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 Krzyżanowska-Mierzewska
PART II
PART III
Introduction to the system for
protection of human rights under the European Convention on the Protection
of Human Rights and Fundamental Freedoms
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.
The European Court of Human Rights in
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
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).
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.
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?
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.
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?
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.
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.
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.
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.
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”.
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.
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 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
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.
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.
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 §
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
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.
-
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
-
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
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,
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
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
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
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.
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.
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.
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)
"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)
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.
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 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
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:
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);
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.
-
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
2 Programme of Action of the 1994
International Conference on Population and Development in
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.