CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 juin 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFC94BE56 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-2.8pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5362FFEB { width:4.87pt; display:inline-block } .sA2251F55 { width:203.09pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     SECOND SECTION             CASE OF KOSAITĖ-ČYPIENĖ AND OTHERS v. LITHUANIA   (Application no. 69489/12)                     JUDGMENT         STRASBOURG   4 June 2019     FINAL   04/09/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kosaitė-Čypienė and Others v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Julia Laffranque,   Valeriu Griţco,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1 .     The case originated in an application (no.   69489/12) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Lithuanian nationals, Ms I. Rinkevičienė (“the first applicant”), Ms   E.   Zakarevičienė (“the second applicant”), Ms   O.   Valainienė (“the third applicant”) and Ms   E.   Kosaitė-Čypienė (“the fourth applicant”), on 19 October 2012. 2.     The applicants were represented by Mr R.   Simaitis and Mr   G.   Ivoška, lawyers practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, most recently L.   Urbaitė. 3.     The applicants complained, under Article   8 of the Convention, that Lithuanian law had dissuaded healthcare professionals from assisting them when they had been giving birth at home. 4.     On 20   December 2012 the application was communicated to the Government. The parties submitted observations on the admissibility and merits of the case on 6   May 2013 (the Government) and 4   July 2013 (the applicants). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The first applicant 5 .     The first applicant was born in 1983. She lives in Vilnius and has three children. The first time she gave birth was in 2009 in a public hospital in Vilnius. According to the applicant, the doctors therein were rude and rebuked her for her wish to give birth at home, and she felt humiliated and for a long time afterwards could not discuss her experience of giving birth at the hospital without tears coming to her eyes. For those reasons, in 2011 she gave birth to her second child at home, with the assistance of an unlicensed doula ( pribuvėja ), J.I.Š. That birth passed without complications and without the need for medical intervention. 6 .     After falling pregnant for a third time, and with no possibility of giving birth at home owing to the fact that criminal charges had been brought in respect of the above-mentioned doula, J.I.Š. (see paragraphs   31 ‑ 35 below), on 9   May 2012 the first applicant asked two public hospitals   – one in Vilnius and one in Kaunas – to provide her with medical assistance during the home birth that she was planning. Both hospitals refused on the grounds that providing such assistance was prohibited under Lithuanian law – namely, under Medical Regulation MN   40:2006 (see paragraph   44 below). 7 .     On 13 June 2012 the first applicant asked the Ministry of Health to either guarantee the provision of such medical assistance during the birth of her third child or to amend the secondary legislation so that healthcare professionals could be allowed to provide such assistance. She considered that the participation of a healthcare professional in the birth was indispensable in order to guarantee the child’s and her safety. She indicated that she would give birth on 4-5 July 2012. 8 .     By a letter of 5   July 2012 the Ministry of Health replied that it had already received proposals from several non-governmental organisations that births outside hospitals be regulated. The Ministry then consulted numerous medical organisations – including the Lithuanian Midwives Association ( Lietuvos akušerių sąjunga ), the Lithuanian Fellowship of Midwives and Gynaecologists ( Lietuvos akušerių ir ginekologų draugija ), the Lithuanian Doctors Association ( Lietuvos gydytojų sąjunga ), the obstetrics and midwifery clinics of both Vilnius University and the Lithuanian University of Health Sciences – for their views on home birth. However, the specialists were unanimous in the conclusion that it was safest for a woman to give birth on a maternity ward, even when there was little risk of complications. It was impossible to foresee that any birth would pass without complications, and it was always possible that a woman giving birth or a newborn baby might need urgent medical assistance that could be provided only on a maternity ward. 9 .     The Ministry also pointed out that Lithuania had made great efforts to ensure that safe healthcare services were provided to women giving birth ( gimdyvė ), and that the conditions in maternity wards were designed to render them as close as possible to the home environment. For that purpose medical establishments were supplied with modern medical equipment; at the same time, a woman’s family members could be present during birth, and medical institutions were being encouraged to obtain the status of “newborn-friendly”. Over the previous twenty years Lithuania had achieved good results in significantly reducing the mortality rate of pregnant women, women giving birth and babies. To provide midwifery services at home, where there were not all the facilities necessary to be able to provide help to women giving birth and to the newborn, would constitute a step backwards. Similarly, to shift the legal and financial liability onto the healthcare specialist or healthcare institution in question would likewise not be acceptable. Moreover, the question of home birth concerned not only the woman’s, but also the State’s choice; at the same time, it was necessary to balance the interests of society and the rights of the individual. This view was supported by the Court’s judgment in Ternovszky v. Hungary , (no.   67545/09, §   24, 14   December 2010). Accordingly, the Ministry had no plans to initiate changes to secondary legislation that would regulate the provision of midwifery services at home. 10 .     The first applicant states in her application that on 11 July 2012 she “[gave] birth at home without qualified healthcare assistance and risked her and the baby’s life and health”. B.     The second applicant 11 .     The second applicant was born in 1979. She lives in Vilnius and has three children. She indicated in her application that she had given birth at home in 2006, 2008 and 2011, with the assistance of J.I.Š., the above ‑ mentioned doula. All three births had been “successful”. 12 .     The second applicant submitted that after she had fallen pregnant for a fourth time, and “not being able to safely give birth at home” owing to criminal charges having been brought in respect of the above-mentioned doula, J.I.Š. (see paragraph   6 above and paragraphs 31-35 below), she in April 2012 asked two public hospitals – one in Trakai and one in Vilnius – to provide her with medical assistance during the home birth that she was planning. Both hospitals refused, on the same grounds as those given in the first applicant’s case (see paragraph   6 above). Afterwards, the Ministry of Health also refused a request lodged by the second applicant for changes to be made to the relevant legislation, for reasons identical to those cited in respect of the first applicant’s case (see paragraphs   8 and 9 above). 13 .     In her application to the Court of 19   October 2012 the second applicant noted that she was “firmly resolved ( tvirtai nusiteikusi ) to give birth at home, irrespective of whether she would receive qualified assistance during the birth”. Her due date was 17   November 2012. C.     The third applicant 1.     The applicant’s births at home 14 .     The third applicant was born in 1982. She lives in Vilnius. She noted in her application that she had given birth at home in 2009 and 2010, with the assistance of the unlicensed doula, J.I.Š. Both births had been “without complications [and] successful, and the children [were] growing up and developing healthily”. 15 .     In her application of 19   October 2012, the third applicant stated that   – wishing to have more children and expecting to become pregnant as soon as possible, but also having learned of the criminal charges brought against the doula J.I.Š. – in spring 2012 she became an active member of the movement known as “gimimas.lt” (see paragraphs   26 and 31-35 below). The applicant stated to the Court that during her third pregnancy, having had positive experiences during the first two home births, she could not imagine herself giving birth outside her home, since this seemed to her “the safest, most tranquil [environment] ... for the most intimate of occasions”. 16 .     In September 2012 she asked three public hospitals in Vilnius to provide her with medical assistance during her home birth. All the hospitals refused, on the grounds that in Lithuania there was no legal basis on which to provide medical assistance during a home birth. The head of the Maternity and Obstetrics Clinics at the Vilnius University Hospital ( Vilniaus universiteto Akušerijos ir ginekologijos klinika ) also indicated that she did not have the right to oblige medical personnel to provide medical services outside the hospital. Nevertheless, she invited the third applicant to visit the maternity ward of those clinics in order to “get acquainted with the environment, [which is] a cosy [one] for a woman giving birth”. 17 .     On 21 September 2012 the third applicant then asked the Ministry of Health to either guarantee medical assistance at her home during the birth of her third child or to amend the relevant secondary legislation so that the healthcare professionals were permitted to provide such assistance. She also argued that if the two relevant pieces of secondary legislation were annulled by the Minister of Health (see paragraphs   42 and 44 below), there would remain no obstacles to women receiving medical assistance during home births. 18 .     This request was refused by the Ministry on 16 October 2012 for the same reasons as those given to the first and second applicants (see paragraphs   8 and 9 above). Given that in her request the third applicant insisted on relying on the Court’s judgment in Ternovszky (cited above), the Ministry of Health consulted the Ministry of Justice on the matter. The Ministry of Justice noted that the Court had found a violation in the above ‑ mentioned case because of its very particular and specific circumstances, which had led the Court to conclude that the situation in Hungary, in as much as it related to healthcare professionals providing assistance during home births, was surrounded by legal uncertainty that gave rise to arbitrariness. Nonetheless, the Court had acknowledged that, as concerned the provision of healthcare services, the States had a wide margin of appreciation, and regulation had to ensure a proper balance between societal interests and the right at stake. The Ministry of Justice pointed out that the Court’s judgment did not mean that a State was under a general obligation to establish a regulatory framework that would allow healthcare specialists to provide services to women giving birth at home. Taking into account the above, and given that Lithuanian law did not contain provisions regarding the provision of healthcare services to women giving birth at home, the Ministry concluded that a pregnant woman could not require that, upon her request, a healthcare institution or a healthcare specialist provide her with childbirth-related healthcare services outside a healthcare institution. Similarly, a healthcare institution or a specialist had no obligation to provide such services, even if a pregnant woman so wished. That being so, the Ministry also emphasised that the third applicant was welcome to visit the maternity wards in Lithuania and to choose the one which had the environment that most suited her. 19 .     In her application to the Court of 19   October 2012, the third applicant, like the second applicant, stated that she was “firmly resolved to give birth at home, irrespective of whether she would receive qualified assistance during the birth”. She was due to give birth in March 2013. 2.     Administrative court proceedings against the Ministry of Health 20.     After having lodged the instant application with the Court, the third applicant also started administrative court proceedings in respect of the Ministry’s refusal to grant her request for the changes in secondary legislation (see paragraphs 17 and 18 above). 21.     On 8   April 2013 the Vilnius Regional Administrative Court rejected the third applicant’s complaint. The court noted that there were no legal instruments explicitly regulating home births in Lithuania. Therefore, the third applicant’s assertion that the two legal instruments adopted by the Minister of Health (see paragraphs   42 and 44 below) directly prohibited home birth was erroneous and unsubstantiated. Those legal instruments only regulated birth in hospitals, not home births. 22 .     On 22 January 2014 the Supreme Administrative Court upheld the first-instance court’s decision. It rejected the third applicant’s argument that the absence of any legal regulation allowing the provision of healthcare services during home births constituted a breach of the right to respect for one’s private life. The court referred to Article   52 of the Law on the Healthcare System (see paragraph   39 below), which guaranteed a patient’s right to privacy. For the court, such legal regulation thus empowered the third applicant to give birth in a specialised medical institution of her choice, which was equipped in accordance with the requirements for such institutions, so that the health of the mother and the newborn would be protected and they could receive immediate high-quality and effective help, should any danger arise to their health or lives during childbirth. The Supreme Administrative Court held that such legal regulation maintained a balance between two constitutional values: privacy and the protection of health. 23 .     The Supreme Administrative Court also referred to the content of the Ministry of Health letter of 16   October 2012 (see paragraph   18 above), wherein that institution had reminded the third applicant that her family members could be present during the birth of her child and had offered her the opportunity to visit hospitals with maternity wards and to choose the most suitable one. Accordingly, the third applicant had the right and possibility, guaranteed by law, to choose the most suitable medical institution and to state her wishes regarding conditions of privacy and their scope ( dėl privatumo sąlygų ir apimties ). There was no information in the file to the effect that the third applicant had ever approached any of the maternity wards or that she had faced obstacles in choosing how to make use of that right to privacy (for example, by requesting certain services, such as a private room) and then instituted court proceedings. One also had to bear in mind the fact that privacy in respect of the third applicant’s personal life (which she had sought by demanding to be provided with medical assistance during her home birth) could not be seen as having a greater value than the health of her and the newborn child, for the purpose of which the State had established a system of personal healthcare and qualified medical assistance. D.     The fourth applicant 24.     The fourth applicant was born in 1975. She lives in Vilnius. The fourth applicant stated that she had given birth at home in 2001, 2003 and 2011, with the assistance of doula J.I.Š. 25 .     In her application to the Court the fourth applicant also stated that even though she was of “reproductive age”, she did not dare to become pregnant for the fourth time, owing to the charges pending in respect of J.I.Š., “while the issue of giving birth at home remained legally unregulated in Lithuania” ( kol Lietuvoje nėra teisiškai sureguliuotas gimdymo namuose klausimas ). E.     General information pertaining to home births in Lithuania 26 .     In 2012 a non-governmental organisation for promoting childbirth at home, “gimimas.lt”, was established. In April 2012 it published an Internet press release calling on society and the State authorities, including the Ministry of Health, to discuss the question of home birth. The third and fourth applicants were among those who initiated that NGO and were its active participants. 27 .     In April 2012 the Association of Lithuanian Psychologists ( Lietuvos psichologų sąjunga ) asked the Ministry of Health to initiate changes in legislation to permit midwives and obstetrician-gynaecologists to provide medical assistance to women choosing to give birth outside hospital. 28 .     On 26   April 2012, at the Seimas, the Minister of Health was asked to comment about the possibility of providing medical assistance during home births. He replied that his opinion was categorical and negative; he also asked the non-governmental organisations that promoted that issue to be cautious and responsible. The Minister noted that at that time there were criminal investigations pending concerning “impostors” ( apsišaukėliai ) who had assisted with home births at which babies had died and mothers had suffered serious injuries. He pointed out that it was precisely owing to those criminal investigations that various requests concerning assistance for home births had started reaching the Ministry. 29 .     In April and May 2012 a group of non-governmental organisations asked the Lithuanian Midwives Association and the Lithuanian Fellowship of Midwives and Gynaecologists for their views on home birth.     In its written reply of 17   May 2012, the Lithuanian Midwives Association stated its disapproval of the prospect of midwives assisting with home births. On 19   June 2012 the Lithuanian Fellowship of Midwives and Gynaecologists replied that despite significant worldwide changes in the sphere of maternity care, the question of planned home births remained sensitive and controversial. F.     Criminal proceedings in relation to home births 1.     The prologue of the criminal proceedings 30 .     According to publicly available information, after the death of a baby born at home in June 2011, the police started a criminal investigation. Eventually, the authorities started examining the legality of the actions of a number of persons assisting with home births. The Government were informed by the police that in respect of those criminal proceedings the applicants only had the status of witnesses. 2.     The criminal case against J.I.Š. 31 .     On an unspecified date the prosecutors started criminal proceedings under Article   202 of the Criminal Code (Unauthorised Engagement in an Economic Activity, see paragraph   48 below) in respect of doula J.I.Š., who, despite having no medical training whatsoever, between 1999 and 2011 on thirty-six occasions had assisted at home births. The scope of her actions at those home births had varied between merely examining newborn babies to performing certain childbirth-related actions. 32.     By a judgment of 23   December 2016, the Vilnius City District Court acquitted J.I.Š., holding that she had revived the old profession of doula, which although not regulated in Lithuania, was also not forbidden by law. The court considered that since J.I.Š. had had no medical training and had not acted as an obstetrician-gynaecologist or as a midwife, or as a medical professional in general, she could not be liable under Article   202 §   2 of the Criminal Code. 33.     On 19   July 2017 the Vilnius Regional Court overturned the lower court’s judgment and convicted J.I.Š. under Article   202 §   2 of the Criminal Code. The appellate court held that while taking part in home births J.I.Š. had been providing healthcare services that fell within the competence of an obstetrician-gynaecologist or a midwife, whereas J.I.Š. had neither a medical education nor a licence to provide such services. By acting in such a manner J.I.Š. had acted in breach of the existing legal regulations, under which the only specialists who could assist with births were obstetrician ‑ gynaecologists and midwives and birth with such assistance could take place ( gimdymai priimami ) only in a maternity ward. It followed that J.I.Š. had been engaged in prohibited medical activities. She was sentenced to six months of deprivation of liberty, suspended for one year. 34.     J.I.Š. lodged an appeal on points of law. 35 .     By a ruling of 12   June 2018, an enlarged chamber (seven judges) of the Supreme Court noted that activities relating to home births, as a phenomenon, had been neither criminalised nor forbidden by law in Lithuania. Accordingly, the appellate court had erred in holding that J.I.Š. had been engaged in unauthorised professional activity, as understood under Article   202 §   2 of the Criminal Code. That notwithstanding, J.I.Š.’s activity, although it had not been prohibited ( jos vykdyta veikla nėra uždrausta ), had been unlawful ( neteisėta ). However, the Supreme Court found that the bill of indictment had failed to establish the precise amount of income that J.I.Š. had received for her activities. It was therefore impossible to establish the element of entrepreneurship, which was necessary in order to hold a person criminally liable under Article 202 § 1 of the Criminal Code. She therefore had to be acquitted. II.     RELEVANT DOMESTIC LAW AND PRACTICE 36.     The Constitution reads: Article 53 “The State shall take care of the health of people and shall guarantee medical aid and services for a person in the event of sickness. The procedure for providing medical aid to citizens free of charge at State medical establishments shall be established by law ...” 37 .     The Law on the Rights of Patients and Compensation for Damage to Their Health ( Pacientų teisių ir žalos sveikatai atlyginimo įstatymas ), as worded between 1 March 2010 and 18 October 2013, read: Article 4. Right to choose a healthcare institution and a healthcare professional “1. The patient shall have the right, in accordance with the procedure established by law, to choose a healthcare institution. 2. The patient shall have the right to choose a healthcare professional. The procedure for choosing a healthcare professional shall be established by the head of the healthcare institution [in question] ...” Article 5. Right to information “1. The patient has the right to obtain information about the services provided by a healthcare institution, [together with] the prices thereof and the possibilities to use them ... 2. The patient has the right to obtain information about the healthcare specialist who provides him or her with those services (such as his or her name, surname, and post) and information about the specialist’s professional qualifications. 3. The patient ... has the right to receive information about his or her state of health, diagnosis, methods of treatment applied in the healthcare institution [in question] or alternatives known to the doctor, potential risks, complications, side-effects ... and other circumstances that may have an effect on the acceptance or rejection by the patient of the proposed treatment, as well as about the consequences of rejecting the proposed treatment ...” Article 8. Right to privacy “1. The privacy of patients shall be inviolable. Information concerning the facts of patients’ personal existence may be collected only with those patients’ consent and if this shall be deemed necessary for diagnosing the illness, treatment or nursing ...” 38 .     The Law on Health Insurance ( Sveikatos draudimo įstatymas ), as worded at the relevant time, read: Article 6. Persons eligible for compulsory health insurance and persons covered by compulsory health insurance “4. Persons insured with State funds ... are: ... 4) women who are on pregnancy and maternity leave, as well as unemployed women during pregnancy ..., before childbirth ... and after childbirth.” Article 9. Personal healthcare services covered by the compulsory health insurance fund budget “1. The following personal healthcare services are covered by the compulsory health insurance fund budget: preventive medical care, medical care, medical rehabilitation, nursing ... ... 4. The compulsory health insurance fund budget covers: ... 1) primary, secondary and tertiary personal healthcare services...” 39 .     The Law on the Healthcare System ( Sveikatos sistemos įstatymas ) provides that healthcare services provided to pregnant women are paid by the State (Article 47 § 2 (7)). The Law also provides that information about a person’s health is private and may not be disclosed (Article 52). 40 .     The Law on Medical Practice ( Medicinos praktikos įstatymas ) at the relevant time read: Article 4. Acquisition and implementation of the right to engage in the practice of medicine “1. A doctor who has a valid licence issued in accordance with the procedure established by this Law may engage in the practice of medicine in the Republic of Lithuania. 2. The doctor can practise medicine only in a healthcare institution that has a licence to provide healthcare services...” 41 .     The Law on Nursery Practice and Midwifery Practice ( Slaugos praktikos ir akušerijos praktikos įstatymas ) at the relevant time provided: Article 10. Illegal practice of nursing and midwifery “1. The illegal practice of nursing and midwifery – an activity, when a person: 1) is engaged in the general practice of nursing and midwifery without a valid licence ...” Article 12. Rights of a midwife ( Akušerio teisės ) “1. A midwife has the following rights: 1) to pursue the practice of a midwife; 2) to refuse to provide midwifery services if working conditions pose a real danger to the health or life of the patient or of the midwife, except for cases when indispensable medical assistance is provided; ... 4) to be engaged in nursing or midwifery, being in employment relation with a legal person that does not have a healthcare licence allowing the provision of adequate nursing and midwifery services; 5) to be engaged in the nursing or midwifery practice, not being in employment relationship with a legal person which provides healthcare services.” 42 .     The Regulation on Healthcare Procedures for Pregnant Women, Women Giving Birth and Newborn Babies ( Nėščiųjų, gimdyvių ir naujagimių sveikatos priežiūros tvarka ), approved by the Minister of Health by order no.   117 of 15   March 1999, read that healthcare institutions were divided into several levels. Level I healthcare institutions provided outpatient perinatal care, including consultations, physical examinations and assessments of pregnancy risk. The right to provide primary perinatal care was granted to a midwife, the obstetrician-gynaecologist and a general practitioner. Level   II   A healthcare institutions (district hospitals) provided inpatient healthcare services for women giving birth who had low perinatal risk, as well as healthcare services to newborns without significant pathology ‑ related issues. Level   II   B healthcare institutions (“multi-profile” regional hospitals) provided obstetric and neonatal consultations, as well as inpatient healthcare services in cases of high perinatal risk during pregnancy and labour that did not call for specialised consultations or inpatient care at Level III hospitals. Level III   healthcare institutions (university hospitals) provided specialised consultations and inpatient obstetric and neonatal healthcare services. Qualified medical assistance for prepartum and postpartum women and newborns could only be provided in healthcare institutions that provided Level II and Level III healthcare services – that is to say hospitals. Such hospitals were obliged to ensure that there were always obstetrician ‑ gynaecologists on duty who could provide a twenty-four-hour service, as well as the assistance of a neonatologist, anaesthesiologist and other medical personnel at any time. 43 .     As specified by the Government, in 2013 there were thirty-four Level II and Level III medical institutions in Lithuania (including one private clinic) that provided inpatient perinatal and neonatal healthcare services. The Government also noted that three types of medical personnel were competent to provide monitoring assistance to a pregnant woman in Lithuania: a general practitioner ( bendrosios pagalbos gydytojas ) and an obstetrician-gynaecologist ( akušeris-ginekologas ) – both of these being doctors – and a midwife ( akušeris ) – a specialist type of nurse who provided assistance to pregnant women, women giving birth and postpartum women. As concerns the types of medical personnel competent to provide assistance to women giving birth, postpartum woman and newborns, those were an obstetrician-gynaecologist, a neonatologist – both of these being doctors – and a midwife. 44 .     On 3   April 2006 the Minister of Health Care approved Medical Regulation MN   40:2006 on the rights, duties, competence and liability of a midwife ( Akušeris. Teisės, pareigos, kompetencija ir atsakomybė ). The regulation provided that a midwife could practice at a healthcare institution that had a licence to provide gynaecological services. A midwife also could provide certain services at a patient’s home, except for assisting at a regular birth ( priimti normalų gimdymą ). 45 .     On 1   February 2017 the Ministry of Health set up a working group in order to consider the possibility of allowing home births in Lithuania. The working group included a number of experts in the field from the Lithuanian healthcare institutions. It also included the fourth applicant as the head of the Natural Family Planning Association ( Natūralaus šeimos planavimo asociacija ) non-governmental organisation. 46 .     On 28   June 2018 the Seimas amended the Law on Nursery Practice and Midwifery Practice by adding point 6 to Article   12 §   1. The law, in force as of 1   January 2019, reads: Article 12. Rights of a midwife “1. A midwife has the following rights: 1) to pursue the practice of a midwife; 2) to refuse to provide midwifery services if working conditions pose a real danger to the health or life of the patient or of the midwife, except for cases when indispensable medical assistance must be provided; ... 6) under the rules established by the Minister of Health, to provide to an expectant mother the services of a midwife at home, provided there is an absence of high pregnancy risks, a list of those risks having been established by the Minister of Health.” 47 .     Following that amendment, on 3   January 2019 the Minister of Health approved the Rules on the Provision of Maternity Services at Home Births ( Dėl gimdymo namuose priežiūros paslaugos teikimo tvarkos aprašo patvirtinimo ). It establishes the procedure for the provision of home birth services, the requirements for healthcare institutions and midwives providing assistance at home births, and lists the medical equipment needed to provide such services. The rules specify that a pregnant woman must submit a request to a healthcare institution for assistance during her home birth; they also provide that for such assistance to be granted, it must first be established that there are no risk factors in respect of the pregnancy in question. A woman opting for a home birth may choose the midwife who will assist her. Should a risk subsequently be determined during home birth in respect of the life or health of the woman giving birth, the foetus or the newborn, or should the woman so request, the healthcare institution must organise their transfer from home to hospital, and such a transfer should take no longer that thirty minutes. The midwife is also under an obligation to visit the mother and newborn within three days of the birth. 48 .     The Criminal Code at the relevant time provided: Article 202. Unauthorised Engagement in Economic, Commercial, Financial or Professional Activity “1. A person who undertakes economic, commercial, financial or professional activity in the form of a business or on a large scale without holding a licence (authorisation) to engage in the activity for which [such authorisation] is required or by other unlawful means shall be punished by [being sentenced to] community service or with a fine or by restriction of liberty or by imprisonment for a term of up to four years. 2. A person who engages in prohibited economic, commercial, financial or professional activity shall be punished by imprisonment for a term of up to four years. 3. A legal entity shall also be held liable for acts provided in this Article.” III.     RELEVANT INTERNATIONAL LAW AND PRACTICE 49.     The relevant international and comparative law material is set out in paragraphs 62-68 of Dubská and Krejzová v. the Czech Republic ([GC], nos.   28859/11 and 28473/12, 15   November 2016). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 50.     The applicants complained that Lithuanian law had dissuaded healthcare professionals from assisting them when giving birth at home, in violation of their right to private life, as provided in Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 1.     The parties’ arguments (a)     The Government (i)     Applicability ratione materiae 51.     The Government maintained that Article 8 of the Convention could not be interpreted as stipulating the right to give birth at home and the corresponding obligation of the State to provide related healthcare services. In their view, the right to choose the circumstances of giving birth, although acknowledged by the Court in Ternovszky v. Hungary (no.   67545/09, §   22, 14   December 2010), to a greater extent was linked not to the right to choose a particular place (such as one’s home) for giving birth but with the right to choose the method of delivery, the right to refuse unnecessary medical interventions, the right to choose particular medical personnel (doctors or midwives) to assist during delivery, the right for the father to be present in the delivery room, and the right to stay with a newborn after the delivery. Moreover, the right to give birth at home was not explicitly recognised under the Lithuanian legal system. The Government thus considered that the complaint was inadmissible ratione materiae . (ii)     The applicants’ victim status 52.     The Government also viewed the applicants’ complaints as having the nature of an actio popularis and having been made in abstracto . Although all four applicants had earlier given birth outside healthcare institutions, they had decided to raise the issue of an alleged violation of the Convention only after the institution of a criminal investigation in respect of the individual who had earlier assisted them during their home deliveries. Hence, their application was linked to a greater extent to the criminal investigation rather than to their individual situations. That being so, one also had to bear in mind the fact that mothers giving birth at home were in no way prosecuted and bore no criminal liability in this regard. 53.     The Government, referring to Ternovzky (cited above, §   21), also considered that the first and the fourth applicants had not been personally affected by the alleged violation of Article 8 of the Convention, since they had not been pregnant or planning to give birth at home at the time of the introduction of the application before the Court. The first applicant had given birth on 11   July 2012, that is to say, before submitting her application to the Court on 19   October 2012 (see paragraphs 1 and 7 in fine above). The fourth applicant’s claim that she had not dared to become pregnant for the fourth time, even though she had been of “reproductive age” (see paragraph   25), was surrounded by uncertainty and therefore rendered her application an actio popularis . (iii)     The exhaustion of the domestic remedies 54 .     The Government also submitted that, as this had been the first time that the issue of home births within the context of the State healthcare system had been raised in Lithuania, it was all the more important to give the State an opportunity to address it in the light of its obligations under the Constitution and various international instruments. They noted that only the first, second and third applicants had lodged requests with several healthcare institutions and the Ministry of Health for them to be provided with medical assistance during their home births. Afterwards, only one of them – the third applicant – had challenged the Ministry’s response in an administrative court. The Government considered that the administrative courts had the power to decide that certain regulatory acts, such as Medical Regulation MN   40:2006, were not in conformity with higher legal instruments. Alternatively, the administrative court could have also referred the matter to the Constitutional Court, which then would have had an opportunity to assess the existing legal regulation and the alleged need to broaden that regulation in view of the right to give birth outside a hospital. The Government thus concluded that the instant application was premature on account of pending (at the time of the Government’s observations of 26   April 2013) national proceedings in respect of the third applicant. They also stated that the outcome of those proceedings might have a direct effect on other applicants. 55.     The Government also considered that if the absence of relevant legislative regulation regarding home births had caused them certain damage, they could have sought compensation from the State. (iv)     The matter being resolved 56.     By a letter of 5   July 2018 the Government informed the Court that the Law on Nursery Practice and Midwifery Practice had been recently amended to enable midwives to provide assistance in the form of maternity services at home births, provided that there were no risk factors, and provided that that assistance was rendered in a manner in accordance with the procedure to be established by the Minister of Health (see paragraph   46 above). By a letter of 31   January 2019 the Government also drew the Court’s attention to the fact that earlier that month the Minister of Health had adopted a follow-up legal act on that issue (see paragraph   47 above). The Government thus considered that the adoption of those measures ensured the possibility for expectant mothers to choose where to give birth and to receive appropriate medical assistance. The Government therefore considered that the matters which had given rise to the present application should be considered as resolved and that the application should be struck out of the Court’s list of cases, pursuant to Article 37 § 1 (b) of the Convention. (b)     The applicants (i)     Applicability ratione materiae 57 .     The applicants pointed out that although the right to give birth at home was not explicitly envisaged in the Lithuanian law, it was not prohibited either. They pointed out that they did not require the State to oblige healthcare specialists to assist women during planned home births; rather, they required that the State not prevent them from doing so. In that context the applicants relied on the Court’s judgment in Ternovszky (cited above, §   22), which had confirmed that “the choice of giving birth in one’s home would normally entail the involvement of health professionals”. The latter judgment had also made it clear that the circumstances of giving birth incontestably formed part of a person’s private life. Contrary to what was claimed by the Government, the whole Ternovszky judgment had beyond any doubt been related to the issue of home birth – that is to say choosing a particular place – but definitely not to other aspects of the circumstances in which a woman gave birth. (ii)     The applicants’ victim status 58. The applicants partly agreed that they had decided to raise the issue of an alleged violation of their Convention rights only after the institution of a criminal investigation in respect of the individual who had earlier assisted them during home deliveries. However, this was because the pending pre-trial investigation had revealed serious problems surrounding the issue of home births. One of those problems concerned legal uncertainty: although it was legal to give birth at home, the provision of medical assistance was not. The investigation had therefore arguably dissuaded anybody who might be willing to provide particular assistance during home births from doing so. Individuals assisting women at home births were being prosecuted, and the women in question were themselves being called in for questioning by the police. All this had left the applicants with a feeling of insecurity, as they were uncertain as to whether they could receive any required assistance. 59.     As to their specific situation, the first three applicants had approached the Ministry of Health while they were pregnant, but their requests for assistance had been refused (see paragraphs 7-9, 12 in fine , 17 and 18 above). 60.     Furthermore, the first applicant had given birth to her last child at home before lodging her application with the Court. She had done so in order to avoid a repeat of her previous negative experiences at her local public hospital, and even if qualified medical assistance during that home birth was absent (see paragraphs 5 and 10 above). 61.     The fourth applicant, although she had not been pregnant when lodging her application with the Court, was of child-bearing age and was planning to conceive and to give birth at home. This applicant had also been prompted by the Court’s judgment in Ternovsky (cited above), which showed that in the event that a person lodged an application concerning the right to give birth at home while already being pregnant, the likelihood was that the issue would be dealt with only after the birth had taken place; the possibility of effectively using that right was therefore rather small. Furthermore, all those Lithuanian applicants who had been pregnant at the time of lodging their application had already given birth (see paragraphs   13 and 19 above). Accordingly, the fourth applicant, who was planning to conceive and give birth again and wished to ensure her right to choose the place of birth, was undertaking the defence of this right in advance, in order to have the possibility of giving birth at home with qualified medical assistance. (iii)     Exhaustion of the domestic remedies 62.     The applicants stated that any application lodged with the domestic courts, while theoretically possible, would not have been effective. This view was supported by the fact that the third applicant had given birth while her appeal against the Ministry of Health had still been pending (see paragraphs 19 and 22 above). She had been in despair: the time of birth had been approaching and she had decided to exhaust all presumably effective remedies as a last resort in an effort to be able to receive medical assistance during her labour. Unfortunately, her case had demonstrated yet again the ineffectiveness of the national remedies. She had gone into labour while the proceedings had still been pending. 63.     In a letter of 5 May 2014 the applicants furthermore pointed out that by that date the third applicant’s appeal had already been dismissed by the Supreme Administrative Court, which had, moreover, seen no need to refer the matter to the Constitutional Court (see paragraphs 22 and 23 above). In that connection the applicants also pointed out that, under the domestic law, it was the prerogative of the court in question, rather than the applicant, to raise an issue with the Constitutional Court; a private individual did not have such a right. Even if the Supreme Administrative Court had decided to refer the matter to the Constitutional Court, the process would only have been further suspended. Given that the applicants were still considering giving birth in the future, the prospective length of such proceedings might as well mean that by the end of the Constitutional Court proceedings they would be past “reproductive age”. All this showed that the applicants had no domestic remedies to improve their situation. 64.     As to the fourth applicant, given the fact that all the applicants knew each other and that the fourth applicant had been aware of the Ministry’s answer to the other three applicants (see paragraphs 8, 9, 12 and 18 above), she had been completely certain that it would treat her in the same manner. This was the reason for her applying directly to the Court. 65 .     Lastly, the applicants pointed out that it was not their intention to seek monetary compensation from the State. Rather, they