Conflict of interest at the European court of human rights?

May 18, 2020

On May 18, the same day as judge Robert Spano takes over as President of the European Court of Human Rights, the Scandinavian Human Rights Lawyers submit a request for revision regarding the admissibility decision concerning the Swedish midwife cases regarding freedom of conscience within healthcare, which was delivered on March 12.

In the latest episode of the Human Rights Podcast, we discussed the fact that the Swedish judge who ruled on the case, has very strong connections to the opposing party in the domestic proceedings and to RFSU, a Swedish NGO that is member organization of the International Planned Parenthood Federation, and that the European Court of Human Rights (ECtHR) avoids the important human rights issues at stake in the case. A recently published report regarding NGO:s and judges at the ECtHR has raised the issue of impartiality and conflicts of interests.

-The application for revision is based on three grounds. Firstly, we believe that it was wrong for a Committee of three judges to be assigned to rule on the admissibility of the midwife cases on freedom of conscience within health care. According to the European Convention, Committees should only be assigned in simple cases where there is established case law, which was not the fact in these cases. Due to the nature and the importance of the cases, the Committee was not competent to decide on the cases, says Ruth Nordström, Chief lawyer at the Scandinavian Human Rights Lawyers.

-The second reason for the application is that we believe that the Swedish judge, Judge Wennerström, who was one of the three judges seated on the Committee, was obliged to withdraw because of conflicts of interest, which he did not. The composition of the Court was not known before the decision was delivered and the parties therefore had not opportunity to make objections before the ruling. According to the ECtHR, when there is a conflict of interest or doubts about it, a judge must inform the President of the Chamber. Even circumstances which can be perceived as bias or conflicts of interest have significance – “Justice must not only be done, but also be seen to be done”, the ECtHR has stated in its previous case law. It is important that it is also objectively perceived by the public that justice is done, says Rebecca Ahlstrand, lawyer at the Scandinavian Human Rights Lawyers.

-Judge Wennerström, took up the assignment as judge after the midwives’ complaints were submitted to the ECtHR. Prior to 2018, Judge Wennerström served as Director General of the Swedish Crime Prevention Council. In its annual report from 2017, it is stated that Sweden’s municipalities and County Councils, the opposing party of the midwives in Sweden, belonged to the authority’s core network. The authority also awarded grants to Sweden’s Municipalities and County Council during that year according to its Annual Report. As recently as 2018, Judge Wenneström sat on the Board of Supervisors of the Swedish Equality Authority, alongside the CEO of Sweden’s Municipalities and County Councils, the opposing party of the midwives. At the same time, Åsa Regnér was Minister of Gender Equality, and strongly and openly opposed the right to freedom of conscience. Åsa Regnér was previously chairman of the organization RFSU (Riksförbundet för Sexuell Upplysning), a member organization of the International Planned Parenthood Federation, which also received grants from the Equality Authority in 2018, and the connection between RFSU and Sweden’s Municipalities and County Councils is strong – they wrote debate articles together against our clients, says Ruth Nordström.

-According to his CV, Judge Wennerström has worked for about 30 years for the Swedish government in various positions, including the Foreign Ministry. While it may be common for judges to have held government positions in the past, it is exceptionally problematic in the present case – it is fairly uncommon for so many ministers of a government, and even the prime minister, to express opinions in individual cases as in this one, and in such a clear manner. Before the cases were settled and in force in Sweden, former Minister Gabriel Wikström stated that the decision to deny freedom of conscience in the midwives’ cases was “good”, which led to a conviction in the Constitution Committee, says Rebecca Ahlstrand.

– Finally, we address the fact that there are a many factual errors in the decision, both in the factual presentation and in the legal assessments; for example, a fundamental and decisive fact, that there is a European consensus in Europe regarding freedom of conscience for health care workers and a number of resolutions by the Parliamentary Assembly of the Council of Europe, was not taken into account. According to the doctrine of “margin of appreciation”, the individual country has a very narrow margin of discretion to deviate from established European consensus when there is a common European standard. When it comes to freedom of conscience for healthcare professionals, this is in principle respected in the vast majority of all European countries, either in general or through specific regulations on freedom of conscience within healthcare. The right to freedom of conscience is also prescribed in the preliminary works of the Swedish Abortion Act, and when the majority of the 47 member states of the Council of Europe are able to balance the right to care and the right to freedom of conscience, it must be possible in Sweden, where it has already been practiced for 40 years, says Ruth Nordström.