La Corte Europea dei Diritti dell'Uomo ha rilevato all'unanimità che la decisione dei giudici interni di sciogliere la Comunità dei testimoni di Geova di Mosca, perché contraria alle disposizioni legislative sulle associazioni religiose, costituisce una violazione dell'art. 9 CEDU (libertà di pensiero, di coscienza e di religione). Viene inoltre rilevata la violazione dell'art 11 CEDU (libertà di riunione e di associazione) con riguardo al rifiuto delle autorità russe di effettuare la registrazione dello statuto della Comunità.
Corte Europea dei Diritti dell'Uomo - Case of Jehovah's Witnesses of Moscow and others v. Russia: libertà religiosa e rifiuto dei trattamenti
10 giugno 2010
Numero
ric. n. 302/02
Anno
2010
La legislazione federale sulla libertà di coscienza e sulle associazioni religiose del 1997 prevedeva che tutte le associazioni religiose modificassero il proprio statuto associativo per renderlo compatibile con la legge. La comunità dei testimoni di Geova di Mosca, costituita nel 1993, richiese senza successo per cinque volte la nuova registrazione alle autorità russe e, nonostante una pronuncia giurisdizionale dichiarasse illegittimo tale rifiuto, non ottenne l'aggiornamento del proprio statuto. Nel 2004, una corte distrettuale ordinò lo scioglimento e vietò le attività della Comunità dei Testimoni di Geova, ritenendole illegittime; tale decisione fu confermata in appello.
Violazione dell'articolo 9 (libertà di pensiero, di coscienza e di religione), in relazione all'art. 11: l'ordine di scioglimento dell'associazione, che determina la perdita della personalità giuridica e il divieto di esercitare diritti di cui già godeva, costituisce un'interferenza sull'esercizio dei diritti della Convenzione. Tale interferenza, stabilita dalla legge e che persegue la finalità di proteggere la salute e i diritti altrui, non è ritenuta una misura necessaria, in una società democratica, poiché non vengono indicate in modo sufficiente le ragioni di tale misura e poiché si tratta di un intervento sproporzionato rispetto all'interesse perseguito.
(ii) Infringement of the personality, rights and freedoms of citizens
. According to the findings of the Russian courts, the applicant community committed multiple breaches of various rights and freedoms of Russian citizens, including the constitutional rights to privacy and to choice of religion, the right of parents to educate their children, children's right to rest, leisure and participation in recreational activities, the right to choose one's occupation, etc. The Court will now examine each group of alleged violations in turn.
In particolare, con riguardo alla libertà di accettare o rifiutare uno specifico trattamento sanitario o di individuarne uno alternativo, che costituisce un principio fondamentale dell'autonomia individuale, la Corte osserva che il caso dei Testimoni di Geova è già stato oggetto di considerazione in molti altri ordinamenti, dove si è rilevato che il diritto del paziente ad autodeterminarsi prevale sull'interesse statale a preservare la vita o la salute di un individuo. Nell'ordinamento russo è già esplicitamente previsto un diritto a rifiutare i trattamenti sanitari o a chiedere l'interruzione di quelli già iniziati, purché al paziente siano fornite tutte le informazioni sulle possibili conseguenze. Nel corso del procedimento giurisdizionale interno, non è stata provata nessuna impropria pressione o influenza della comunità sui suoi membri.
Violazione dell'articolo 11 (libertà di riunione e di associazione), in relazione all'art. 9:
Il rifiuto delle autorità russe di aggiornare la registrazione dell'associazione religiosa non è legittimo, poiché non sono state fornite adeguate motivazioni e poiché sono stati imposti requisiti eccessivamente onerosi non previsti dalla legge.
La Corte, inoltre, rileva anche una violazione dell'articolo 6 della Convenzione, a causa dell'eccessiva lunghezza dei procedimenti giurisdizionali interni.
Si riportano alcuni passi della sentenza (pdf. completo nel box download – fonte: HUDOC Database):
«60. Ruling on the charge of “encouragement of suicide or the refusal of medical assistance on religious grounds”, the District Court found that under the influence of the applicant community its members had refused transfusions of blood and/or blood components even in difficult or life threatening circumstances. That finding was based on the following evidence: the prohibition on blood transfusion contained in the literature of the applicant community, the “No Blood” card distributed within the community for the benefit of its members, testimonies by community members who confirmed carrying such cards, the existence of the Hospital Liaison Committee with the applicant community, and stories of patients who had refused a blood transfusion on religious grounds and whose refusal had been noted in their medical records. The District Court also had regard to a letter from the Moscow Health Protection Department that listed a number of instances in which patients had refused blood transfusions for themselves and, in one case, in respect of a newborn child. Even though the medical outcome of those cases was not specified, the District Court held that the proven fact of damage to the health of at least one individual was a sufficient ground for terminating the activities of the Moscow community. It further noted the opinions of medical experts who clarified that bloodless surgery was a prospective trend in medicine but that in case of certain diseases the transfusion of blood or its components was still indispensable. Finally, in the District Court's view, the “No Blood” card contravened the patient's right to take medical decisions for himself by delegating that right – in the eventuality of his being unconscious – to his fellow believers».
«(iii) Encouragement of suicide or the refusal of medical assistance
131. A further ground for banning the applicant community was the charge that it had encouraged its members to commit suicide and/or to refuse medical assistance in life-threatening situations.
132. The Court observes at the outset that the Russian courts did not elaborate on the allegations of encouragement of suicide or give examples of such incitement in the doctrine or practices of the applicant community or name any community member who had terminated his or her life or sought to do so. In so far as the domestic judgments can be understood to consider that the refusal of a blood transfusion is tantamount to suicide, in the Court's view, this analogy does not hold, for the situation of a patient seeking a hastening of death through discontinuation of treatment is different from that of patients who – like Jehovah's Witnesses – just make a choice of medical procedures but still wish to get well and do not exclude treatment altogether. As the charge of encouragement to suicide did not have any basis in fact, the Court's task will be confined to reviewing the second allegation, namely, that, at the instigation of the community, its members declined medical assistance by refusing the transfusion of blood or its components.
133. […] The religious prohibition permits of no exceptions and is applicable even in cases where a blood transfusion is deemed to be necessary in the best clinical judgment to avoid irreparable damage to the patient's health or even to save his or her life. Some Jehovah's Witnesses, including members of the applicant community, carry an advance medical directive – known in Russia as a “No Blood” card (see paragraph 68 above) – stating that they refuse blood transfusions under any circumstances as a matter of religious belief. A few members of the applicant community who had been admitted to hospitals had firmly refused a blood transfusion against the advice of medical specialists who strongly recommended it. These elements had been correctly established by the domestic courts and were not contested by the applicants.
134. The Court recognises that the refusal of potentially life-saving medical treatment on religious grounds is a problem of considerable legal complexity, involving as it does a conflict between the State's interest in protecting the lives and health of its citizens and the individual's right to personal autonomy in the sphere of physical integrity and religious beliefs (see, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 62 et seq., ECHR 2002 III). The impugned provision of the Russian Religious Act was apparently designed to protect individuals from religious influence which could lead them to make choices that are considered irrational or unwise as a matter of public policy, such as the decision to refuse medical treatment that is generally regarded as beneficial. It was based on the assumption that the State's power to protect people from the harmful consequences of their chosen lifestyle ought to override the rights of believers to respect for their private life and to freedom to manifest their religion in practice and observance. That assumption made it unnecessary for the Russian courts to carry out a balancing exercise which would have allowed them to weigh considerations of public health and safety against the countervailing principle of personal autonomy and religious freedom (compare Pretty, cited above, § 74). Accordingly, it falls to the Court to verify whether or not the balance has been upset.
135. The very essence of the Convention is respect for human dignity and human freedom and the notions of self-determination and personal autonomy are important principles underlying the interpretation of its guarantees (see Pretty, cited above, §§ 61 and 65). The ability to conduct one's life in a manner of one's own choosing includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned. In the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity and impinge on the rights protected under Article 8 of the Convention (see Pretty, cited above, §§ 62 and 63, and Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984).
136. The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of self-determination and personal autonomy. A competent adult patient is free to decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a blood transfusion. However, for this freedom to be meaningful, patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to others. Many established jurisdictions have examined the cases of Jehovah's Witnesses who had refused a blood transfusion and found that, although the public interest in preserving the life or health of a patient was undoubtedly legitimate and very strong, it had to yield to the patient's stronger interest in directing the course of his or her own life (see the judgments cited in paragraphs 85 to 88 above). It was emphasised that free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties – for example, mandatory vaccination during an epidemic, the State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life (see the Malette v. Shulman and Fosmire v. Nicoleau judgments, cited in paragraphs 85 and 87 above).
137. This position is echoed in the Russian law which safeguards the patients' freedom of choice. The Fundamentals of Russian Legislation on Health Protection explicitly provide for the patient's right to refuse medical treatment or to request its discontinuation on condition that they have received full and accessible information about the possible consequences of that decision. Patients are not required to give reasons for the refusal. The refusal may only be overridden in three specific situations: prevention of spreading of contagious diseases, treatment of grave mental disorders and mandatory treatment of offenders (see paragraphs 81 and 83 above). Additionally, the parents' decision to refuse treatment of a child may be reversed by means of judicial intervention (see paragraph 82 above). It follows that Russian law protects the individual's freedom of choice in respect to their health care decisions as long as the patient is a competent adult and there is no danger to innocent third parties. These provisions had been repeatedly invoked by the applicants in the first-instance and appeal proceedings but were not mentioned or analysed in the domestic judgments. The Court notes, however, that they were prima facie applicable in the instant case because all the refusals of blood transfusions which had been described in the domestic judgments had been formulated by adult Jehovah's Witnesses having capacity to make medical decisions for themselves. In the only case involving a minor, the hospital did not apply for judicial authorisation of a blood transfusion, although such a possibility was explicitly provided for in law (see paragraph 82 above), which indicates that authorisation was considered unnecessary for medical or other reasons.
138. Furthermore, even though the Jehovah's Witnesses whose opposition to blood transfusions was cited in evidence were adults having legal capacity to refuse that form of treatment, the findings of the Russian courts can be understood to mean that their refusals had not been an expression of their true will but rather the product of pressure exerted on them by the applicant community. The Court accepts that, given that health and possibly life itself are at stake in such situations, the authenticity of the patient's refusal of medical treatment is a legitimate concern. […]
139. The Court reiterates that, although the arguments based on religious beliefs may be extremely persuasive and compelling, the right “to try to convince one's neighbour” is an essential element of religious freedom. […] Turning to the instant case, the Court finds nothing in the domestic judgments to suggest that any form of improper pressure or undue influence was applied. On the contrary, it appears that many Jehovah's Witnesses have made a deliberate choice to refuse blood transfusions in advance, free from time constraints of an emergency situation, which is borne out by the fact that they had prepared for emergencies by filling out “No Blood” cards and carrying them in their purses. There is no evidence that they wavered in their refusal of a blood transfusion upon admission to hospital. Accordingly, there is no factual basis supporting the finding that their will was overborne or that the refusal of a blood transfer did not represent their true decision.
140. The District Court's finding that the “No Blood” card permitted the patient's fellow believers to take medical decisions in his or her stead was also at variance with the actual contents of the card (as reproduced in paragraph 68 above). Designed as an advance medical directive, the card merely certified the choice that the patient had already made for himself or herself, namely, to refuse any transfusion of blood or its components. It did not delegate the right to make any other medical decision to anyone else, but designated the patient's legal representative who could ensure, in case of the patient's unconsciousness or inability to communicate, that his or her choice of medical treatment be known to, and respected by, the medical personnel. Representation of the patient in medical matters was provided for in Article 33 of the Fundamentals on Health Protection (see paragraph 81 above). The identity of the representative was of no legal significance, as the law did not vest any special rights in the next-of-kin. The patient was free to choose as his representative another fellow believer or a member of the Hospital Liaison Committee in the applicant community who would have the added benefit of detailed knowledge of the Jehovah's Witnesses doctrine on the issue of blood transfusion and could advise the medical personnel on compatibility of the contemplated procedure with the patient's religious beliefs.
141. […]
142. In the light of the above considerations, the Court finds that the domestic courts did not convincingly show any “pressing social need” or the existence of “relevant and sufficient reasons” capable of justifying a restriction on the applicants' right to personal autonomy in the sphere of religious beliefs and physical integrity».
Pubblicato il: Giovedì, 10 Giugno 2010 - Ultima modifica: Venerdì, 31 Maggio 2019
