The protection of the right to life raises the question of whether the unborn child is protected and whether persons also have the right to die. There have not been many individual cases in regard to these issues.
In Pretty v. The United Kingdom, the applicant, Ms. Diane Pretty, was paralysed and suffered from a motor neurone disease, a progressive degenerative and incurable illness, which had reduced her to a state of complete dependency upon others. She was facing the prospect of a distressing death by suffocation when her breathing muscles started to fail. Although it was not a crime to commit suicide under English law, the applicant was prevented by her disease from taking such a step without assistance. She wanted to protect her right to a dignified death and requested the Director of Public Prosecutions to grant immunity from prosecution to her husband if he assisted her in committing suicide. This request was denied at the domestic level. She alleged that this refusal infringed her rights under the ECHR . She focused her complaint principally on Article 3 of the Convention. She submitted that the suffering which she faced qualified as degrading treatment under Article 3 of the Convention. She also alleged violation of Article 2. She alleged that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention. According to the applicant, Article 2 protects not only the right to life but also the right to choose whether or not to go on living. It was submitted that it protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the state and public authorities, not from themselves. The applicant claimed that Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life.
European Court of Human Rights
Application No. 2346/02
Judgement of 24 April 2002
Keywords: life – euthanasia - non-derogable rights - positive obligations - inhumane treatment - degrading treatment - private life - non-discrimination
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
A. Submissions of the parties
1. The applicant
18. The applicant submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life. In so far as the Keenan case referred to by the Government indicated that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life, the obligation only arose because he was a prisoner and lacked, due to his mental illness, the capacity to take a rational decision to end his life (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III).
2. The Government
19. The Government submitted that the applicant’s reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Although it had in some cases been found to impose positive obligations, this concerned steps appropriate to safeguard life. In previous cases the State’s responsibility under Article 2 to protect a prisoner had not been affected by the fact that he committed suicide (see Keenan, cited above) and it had also been recognised that the State was entitled to force-feed a prisoner on hunger strike (see X v. Germany, no. 10565/83, Commission decision of 9 May 1984, unreported). The wording of Article 2 expressly provided that no one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary, but the antithesis of the right to life.
B. The Court’s assessment
20. The Court’s case-law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46,§ 146-47). It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory. It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been relied on by the respondent States (ibid., p. 46,§ 149-50).
21. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by State agents. However, it has been interpreted as covering not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life (ibid., p. 46,§ 148). Furthermore, the Court has held that the first sentence of Article 2§ 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403,§ 36). This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports 1998-VIII, p. 3159,§ 115, and Kiliç v. Turkey , no. 22492/93,§ 62 and 76, ECHR 2000-III). More recently, inKeenan, Article 2 was found to apply to the situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan, cited above,§ 91).
39. [?] The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. [?]. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a rightto die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
40. The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. [?].
42. The Court finds that there has been no violation of Article 2 of the Convention.
The European Court of Human Rights found in favour of the state that the right to life as enshrined in the ECHR does not include the right to die. Therefore, according to the Court, Article 2 ECHR does not include the individual right to choose whether or not to go on living. This case is also discussed under privacy see Interference with the Right to Privacy .
The Inter-American Court has never dealt with a case relating to abortion; therefore it is interesting to include a case decided by the Inter-American Commission on Human Rights on the basis of the American Declaration of the Rights and Duties of Man . Although the Declaration was adopted as a non-binding instrument, by virtue of its relationship with the OAS Charter , the Declaration has come to be indirectly binding on all OAS member states. The Commission receives individual complaints alleging violations of the Declaration with respect to OAS member states that are not parties to theACHR , as in the case of the United States of America in the following complaint.
In 1977, Christian B. White and Gary K. Potter filed a petition before the Inter-American Commission on Human Rights against the United States of America and theCommonwealth of Massachusetts. They identified as the victim of a human rights violation ‘Baby Boy’, the name given to the foetus removed from the mother by an abortion carried out in Boston in 1973. They alleged, inter alia, a violation of the right to life granted by Article I of the American Declaration of the Rights and Duties of Man (‘every human being has the right to life, liberty and the security of his person’).
Inter-American Commission on Human Rights
Case 2141, Resolution 23/81(United States)
Views of 6 March 1981
Keywords: life, when life begins - abortion
18. The first violation denounced in the petition concerns Article I of the American Declaration of Rights and Duties of Man: “Every human being has the right to life?”. The petitioners admitted that the Declaration does not respond “when life begins,” “when a pregnancy product becomes a human being” or other such questions. However, they try to answer these fundamental questions with two different arguments:
a) The travaux preparatoires, the discussion of the draft Declaration during the IX International Conference of American States at Bogotá in 1948 and the final vote, demonstrate that the intention of the Conference was to protect the right to life “from the moment of conception.”
b) The American Convention on Human Rights, promulgated to advance the Declaration’s high purposes and to be read as a corollary document, gives a definition of the right to life in Article 4.1: “This right shall be protected by law from the moment of conception.”
A brief legislative history of the Declaration does not support the petitioner’s argument, as may be concluded from the following information and documents:
a) Pursuant to Resolution XL of the Inter-American Conference on Problems of War and Peace (Mexico, 1945), the Inter-American Juridical Committee of Río de Janeiro, formulated a preliminary draft of an International Declaration of the Rights and Duties of Man to be considered by the Ninth International Conference of American States (Bogotá, 1948). This preliminary draft was used by the Conference as a basis of discussion in conjuction with the draft of a similar Declaration prepared by the United Nations in December, 1947.
b) Article 1 - Right to Life - of the draft submitted by the Juridical Committee reads: “Every person has the right to life. This right extends to the right to life from the moment of conception; to the right to life of incurables, imbeciles and the insane. Capital punishment may only be applied in cases in which it has been prescribed by pre-existing law for crimes of exceptional gravity.” (Novena Conferencia International Americana - Actas y Documentos Vol. V Pág. 449).
c) A Working Group was organized to consider the observations and amendments introduced by the Delegates and to prepare an acceptable document. As a result of its work, the Group submitted to the Sixth Committee a new draft entitle American Declaration of the Fundamental Rights and Duties of Man, Article I of which reads: “Every human being has the right to life, liberty, security and integrity of this person.”
d) This completely new Article I and some substantial changes introduced by the Working Group in other Articles has been explained, in its Report of the Working Group to the Committee, as a compromise to resolve the problems raised by the Delegations of Argentina, Brazil, Cuba, United States of America, Mexico, Peru, Uruguay and Venezuela, mainly as consequence of the conflict existing between the laws of those States and the draft of the Juridical Committee. (Actas y Documentos Vol. 5 pages 474-484, 495-504, 513-51S.
e) In connection with the right to life, the definition given in the Juridical Committee’s draft was incompatible with the laws governing the death penalty and abortion in the majority of the American States. In effect, the acceptance of this absolute concept—the right to life from the moment of conception—would imply the obligation to derogate the Articles of the Penal Codes in force in 1948 in many countries because such Articles excluded the penal sanction for the crime of abortion if performed in one or more of the following cases: A-when necessary to save the life of the modern; B-to interrupt the pregnancy of the victim of a rape; C-to protect the honor of an honest woman; D-to prevent the transmission to the fetus of a hereditary on contagious disease; E-for economic reasons (angustia económica).
f) In 1948, the American States that permitted abortion in one of such cases and, consequently, would be affected by the adoption of Article I of the Juridical Committee, were; Argentina - Article 86 n.1, 2 (cases A and B); Brasil - Article n.I, II (A and B); Costa Rica - Article 199 (A); Cuba - Article 443 (A, B and D); Ecuador -Article 423 n.l, 2 (A and B); Mexico (Distrito y Territorios Federales) - Articles 333e 334 (A and B); Nicaragua - Article 399 (frustrated attempt) (C); Paraguay - Article 352 (A); Peru - Article 163 (A-to save the life or health of the mother); Uruguay - Article 328 n. 1-5 (A, B, C. and F - the abortion must be performed in the three first months from conception); Venezuela - Article 435 (A); United States of America - see the State laws and precedents; Puerto Rico S S 266, 267 (A) (Códigos Penales Iberoamericanos - Luis Jiménez de Asua - Editorial Andrés Bello - Caracas, 1946 - volúmenes I y II).
g) On April 22, 1948, the new Article I of the Declaration prepared by the Working Group was approve by the Sixth Committee with a slight change in the wording of the Spanish text (there was no official English text at that stage) (Actas y Documentos) vol. V pages 510-516 and 578). Finally, the definitive text of the Declaration in Spanish, English, Portuguese and French was approved by the 7th plenary Session of the Conference onApril 30, 1948, and the Final Act was signed May 2nd. The only difference in the final text is the elimination of the word “integrity” (Actas y Documentos vol. VI pages 297-298; vol. I pages 231, 234, 236, 260, 261).
h) Consequently, the defendant is correct in challenging the petitioners’ assumption that Article 1 of the Declaration has incorporated the notion that the right of life exists from the moment of conception. Indeed, the conference faced this question but chose not to adopt language which would clearly have stated that principle.
20. The second argument of the petitioners, related to the possible use of the Convention as an element for the interpretation of the Declaration requires also a study of the motives that prevailed at the San José Diplomatic Conference with the adoption of the definition of the right to life.
21. The Fifth Meeting of Consultation of Ministers of Foreign Affairs of the OAS, held atSantiago, Chile in 1959, entrusted the Inter-American Council of Jurists with the preparation of a draft of the Convention on Human Rights contemplated by the American States since the Mexico Conference in 1945.
22. The draft, concluded by the Commission in about two weeks, developed the American Declaration of Bogotá, but has been influenced also by other sources, including the work in course at the United Nations. It consists of 88 Articles, begin with a definition of the right to life (Article 2), which reintroduced the concept that “This right shall be protected by law from the moment of conception.” (Inter-American Year-book, 1968 - Organization of American States, Washington, 1973 - pages 67, 237.) 23. The Second Special Conference of Inter-American States (Rio de Janeiro, 1965) considered the draft of the Council with two other drafts presented by the Governments of Chile and Uruguay, respectively, and asked the Council of the OAS, in cooperation with the IACHR, to prepare the draft of the Convention to be submitted to the diplomatic conference to be called for this purpose.
24. The Council of the OAS, considering the Opinion enacted by the IACHR on the draft convention prepared by the Council of Jurists, give a mandate to Convention to be submitted as working document to the San José conference (Yearbook, 1968, pages 73-93.)
25. To accommodate the views that insisted on the concept “from the moment of conception,” with the objection raised, since the Bogota Conference, based on the legislation of American States that permitted abortion, inter alia, to save the mother’s life, and in case of rape, the IACHR, redrafting Article 2 (Right to life), decided, by majority vote, to introduce the words “in general.” This compromise was the origin of the new text of Article 2 “1. Every person has the right to have his life respected. This right shall be protected by law, in general, from the moment of conception.” (Yearbook, 1968, page 321.)
26. The rapporteur of the Opinion proposed, at this second opportunity for discussion of the definition of the right of life, to delete the entire final phrase “?in general, from the moment of conception.” He repeated the reasoning of his dissenting opinion in the Commission; based on the abortion laws in force in the majority of the American States, with an addition: “to avoid any possibility of conflict with Article 6, paragraph 1, of the United Nations Covenant on Civil and Political Rights, which states this right in a general way only.” (Yearbook, 1968 - page 97).
27. However, the majority of the Commission believed that, for reasons of principle, it was fundamental to state the provision on the protection of the right to life in the form recommended to the Council of the OAS in its Opinion (Part One). It was accordingly decided to keep the text of paragraph 1 without change. (Yearbook, 1968, page 97).
28. In the Diplomatic Conference that approved the American Convention, the Delegations of Brazil and the Dominican Republic introduced separate amendments to delete the final phrase of paragraph 1 of Article 3 (Right to life) “in general, from the moment of conception”. The United States delegation supported the Brazilian position. (Conferencia Especializada Interamericana sobre Derechos Humanos - ACTAS Y DOCUMENTOS - Washington 1978 (reprinted) - pages 57, 121 y 160.)
29. Conversely, the Delegation of Ecuador supported the deletion of the words “and in general”. Finally, by majority vote, the Conference adopted the text of the draft submitted by the IACHR and approved by the Council of the OAS, which became the present text of Article 4, paragraph 1, of the American Convention (ACTAS Y DOCUMENTOS - pages 160 and 481.)
30. In the light of this history, it is clear that the petitioners’ interpretation of the definition given by the American Convention on the right of life is incorrect. The addition of the phrase “in general, from the moment of conception” does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogota, when they approved the American Declaration. The legal implications of the clause “in general, from the moment of conception” are substantially different from the shorter clause “from the moment of conception” as appears repeatedly in the petitioners’ briefs.
31. However, accepting gratia argumentandi, that the American Convention had established the absolute concept of the right to life from the moment of conception - it would be impossible to impose upon the United States Government or that of any other State Member of the OAS, by means of “interpretation,” an international obligation based upon a treaty that such State has not duly accepted or ratified.
The Commission examined the travaux préparatoires of Article I American Declaration. It observed that during its drafting the language which would have protected the right to life from the moment of conception had been removed. Thus, the Commission concluded that Article I did not protect life from the moment of conception. The conclusion reached was a difficult one since the travaux are not absolutely clear and the petitioners relied on Article 4(1) American Convention as a means of interpreting Article I of the Declaration. According to Article 4(1) the right to life is protected ‘in general, from the moment of conception’.
At the European level it is worth mentioning Vo v. France in relation to abortion. This case concerns an applicant who attended the Lyons General Hospital for a medical examination scheduled in her sixth month of pregnancy. On the same day another woman, Mrs. Thi Thanh Van Vo, was due to have a coil removed at the same hospital. Owing to a mix-up caused by the fact that both women shared the same surname, the doctor who examined the applicant pierced her amniotic sac, making a therapeutic abortion necessary. Following a criminal complaint lodged by the applicant and her husband in 1991, the doctor was charged with causing unintentional injury, the charge subsequently being increased to one of unintentional homicide. The Lyons Criminal Court acquitted the doctor. The applicant appealed and the Lyons Court of Appeal overturned the Criminal Court’s judgement, convicted the doctor of unintentional homicide and imposed a six-month suspended sentence and a fine of 10,000 French francs. The Court of Cassation reversed the Court of Appeal’s judgement, holding that the facts of the case did not constitute the offence of involuntary homicide; it thus refused to consider the foetus as a human being entitled to the protection of the criminal law. The applicant complained of the authorities’ refusal to classify the taking of her unborn child’s life as unintentional homicide. She argued that the absence of criminal legislation to prevent and punish such an act breached Article 2 of the Convention.
European Court of Human Rights
Application No. 53924/00
Judgement of 8 July 2004
Keywords: life, when life begins – abortion - positive obligations - margin of appreciation
C. The Court’s assessment
22. As is apparent from [?] the case-law, the interpretation of Article 2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions’ position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the State has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics at Community level appositely puts it: “the ? Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research? It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code” (see paragraph 40 above).
It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a “living instrument which must be interpreted in the light of present-day conditions” (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16,§ 31, and subsequent case-law). The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate (see paragraph 83 below) and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life (see paragraph 84 below).
23. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39 and 40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person – enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom (see paragraph 72 above) – require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2. The Oviedo Convention on Human Rights and Biomedicine , indeed, is careful not to give a definition of the term “everyone” and its explanatory report indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarifications for the purposes of the application of that Convention (see paragraph 36 above). The same is true of the Additional Protocol on the Prohibition of Cloning Human Beings and the draft Additional Protocol on Biomedical Research, which do not define the concept of “human being” (see paragraphs 37 and 38 above). It is worth noting that the Court may be requested under Article 29 of the Oviedo Convention to give advisory opinions on the interpretation of that instrument.
24. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“personne” in the French text). As to the instant case, it considers it unnecessary to examine whether the abrupt end to the applicant’s pregnancy falls within the scope of Article 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere. With regard to that issue, the Court has considered whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Article 2 of the Convention.
25. In that connection, it observes that the unborn child’s lack of a clear legal status does not necessarily deprive it of all protection under French law. However, in the circumstances of the present case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party.
26. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46,§ 147), requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403,§ 36).
27. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom(dec.), no.45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above,§49).
28. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99,§ 70, ECHR 2004- ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, “the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” (see Calvelli and Ciglio, cited above,§ 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; andMastromatteo v. Italy [GC], no. 37703/97,§ 90, ECHR 2002-VIII).
29. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury– which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor’s alleged negligence (see Kress v. France [GC], no. 39594/98,§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor’s part, which nonetheless, in the Court of Appeal’s opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable.
The Court considered that the issue of when the right to life begins was a question to be decided at national level: firstly, because the issue had not been decided within the majority of the states which had ratified the Convention, in particular in France, where the issue has been the subject of public debate; and, secondly, because there was no European consensus on the scientific and legal definition of the beginning of life. It was clear from the case-law of French courts and a recent parliamentary debate on the question of creating an offence of unintentional termination of pregnancy that the nature and legal status of the embryo and/or the foetus were currently not defined in France and that the manner in which it was to be protected would be determined by varied forces within French society. At the European level, there was no consensus on the nature and status of the embryo and/or foetus. As noted by the Court, at best, it could be regarded as common ground between states that the embryo/foetus belonged to the human race. Having regard to those considerations, the Court was convinced that it was neither desirable, nor possible as matters stood, to answer in the abstract the question whether the unborn child was a person for the purposes of Article 2 of the Convention. As to the case before it, the Court considered it unnecessary to examine whether the abrupt end to the applicant’s pregnancy fell within the scope of Article 2, seeing that, even assuming that that provision was applicable, there had been no failure on the part of France to comply with the requirements relating to the preservation of life in the public-health sphere. The unborn child was not deprived of all protection under French law. Contrary to what had been submitted by Mrs Vo, the state’s positive obligation – which in the public-health sphere consisted of adopting appropriate measures for the protection of patients’ lives and of holding inquiries into the cause of death – did not necessarily require the provision of a criminal-law remedy. In the case before the Court, in addition to the criminal proceedings which the applicant had instituted against the doctor for unintentionally causing her injury, she could have brought an action for damages in the administrative courts which would have had fair prospects of success. Such an action would have enabled the applicant to prove the doctor’s medical negligence and to obtain full redress for the resulting damage. There had therefore been no need to institute criminal proceedings. The Court accordingly found that, even assuming that Article 2 was applicable in the case before it, there had been no violation of that provision.
In addition to the issue of status of the embryo and/or foetus, it is worth stressing the Court’s conclusion that the duty to take appropriate steps to safeguard the lives of those within the jurisdiction of the state is also applicable in the public-health sphere. As mentioned in other court decisions, the positive obligations therefore require states to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require an effective independent judicial system to be set up so that the cause of the death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said on a number of occasions that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.
Selected additional cases: ECHR: H. v. Norway, Application No. 17004/90, inadmissibility decision of 19 May 1992; and Open Door and Dublin Well Woman v. Ireland , Applications Nos. 14234/88 and 14235/88, Judgement of 29 October 1992. HRC: Sanles Sanles v. Spain , Communication No. 1024/2001, inadmissibility decision of30 March 2004.
Other interesting cases in which the European Court has dealt with the issue of abortion are Open Door and Dublin Well Woman v. Ireland (also discussed under freedom of expression,Freedom of Information ) and H. v. Norway (also discussed under privacy, Family Life ). In the first case, the Irish Government relied on the protection of the life of the unborn child to justify legislation prohibiting the provision of information concerning abortion facilities abroad. The only issue that was resolved by the European Court was whether the restrictions on the freedom to receive and impart the information in question had been necessary in a democratic society, within the meaning of Article 10(2) of the Convention. In the case of H. v. Norway, a woman had decided to terminate her pregnancy against the father’s wishes. The Court held that it was not required to determine ‘whether the foetus may qualify for protection under the first sentence of Article 2 as interpreted [in the case-law relating to the positive obligation to protect life]’, and continued: ‘Even supposing that, in certain circumstances, the foetus might be considered to have rights protected by Article 2 of the Convention, in the instant case the pregnancy was terminated in conformity with Norwegian Law which, according to the Court ‘struck a fair balance between the woman’s interests and the need to ensure protection of the foetus’.