreement to open the NATO Council and he are against the expansion of NATO
NATO to regular diplomatic contact with your (13 of 16 NATO members support this point of view).”
government and those of the Eastern European (See Document 30) Thus, Gorbachev went to the end of the
countries; and our offer on assurances on the future Soviet Union assured that the West was not threatening his
size of the armed forces of a united Germany – an security and was not expanding NATO. Instead, the
issue I know you discussed with Helmut Kohl. We dissolution of the USSR was brought about by Russians (Boris
also fundamentally changed our military approach on Yeltsin and his leading advisory Gennady Burbulis) in concert
conventional and nuclear forces. We conveyed the with the former party bosses of the Soviet republics, especially
idea of an expanded, stronger CSCE with new Ukraine, in December 1991. The Cold War was long over by
institutions in which the USSR can share and be part then. The Americans had tried to keep the Soviet Union
of the new Europe.” (See Document 24) together (see the Bush “Chicken Kiev” speech in July
1991). NATO’s expansion was years in the future,
The documents show that Gorbachev agreed to German
when these disputes would erupt again, and more
unification in NATO as the result of this cascade of
assurances, and on the basis of his own analysis that the future assurances would come to Russian leader Boris Yeltsin.
of the Soviet Union depended on its integration into Europe, The Archive compiled these declassified documents for a
for which Germany would be the decisive actor. He and panel discussion on November 10, 2017 at the annual
most of his allies believed that some version of the common conference of the Association for Slavic, East
European home was still possible and would develop alongside European and Eurasian Studies (ASEEES) in Chicago
the transformation of NATO to lead to a more inclusive under the title “Who Promised What to Whom on
and integrated European space, that the post-Cold War NATO Expansion?” The panel included:
settlement would take account of the Soviet security [1. Mark Kramer from the Davis Center at Harvard, editor
interests. The alliance with Germany would not only of the Journal of Cold War Studies, whose
overcome the Cold War but also turn on its head the legacy of 2009 Washington Quarterly article argued that the “no-
the Great Patriotic War. NATO-enlargement pledge” was a “myth”; 2. Joshua R.
But inside the U.S. government, a different discussion Itkowitz Shifrinson from the Bush School at Texas A&M,
continued, a debate about relations between NATO and whose 2016 International Security article argued the U.S.
Eastern Europe. Opinions differed, but the suggestion was playing a double game in 1990, leading Gorbachev to
from the Defense Department as of October 25, 1990 believe NATO would be subsumed in a new European
was to leave “the door ajar” for East European membership security structure, while working to ensure hegemony in
in NATO. (See Document 27) The view of the State Europe and the maintenance of NATO; 3. James Goldgeier
Department was that NATO expansion was not on the agenda, from American University, who wrote the authoritative
because it was not in the interest of the U.S. to organize “an book on the Clinton decision on NATO expansion, Not
anti-Soviet coalition” that extended to the Soviet borders, not Whether But When, and described the misleading U.S.
least because it might reverse the positive trends in the Soviet assurances to Russian leader Boris Yeltsin in a 2016 War
Union. (See Document 26) The Bush administration took On The Rocks article; 4. Svetlana Savranskaya and Tom
the latter view. And that’s what the Soviets heard. Blanton from the National Security Archive, whose most
recent book, The Last Superpower Summits: Gorbachev,
As late as March 1991, according to the diary of Reagan, and Bush: Conversations That Ended the Cold
the British ambassador to Moscow, British Prime War (CEU Press, 2016) analyzes and publishes the
Minister John Major personally assured Gorbachev, declassified transcripts and related documents from all of
“We are not talking about the strengthening of NATO.” Gorbachev’s summits with U.S. presidents, including
Subsequently, when Soviet defense minister Marshal dozens of assurances about protecting the USSR’s security
Dmitri Yazov asked Major about East European interests.]
leaders’ interest in NATO membership, the British *****

(2018) 1 LAW Historical inevitability or electoral corruption? [IMS] 83
(← Carried from p. 2 →)
“In the Christmas week of 1923 the annual no meeting of any nature could be called without
session of the Indian National Congress and the the previous sanction from the “Babe Hukumat”
Khilafat conference were held at Kakinada. Due i.e. the Council of Ministers of Nizam. Later on
to the breaches in the east coast line of the the Conference was held at Kakinada in 1923.
Bengal - Nagpur Railway, many delegates from “Congress Session at Kakinada: In 1923, the
Bengal and the North reached Kakinada via Indian National Congress held its annual session
Hyderabad. Important leaders like Shaukat Ali, at Kakinada under the chairmanship of Maulana
Mohammed Ali, C.R Das, Vallabhai Patel and Mohammed Ali. Owing to heavy rains, the East
Sarojini Naidu addressed large gatherings that Coast Railway track was damaged and trains to
assembled at various railway stations on the Kakinada were diverted via Secunderabad……
Nizam State Railway. The Hyderabad delegates The local leaders availed themselves of the
[to the Kakinada Congress] took the opportunity to golden opportunity and arranged [an] impromptu
arrange a meeting of the Hyderabad delegation meeting at Secunderabad Station which was addressed
and the visitors. This meeting came to be by the Ali Brothers, C.R. Das, Sarojini Naidu, Sardar
popularly known as the Hyderabad Political Patel and others. A delegation of 500 members
Conference. The meeting was called outside the from Hyderabad attended the session. Important
Hyderabad State since the Nizam's government resolutions regarding the future of the people of the
had banned all political conferences in the State princely states were adopted by the Congress for the
under an order called Gasti Nishan No. 53. first time in the session. Shri B. Ramakrishna Rao
One of the important proposals put forth in this played and important role in drafting the resolutions.
conference was a reminder to the Nizam of a “Hyderabad Political Conference: The Hyderabad
promise he made followed by the firman of 1920 delegation to the Congress session availed itself
which announced the expansion of the of the opportunity to hold the first Hyderabad
Legislative Council and also promised Political Conference at Kakinada immediately
responsible government. They also urged the after the Congress session. It was presided over
government to remove the restrictions on by Madhav Rao Ane of Berar. Among others, it
political meetings and press, as these restrictions adopted three important resolutions which called for
were an obstacle to the formation of a healthy immediate political reforms in the State viz., [for the]
public opinion.” [From a research paper]. formation of an elected Council, introduction of
responsible government and freedom of expression.
Now, here itself let us note some more details These resolutions were moved by Vaman Naik,
regarding these Hyderabad Political Conferences, Baba Saheb Paranjape of Berar and Digambardas
which, together with the impact of various social, Vakil of Aurangabad respectively.
cultural, politico-economic movements under the “The Nizam’s government refused permission
Andhra Mahasabha, Arya Samaj, etc., led to the for holding the second Political Conference at
later formation of the Hyderabad State Congress, Hyderabad or anywhere else in the State. Hence
from the account given by a well-known freedom it was held at Bombay under the chairmanship of
fighter and writer of Hyderabad: Y.M. Kale of Berar. The third Hyderabad
“The Hyderabad State Congress [formed later in Political Conference was held at Pune in 1928
1938] functioned on the lines of Indian National and was presided over by N.C. Kelkar. Subhas
Congress and was in the vanguard of the political Chandra Bose addressed it. …… The Conference
agitation of the people in their demand for a demanded introduction of responsible Government and
democratic set up in the State and overthrow of the freedom of expression. The fourth Hyderabad
despotic rule of the Nizam. Political Conference was held at Akola (Berar) in
“Ban on Political Meetings: In 1921 enlightened 1931, again outside the State under the
and educated young men of Hyderabad wanted to chairmanship of Ramachandra Naik.”
convene a Political Conference to press their demand [Veldurti Manik Rao, Freedom Movement in
for constitutional reforms. The Nizam used an Hyderabad, Publications Division, New Delhi, 1989,
extraordinary Gazette notification on September 9,
pp. 11-13.]
1921 prohibiting all public meetings. It said that *****

84 Law Animated World {15 January 2018} Postal Reg. No. HD/1098/2017-19
Sacrificed our lives now, Comrades

कर चले हम &फ़दा जानो-तन सा>थयो
- Kaifi Azmi*
कर चले हम &फ़दा जानो-तन सा>थयो
Kaifi Azmi with daughter Shabana and wife Shaukat Kaifi Azmi अब त?ु हारे हवाले वतन सा>थयो
साँस थमती गई, न6ज़ जमती गई
LET NO ICONOCLAST COME HERE &फर भी बढ़ते क़दम को न Bकने !दया
बुतशकन कोई कहं से भी ना आने पाये कट गए सर हमारे तो कुछ ग़म नहं
हमने कुछ बुत अभी सीने म सजा रखे ह *Kaifi Azmi (Sayyid Akhtar सर !हमालय का हमने न झुकने !दया
अपनी याद म बसा रखे ह Hussein Rizvi, b: 14 January 1919; मरते-मरते रहा बाँकपन सा>थयो
d: 10 May 2002), a great Urdu अब त? ु हारे हवाले वतन सा>थयो
!दल पे यह सोच के पथराव करो दवानो
poet; was almost the first to have िज़ंदा रहने के मौसम बहुत ह मगर
&क जहाँ हमने सनम अपने (छपा रखे ह brought Urdu literature to Indian जान दे ने के Bत रोज़ आती नहं
वहं गज़नी के खुदा रखे ह motion pictures. An eminent ह;न और इ7क दोन को B;वा करे
बुत जो टूटे तो &कसी तरह बना लगे उ.ह representative of the Progressive वह जवानी जो खूँ म नहाती नहं
टुकड़े टुकड़े सह दामन म उठा लगे उ.ह Writers Association (PWA) and
unto his last cherished the ideal of आज धरती बनी है दल ु हन सा>थयो
&फर से उजड़े हुये सीने म सजा लगे उ.ह अब त? ु हारे हवाले वतन सा>थयो
socialism and secular democracy
गर खुदा टूटे गा हम तो न बना पायगे in his heart – “…born in enslaved राह कुबाI(नय क8 न वीरान हो
उस के 2बखरे हुये टुकड़े न उठा पायगे India, …lived in independent तम
ु सजाते ह रहना नए का&फ़ले
तम ु उठा लो तो उठा लो शायद secular India, and God willing, फतह का ज7न इस ज7न के बाद है
तमु बना लो तो बना लो शायद will die in Socialist India” so did िज़ंदगी मौत से मल रह है गले
he reaffirm his faith in his last बांध लो अपने सर से कफ़न सा>थयो
तम
ु बनाओ तो खद ु ा जाने बनाओ या days. Recipient of Padmashree, अब त? ु हारे हवाले वतन सा>थयो
अपने जैसा ह बनाया तो कयामत होगी Sahitya Academy, Millennium
खींच दो अपने खूँ से ज़मी पर लक8र
5यार होगा न ज़माने म मह ु 6बत होगी and several other famous awards.
इस तरफ आने पाए न रावण कोई
द7ु मनी होगी अदावत होगी His song, in the film Haqeeqat,
तोड़ दो हाथ अगर हाथ उठने लगे
हम से उस क8 न इबादत होगी given here in the right side, had
छू न पाए सीता का दामन कोई
enthralled and swayed millions of
व:शते-बुत शकनी दे ख के है रान हूँ म Indians with patriotic emotions. राम भी तमु , त?
ु हं लKमण सा>थयो
बतु -पर;ती मरा शेवा है &क इंसान हूँ म अब त?
ु हारे हवाले वतन सा>थयो
इक न इक बुत तो हर इक !दल म (छपा होता है Sacrificed our life and body now, o comrades...
उस के सौ नाम म इक नाम खुदा होता है The country kept in your custody now, o comrades...
Let no iconoclast come now from anywhere Our breaths pausing, hear-beats halting
As some idols in our heart we keep adorned ever Yet the marching steps we let not stop
And cherish them in always memories our Didn’t bother even if our heads were cut down
O you madcaps pelting stones on us Didn’t let we our Himalayas’ head bow down
please think a little when hitting us So many seasons come for us to live, but...
where we’ve have hidden our beloved idols Doesn’t come to us often, the day to die...
Right there the God of Ghajni too resides Beauty and love even, we left behind us now,
If broken we’ll again somehow stick and fix the idols Youth that doesn't bathe in blood, of what value is it now...
Broken pieces may be, yet we’ll lift them to our bosoms Entire earth has become the bride today, o comrades…
Once again we’ll adorn them in our desolate hearts Our country in your custody now, o comrades
But if God Himself breaks Him we can’t again make Let the path we tread be not bereft of sacrifices
His broken pieces we’ll not be able to lift Keep on adorning ever new fighting caravans
If you can lift perhaps, so you may do Victory celebrations come after such sacrifices, o comrades
If you can make perhaps, so you may do
Life is embracing death now, o comrades
And if you remake, God knows what may you make Strap the shawl of death on your heads, o comrades...
If you make a copy of yourself the doomsday will dawn
The country in your custody now, o comrades
No love nor affection will there be in such times
Only enmity and animosity will thrive, Draw the bar-line with blood on the ground
And we can never worship such passions vile Let no Ravan dare cross it to this side
Bewildered am I at this frenzy of idol-breaking Cut off those hands which raise to strike
Idolatry is my nature, my tradition, I am just being human Let no hands be able to touch Sita’s girdle
This or that idol always resides in my heart hidden Ram you are, Lakshman too you are, comrades…
Of the many names it bears one surely is that of GOD! The country is in your custody now, o comrades…
***** *****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
and printed at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
84

01 15 01 2018 LawTotal

Transféré par

Informations du document

Description originale:

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

01 15 01 2018 LawTotal

Transféré par

Droits d'auteur :

Formats disponibles

(2018) 1 LAW RNI No. APENG/2005/18975 Annual Subscription Rs.

A world law fortnightly published from Hyderabad, India.

Volume 14: Part 1 15 January 2018 No. 1

HAPPY NEW YEAR AND HAPPY SANKRANTI (PONGAL) TO ALL!

HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

3 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 4

Aiyar with each of whom he shared lodgings at

5 Law Animated World, 15 January 2018

upon doing something to mar the celebration. The *****

Law Animated World, 15 January 2018 6

C H A P T E R - III idea of a federal Constitution for India which was

7 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 8

9 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 10

11 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 12

13 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 14

15 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 16

succeeding part of the Committee’s Report which

17 Law Animated World, 15 January 2018

19 Law Animated World, 15 January 2018

The understanding was that, after a brief period, a

Law Animated World, 15 January 2018 20

21 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 22

(2018) 1 LAW F-1 (ECHR-SB-GC) emergency department as he was suffering from

23 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 24

25 Law Animated World, 15 January 2018

and Fundamental Freedoms (“the Convention”)

Law Animated World, 15 January 2018 26

27 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 28

29 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 30

31 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 32

33 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 34

35 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 36

37 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 38

39 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 40

Article 4 established by national laws and practices. A

41 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 42

43 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 44

45 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 46

47 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 48

49 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 50

51 Law Animated World, 15 January 2018

Law Animated World, 15 January 2018 52