How to use the European Convention for the Protection of Human Rights and Fundamental Freedoms in matters of reproductive law:
the case law of the European Court of Human Rights_GUIDE

Written for ASTRA by Magda Krzy¿anowska-Mierzewska


Part I - Introduction to the system for protection of human rights under the European Convention on the Protection of Human Rights and Fundamental Freedoms  

PART II Proceedings before the court

PART III Substantive rights relevant to reproductive and sexual health

Appendix 1

Appendix 2


PART I

Introduction to the system for protection of human rights under the European Convention on the Protection of Human Rights and Fundamental Freedoms

This Manual shows in an easy and practical manner how the international system of human rights protection established under the European Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention") can be used for the protection of reproductive rights. The first part of the Manual consists of essential information about the Convention, while the second part provides practical information about the procedure which has to be followed when  bringing an individual case to the European Court of Human Rights in Strasbourg .  

It is important to note that the second part of the Manual can, indeed, be useful for all kinds of human rights cases brought to the Court. It is hoped that it’s usefulness will  therefore not be limited to the field of the reproductive rights, and that it will be used by non-governmental organisations focusing also on other issues. The third part of the Manual provides information about the substantive law aspects of the Convention that can be related to the issues of reproductive health.

a) The Council of Europe :

The European Court of Human Rights in Strasbourg , France , is an international control mechanism of human rights obligations arising out of the European Convention of Human Rights and Fundamental Freedoms, adopted in 1950. The Convention, adopted within the framework of the Council of Europe, an European international organisation established in 1949, with headquarters in Strasbourg, has until now been ratified by 45 States. Ratification of the Convention is an essential requirement for a state to become a member of the Council of Europe, which now has 45 Member States.

The primary principles and objectives of the Council of Europe are: protection and promotion of human rights; parliamentary democracy as essential condition of membership, and strengthening of the rule of law in Member States through international co-operation. Its principal instrument of achieving those aims is legal co-operation. In recent years, the main areas of activity of the Council of Europe were promotion of social cohesion and combating exclusion, ensuring of security of citizens, and promotion of democratic values and cultural diversity.  

The principal decision-making body of the Council of Europe - which is not to be confused with any of the bodies of the European Union as it is an entirely separate international organisation - is the Committee of Ministers, composed of representatives of ministers of foreign affairs of the Member States. The Parliamentary Assembly of the Council of Europe, composed of delegations of national parliaments of the Member States, is the Council's political and legislative body. The Congress of Local and Regional Authorities is a forum for rapprochement and exchange of experience between politicians on a local level. The Council of Europe is assisted in its functions by its Secretariat, consisting of 2000 persons.

International legal cooperation is carried out by elaboration of texts of conventions and treaties, which are binding instrumenst of international law, regulating various kinds of relationships between the states-parties, or setting international standards in a given field. It also involves adoption of instruments of so-called soft law, i.e. recommendations. Recommendations do not have the status of binding norms of law, but they represent European consensus as to commonly accepted principles or best practices in a given field of law or policy. They can also serve as guidance in law reform on a domestic level, since they provide state-of-the-art information on the current European consensus in a given domain. They can also be relied on as a source of information for policy makers, law enforcement agencies and non-governmental organizations regarding the current trends in policies in various fields, and on the ways in which laws can be interpreted or applied.

 

b) European Convention on the Protection of Human Rights and Fundamental Freedoms

The Convention, which was adopted in 1950, guarantees the following rights:  

Article 2 Right to life

Article 3 Prohibition of torture

Article 4 Prohibition of slavery and forced labour

Article 5 Right to liberty and security

Article 6 Right to a fair trial

Article 8 Right to respect for privateand family life

Article 7 No punishment without law

Article 9 Freedom of thought, conscience and religion

Article 10 Freedom of expression

Article 11 Freedom of assembly and association

Article 12 Right to marry

Article 13 Right to an effective remedy

Article 14 Prohibition of discrimination

Protocol No. 1

Article 1 Protection of property

Article 2 Right to education

Article 3 Right to free elections

Protocol No. 4

Article 1 Prohibition of imprisonment for debt

Article 2 Freedom of movement

Article 3 Prohibition of expulsion of nationals

Article 4 Prohibition of collective expulsion of aliens

Protocol No. 6

Article 1 Abolition of the death penalty

Protocol No. 7:

Article 1 Procedural safeguards relating to expulsion of aliens

Article 2 Right of appeal in criminal matters

Article 3 Compensation for wrongful conviction

Article 4 Right not to be tried or punished twice

Article 5 Equality between spouses

Protocol No. 12 (this Protocol will enter into force when ratified by ten Contracting States): Article 1

General prohibition of discrimination

Protocol No. 13: Article 1 Abolition of the death penalty (in all circumstances)  

(The text of the Convention is available on: http://www.echr.coe.int/Convention/webConvenENG.pdf).

It should be emphasized that the Convention not only guarantees these rights, but has also created a unique international mechanism allowing for control of compliance with the human rights obligations under the Convention by the States Parties. The cornerstone of this mechanism is to be found primarily in Article 34 of the Convention, which states that 'The Court may receive applications from any person, nongovernmental organisation or groupof individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols there to.'These applications can be brought to theEuropean Court of Human Rights in Strasbourg.

This provision gives all persons and groups of persons within the territories of all states which ratified the Convention a right to bring to the Strasbourg Court an individual petition complaining that their rights guaranteed by the Convention have been breached by acts and decisions of public authorities. Only facts, decisions and acts, which occurred after the ratification of the Convention by a given state, can be subject to the examination by the Court. The ratification of the Convention is an essential requirement for the membership of the Council of Europe.

Dates of ratification of the Convention by countries of Central and Eastern Europe:  

Armenia 26.04.02
Azerbaijan 15.04.02
Bulgaria 7.09.92
Czech Republic 18.03.92

Estonia 16.04.96
Georgia 20.05.99
Hungary 5.11.92
Latvia 20.06.97
Lithuania 20.06.95
Moldova 12.09.97
Romania 20.06.94
Poland 19.01.93
Russia 5.05.98
Slovakia 18.3.92
Ukraine 11.09.97

c) What can the applicants complain about?

The applicants can complain about individual decisions of public authorities individual decisions of public authorities issued in their cases, and about factual acts of the authorities, not being decisions in any formal sense, which have, in the applicants' view, negatively affected their situation. They can also complain about failure to action the part of public authorities, when such activity was necessary to safeguard or respect the rights guaranteed by the Convention. If these decisions or acts negatively affect the applicant's situation, she/he can claim to be a victim of a breach of her/his rights.  

An individual can only complain to the Strasbourg Court if she/he suffered some negative consequences of these decisions or acts. One cannot, however, submit an application to the effect that some laws might theoretically negatively affect his/her situation, if those laws were not in fact applied to the applicant's case. In other words, a non-governmental organization cannot complain that some national laws breach reproductive human rights: it rather can support an actual victim of breach of such rights (i.e. a woman or a man) in the proceedings before the Strasbourg Court.

d) What can the applicant achieve by bringing a successful application?  

If the application is successful, in the best scenario, the Court gives a judgment to the effect that acts, decisions and judgments given by domestic authorities, or their failure to act, complained about by the applicant, breached individual rights guaranteed by the Convention.  

The judgment of the Court serves a double purpose. Firstly, it administers individual justice to a person wronged by domestic authorities. Further, in most such cases, pecuniary compensation ('just satisfaction') is to be paid by the state to a successful applicant.

Secondly, the Court’s judgments contribute to the development of the body of case law which defines and clarifies the all--European understanding of the meaning of basic human rights and freedoms, guaranteed not only by the Convention, but also by the national constitutions. Similarly, the Court's judgments often have had an important systemic effect when provisions of domestic law found by the Court to be in breach of human rights were subsequently amended or repealed by national legislators. Further, certain domestic practices found by the Court to be in violation of the rights guaranteed by the Convention, were subsequently abandoned or changed. In this way, the judgments of the Court may have a long term effect on the national legal systems.  

If the application is successful, the domestic decision or judgment given in the applicant's case, which gave rise to a violation of the Convention, remains valid. In other words, the judgment of the Strasbourg Court has no automatic effect on the validity of theoffending domestic decision. In some countries, however, the applicant who obtained a judgment of the Court in her/his favour can institute proceedings to have domestic reopened by the domestic authorities, in order to be decided again.  

The execution of the Court's judgments is supervised by the Committee of Ministers of the Council of Europe. The enforcement of the judgments has a double purpose. Firstly, the Committee of Ministers sees to it that the state amends or repeals provisions of domestic law which gave rise to the violation, or that the state authorities change or abandon the practice of applying domestic laws in the manner which violates individual rights  guaranteed by the Convention. Secondly, the Committee of Ministers supervises the payment of the amount of just satisfaction to the applicant.

e) What role does the Convention play in the effective protection of human rights?

The European Convention on Human Rights serves as a human rights standard, based on a European consensus, against which acts of public authorities of the State Parties are measured. It provides inspiration  and guidance to national legislators and law-enforcement agencies, such as prosecuting authorities, courts, and national administrations. The Convention provides incentive for internal legal reforms by prompting states to change or repeal legislation, which was found by the Court to be in breach of the rights guaranteed by the Convention.

Most importantly, the Convention serves as a last resort for persons whose rights have been breached by national authorities, providing them with easily accessible, independent and impartial international judicial forum, on which the victims' human rights grievances against the State can be examined.

 

f) What are the shortcomings of the system?  

The system established by the Convention is a judicial one, which assesses domestic decisions and practices of any national public authorities from the human rights perspective. The Court, however, can only examine a case if all domestic remedies have been first exhausted. This means that the applicant must first make use of domestic procedures in which she or he can have the offending decision reexamined  and possibly, set aside or changed. Only after all domestic appeal procedures fail, can the applicant bring her or his case to Strasbourg. This is called "an obligation to exhaust domestic remedies".  

Secondly, and contrary to expectations of many applicants, no direct intervention into pending domestic proceedings by the Court is ever possible. No instant relief or any kind of injunction can be given by the Court to make domestic authorities give any decision, or to prevent them from giving any decisions, or from performing any official acts.  

Another, and a serious drawback of the system, is that the Court is currently overloaded with thousands of cases submitted by 800 million people within the Court's jurisdiction, living on the territory-stretching from Portugal to Wladyvostok. As a result, the proceedings before the Court often last for a very long time.  

Further, it is in the nature of the Court that it is international. It is, of course, also its principal strength that it offers a legal approach to human rights cases free of domestic legal and cultural constraints. There is a certain downside to it, however, namely that it is removed from local realities. As a result, the legal, historical and social particularities of the countries of Central and Eastern Europe, which still are relative newcomers to the system established over fifty years ago, may not always be understood in all their complexity.  

Further, for a non-legal reader the Court's decisions may sometimes appear too formalistic and overly legal for persons having strong social conscience and concerned about obtaining fast solutions to pressing social problems. Therefore its usefulness to the NGOs dealing with urgent situations of social misery is clearly limited. Nevertheless, it provides a unique opportunity for challenging domestic laws, which are otherwise unchallengeable on the national level.  

Importantly, it has also to be remembe-red that the Convention is not a specific reproductive rights instrument. Its provisions do not expressly guarantee any reproductive or health-related rights. It is not only the text of the Convention itself, however, which serves as a basis for rights that can be derived therefrom. The content and meaning of rights guaranteed by the Convention have been for years defined, develope and fine-tuned in the case-law of  the Convention organs 1 . It is therefore not only text of Convention that we have to scrutinise for information about the meaning and scope of the rights it guarantees. The knowledge of this case-law is indispensable in construing meanings to be given to rights guaranteed by the Convention - reading just the text of the Convention will not be helpful, either to a non-lawyer or to a lawyer.

Another weakness of the Court is that it is, by very nature of its function, reactive. This means that it only acts on individual cases brought to its attention and it therefore is, so to speak, at the mercy of the applicants. Consequently, its judgments cannot be expected to give, even to an informed reader, a full and synthetic picture of a human rights situation in any given country. Its decisions and judgments only inform us what cases from that country have been brought to it by individuals. Therefore the picture of respect for human rights in any given country that can be inferred from the Court's judgments cannot be expected to be complete. It is thereforea responsibility of the non-governmental organizations to bring to the Court such cases, which raise important human rights issues, or to support the applicants ("the victims") in such cases.

The same limitation is applicable across any given category of rights, including perhaps in particular those rights, which touch on reproductive and sexual health. The fact that the Court has not formulated its position on a given problem/phenomenon in this area cannot be reasonably interpreted as meaning that the Court considers that this problem is not important from the human rights point of view. It should only be understood as meaning that no such case has been brought to it so far. Therefore the Court's case law in some areas may be incomplete simply because it did not have so far an opportunity to examine individual applications related to a given human rights problem.

 

g) What are the strengths of the system?  

The first, and obvious, strength of the individual application system established by the European Convention on Human Rights is that it can be resorted to by individuals as a remedy against breaches of human rights when everything else, on domestic level, has failed.  

Further, any individual has a right to bring an individual petition to the Court. This is the only international court in Europe to which an individual has a direct access.

Moreover, in the proceedings before the Court she or he is a party to the proceedings on the procedural footing equal to that of the state against which the application is directed. The state and the applicant are equals in the eyes of the Court. Legal arguments advanced by the government against which the application has been  brought and those of the applicant are listened to with the same attention and given the same weight.

It is important to note that the procedure before the Court is relatively user--friendly and flexible. Moreover, proceedings are free of charge and no court fee is to be paid in order to have the proceedings instituted. There is no requirement of obligatory legal representation for bringing the case to Strasbourg. This is of importance for the NGOs which might have difficulties in securing assistance of a lawyer conversant in human rights and reproductive rights issues in Central and Eastern European countries.  

Bringing a case to the Court has been shown over the years to be an efficient way of exerting pressure on public authorities, either for the purpose of launching the process of legal reform, in order to have laws changed, or to change the way in which they are applied by the domestic authorities.  

Further, the mechanism of the Convention has so far been renowned for the facts  that the Court's judgments are nearly always enforced and complied with by the states. It means, first and foremost, that successful applicants will be paid compensation, if it has been awarded by the Court. In this way, a person whose rights were breached obtains just satisfaction for nonfinancial,  and in some cases also financial, damage caused by the violation of the Convention. The non-financial damage can cover stress, anguish, suffering and uncertainty caused by a breach of the rights guaranteed by the Convention.

Lastly, the established case-law of the Convention has always put a strong emphasis on equality between women and men. This is a strand of the case-law which may be useful for highlighting some failures to secure equality between the sexes at the domestic level.  

h) How can the non-governmental organizations use the Convention?  

Individual application can be used as a vehicle for advocacy in favour of a domestic legal change, even if such advocacy previously proved unsuccessful on a domestic level. Bringing - and winning - a case to Strasbourg, or, more generally, developing international strategic litigation as advocacy tool, is one of the instruments that NGOs may use.  

It has to be kept in mind that a state often is obliged, as a result of the Court's judgment, to pay compensation to the applicant, sometimes, depending on the circumstances of the case, quite a substantial one. If the government fails to change laws, which have given rise to a violation, it runs the risk that further judgments will be given in next cases of the same kind, in which the same kind of violations will be found again and again, and the government will have to pay again and again. The argument that by failing to change laws which breach human rights as indicated by the Court and the Committee of Ministers the government is wasting the  taxpayers' money can also be used, for advocacy purposes.

Moreover, there is a public relations aspect to the cases brought to the Court, which should be emphasized. Bringing the case to the Strasbourg Court is a cost-effective method of drawing the attention of the public opinion to certain important legal and social aspects of human rights issues. Likewise, it may help in making media focusing more on these issues. Quite often, journalists will be willing to report about the Court's decisions, dealing with legal and social issues which otherwise are considered by the press as too technical or not 'sexy' enough to be reported. There is an element of human interest in these cases as they concern an individual; there is a story behind the case. They are, therefore, better suited to serve as a basis for press publications than reproductive rights issues by themselves. These issues are often technically complex and perceived as  difficult to understand. They may also be thought to touch only small fractions of  society. To put these issues in the language of an individual story, which lay at the origin of a case brought to the Court, can be a powerful advocacy tool.  

Therefore, bringing a case before the Court can be used by the NGOs as means of highlighting the issues they deal with and of attracting media attention to them.

 

i) In practical terms, what does it take to develop a basis for strategic litigation under the Convention in the domain of reproductive rights?  

  • It is necessary to do the following:  

  • Identify reproductive health problems in the country, with which the NGOs active in the field are familiar with;

  • Try to put them in the language of the Convention (i.e. which rights guaranteed by the Convention have been breached by a given practice or by operation of a given legal provision?). It is precisely the task of this manual to indicate the links between the substantive rights guaranteed by the Convention and the reproductive health issues;

  • Make it known via NGO’s networking that persons with this kind of a problem can contact the given NGO (your NGO). This is to ensure that the potential victims of violations of reproductive rights know who can help them. Remember that only a victim can bring a case to Court, and it is unlikely that an NGO falls victim to a breach of reproductive rights;

  • Make it known that a given NGO (your NGO) considers bringing reproductive rights cases to the European Court of Human Rights;

  • Find local lawyers interested in human rights and/or Convention issues and establish a permanent network of cooperation with them in order to have access to lawyers willing to put the case into the language of the Convention, and to represent the applicant before the Court;

  • It may be also necessary to assist victims of violations of reproductive rights in exhausting domestic legal remedies available under national legal system before bringing the case to the Court;

  • Finally, if it proves impossible to vindicate reproductive rights of that person through the use of domestically available remedies, bring the case to the Strasbourg Court.

 

j) Obligations of NGOs towards victims whose cases are brought to the Court 

The relationship between the victim of a breach of reproductive rights and the NGO assisting her or him in bringing the case toStrasbourg imposes serious obligations on the NGO concerned.

While the main goal of the NGO is helping a person it considers to be wronged by domestic laws, an individual case is also an advocacy instrument. The second aim, however, must not overshadow the first one. The applicant must not feel used or manipulated by the NGO. The limitations of the Convention system should be well explained to the applicant in the beginning so she/he will not have unrealistic expectations (see item above) as to what can be obtained by the Court's judgment.

It has to be remembered that the proceedings before the Court often last for very long periods of time. The applicant may, despite all assistance she/he receives from the NGO, grow impatient or simply lose interest in the case as she/he goes on with her life. It is essential that a relationship of trust is being established from the beginning between the applicant and the NGO and  that the applicant is  encouraged and supported throughout the life of the case.

k) Conditions that individual applications to the Strasbourg Court must meet  

An individual application must fulfill the following criteria:

1) An application must be brought by a person who can 'claim to be a victim' of breach of rights guaranteed by the Convention. This means a person or group of persons who can show that she/he/they have been negatively affected by acts or decisions of public authorities (see item 1 c) above). The Court will reject any application in which general complaints are made that some laws or state practice breach human rights, without there being a person personally involved in a case in which these laws are applied. The case must be brought by a person who can show that she or he suffered as a result of these laws or practices, because they were applied to her.
2) In principle, only acts/decisions of public authorities can be complained about. It is possible only in limited circumstances to complain about the acts of private persons. These possibilities will be explained later in the text, in the part dealing with the substantive rights.
3) The Convention creates an obligation to exhaust domestic remedies before bringing the case to the Court. It has to be remembered that the Convention system is underpinned by the principle of subsidiarity. This means that it is the state which is primarily responsible forensuring respect for human rights. The Convention system and the Court can only step in when all efforts on the domestic level to have these rights respected failed. Consequently, all possible efforts should be made first to have these rights secured within the mechanisms provided for by domestic law, and only then the case can be brought to Strasbourg. This is called obligation to “exhaust domestic remedies”.

In practical terms, this obligation means the applicant must first take the case to a highest domestic authority competent to deal with this kind of cases. Depending on the character of the case, it will be prosecution authorities, or civil or criminal courts, or  administrative courts; in some countries (but not everywhere!) a constitutional court. The remedy to be exhausted willalways depend on the nature of issues involved in the case.

4) The case must be brought to the Strasbourg Court not later than six months from the date of a final domestic decision given in the applicant's case. Failure to do so will invariably result in the case being rejected by the Court.
5) The Court rejects applications, which are anonymous; or the same as the individual case of the same person that has already been examined by the Court. It will likewise reject the case, which has already been submitted to another procedure of international investigation or settlement. This is to prevent situations in which two international bodies would give different decisions on the same individual case.
6) The Court will also reject a case, which is incompatible with the provisions of the Convention. In plain language it means that the applicants must complain about alleged breaches of these rights, which are really guaranteed by the Convention, and not about just any human rights, which the Convention does not deal with.
7) The Court will also reject an application, which it considers to be manifestly ill-founded. This means that the Court rejects the case in which it has not found any appearance of a breach of human rights.

 

References:

1 There used to be two organs: the European Commission of Human Rights, which ceased to exist in 1998, and the European Court of Human Rights. Now only the Court exists. The case-law of the Commission, however, remains essentially valid.

Na pocz¹tek


PART II  
Proceedings before the court

 

1. How to submit the application

Legal basis for the procedure before the Court is described in detail in the Rules of Court. These Rules are available, on the Court's homepage1 , but only in English and French. The Court's homepage also provides a lot of other information on practical aspects of dealing with a case. When in doubt, do not forget to consult it.

The Rules themselves, however, which are highly technical and in part deal with the internal workings of the Court, can be useful only at the later stage of the procedure, after a case has already been brought. In the beginning of the procedure, it is normally enough to follow carefully the basic explanations on the procedure, provided on the Court's homepage, and skip reading of the Rules until much later.

2. General tips on the procedure  

First and foremost, do not be intimidated: there is nothing special about the Court, only that it is international. Consequently, the Court deals all the time with people from many legal and cultural backgrounds. It has, over the years, acquired flexibility necessary to accommodate a wide range of linguistic, legal and cultural problems that may arise when a case is brought by an applicant who does not necessarily know how the Court works - and is not obliged to.

The applicant is guided throughout the proceedings by letters from the Registry of the Court, explaining in detail and in relatively simple, non-technical language procedural steps to be taken next.  

The procedure as set out in the Convention, in the Rules and as developed by the Court's practice is in general simple and flexible or at least simpler than most domestic legal procedures. There are practically no irreversible procedural mistakes that an applicant can make.

The procedure provides for very few strict time-limits. The only time-limit which must be observed without fail is that of six months for introducing the case (see item 2 d) above).

The procedure is essentially written, i.e. the Court in principle gives its decision on the basis of written legal arguments and documentary evidence. It is therefore crucial to remember that basically only arguments and evidence put on paper will be taken into consideration by the Court.

The applicants are sometimes firmly convinced that they will get a better chance of explaining their case if they present it personally to the Court. They may even be willing to undertake a long and necessarily costly journey to Strasbourg . It has to be explained to them that there is no need for that. Nothing that could not be gained from having their arguments presented to the Court clearly in writing would be gained from their actual presence in Strasbourg. What the applicant will obtain if she or he insists on going to Strasbourg , is a chance to talk to a Registry official, which will be of no relevance for the judicial outcome of the case, or for increasing the prospects of success of the case. The judges themselves never talk to the applicants or their representatives.

Importantly, no authorisation from any domestic authorities to bring thecase before the Court is necessary! Likewise, the applicant is not obliged to inform any domestic authority that she or he has brought the case to the Court.  

The proceedings before the Court are free: there is no court fee to be paid before launching the proceedings. The proceedings are instituted by either sending a letter, or of a filled application form. The electronic copy of the application form can be found on the Court's homepage. The period of six months within which to bring the case normally runs from the date of the Applicant’s first letter. The letter may be sent by ordinary or by registered post. It can also be sent by e-mail, with a hard copy following it. It is necessary to submit copies of domestic documents concerning the Applicant's case. There is no obligation to have them translated into official languages of the Court (English and French) as the applicants are allowed to use their national language. In particular, it is completely unnecessary to have the documents certified by a notary or by any other public authority.  

It may be useful to add to the documents concerning the case press cuttings or any additional material, which might help to illustrate either the facts of the individual case, if the case has been commented on in the press, or the general social or legal background.

3. Essential elements of the application:

It is left to the applicant's decision whether to submit first a letter to the Court, outlining the summary of the case, or to submit an application form, required by the Court (the Application Form is attached to the manual in Appendix 1).  

In any event, the applicant will receive the application form after she/he submits her/his first letter, together with information how to fill it in. The following information may be useful when filing the application form:

Application Form, Item 14:
Summary of facts of the case is essential (what happened to the Applicant? What decisions were given by the authorities in her/his case?). Remember to be reasonably brief and to keep summary of facts quite simple. Present the facts of the case in chronological order, with dates.
 

Keep general political introductions, flowery language, strong expression of indignation and emotions to the strict minimum: they will not help the Applicant. Keep in mind, when writing, that the Court is overworked and flooded with cases. Therefore the Applicant's interest will not be better served by longer application.  

If you think that a general introduction to relevant social/health care situation may help in understanding issues involved the case, it might be a good policy to prepare a separate document describing them. Cramming all facts into the application form will make it difficult to understand.0

A brief presentation of the legal background of the case, i.e. information on domestic laws, which were applied to the applicant's case may be useful, but is not necessary. The Court should know the law. Further, information on domestic law can always be submitted later in the procedure.

 

Application Form, Item 15:
In this part of the application state clearly which rights guaranteed by the Convention have been breached and by what acts or decisions of the national authorities.

In general, when lodging the application, it is not necessary to refer to the Court's case-law, or to develop detailed legal argument with reference to it. It can be reasonably expected that the Court knows its own case-law. In reproductive rights cases, however, it can be necessary to do it from the beginning. This is because such cases would be based on inventive interpretation of the Convention and application of case-law developed in the context of other cases to the reproductive rights context. This is why in reproductive health cases it may be useful to have legal representation for the applicant before bringing the case to Strasbourg, despite the fact that such representation is not obligatory.

 

Application Form, Item 16:
What was a final domestic decision given in the Applicant's case, when it was given, by what authority and when was it served on the Applicant?

Application Form, Item 17:
What were other domestic decisions / what the applicant has tried to do at the domestic level to remedy/improve her/his situation. What civil proceedings were instituted? What criminal proceedings or administrative proceedings were conducted?

Application form, Item 18
If the applicant has not used remedies that were still available: explain why these remedies were not used. For instance, the applicant decided not to use these remedies, believing that they would be useless anyway as they did not offer any reasonable prospects of success in the light of existing domestic practice.  

If the applicant thinks there are no remedies available under domestic law which could be used to improve her/his situation, you have to explain reasons for this opinion (for example, no similar cases or very few cases have been successful before domestic authorities).

Application form, Item 19:
What the Applicant wants to receive?  Payment of money as just satisfaction? Restitution of the original situation, i.e. the situation existing before her/his rights had been breached?

In this part of the application form the applicant is requested to state what amount of money she/he wishes to be awarded as just satisfaction for the breach of her/his rights. For the applicant who is not assisted by a lawyer, and even for a lawyers not familiar with the Convention, this might be a difficult exercise to quantify the damage suffered in money. It should be remembered, however, that at this stage the sum the applicant states in the application form is not really important. This is because there will be an opportunity much later in the proceedings (if the Applicant is successful and the case is declared admissible – see below, item 12) to submit a definite proposal of just satisfaction.

 

4. Legal representation of the applicants: Rule 36 of Rules of Court

No legal representation is mandatory to submit a case and the applicant can bring  the case to the Court un-represented.

It is only much later in the proceedings, and only in the optimistic scenario when the case has been notified to the respondent government (see below) that the Applicant should be represented before the Court. Even then it is only necessary if President of the Chamber decides so. Further, if a hearing before the Court is to be held (see below, item 10), legal representation becomes obligatory.  

In any event, in reproductive rights cases, given that the Court is not specifically an instrument to protect reproductive rights, and that its position in reproductive rights cases has so far been rather careful, it is recommended to have a lawyer familiar with the Court's case-law from the very beginning. Alternatively, another option for a non-represented applicant is to rely on the case-law as presented in this  Manual.  

A representative must be an advocate authorised to practise in any of the Convention state and resident in the territory of one of them. Therefore it can be a lawyer who lives a state different from that against which the application is directed.  Alternatively, another person, with no formal legal qualifications may represent the applicant, if she or he has been approved by the President of the Court's Chamber dealing with the Applicant's case.  

If a NGO submits application in its own name, alleging violation of its Convention rights (which is unlikely in the context of reproductive rights, the NGOs do not have reproductive rights themselves) it has to be signed by a person competent to act on NGO's behalf according to the internal rules of the organization. If a lawyer represents the applicant, she/he must submit an authorization signed by the applicant. Likewise, if a person other than lawyer represents the applicant, an authorization must be submitted to the Court.  

If the NGO has difficulties in finding a lawyer agreeing to take the case to Strasbourg, it can get in touch with the national Council of Europe Information Centre. Some of the Information Centers have run training programs on the Convention issues for national lawyers and may have list of such lawyers, or may be willing to refer the NGO to such lawyers.
(List of addresses of the Centers is provided in Appendix 2).

If the Applicant has no money to pay the lawyer, legal aid can be applied for and granted by the Court under Chapter X of the Rules of the Court. Legal aid, however, is not available at the beginning of the proceedings. It can only be granted much later in the procedure and only in cases, which have been notified to the government. Therefore it is not useful to ask for legal aid funding at the beginning of the proceedings. Such a request will be refused.

Legal aid can be granted by the Court in cases in which it has been shown that the applicant has insufficient means to pay the lawyer's fee and when legal representation is necessary for the proper conduct of the case. Put simply, when the applicant is poor and when complex legal issues are involved in the case. In reproductive rights cases it can always be argued that they are complex, since there have so far been few  reproductive rights cases decided by the Court and the body of case-law touching on these issues is limited.  

If legal aid has been requested, the applicant will be asked to fill a Legal Aid application form. The following information is to be given: the applicant's income (salary? any other income?), financial/ property situation (does she/he own any property? A car? An apartment? Does she/he have a bank account? Any other savings? Any other assets?); on her or his obligations (debts to be paid, alimony or maintenance to be paid).  

The legal aid form has to be certified by appropriate domestic authorities.

 

Legal Aid Authorities:

Lithuania: the local State Tax Inspection;
Estonia: The National Tax Board, Endla St.8, EE 0100, Tallinn; or the Pension Board,
Employment Office; or Local Government Social Benefit Department
(Ministry of Social Affairs, Gonsiori St. 29, EE 0100 Tallinn;
Poland: the local tax authority of the applicant's place of residence;
Russia: no data available;
Latvia: local branch of the State Revenue Service (Valsts Ienemumu Dienests);
Ukraine: local tax administration.

 

Do not be too worried if the local authorities refuse to certify the Applicant's declaration of income. They sometimes refuse to do so, because of hostility towards a document they are not familiar with. In such a case, the Court accepts a non-certified declaration of means, if it is satisfied that documents presented by the applicant show with sufficient certainty that she/he cannot afford to pay the lawyer (pay slip, social insurance payment slip, rent slips, copy of tax declarations, etc.) and that she/he described her financial situation honestly, not trying to mislead the Court just to get the money to pay the lawyer.13

Decision to grant legal aid is given by a President of the Chamber before which the case is pending.  

If legal aid is granted, money is paid directly to the lawyer. Legal aid serves only to cover legal fees and expenses incurred in connection with bringing the case; it is by no means designed as any form of financial assistance to the applicant, regardless of how difficult her or his life situation is. The Court never grants such assistance.  

Current amounts of legal aid are as follows:

  • Preparation of the case (reading of the case-file, identifying the Convention problems, completing documents, drafting the application form): 330 €

  • Preparation of reply to the Government's observations: 295 €

  • Friendly settlement or just satisfaction proposal: 105 €

  • Appearance at an oral hearing in Strasbourg, if hearing ordered (see below): 300 €

  • Assisting the Applicant in friendly settlement negotiations with the Government: 170 €

  • Traveling costs in connection with hearing according to bills and tickets submitted to the financial services of the Court

  • Subsistence allowance (for hotel and meals) per diem in connection with hearing paid by the Court

  • Plus normal secretarial expenses up to 60 €.

 

5. Use of Languages

Official languages of the Court are English and French. It is not obligatory to submit applications in official languages. Further, having the application translated would increase costs connected with bringing the application and may also make the applicant lose time, thus exposing her to risk of missing the six-month time-limit. Therefore, it is perfectly acceptable and more practical to submit application in national language.  

Until the Court gives a decision on the admissibility of a case (see item 9below,) all correspondence to and from the Court is conducted in the national language.  

However, after case has been declared admissible, and in all matters concerning the possible hearing before the Court (see below, item 10), the Applicant has to use one of the official languages. In some cases, if the Applicant asks for it, a permission to use national language may be granted (Rule 34 § 3 a ).

In those exceptional cases in which a hearing is held before the Court in Strasbourg, simultaneous translation will be provided, but only if the Applicant asked for it and this request has been granted (Rule 34 § b of Rules of Court). The Court does not always grant such  request, as such translation is very costly.  

The correspondence between the Court and the government against which the application is directed is conducted in one of the two official languages.  

If the case has been notified to the government, it will be asked to answer concrete questions put to it by the Court. The government's reply to these questions is routinely called 'observations'. The government usually submits these observations in one of the official languages. The government may be asked to provide translation of its observations into national language, but the Court cannot make the Government do so. Then the applicant will have to comment on the government's observations, which were submitted in English or in French. There isa possibility to ask for permission to use national language by the applicant (Rule 36 § 5), but such permission will not always be granted. To sum up, it is very helpful if the applicant, or her/his representative (lawyer or NGO) has good but not necessarily perfect French or English.

6. What happens after case is first submitted to the Court?  

A. First correspondence  

As it has been said above, the proceedings are started by a first letter from the applicant. This letter will be replied to by a standard letter marked “P 0” from Registry in your national language. If the Applicant does not reply to this letter, the file will be destroyed after one year.

In order to reply to the P 0 letter, the applicant should first check whether all important points have been made in her/his first letter, then either add what she/he thinks is relevant, or if everything has already been said in the first letter, just refer the Registry to that letter. Then the applicant should just wait for the case being examined by the Court. A judge rappporteur is assigned to it and the Registry carries out first initial examination.

B. A decision given by a Committee of three judges

The case can be declared inadmissible. This will happen if the case: fails to comply with the six months requirement; the Applicantdid non-exhaust of domestic remedies; is incom-patible ratione temporis (i.e. concerns events prior to the date of the ratification of the Convention by a given country, which can happen if the application is directed against any of the countries which ratified the Convention recently); is incompatible ratione materiae with the Convention (i.e. the Applicant complains about breach of rights, which are not guaranteed by the Convention); the Applicant does not have the status of victim; the case is manifestly ill-founded. If any of the above is true, an unanimous inadmis-sibility decision is given by a Committee of three judges under Article 28 of the Convention.  

This decision is issued with no written grounds and communicated to the Applicant just as a letter informing that the case has been declared inadmissible. This decision is normally final and in principle means that the case has come to its end. It is no use arguing with the Court, trying to convince it that it wrongly understood the case, or that the decision is wrong.

 

7. Proceedings before the Chamber

Another possibility, apart from the case being rejected by the Committee of three judges is that it will be examined by one of four Chambers of the Court. Under Rule 54 §§ 1-3 the Chamber can deal with the case in one of the following ways:

  • to declare it inadmissible by way of a reasoned decision, or

  • to request the parties (i.e. the government and/or the applicant) to submit factual information concerning the case, if available information is insufficient to give a decision, or

  • to notify the case to the government (“communicate” it).

8. When the case is “communicated” to the Government?

The Court 'communicates' the case when, on the basis of presentation of the facts of the case formulated by the applicant and the documents which accompany the application, the Court has grounds to suppose that there might have been a breach of the Convention. 1

It is important to remember that the communication of the case to the government by no means signifies that the case has been won by the applicant. It only shows that there are initial suspicions on the part of the Court that the Convention might have been breached. These suspicions, however, may be dispelled later in the proceedings, in the light of information and legal argument submitted by the parties. Then the Court will eventually declare the case inadmissible. So the communication of the case cannot be said to be a definite victory for the applicant. It does, however, give hope.  

If the case is communicated, the Court requests that a number of specific questions be replied to by the government. Those questions may include:  

  • has the applicant exhausted relevant domestic remedies?

  • has the application been introduced within six months from the final domestic decision given in the case?

  • what are the facts of the case / what has actually happened (if the facts cannot be established clearly on the basis of the Applicant's submissions)?

  • were the facts the Applicant complained about compatible with the Convention? In other words: did the decisions and acts that the applicant complained about violate the Convention?

If a case is communicated to the respondent government, both parties (the Applicant and the Government) are informed about it. They will also receive, shortly after the communication, a summary of the facts of the case, prepared by the Court and a list of questions to be replied to. A partial decision may be taken at this stage: the complaints which have not been communicated are now declared inadmissible. This means that the life of these complains has come to its end and that the Court will in the future examine only these complaints, which have been communicated.  

The respondent government has to reply to the Court's questions first; the time-limit for doing so is 12 weeks. The government's reply (“observations”) is then sent to the applicant. The applicant's task is to comment on the government's observations. The government bodies, which represent the government before the Court, are most often special departments either at the Ministry of Justice or at the Ministry of Foreign Affairs. The time-limit that the applicant has to comment on government's observation is also 12 weeks. It is at this stage that a request for legal aid can be submitted to the Court (see above).

 

9. How the Applicant should reply to the Government's observations?  

  • If the Applicant disagrees with the presentation of the facts of the case given by Government, it should be stated which ones and why,

  • Attention: if the facts presented by the government are not challenged by the applicant at this stage, the Court will assume that the facts are not in dispute between the parties. Therefore it is very important to object if necessary to the version of the facts submitted by the government, at this stage;

  • Has the Government submitted any preliminary objections (six months, nonexhaustion, application incompatible ratione temporis, i.e concerning facts which occurred before the state ratified the Convention etc. (see item 9 above)? If so, reply to them.

  • If the Applicant disagrees with the government's legal argument, she/he must explain why (e.g. the government has got domestic law wrong / misinterprets it / tries to mislead the Court; the Government's argument is not based on any existing case-law of domestic courts; any other reasons).

  • Is there any existing case-law of the European Court of Human rights (or of the defunct Commission) concerning situations similar to that concerned in the Applicant's case? The present Manual is designed to help the applicants and NGOs in identifying case-law which may be relied on as relevant for the applicant's case, i.e. showing how the Court has decided in similar cases in the past, or what are the principles that guide the Court's approach to similar situations.

  • If there is any such case-law available, in what circumstances of the cases decided in the past were similar to these concerned in the applicant's case? In what they differed from applicants case? Is the conclusion reached by the Court in this/these cases applicable/can be transposed to the circumstances of the applicant's case?

  • If the Applicant has difficulties in replying to the government's observations within the twelve-week time-limit, she or he should ask for the extension of the time limit, but it is important to do it before the original time-limit expires; extensions are usually granted by the Court.

  • If the observations of the Applicant have been submitted after the time-limit expired, or if the Applicant fails to maintain the  communication with the Court and to answer its letters, he/she will be reminded by the Registry that the time limit has expired. Eventually, if it is obvious that the Applicant has lost interest in pursuing the case, it may be struck off the Court's case list (i.e.the Court decides that it will not examine the case any further).

  • If it is the government which is un- cooperative, or very late in the submission of its reply to the Court's questions, the Court can either declare the application admissible without the government's observations, or if the government is extremely late in submitting their reply, refuse to include the reply in the case-file. These procedural methods of sanctioning a non-cooperative government are rarely applied in practice.

 

10.Hearing after the case has been communicated

After both parties submit their observations, the Court examines these observations and prepares the admissibility decision. In this decision the Court may declare the case inadmissible. If the case has been declared inadmissible, it means that it has come to end and that the Court did not find grounds, which would justify its further examination.

Alternatively, the Court can declare the case admissible.

If the case has been declared admissible, it means, firstly, that the Court, on the basis of the parties' arguments, is of the view that the application meets all formal conditions laid down by Article 34 of the Convention. Consequently, the case qualifies to be examined on the merits. Secondly, it means that the Court may also consider that the facts of the case could have violated the Convention. Such a decision, however, does not predetermine the outcome of the case, i.e. it may happen that eventually, after a in-depth analysis of the case, no violation will be found.

In exceptional cases the Court decides that a hearing should be held, if the facts of case remain unclear, and /or some legal points remain unclear. Generally, a hearing is held if, after the Court has received the parties' replies to its questions, there is a confusion regarding decision about the admissibility of the case. The purpose of the hearing is to clarify only the question of the admissibility, or both the admissibility and merits of the case.  

  • If a hearing is to be held, the parties will be informed long time before it and consulted about the date.

  • They will also be given a list of questions to which they should reply in writing before the hearing.

  • The hearings are held in Strasbourg and are public. The travel and accommodation costs will be covered by the Court.

  • Legal representation of the Applicant is necessary at this stage.

  • President of the Section, or of the Court, meets the parties (i.e. the representatives of the applicant and of the government) shortly before the hearing for a brief courtesy visit. The hearings are held from 9 to 11 a . m. or from 2.30 to 4.30 p. m.

  • First the Government replies to the questions which have been put to the parties, and then it is the turn of the representatives of the Applicant. Each party has 30 minutes to submit their oral replies.

  • Exceptionally, judges may have further questions to parties to be answered immediately, after a short preparation period.

  • Then the hearing is over and the case is deliberated by the Court. During the deliberations the judges discuss the issues involved in the case in the light of the parties' replies. Then a decision as to the admissibility or merits of the case is taken (is the case admissible or not? Has there been a violation of the Convention or not?). The vote the Court has taken remains secret, and the admissibility decision or the judgment on the merits is subsequently drafted on the basis of the Court's decision. The decision or judgment are delivered some time later, normally several weeks or months later.

  • If a hearing is to be held in the case, it is useful to consult a document giving detailed information about the expected conduct of the parties: 'Notes for the Guidance of Persons Appearing at Hearings Before the European Court of Human Rights'. The document is available on the Court's homepage.

 

11.Admissibility decision

The Court's admissibility decision contains the following elements:

  • A recount of facts complained of established on the basis of the parties' submissions,

  • A summary of the complaints made by the Applicant,

  • Complaints declared inadmissible with reasons, with reference to the case-law which led the Court to declare these

  • complaints inadmissible;

  • Complaints declared admissible by way of an admissibility formula (“these complaints raise complex issues of facts

  • and law, the determination of which should depend on examination of the merits”),

  • The admissibility decision is sent to the parties. The text of this decision is public and can be consulted in HUDOC

  • (the Court's internet case-law database), available on the Court's homepage.

If the case has been declared admissible, it creates two further alternative possibilities: either the parties make a friendly settlement (see 12 below), or if efforts to have a friendly settlement fail, the Court will give its judgment on the merits of the case (see 13 below).

 

12. Friendly settlement  

After the case has been declared admissible, the Court is now at the parties' disposal to secure a friendly settlement, (Article 38 par. 1 (b) of the Convention). Friendly settlement means that the case is settled on the basis of the government paying a certain amount of money to the Applicant. Both parties to the proceedings win something: the government avoids a risk that a violation of the Convention would eventually be found by the Court in the case and negative publicity that follows such judgments, and the Applicant is awarded some money. The clear drawback, however, of a friendly settlement solution, especially for those interested in strategic litigation for the purposes outlined earlier, is that in a case that has been settled no decision on the merits will be given. Therefore no impulse for any domestic law reform will be generated. Such an impulse may flow essentially only from the Court's final judgment on the merits of the case, as it criticizes or approves certain domestic laws or practices.  

The Applicant has to propose amount of money she/he will accept as a basis for such settlement. The Court ensures that the friendly settlement is concluded “on the basis of respect for human rights”, i.e. that the amount proposed by the government does correspond to the hardship suffered by the applicant. The Court is also obliged to see to it that the government, by concluding friendly settlement, does not try to evade its basic responsibilities to ensure respect for human rights. The friendly settlement negotiations between the applicant and the government, with the Court acting as intermediary, are confidential.  

The following criteria for a friendly settlement proposal by the Applicant should be taken into consideration:  

  • What pecuniary (i.e. verifiable financial) damage did the Applicant suffer as a result of violation of his or her rights guaranteed by the Convention? What kind of evidence can be produced to show the amount of pecuniary damage suffered by the Applicant?

  • What non-pecuniary damage has the Applicant suffered as a result of such violation (suffering, anguish, time lost, distress) and how this non-pecuniary damage can be assessed in money?

  • What costs and expenses has the Applicant incurred in domestic and Strasbourg proceedings? Bills and other financial evidence (e.g. lawyers' bills, any other expenses, e.g. travel costs, translation fees, office expenses, telephone calls, faxes, etc.) should be presented to the Court at this stage.

  • If the parties agree to make a friendly settlement, i.e. they agree that the government will pay a certain amount of money to the Applicant who will accept that the case has been thereby closed, the Court gives a short 'friendly settlement' judgment. Such a judgment contains a brief account of the facts of  the case and the complaints put forward by the applicant, accompanied by a brief statement that the parties have reached a friendly settlement on the basis of payment of a determined sum of money to the applicant. In principle, this is the end of the proceedings.

  • If no friendly settlement is possible (because the government is not ready to pay the amount proposed by the Applicant and/or the Applicant refuses to accept the amount the government offers to pay) the Court will give a judgment as to the merits of the case.

 

13.The Court's judgment on the merits of the case

The Court's judgment on the merits of the case contains the following elements:  

  • A description of the parties/procedure,

  • A summary of the facts of the case,

  • An outline of the Applicant' complaints as declared admissible by the Court,

  • A summary of the parties' arguments,

  • The law section: relevant case-law of the Convention institutions adopted so far; how this case-law can be applied to the circumstances of the case and the Court's opinion as to whether there has been a violation of the rights guaranteed by the Convention.

  • In these cases in which the Court finds a violation of the Convention, it may order that 'just satisfaction' to be paid to the applicant. Just satisfaction involves payment of a certain amount of money to the applicant, to cover her/his pecuniary and/or non-pecuniary damage suffered as a result of a violation of human rights guaranteed by the Convention (for explanation of pecuniary and non-pecuniary damage, see above at 12). In certain cases the Court considers that finding of a violation constitutes sufficient just satisfaction for the applicant. This happens e.g. in criminal cases in which the Court may consider that there would be no justification for paying large sums of money to offenders or persons with an extensive criminal records, or persons convicted of particularly serious crimes.

 

The Court judgments given by its Chambers become final when the parties declare they will not refer the case to the Grand Chamber; or three months after the date of the judgment if the case has not been referred to the Grand Chamber within this period, or when a panel of the Grand Chamber rejects the request to refer the case to the Grand Chamber.  

After the judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe which makes sure that the judgment is enforced. This primarily means that it is the Committee of Ministers which supervises the payment of just satisfaction to the Applicant. It also encourages the government to amend or repeal legal provisions which have been found by the Court to have caused a breach  of the Convention in the given case, or, more generally, to take such general measures as it sees fit in order to remedy the legal and factual situation which the Court found in violation of the Convention.  

14. Grand Chamber cases  

  • When case can be referred to Grand Chamber - Article 41 of the Chamber: when it raises a serious question concerning the interpretation of the Convention, or raises a serious issue of general importance, i.e. a question of a systemic nature for the legal system of a given country.

  • Decision on a request to refer the case to the Grand Chamber is given: by a panel of five judges, the decision is discretionary, there are no written grounds given to parties, and the decision is final.

  • Referral to the Grand Chamber is exceptional.

  • In some cases it is also possible that one of Chambers decides to transfer its case to the Grand Chamber, considering that the issues involved in the case are of a great complexity/importance,

  • If such decision is expected by the Chamber, parties to the case (applicant and government) will be requested to comment on this possibility. The possibility of a case being decided by the Grand Chamber is double-edged for both parties: this judgment cannot be further reviewed by any further instance and is final. Therefore, if it is in the applicant's favour, there is no possibility of it being appealed again. If the applicant has not been lucky, however, there is no possibility for her or him to ask that the case be re-examined.

  •  

References:

1 www.echr.coe.int  

Na pocz¹tek


PART III  
SUBSTANTIVE RIGHTS RELEVANT TO REPRODUCTIVE AND SEXUAL HEALTH

This part of the Manual is intended to provide a brief overview of the case-law of the Convention relevant as far as reproductive rights are concerned. When submitting a reproductive rights case to the Court, or when arguing such a case before domestic authorities, these substantive arguments can be relied on.  

'The very notion that women could have a claim to distinct and legally cognizable human rights was virtually unheard of [until recently] in mainstream international dialogue (…) a new woman-centered approach to health, combining public health perspectives and principles has been developed and is now crystallized in the concept of women's reproductive health'1.

Reproductive health is 'a state of complete physical mental and social wellbeing and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so ... It also includes sexual health, the purpose of which is enhancement of life and personal relations, and not merely counseling and care related to reproduction  and sexually transmitted diseases”2.  

It needs to be stressed again that Convention is not a specific reproductive health instrument. Therefore the relevant case-law is relatively scarce. Thus, substantive law arguments can be rather built up on the basis of human rights principles of the Convention's case-law in cases concerning different sets of facts, unrelated to reproductive rights.  

This case-law is quoted or summarized below, together with indication of relevant decisions or judgments of the former Commission and these of the Court. Some of these decisions and judgments have been published in the official publications of the Convention institutions. If this is the case, the relevant sources are indicated.3 Unpublished decisions and judgments are only available via internet. The Convention case-law available in full on the Court's homepage4 in a very useful and user-friendly case-law database5.  

It should be remembered that the states are responsible for ensuring that the rights and freedoms guaranteed by the Convention (Article 1) are observed in relation to everyone within their jurisdiction. This obligations means also that in principle the Convention should constitute a part of the domestic law, and that individuals can invoke the rights guaranteed by the Convention directly in the proceedings before domestic authorities.

Even more importantly, this also means that the Convention, which is a part of international law, should have priority over domestic law. Put in plain language: the consequence of this is that when domestic law is incompatible with the Convention standards, as defined and developed by the case-law, it is the Convention which should prevail and should be applied instead of domestic law.  

Realistically speaking, however, it is quite common that domestic authorities are reluctant to apply the Convention. This is even more so when the application of its principles would override provisions of domestic law. This is particularly true in the context of countries of Central and Eastern Europe . A strong tradition - of distrust and disregard for inter-national law in the region dates back to the communist times. Commonly only the sources of domestic law, such as statutes or ordinances, are considered as legitimate sources of law. The parties to the proceedings should be aware of this relative hostility. It would of course vary from country to country. In any event, it should not come as a surprise when a court or an administrative authority turns a deaf ear to a legal argument based on the Convention and its case-law.  

The courts and other domestic authorities, however, should be constantly reminded by parties to various proceedings that since the Convention was ratified by a given country, it cannot be simply disregarded by domestic authorities. It must be applied, even at the price of a provision of domestic law being ignored. The failure to do so may result in the Strasbourg Court finding a violation of the Convention.

It is an important feature of the Convention that it does not prohibit discrimination. It only outlaws discrimination in the enjoyment of the rights guaranteed by the Convention itself. Article 14 of the Convention reads:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."  

This is a subordinate, not an independent provision. Consequently, there is no stand-alone right not to be discriminated under the Convention. Accordingly, the Convention is not a discrimination-specific instrument. The Court will then only examine these complaints in which the Applicant alleges that she or he has been prevented from enjoying her or his Convention rights because of the grounds listed in Article 14. This list is only illustrative, not exhaustive: other grounds of discrimination can also be found to be in breach of this provision.  

Difference in treatment means, firstly, that people in the same situation are treated differently. However, it can also mean that people in different situations are treated in the same manner.

  • Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1995, Series A, § 82.

  • Thlimmenos v. Greece, judgment of 6 April 2000, Reports 2000-IV, § 38.

Not all difference in treatment amounts to discrimination: this will not be the case when the difference in treatment between different groups has a reasonable and objective justification. To be 'reasonable and objective' the difference in treatment must serve a legitimate aim and be proportionate to the aim sought by the authorities.  

  • Belgian Linguistics Case, judgment of 23 July 1968, Series A, No. 6, § 9 of 'Interpretation adopted by the Court'.

The Court has repeatedly emphasizes in its case-law that 'since the advancement of equality of the sexes is a major goal in Member States, very weighty reasons would have to be advanced before a difference of treatment on grounds of sex could be regarded as compatible with the Convention'.

  • Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1995, Series A, § 78-81;  

  • Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, §§ 28-29;  

  • Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A, § 67;  

  • Van Raalte v. Netherlands, judgment of 21 February 1997, Reports 1997-I, § 39;  

  • Petrovic v. Austria judgment of 27 March 1998, Reports 1998-II, § 37;  

  • Sahin v. Turkey, judgment of 29 June2004, § 107.

 

1. General principles of the Convention's case-law concerning medical care

The text of the Convention does not address directly any specific health issues. Neither does it guarantee a right to health protection as such. A 'right to health', however, a concept which has been subject to many a legal interpretation, is now firmly established in international law. The Convention does not contain any provision similar to the definition of the right to health as defined by the constitution of the World Health Organization, according to which 'every individual has a right to the enjoyment of the highest attainable standard of control over his or her health.' It is proposed not to enter into any theoretical discourse here, but to accept, for the purpose of the present Manual, that the 'right to health' means the scope of the  health related services that the public authorities must guarantee for their citizens.
In the absence of specific health related provisions in the Convention it is then understandable that the relevant case-law  of the Convention organs is relatively scarce, in particular when compared with such classical civil liberties as the right to a fair hearing (Article 6) or the right to personal liberty and security (Article 5). However, certain health-related matters have so far been subject to the Court's scrutiny.

There is no right under the Convention to any determined standard of medical care. Consequently, the Convention does not guarantee a right of access to any contraceptive services, or to contraceptive services financed by the public system of health care. Certain obligations of State in this domain, however, have been read into the substantive articles of the Convention by both the Commission and the Court.  

Article 2 (right to life) essentially prohibits the taking of human life by public authorities (with certain exceptions). At the same time it also imposes on a state a positive obligation to protect life. This may include the obligation to provide adequate public health care. Manifestly inadequate quality of medical care can be found by the Court to be in breach of this right. Failure to afford adequate medical care may be also in breach of the prohibition of torture, inhuman or degrading treatment (Article 3).  

The obligation to protect life has also a procedural element in that effective official investigation should be held when an individual dies as a result of acts of state agents. In cases involving allegations of medical malpractice this procedural obligation stemming from Article 2 extends to the need for an effective system for establishing the cause of death of an individual under the care of health professionals and liability therefore.  

Another right relevant for health is the right to respect for private and family life (Article 8), a concept which includes a person's physical and psychological integrity. Its essential object is to protect the individual against arbitrary interference by public authorities. In addition, there may be positive obligations inherent in that right. This positive obligation may involve adoption of measures, designed to secure

respect for private life, even in the sphere of relations between individuals. This provision has been invoked in cases concerning availability and quality of medical care. In such cases competing interests of the individual and those of the community have to be considered. This means the interest of an individual to receive medical care of a good quality and the interest of the community in managing limited financial and material resources available for health care have to be balanced in best possible and cost-effective way. The issues involved in these cases createa necessity of an assessment of the health care priorities in the context of the allocation of limited public resources.

 

It is for the states themselves not for any European authority, to set health policies. The states' decisions regarding policy, however, may be examined by the Court, when an individual case concerning availability and quality of certain kinds of medical services is brought to its attention. As the Convention is a 'living instrument', its interpretation of the rights it guarantees evolves in time. The Court has repeatedly stated that 'the Convention, which is a dynamic text and entails positive obligations for States, is a living instrument, to be interpreted in the light of present-day conditions.' It is to be noted that particularly the issues concerning various aspects of private and family life have greatly evolved since the Convention was adopted in 1950.  

Another part of this evolution of the Convention over time is that positive obligations of states under Articles 2 and 8, also in respect of health protection, have increasingly been addressed in the case-law of the Convention institutions.  

  • Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp.15-16, § 31;

  • Vo v. France, judgment of 8 July 2004,  § 82.6

Moreover, this interpretational principle can generally be relied on in reproductive rights cases. It can be argued that the principle of personal self-determination and dignity, inherent in classical human rights requires some degree of observance of reproductive rights.

It is not the Court's task to give any general assessment of national policies in any sphere, including that of health protection. This is so because it is in the nature of its judicial function that it acts only on a case-to-case basis, assessing decisions and acts concerned in an individual case. Nevertheless, it has greatly contributed to the developing of a European consensus as to human rights standards against which acts of states are measured, including health care. The fundamental link between health, dignity and human rights has repeatedly been highlighted in its decisions.

 

2. Availability and standard of medical care and right to life (Article 2)

 

Article 2 of the Convention reads:  

"1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection."

 

The first sentence of Article 2 obliges the States not only to refrain from intentionally causing death, but also to take adequate measures to protect life.  

  • L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36).

 

The acts, choices and omissions of the authorities in the field of health care policy may in certain circumstances concern their responsibility under Article 2. Nevertheless, this responsibility is rather limited. 'Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves' for a finding of a violation of Article 2 of the Convention. In other words, the Court would normally not assess whether diagnostic and therapeutic decisions given in an individual case were correct, as it is not its task.  

  • Powell v. the UK, No. 45305/99, (Dec.) 4 May 2000, Reports 2000-V; Glass v. the UK, No. 61827/00, (Dec.) 18 March 2003.

However, as regards the scope of the state's positive obligations in the provision of health care, an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of health care, which they have undertaken to make available to the population generally.  

  • Cyprus v. Turkey [Grand Chamber], no. 25781/94, § 219, Reports 2001-IV; Nitecki v. Poland, No. 65653/01 (Dec.), 21 March 2002.

Apart from this obligation of a substantive character, Article 2 also imposes a procedural obligation that - 'even in cases, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims.'  

This procedural obligation includes the requirement for medical care institutions to have regulations for the protection of their patients' lives. It also comprises the obligation to establish an effective system for establishing the cause of a death which occurs in hospital and any liability criminal disciplinary and/or civil - of the persons concerned.  

However, the responsibility of a state under this provision may normally be incurred when a patient dies when under medical treatment, or whether she or he was exposed to a serious risk of dying. This argument might also be applied to situations involving reproductive rights, but only insofar as it could be shown that the failure to secure health services relevant for reproductive health has exposed the applicant to a risk of death.  

  • For general procedural obligation under Article 2: McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, § 161; Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 86; Yasa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, § 98;  

  • For procedural obligation in medical context: Eur. Comm. HR, No. 20948/92, Dec. 22.5.1995, D.R. 81, p. 40;

  • Eur. Comm. HR; No. 23412/94, Dec. 30.8.1994, D.R. 79-A, pp. 127, 135-137;

  • Powell v. the UK, No. 45305/99, (Dec.) 4 May 2000, Reports 2000-V;

  • Erikson v. Italy, No. 37900/97, (Dec.) 26 October 1999;

  • Calvelli and Ciglio v. Italy [GC], judgment of 17 January 2001, Reports 2002-I, § 49.

There is no case-law to the effect that this procedure, in which responsibility for either a loss of life, or for having exposed a patient to a risk of such loss, must be of a judicial character, i.e. be conducted before an independent and impartial court. The fairness and  effectiveness of investigations are examined in the context of various procedural and institutional solutions adopted in a given country, serving to establish the responsibility of medical staff.  

The following questions would be relevant for the assessment whether proceedings, in which such responsibility is being established, meet the procedural standards set by Article 2:  

- is the complainant (either a person who suffered from medical malpractice or member of his/her family) a party to the proceedings in which such responsibility is sought?
- is the authority obliged to inform/summon the victim to a hearing?
- is that authority obliged to call him/her as a witness to be examined?
- are the proceedings adversarial, i.e. does the authority hear the arguments of both the complainant and the medical staff concerned?
- can the complainant comment on the arguments advanced by the medical institution?

On the whole, the Court has to limit its considerations to whether the domestic law system ensures an effective mechanism ensuring that those with criminal or civil responsibility may be held answerable in cases of medical negligence. If domestic law does not provide for any such mechanism, this is likely to amount to a breach of Article 2. If there is such mechanism available under domestic law, the Court will examine whether the case was sufficiently thoroughly investigated: whether the facts were reliably established, whether relevant and sufficient evidence was taken, whether the complainant had some procedural rights in the investigations; whether she or he could be questioned by the competent authorities; whether there were no excessive delays in the investigations, whether the assessment of the evidence by these authorities was not superficial and/or arbitrary.

 

3. Availability and standard of medical care and prohibition of torture (Article 3)

Article 3 of the Convention reads:  

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."  

The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and its Protocols, Article 3 makes no provision for any exceptions or restrictions. There can be no derogation from the obligations of Article 3 even in the event of a public emergency threatening the life of the nation, a possibility provided for by Article 15. This absolute prohibition of torture and inhuman or degrading treatment or  punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe.

There is no fixed definition of what can constitute treatment prohibited by Article 3. The fundamental case-law states that 'ill-treatment must attain a certain level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, and in some cases, the sex, age and state of health of the victim.' It means that the Court will examine allegations of treatment contrary to Article 3 on case-to-case basis, taking into account all elements of a given set of facts.  

Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 65-67, § 162).

The real dilemma that faces the Court in each case, in which a complaint under Article 3 is being made, is how to make a distinction between treatment which does fall into the scope of this provision and treatment which is not severe enough to be covered by it. 'The Convention contains no prohibition covering intermediate forms of maltreatment that do not attain that degree of severity, which could justify classifying them as inhuman, or as amounting to torture; but of which it can be said that they are of such a nature that they deserve to be prohibited because they are irreconcilable with the high ideal of human rights. The choice the Court has to face is between accepting treatment which is condemnable but not so severe as to attain the severity of inhuman or degrading treatment, and, on the other hand, regarding as a violation of Article 3 treatment which, in the common sense assessment, would not qualify as being so severe as to be 'inhuman' or 'degrading.'7

The following situations have been found to amount to inhuman or degrading treatment: treatment causing actual bodily harm, absence of medical assistance to person suffering from illness/injuries, total isolation/covered eyes during 16 days/interrogation throughout that time; any instance of torture in the police custody; in respect of a person deprived of his liberty, use of physical force which has not been made strictly necessary by victims own conduct; use of psychological interrogation techniques.

It can be argued that failure to provide adequate medical care can also amount to a breach of Article 3 of the Convention. Such complaints have generally been successful essentially in the context of imprisoned persons. It can be argued that the failure to ensure provision of contraceptive techniques or family planning services amounts to a breach of Article 3. It would be unreasonable to allege that such failure amounts to torture, for obvious reasons. Instead an applicant could complain that it amounts to degrading treatment. Treatment is degrading if the person concerned has undergone humiliation or debasement attaining a minimum level of severity. The assessment of this minimum level of severity is relative; it has to be assessed with regard to the circumstances of any given case. Treatment may be considered degrading if it arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. Moreover, it is sufficient if the victim is humiliated in her or his own eyes. Treatment is also degrading if, as regards its consequences, it adversely affected the victim's personality in a manner incompatible with Article 3.

No such complaints, however, have so far been successful in the context of reproductive rights.  

  • Peers v. Greece, judgment of 19 April 2001, Reports 2001-III, §§ 67-68, 74;

  • Valasinas v. 24 July 2001, Reports 2001-VIII, § 101;

  • Iwanczuk v. Poland, judgment of 15 November 2001, §§ 50-53.

Procedural obligation identical with that concerned in Article 2 of the Convention has been read into the text of Article 3 by the Convention organs. Consequently, there should be an effective official investigation into all allegations of torture or inhuman or degrading treatment.  

The state is responsible under Article 3 even if the acts of its agents are outside the scope of their competence or clearly unlawful. In other words, the state cannot escape the responsibility by arguing that its agents acted contrary to their obligations as defined by domestic law. It is the state's responsibility to ensure that its agents do know both what they are allowed to do under the law, and also what practices are compatible with the law. Ignorance of its agents does not absolve the state. This principle applies not only to Article 3, but to the state's responsibility under the Convention as a whole.

 

4. Procedural elements in cases in compensation for adverse sequels of medical malpractice is claimed vc(Article 6 - right to a fair hearing)

Article 6 of the Convention, in its relevant part, reads:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal..."  

In cases involving assessment of medical questions relevant to the criminal or civil liability of medical staff for alleged negligence, courts normally rely heavily on expert evidence. Medical experts are requested to prepare reports which are to assist the court in the establishing the facts of the case, and in deciding whether the diagnostic and therapeutic decisions taken in the course of medical treatment amounted to negligence. As the experts possess medical knowledge which the courts do not have, it is obvious that the expert’s findings in such cases are often of a paramount importance for the outcome of the case.  

The requirements of ‘fair hearing’ within the meaning of Article 6 of the Convention are such that the civil judicial proceedings must be adversarial. This term denotes proceedings in which the parties to the case have an equal opportunity to present the evidence in support of their arguments to the court, and to challenge the evidence submitted by the other party by, e.g. asking questions to the witnesses called by the other party.  

Given the weight that courts are likely to give to the expert opinions in medical negligence cases, it is important that not only the judicial proceedings themselves, i.e. hearings before the court, are truly adversarial. It is also essential that the very process of preparing the  expert opinions is, to some degree dictated by the technical character of this preparation, also adversarial. This would require that the parties to the case have a possibility to put questions to the experts and to participate, again, to a certain degree, in the taking of evidence by the expert. This is so because one can easily imagine a situation in which the expert prepares his or her report, answering the court’s questions on the basis of medical records to which the injured party has no access at all, and/or on the basis of interviewing medical staff without the participation of that party. Indeed, this is very often the case that the medical expert reports for the purpose of judicial proceedings concerning claims for medical negligence are prepared in exactly this way.  

The Court held in one of its judgments that such a situation does not satisfy the requirements of a ‘fair hearing’. If the expert prepares his or her report without any involvement on the part of the injured party, the mere fact that that party can later on, during a court hearing, put questions to the expert or try to challenge his or her conclusions, is insufficient. It does not give the patient who alleges that he or she is a victim of medical negligence an adequate opportunity to influence the contents of the report, and, consequently, the conclusions that the expert would reach. Therefore, if no practical difficulties stand in the way of the patient being associated in the process of producing the report, the patient should be so involved, by asking questions to the medical staff concerned and by having access to documents on the basis of which the expert report is being prepared, so as to be able to comment on these documents.  

If no such possibility is afforded to the  patient dissatisfied with medical care he or she had been given and claiming liability for the alleged medical negligence, and the process of the preparation of the expert opinion is left entirely to the expert him/herself, to the exclusion of the patient, the Court is likely to find a breach of Article 6 of the Convention, even if the patient has an opportunity to comment on the expert report during a court hearing.

  • Mantovanelli v. France, judgment of 18.03.1997, Reports 1997-II.

 

5. Availability and standard of medical care and right to respect for private and family life (Article 8)

Article 8 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, forthe prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

 

A) General principles of Article 8  

The Court analyses complaints brought under Article 8 of the Convention, answering the following questions:  

  • Has there been an interference with the applicant's private or family life?

  • If the reply to this question is in positive, i.e. the Court finds an interference, then the Court asks following questions:

  • Was this interference carried out 'in accordance with the law'?

  • Did the interference serve a legitimate aim?

  • Was the interference "necessary in a democratic society?"

 

Interference is an act of the public authorities, by which rights guaranteed by Article 8 are restricted or breached.  

In order to be 'in accordance with the  law', the interference must have some kind of legal basis in the domestic law of the country concerned. If the Court finds that the interference was carried out with no valid legal basis in domestic law at all, it will conclude that there has been a violation of the Convention.  

However, to satisfy this requirement of Article 8 it is not enough that the interference has just any legal basis. Furthermore, the law in question has to be of adequate quality. The phrase "in accordance with the law” implies that the legal basis on which the state acted when interfering with the applicant's private or family life must be "accessible" and "foreseeable". Legal provision is "accessible" if it has been properly published in the appropriate universally available official gazette or other publication for laws and statutes. Therefore, if an interference was based on a legal text which was relied on by the authorities, but to which general public had no access because it was either secret, or confidential, or was just a circular or a memorandum produced by public authority for its internal use the Court will find that the interference was not 'in accordance with the law' and that, therefore, there has been a violation of the Convention just because of this lack of direct access to a legal text.  

This is important in the context of the countries of Central and Eastern Europe where there was a long-standing tradition of disrespect for the clear hierarchy of sources of laws. It was going hand in hand with practices of reliance by public authorities on texts produced by the authorities and regarded as law, but not accessible to the public.

The law is "foreseeable" if it is formulated with sufficient precision to enable any individual - with appropriate legal advice, if necessary - to regulate her or his conduct and to predict the legal consequences of it.  

In addition, the law must be so formulated as to ensure a measure of legal protection in domestic law against arbitrary interference by public authorities with the rights safeguarded by the Convention.  

What does actually "arbitrary" interference mean? An act of public authorities is arbitrary if it is not based on law at all, or, if it has a legal basis, this basis does not define clearly when the state can act, which organs can act, what are the criteria on which they can  undertake their action, what exactly can the state do and to whom, within what time-frame, and how can their act be appealed against. In short, the state cannot do whatever it wants; it cannot act unreasonably, without there being a solid and comprehensible legal basis for its acts and a reasonable and sufficient justification for them.

Put in the language of the Court's case-law, 'the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, in order to give the individual adequate protection against arbitrary interference.'  

  • Amann v. Switzerland [GC], judgment of 16 February 2000, Reports 2000-II, §§ 55 and 56;

  • Rotaru v. Romania [GC], judgment of 4 May 2000, Reports 2000-V, §§ 55-63;

  • Hasan and Chaush v. Bulgaria [GC], judgment of 26 October 2000, Reports 2000-XI;

  • Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28.

 

The interference with rights guaranteed by Article 8 must pursue a “legitimate aim”. These aims, as listed in paragraph 2 of that Article are the following: interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health and morals, protections of the rights and freedoms of others. In practice, the Court is not very suspicious in the examination of aims the governments invoke as justification of interference with private or family lives and usually accepts that the interference was a con-sequence of the aim invoked by the Government, even if the applicant argues that this aim is intended to cover another aim the authorities had actually in mind.  

Lastly, and most importantly, the Court must be satisfied that the interference was "necessary in a democratic society". The word "necessary" in §2 of Article 10 implies the existence of a "pressing social need". In particular, the measure employed must be proportionate to the legitimate aim pursued. Put in simpler terms, it means that the state cannot use tougher measures, if less radical measure would achieve the same aim. Moreover, the national authorities must put forward relevant and sufficient reasons to justify this measure.

 

  • Bleciæ v. Croatia, judgment of 29 July 2004, § 59; Slivenko v. Latvia, judgment of 9 October 2003, § 113;

  • Klamecki v. Poland (No.2), judgment of 3 April 2003, § 144;

  • Nowicka v. Poland, judgment of 3 December 2002, § 70.

  • Pretty v. the UK, judgment of 29 April 2003, § 70.

 

The states have a certain margin of appreciation, i.e. a certain sphere of freedom, in assessing whether a need for taking some measures exists. This is so because they are better placed than an international court to see, understand and take into consideration the local cultural, historical and sociological factors which are at play when taking legal or policy decisions in certain areas.  

As said above, Article 8 not only imposes on the states a negative obligation to refrain from acts that would interfere with rights guaranteed by this provision (negative obligation, obligation not to act), but it also imposes on states, in some circumstances, positive obligations to take measures to ensure effective protection of these rights. "While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves."  

  • X and Y v. the Netherlands, judgment of 36 March 1985, Series A-91, § 23;

  • Stubbings and Others v. the UnitedKingdom, judgment of 22 October 1996, Reports 1996-IV, § 62;

  • Cvijetiæ v. Croatia, judgment of 26 February 2004, § 47;

  • Odièvre v. France, judgment of 13 February 2003, § 40.

 

It is not easy and maybe not possible at all to list situations in which the state would have such a positive obligation; not only an obligation to abstain from restricting individual rights, but to adopt policies and actively take measures to ensure that these rights are effectively enjoyed. This is so because the 'boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole'.  

  • Mikuliæ v. Croatia, judgment of 7 February 2002, Reports 2002-I, § 58;

  • Keegan v. Ireland, judgment of 26 May 1994, Series A-290, § 49.

This principle of 'fair balance' between individual interests and these of the community is a fundamental interpretational principle of the Convention. It is consistently used by the Court to interpret the scope of rights guaranteed by the Convention. Even more importantly, it is a yardstick by which the Court measures whether in the circumstances of each individual case the domestic authorities have had appropriate regard to the individual interests involved or whether excessive weight has been attached to the interests of the community, local laws, practices, stereotypical assumptions, or just plain wish of the authority not to be bothered too much about the situation of just one individual.

 

B) Principles of Article 8 as applicable to medical care issues  

The notion of positive obligations of the State has a strong relevance to all issues touching on health, and, consequently, also on reproductive health. This is so because in cases concerning health issues European applicants would rarely complain that the state breached their rights guaranteed by Article 8 by taking some active measures. (Just to give an example of such interference: the practice of forced abortions widely resorted to in China would manifestly amount to an 'interference'. The same would apply to any instance of forced medical examination). It is most likely that in the European context it will more often be argued that the state should have taken some positive measures to safeguard or protect the individual's health, or reproductive health - but failed to do so. This failure might be caused either by reasons of a structural nature, such as systemic lack of access to certain medical services caused, e.g. by regulations of national medical insurance (when service sought is not covered/reimbursed by national medical insurance). They may also be caused by financial/economic shortages. They also may originate from slowness of such access (e.g. in the context of waiting lists for a medical service).  

The lack of access may also originate from a set of unfortunate decisions taken in an individual case, resulting in lack of access to medical care, even when, generally, such services are available in the country concerned.  

Article 8 may impose such positive obligations on a State, but not in all situations. This kind of positive obligations can be inferred from this provision where there is a direct and immediate link between the measures sought by an applicant and his or her private life. 'Article 8 cannot be considered applicable each time an individual's everyday life is disrupted, but only in the exceptional cases where the State's failure to adopt measures interferes with that individual's right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It falls on the applicant to show, against the circumstances of her or his case, the existence of a special link between the situation complained of and the particular needs of his or her private life'.  

To demonstrate what this 'special link' means in the eyes of the Court, it is recalled that disabled applicants brought cases to the Strasbourg court and complained that the state had failed to take measures to make it possible for them to move freely about in the towns they lived in. This was so because there were no special access facilities for disabled people available, such as ramps or escalators. In such cases the Court found that no such 'direct link' existed between their private lives and the positive measures sought. The Court considered that the applicants rather sought a general access to public areas, an access the right to which cannot be derived from Article 8.  

  • Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, § 35.

  • Zehnalovà and Zehnal v. the Czech Republic, No. 38621/97, (Dec.) 14 May 2002, Reports 2002-V.

However, in reproductive rights cases, it may be argued that such a 'direct link' obviously exists in situations in which the applicant would seek either access to, or financing, or reimbursement, or partial reimbursement of reproductive health and family planning procedures. This is so as the failure to be able to have access to these procedures clearly affects the life of the woman concerned in that she may either risk unwanted pregnancy, or not be able to conceive or to carry to term a healthy child. It is not open to doubt that there is a 'special link' indeed between these situations and the particular needs of private or family life of the woman concerned.  

It can also be argued that the failure to adopt measures in the sphere of reproductive health hinders the woman's individual development.  

Nonetheless, there have been so far no decisions in which the Court has accepted such reasoning and has found in the Applicant's favour in such cases.  

Private life includes a person's physical and psychological integrity; the guarantee by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.  

A forced medical examination will always be regarded as an 'interference' within the meaning of Article 8. The same will apply, with all the more force, to a forced gynecological examination.33

In one case, the applicant complained that the forced gynecological examination of his wife constituted a breach of her right to respect for her private life. The applicant and his wife were taken into police custody on suspicion of aiding an illegal terrorist organization, namely the Kurdish Workers' Party. The applicant's wife was held in police custody for four days, and during this period she was allegedly kept blindfolded. Following her detention, she was examined by a doctor, who reported that there were no signs of ill-treatment on her body. On the same day she was taken to a gynecologist for a further examination. The police requested that the report should indicate whether she had had intercourse while in custody. Despite her refusal, she was forced by the police officers to undergo a gynecological examination. The police officers remained on the premises when she was examined behind a curtain. The doctor reported that the applicant's wife had not had any sexual intercourse in the days preceding the examination.

The Court found a violation of Article 8 of the Convention. It accepted that this provision is clearly applicable to the complaint about forced gynecological examination, as this complaint concerns a matter of 'private life', which covers the physical and psychological integrity of a person. It reiterated that a person's body concerns the most intimate aspect of one's private life. Thus, a compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right.  

  • Eur. Comm HR, No. 8278/78, decision of 13 December 1979, D. R. 18, o p. 155;

  • Eur. Comm HR, No. 10435/83, decision of 10 December 1984, D.R. 40, p. 254;

  • Y.F. v. Turkey, judgment of 22 July 2003,`§ 33;

  • X and Y v. Netherland, judgment of 26 March 1985, Series A no. 91, § 22.

In assessing whether the fact that the state did not take particular positive measures in connection with medical care (for instance, by refusing to finance a particular device for a disabled person) the fair balance that has to be struck between the competing interests of the individual and of the community as a whole has to be addressed. The wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention also has to be taken into account.  

This margin of appreciation, which is relevant for the whole of Article 8, is even wider when, as in the cases concerning the State's obligations in the domain of public health and medical care, the issues involve 'an assessment of the priorities in the context of the allocation of limited State resources'.

'In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court. In addition, the Court should also be mindful of the fact that, while it will apply the Convention to the concrete facts of this particular case (…), a decision issued in an individual case will nevertheless at least to some extent establish a precedent, valid for all Contracting States.' This is a very cautious wording which shows that the Court will be reluctant to say that the Convention guarantees any precise kind of medical services to all persons who might need it. The Court could not have said more openly that it will abstain from imposing on states precise and uniform obligations as regards availability of different kinds of medical services.  

  • Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116, mutatis mutandis;

  • Zehnalovà and Zehnal v. the Czech Republic, No. 38621/97, (Dec.) 14 May 2002, Reports 2002-V;

  • Sentges v. the Netherlands, No.27677/02, (Dec.) 8 July 2003.

 

C) What kind of argument can be presented by the applicant in support of a complaint under Article 8 concerning a breach of reproductive rights by the failure of domestic authorities to act in such a manner as to ensure 'respect for the Applicant's private and family life'?

  • That the right to respect for private life, as guaranteed by Article 8 of the Convention, entails a positive obligation for the State to provide a person with, or pay for, or reimburse by state-run medical insurance system, certain kind of medical devices or treatments;

  • That the concept of private life encompasses notions pertaining to the quality of life, including personal autonomy, self-determination, as well as the right to establish and develop relationships with other human beings. This argument has been used in cases brought to the Court  by handicapped persons. It may also be tried in reproductive rights cases;

  • That the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, and that the failure to secure access to reproductive health services seriously undermines the possibility for a woman concerned to avail herself of her human rights guaranteed by the Convention.

 

  • Airey v. Ireland, judgment of 9 October 1979, Series A no. 32; § 24;

  • Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, § 31;

  • Podkolzina v. Latvia, judgment of 9 April 2002, § 35.

 

6. Right to marry and found a family: Article 12

Surprisingly, this provision of the Convention is only very rarely invoked in cases brought to the Court. It is most often relied on in immigration cases, together with Article 8. In such cases the applicants complain that the refusal of permission to either settle permanently or to enter a territory of a given country where the applicant's family lives breaches her or his right to marry and/or to found a family. These decisions cannot, therefore, be helpful in the context of reproductive rights.  

The case-law states that 'although the right to found a family is an absolute right, it does not mean that a person must at all times be given the actual possibility to procreate. There is nothing to support the conclusion that the capacity to procreate is an essential condition of marriage, or even that procreation is an essential purpose of marriage.' However, this decision has been given in the context of a complaint that the applicants, a married couple who had difficulties to conceive before the husband was imprisoned, were refused conjugal visits when he was in prison. It is open to doubt whether the same principles could be applicable in the context of cases concerning medically assisted procreation.  

It seems that lack of availability of financing of medically assisted procreation by a public medical insurance system could potentially raise an issue under these provisions. This is a ground which remains to be explored by bringing such cases to the Court, while the outcomes of such cases are, at present, uncertain.  

  • Eur. Comm. HR, No. 6564/74, Dec. 21May 1975, D.R. 2/105,

  • Eur. Comm HR, No. 17142/90, Dec. 10 July 1991.

 

7. Abortion under the Convention  

“Legislation regulating the interruption of pregnancy touches upon the sphere of private life”, since “whenever a woman is pregnant her private life becomes closely connected with the developing foetus”. Therefore the issues concerning abortion are obviously covered by the notion of “private life” within the meaning of Article 8. Thus, a woman of a reproductive age can claim that she is a potential victim of legislation making abortion unlawful or inaccessible.  

  • Eur. Comm. HR, Brüggemann and Scheuten v. Germany, No. 6959/75, Commission's report of 12 July 1977, D. R. 10, p. 100.

However, even though it has been admitted that a woman of a reproductive age can claim to be a potential victim of breach of her rights if abortion in her country is not available, it has to be kept in mind that nothing in the Convention itself can be interpreted as an ultimate opinion on the status of the abortion from the human rights point of view. In other words, the Convention does not address this issue directly. While it guarantees a right to life (see above), it is silent on the temporal dimension of this right, i.e. whether it applies from the moment of birth, or before.

As to the case-law, the Convention organs have so far carefully avoided saying that abortion is either prohibited or allowed under the Convention. Thus, the Convention does not offer any ultimate guidance as to whether legal and safe abortion should or should not be available under domestic law, and if and if so, on what conditions, on what conditions.  

However, there has been recently a new development, a judgment which has been awaited by both pro-choice and antiabortion parties to the abortion dispute. It concerned an applicant, whose pregnancy, due to a mix-up caused by the fact that she had the same name as another patient of the same hospital, had to be terminated. This was so because 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, the doctor was charged with unintentional homicide. Ultimately, the highest national court ruled that the facts of the case did not constitute the offence of homicide; it thus refused to consider the foetus as a human being entitled to the protection of the criminal law.  

Relying on Article 2 of the Convention, the applicant complained of the authorities' refusal to classify the unintentional termination of pregnancy as involuntary homicide.  

The Court considered that the issue of when the right to life begins was a question to be decided at national level. It pointed out that this issue had not been decided within the majority of the States which had ratified the Convention. It went on to stress that there was no European consensus on the scientific and legal definition of the beginning of life. Likewise, at European level there was no consensus on the nature and status of the embryo and/or foetus. At best, it could be regarded as common ground between States that the embryo/foetus belonged to the human race. Its potential and capacity to become a person required protection in the name of human dignity, without making it a person with the right to life for the purposes of Article 2. Having regard to those considerations, the Court was convinced that it was neither desirable nor possible to answer the question whether the unborn child was a person for the purposes of Article 2 of the Convention.  

The Court observed that there had been no failure on the part of the respondent state, 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. 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. Such an action would have enabled the applicant to prove the doctor's medical negligence and to obtain compensation. The Court accordingly concluded that there had been no violation of Article 2 of the Convention.  

  • Vo v. France, judgment of 8 July 2004.

The outcome of the case can be considered rather to be in favour of the pro-choice stance. The Court did not state that the legal protection of life within the meaning of Article 2 should start from the conception. It only reiterated what it had already stated before, namely that the obligation under Article 2 to take appropriate steps to protect life extends beyond the duty to secure the right to life by putting in place criminal-law provisions to deter the commission of offences against the person. This obligation may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk (see above at 2) . It did not state categorically that foetus is covered by absolute protection of right to life.

However, neither can this judgment be interpreted as providing any ultimate argument to the effect that non-availability of legal and safe abortion, examined in abstract, would amount to a breach of the Convention or that European human rights law, as it stands today, unequivocally warrants that legal and safe abortion must be available under domestic legislation. In the earlier case-law, the following principles have been established as regards abortion:

  • In one of the rare abortion cases brought to the Convention organs, the Commission referred with approval to the following statement of the Norwegian Supreme Court:

 "... abortion laws must necessarily be based on a compromise between the respect for the unborn life and other essential and worthy considerations. This compromise has led the legislator to permit self-determined abortion under the circumstances defined by the  [Norwegian] Act [making abortion available].  

Clearly, such a reconciliation of disparate considerations gives rise to ethical problems, and clearly too, there will be some disagreement about the system embodied in the Act. The reactions to the Act show that many ... view it as an attack on central ethical principles. But it is equally relevant that others - also from an ethical point of view - regard the Act as having done away with an unacceptable legal situation [i.e. that of unavailability of legal abortion].  

(…) On this point, different opinions will be held among judges as among other members of our society. The reconciliation of conflicting interests which abortion laws require is the legislator's task and the legislator's responsibility.”  

  • Eur. Comm. HR, No. 17004/90, H. v. Norway, Dec. 19 May 1992, D.R. 73, p. 155.

In the absence of the common European ground and having regard to the diversity of national laws on abortion, national legislators, as European human rights law stands now, are in principle free to decide on the availability and legal status of voluntary termination of pregnancy.  

There is no case-law available on how long during pregnancy abortion should be available under law. However, it cannot be ruled out that non-availability of legal abortion, or practical unavailability of abortion, e.g. abortion financed by some form of public health insurance scheme, could amount to a breach of Article 8. It can be argued, for instance, that:

  • Granting absolute, or nearly absolute legal protection to a foetus would interfere with woman's basic human rights;

  • Granting a foetus the same rights as a person would place unreasonable limitations on the rights of persons already born, i.e. those of the pregnant woman;

  • In particular, recognition of the foetus's absolute rights interfered with woman's fundamental right to a private life, in particular insofar as it guarantees particular insofar as it guarantees physical integrity, and in some circumstances, even with woman's right to life;

  • Foetus was not universally recognized as a person in European domestic legislation;

  • There exists a wide legislative practice of making legal and safe abortion available: thirty-nine member States of the Council of Europe the exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San Marino, which maintained severe restrictions on abortion, permitted a woman to terminate a pregnancy without restriction during the first trimester or on very broad therapeutic grounds;

  • Voluntary termination of pregnancy on request in the first trimester is now widely accepted across Europe, as is termination on certain grounds in the second trimester;

  • The ban on abortion has devastating implications in terms of both individual choices and lives and social policy;

  • In addition to respect for private life, the preservation of the pregnant woman's life and health should take precedence. In holding that restrictions on the exchange of information on abortion created a risk to the health of women whose pregnancies posed a threat to their lives, the Court had ruled that the injunction in question had been 'disproportionate to the aims pursued' and that, consequently, a woman's health interest prevailed over a State's declared moral interest in protecting the rights of a foetus (see Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246-A);

Two non-governmental organizations were allowed to make submissions to the Court in the Vo v. France case, the Center for Reproductive Rights and the Family Planning Association. (For a detailed summary of their arguments, see the text of the Vo v. France judgment, §§ 60-73.) These detailed argu-ments can be relied on in any legal case summarised above or in any debate in favour of legal availability of abortion.  

These arguments can also be useful as they put the situation of a pregnant woman wishing to have an abortion in human rights language. This is important as in the abortion debate it is often tacitly assumed that her position cannot be put at all in the terms of fundamental and human rights. In the absence of such an approach, couched in legal terms, no reasonable argument can be made to the effect that the practical legislative solutions as to the availability of abortion should be based on a certain balance between the fully legitimate rights of a woman, and those of the foetus. Such balance can help to shed the absolutist 'good versus evil' terms which the anti-choice lobby often uses in this debate. It would also help to resort to the language of 'fair balance' between the interests of the woman and any other interests, the fair balance being really 'fair', i.e. taking fully into considerations her arguments and her vital interest to decide about her life.  

Secondly, the arguments advanced by these NGOs in the Vo v. France case are useful also in that they provide a wealth of comparative legal information on the legal status of abortion in many countries.  

However, there is at present no recent case-law available to the effect that nonavailability of legal and safe abortion can amount to a breach of Article 2, or Article 8 of the Convention.  

A potential father can claim to be a victim of a breach of Article 8 if pregnant woman decides to have an abortion, to which he is opposed. It was held that a potential father, living in a stable and close relationship with the pregnant woman, was so closely affected by the termination of the pregnancy that he may claim to be a "victim", within the meaning of Article 34 of the Convention.  

However, this only means that he can institute relevant proceedings before the Strasbourg Court. In other words, he has a right to bring an application in which to complain that the mother either had , or intends to have an abortion. But this is only a procedural right which does not prejudge that the outcome of the case will be favorable for such a potential father. The potential father's right to respect for his private and family  life cannot be interpreted so widely as to embrace the right to be consulted or to apply to a court in order to prevent an abortion which his wife/partner intends to have performed on her.  

'Any interpretation of a potential father's rights under Article 8 of the Convention when the mother intends to have an abortion should above all take into account her rights, as she is the person primarily concerned by the pregnancy and its continuation or termination.' In cases concerning the potential father's complaints about abortion of his wife/partner, the Commission found that abortion was justified as being necessary for the protection of the rights of another person, i.e. the woman herself. The Commision noted that it was so because that it was carried out in accordance with domestic law governing availability of abortion which provided for mechanisms to reconcile the interests and rights of the pregnant woman and the interest of the society as a whole.  

Abortion cannot amount to a breach of father's right to found a family, guaranteed by Article 12 of the Convention, as interference with family life which is justified under paragraph 2 of Article 8 of the Convention (in the interest of the 'rights of others' , i.e. of the pregnant woman) cannot at the same time constitute a violation of Article 12.  

  • Eur. Comm. HR, No. 17004/90, H. v. Norway, Dec. 19 May 1992, D.R. 73, p. 155;

  • Eur. Comm. HR, No. 8416/79, X v. the United Kingdom, Dec. 13 May 1980, D.R. 19 p. 244;

  • Boso v. Italy, No. 50490/99, Reports 2002-VII.

As to the argument which is frequently resorted to by anti-choice lobby, namely that abortion amounts to inhuman or degrading treatment of foetus, prohibited under Article 3 of the Convention, the Commission held that it 'has not been presented with any material which  could substantiate the allegations of pain inflicted upon the foetus.'  

  • Eur. Comm. HR, No. 17004/90, H. v. Norway, Dec. 19 May 1992, D.R. 73, p. 155.

Article 6 (a right to a fair hearing) is not applicable to any proceedings in which access to abortion is to be determined. Therefore, the applicant cannot successfully complain that the proceedings in which availability of abortion would be determined are incompatible with the standards of fair hearing within the meaning of Article 6 of the Convention. The guarantees of fair hearing are not applicable to proceedings in which availability of legal abortion would be determined, and therefore the Court would reject all complaints about the alleged unfairness of such proceedings, made under Article 6.

  • Eur. Comm. HR, No. 17004/90, H. v. Norway, Dec. 19 May 1992,D.R. 73, p. 155;

 

8. Dissemination of information about abortion  

In one famous case against Ireland, two non-governmental organisations were ordered by the courts to stop counseling pregnant women about the possibilities of obtaining abortion, illegal in Ireland, abroad. The organisations brought a case to the Strasbourg Court, complaining that these orders breached their freedom of expression guaranteed by Article 10.

Article 10 of the Convention reads:  

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.  

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."  

The Court held that the interference with freedom of expression was lawful and that it pursued a legitimate aim, that of 'protection of morals' as understood in Ireland and enshrined in its legislation which outlawed abortion.

 

However, the Court found that the orders complained of were not 'necessary in the democratic society'. It emphasized that freedom of expression is also applicable to 'information' or 'ideas' that offend, shock or disturb the state or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'. Consequently, even if information and counseling on abortion or on reproductive and sexual health issues can be regarded in some quarters of society as offending, shocking or disturbing, the time-honoured freedom of expression guarantees that dissemination of such information should not be hindered.40

The Court noted that it was not an offence under Irish law to travel abroad to have an abortion. The orders limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and, importantly, may be crucial to a woman's health and well-being. The Court further criticised the absolute nature of the orders, which imposed a perpetual restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy.  

It underlined that the orders deprived women of qualified counselling and created thereby a risk to the health of those women who, deprived of such counselling, were seeking abortions at a later stage of pregnancy. It also noted that as a result of the lack of counselling they could not have access medical supervision after the abortion. Moreover, the these orders may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of  information available in Ireland.  

The Court concluded that the orders complained of were disproportionate to the aim sought, and therefore amounted to a breach of Article 10.  

It is important to note it attached great importance to the well-being and health interests of the pregnant women wishing to have an abortion, and that it carefully abstained from any value judgment as to their situation and wishes to udergo an abortion.

 

9. Persons assisting women wishing to have an abortion in the context of a Legal ban on abortion

In one case the applicant was sentenced to eighteen months' imprisonment for aiding and abetting abortion. Based in a town in eastern Poland, he had been offering, in return for payment, to drive women who wanted to have an abortion to a nearby town in Ukraine, where abortion remains legal. He complained that his criminal conviction breached Article 10 of the Convention. He argued that his actions had been motivated by his belief that abortion should not have been made unlawful and that he had been convicted because he had harmed the entrenched financial interests of local gynaecologists who provided abortion for high fees, and because he had irritated the fanatical Catholic circles opposed to the principle that abortion is a woman's personal choice.  

The Court accepted that the applicant's motives were not exclusively commercial but also of a higher order, such as disagreement with the legal ban on abortion introduced by the Polish Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act of 1993 Act. However, it rejected the argument that the applicant's criminal conviction amounted to a breach of his right to freedom of expression. The Court's decision was couched in such terms as if the applicant's offence was like any other ordinary  criminal offence. The failure to address any of the arguments expressly raised by the applicant about abortion suggests that the Court is continuing the trend established by the Commission of avoiding to take a stance on the legal unavailability of abortion; a trend otherwise confirmed by the Vo v. France judgment.

  • Tokarczyk v. Poland, No. 51792/99, Dec. 31.01.2002.

41

10.Medical practitioners who refuse to sell contraceptives in a private pharmacy  

In one case, applicants who owned a private pharmacy refused to sell contraceptive pills, prescribed by valid medical prescription. They were convicted to fines and to pay damages to customers for offence against consumer laws.

They complained before the Court that the fine imposed on them was in breach of Article 9 of the Convention, which guarantees freedom of conscience and religion. They argued that they refused to sell contraceptive pills in their pharmacy on the ground of their religious beliefs.  

The Court declared this case inadmissible. An important distinction was reiterated at this occasion as to what kind of acts can be regarded as acts linked to personal religious beliefs, and therefore covered by protection offered by Article 9 of the Convention, and which acts do not fall into this protected category:  

'Article 9 of the Convention primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form. However, in protecting this personal sphere, Article 9 does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief. The term 'practice' in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief.'  

The applicant's activities were primarily aimed at preventing women from obtaining legally prescribed contraceptives. The Court was firmly of the view that such activities do not constitute the expression of a religious belief within the meaning of Article 9 of the  Convention. As long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the pharmacy owners cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products. They can manifest those beliefs in many ways outside the professional sphere.  

This is a decision which is relevant for cases in which medical institutions refuse to perform abortion, or to provide contraceptive counselling or services on religious grounds. As the refusal to sell contraceptive pills was not covered by the notion of religious conduct, which covers worship, praying, teaching and observance, similarly a refusal by the direction of a medical institution funded from public funds, such as either a State budget or universal insurance system, cannot justifiably be held to be a legitimate expression of religious convictions.  

The same conclusion will most likely be applied to all situations in which persons who either discourage or actively prevent, e.g. by violent manifestations or violent behavior outside medical institution providing either abortion or other contraceptive services, are prevented from doing so and/or subject to criminal proceedings, or fines are imposed on them.  

  • Pichon and Sajous v. France, No.49853/99, (Dec.) 2 October 2001;

  • Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, § 27;

  • Eur. Comm HR, No. 11308/84, Dec. 13 April 1986, D.R. 46, p. 200;

  • Eur. Comm HR, No. 10358/83, Dec. 15 December 1983, D.R. 37, p. 142.

On the other hand, such persons can, if their behaviour is not violent and limited to trying to convince that abortion/contraception should not be permitted, available or used, successfully rely on the protection of Article 10 of the Convention, which guarantees freedom of expression, or Article 11, which protects freedom of assembly.  

  • Bowman v. the United Kingdom, judgment of 19 February 1998, Reports 1998-I;

  • Also, Plattform Arzte fur das Leben v. Austria as to the state's obligations to ensure that peaceful demonstrations are undisturbed by political opponents of the demonstrators, judgment of 21 June 1988, Series A 139.

In another case in which the attitude of medical practitioners in respect of abortion issues was examined, the applicant was employed as a physician in the hospital owned and run by a Roman Catholic foundation. The hospital provided medical care for the public in general without distinction of faith. The applicant's contract contained a clause according to which the employment relationship was to be governed by the guidelines issued by the umbrella organisation of Catholic charities in Germany. The applicant, together with other medical staff, criticised by an open letter the officials of the Medical Association who had attacked the 1976 German legislation making abortion available. He was dismissed from work on the ground that this constituted a violation of his professional duties. He complained to the Commission that his dismissal, which was upheld by the courts, was in breach of his freedom of expression.  

The Commission rejected the application, considering that it was the task of the labour courts to ensure that no unreasonable demands of loyalty were made on employees of private institutions. In the case of a doctor employed in a Catholic hospital the requirement to refrain from making statements on abortion in conflict with the church's views was not seen as an unreasonable demand because of the crucial importance of this issue for the church.  

  • Eur. Comm. HR, No. 12242/86, Dec. 6 September 1989.

 

11.Rape cases  

A number of cases was brought to the Convention institutions, which gave them an opportunity to take a firm position as regards legal assessment of rape from the human rights perspective.  

In one such case the applicants, a father and a mentally handicapped daughter, complained that their rights guaranteed by Article 8 were breached, because the daughter was not permitted by law to make a valid complaint to the prosecutor about sexual abuse which she had been a victim of. The Court found that she only could have had recourse to civil compensation action and held that this kind of protection in the case of rape was insufficient. 'This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.' This case highlights the importance of effective legal protection available to victims of rape.  

  • X. and Y. v. the Netherlands, judgment of 26 March 1985, Series A-91, § 27.

In another case the applicant was convicted of rape of his wife for a sexual intercourse to which he had forced her. He argued that there was a centuries long legal tradition under English law to the effect that husband could not commit an offence of rape against his wife, as the conclusion of marriage implied a permanent an irrevocable agreement to sexual acts on the woman's part. He complained that his conviction, in which the judge reversed this line of established case-law, breached Article 7 of the Convention. This Article prohibits retrospective application of criminal law, a prohibition fundamental for the rule of law, known since Roman times as nullum crimen sine lege.  

The Court held that Article 7 had not been breached in that case. It observed that 'the essentially debasing character of rape is so manifest that the result of the decisions of [domestic courts] - that the applicant could be convicted of attempted rape, irrespective of his  relationship with the victim - cannot be said to be at variance with the object and purpose of Article 7 of the Convention, namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment. … What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.'  

  • S.W. v. the United Kingdom, judgment of 22 November 1995, Series A 335-B, § 44;

  • C.R. v. the United Kingdom, judgment of 22 November 1995, Series A 335-B, § 42.

Another recent case marks an important development in the case-law, providing, so far, strongest protection for victims of rape under the Convention. It is to be noted that, contrary to often held belief, the Convention does not guarantee a right to have criminal proceedings against a third party instituted. Neither does it guarantee a right to a victim of a criminal offence that criminal proceedings instituted  against a perpetrator of that offence will result in a conviction by a criminal court; or that a given sentence will be imposed on the  perpetrator.  

What is more, a victim of the offence cannot rely on the procedural protection of Article 6 of the Convention and complain that the criminal proceedings were unfair because she or he was not questioned by the court, or because his or her arguments were not given sufficient weight, in the criminal proceedings against the perpetrator of the offence, or that the court disregarded them altogether.  This is so because Article 6 only guarantee a fair hearing in the proceedings in which an individual's 'civil rights or obligations' are determined, or a 'criminal charge' against an individual is determined. If the proceedings concern a 'criminal charge' against other person, the victim cannot successfully invoke her or his right to a fair hearing it is only the accused which is protected by this  provision. Thus, a scope of the Convention rights that the victim of criminal offence can successfully rely on, including a victim of rape, is generally limited.

The judgment in M.C. v. Bulgaria, however, can be seen as specially protecting a victim of rape in the criminal proceedings against the perpetrators.

The applicant was a Bulgarian national born in 1980 who alleged that she was raped by two men , when she was 14 years old, the age of consent for sexual intercourse in Bulgaria.  

She claimed that, on 31 July 1995, she went to a disco with two men and a friend of hers. She then agreed to go on to another disco with the men. On the way back, one of them suggested stopping at a reservoir for a swim. The applicant remained in the car. One man came back before the other, allegedly forcing the applicant to have sexual intercourse. M.C. maintained that she was left in a very disturbed state. In the early hours of the following morning, she was taken to a private home. She claimed that she was again forced to have sex with the man at the house and that she cried continually both during and after the rape. She was later found by her mother and taken to hospital where a medical examination found that her hymen had been torn.  

Both men denied the allegations. The criminal investigations found insufficient evidence that the applicant had been forced to have sex with them. The proceedings were terminated by the prosecutor, who found that the use of physical force or threats had not been  established. In particular, no resistance on the applicant's part or attempts to seek help from others had been established. He therefore concluded that there were no sufficient evidence to find that the applicant had been coerced into having sex with the men. The Applicant appealed unsuccessfully.  

Written expert opinions submitted to the European Court of Human Rights by the applicant identified “frozen fright” (traumatic psychological infantilism syndrome) as the most common response to rape, where the terrorised victim either submits passively to or dissociates her or himself psychologically from the rape. She complained that Bulgarian law and practice did not provide effective protection against rape and sexual abuse, as only cases where the victim resists actively are prosecuted. She submitted that Bulgaria has a positive obligation under the Convention to protect the individual's physical integrity and private life and to provide an effective remedy. She also complained that the authorities had not effectively investigated the events in question. She relied principally on Article 3  (prohibition of degrading treatment), Article 8 (right to respect for private life), Article 13 (right to an effective remedy).  

The Court stated that, under Articles 3 and 8 of the Convention, States had a positive obligation both to enact criminal legislation to effectively punish rape and to apply this legislation through effective investigation and prosecution. It observed that, historically, proof of the use of physical force by the perpetrator and physical resistance on the part of the victim was sometimes required under domestic law and practice in rape cases in a number of countries. However, it appeared that this was no longer required in European countries.  

The Court also noted that the members of the Council of Europe had agreed that penalising non-consensual sexual acts, whether or not the victim had resisted, was necessary for the effective protection of women against violence and had urged the implementation of further reforms in this area. In addition, the International Criminal Tribunal for the former Yugoslavia had recently found that, in international criminal law, any sexual penetration without the victim's consent constituted rape, reflecting a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse. In general, law and legal practice concerning rape were developing to reflect changing social attitudes requiring respect for the individual's sexual autonomy and for equality. Given contemporary standards and trends, positive obligation under Articles 3 and 8 of the Convention required the penalisation and effective prosecution of any non-consensual sexual act, even where the victim had not resisted physically.  

The applicant alleged that the authorities' attitude in her case was rooted in defective legislation and reflected a practice of prosecuting rape perpetrators only where there was evidence of significant physical resistance. The Court accepted her argument. It observed that the prosecuting authorities had failed to explore fully the available possibilities for establishing all the circumstances of the case. The reason for that failure appeared to be that they considered that a “date rape” had occurred. They considered that in the absence of direct proof of rape such as traces of violence and resistance or calls for help, they could not find that a rape had occurred.  

The Court considered that the Bulgarian authorities should have explored all the facts and should have decided on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions should also have been centered on the issue of the victim's non-consent. The Court found that the effectiveness of the investigation of the applicant's case and, in particular, the approach taken by the investigator and the prosecutors fell short of Bulgaria's positive obligations under Articles 3 and 8 of the Convention – viewed in the light of the relevant modern standards in comparative and international law – to establish and apply effectively a  criminal law system punishing all forms of rape and sexual abuse.  

An application has been made and allowed to have this case re-examined by the Grand Chamber. It remains to be seen whether the  conclusion of the Chamber which gave this judgment will be upheld. If this is the case, the judgment will have a significant importance for the position of victim of rape in criminal proceedings in which responsibility of the perpetrator is sought.  

  • M. C. v. Bulgaria, judgment of 4 December 2003.

 

10.Link between the Convention and other international instruments  

It is to be noted that in some cases the Court relies heavily on other instruments of international law, so as to clarify the meaning of legal concepts relevant to the case. In the context of reproductive rights it is important, given that there is a number of reproductive rights  specific instruments, which define these rights much more broadly than the Convention does and impose stronger obligations on states.

These instruments can be resorted to and invoked in the proceedings before the Court to show that reproductive rights have acquired a legal existence of their own in international law. The Court often relies on various documents of international and domestic law in order to establish fully legal situation relevant for the outcome of the case.  

The case-law of the Court, however, as to the use to which such instruments, other than the Convention, can be put, is double edged and can lead to contradictory solutions. It says that the Court is competent only to interpret and apply the European Convention of Human Rights and Fundamental Freedoms, while it lacks competence to apply other international conventions as such.  

  • Eur. Comm. HR, No 13258/87, Dec.9.2.90, D.R. 64, pp. 138, 152.

Nevertheless, it can be useful to take into consideration, in the interpretation of the Convention, provisions of other international instruments, which protect the same rights as the Convention, but which afford a broader protection of these rights. The use of other international instruments, however, cannot give rise to such interpretation of the rights guaranteed by the Convention that the States Parties expressly wanted to exclude.

  • Eur. Comm. HR, No 21072/92, Dec. 16.1.95, D.R. 80, pp. 89, 93.

In any event, it will never hurt to include reference to such instruments and texts when submitting an application to the Court, if they can support the applicant's case.

 

References:

1 Mertus, Goldber, 'A Perspective on Women and International Human Rights After the Vienna Declaration', 26 NYU J Int'l Law and Politics, 201,202, 1994.  
2 Programme of Action of the 1994 International Conference on Population and Development in Cairo .  
3 Decisions of the former Commission used to be published In Decisions and Reports, referred to as D.R. Judgments of the old Court were published In Series A. Judgments and decisions of the new Court, i.e. these given since 1 November 1998, are published in Reports of Judgments and Decisions, referred to as Reports. From purely practical point of view, it is preferable that these sources are referred to when a case is submitted to the Court, but it is not strictly necessary. The reference to the name of the case, and its number when a decision is concerned, will be sufficient.  

4 www.echr.coe.int  
5 HUDOC

6 Please note the importance of this judgment, which is highly relevant for issues concerning voluntary termination of pregnancy. It will be presented below. coe.int
7 Dissenting opinion of Judge Fitzmaurice in Ireland v. the UK judgment, referred to above.

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