The ECHR and the Biomedicine Convention prof. Rick Lawson University of Leiden.

The ECHR and the Biomedicine Convention

prof. Rick LawsonUniversity of Leiden

““the European Court of Human the European Court of Human Rights … is more than just Rights … is more than just another European institution, it is another European institution, it is a symbol. It harmonises law and a symbol. It harmonises law and justice and tries to secure, as justice and tries to secure, as impartially and as objectively as is impartially and as objectively as is humanly possible, fundamental humanly possible, fundamental rights, democracy and the rule of rights, democracy and the rule of law so as to guarantee long-law so as to guarantee long-lasting international stability, lasting international stability, peace and prosperity. peace and prosperity.

The European Convention on Human The European Convention on Human Rights has brought into being the Rights has brought into being the most effective international system of most effective international system of human rights protection ever human rights protection ever developed. As the most successful developed. As the most successful attempt to implement the UN’s attempt to implement the UN’s Universal Declaration of Human Rights Universal Declaration of Human Rights of 1948 in a legally binding way, it is of 1948 in a legally binding way, it is part of the heritage of international part of the heritage of international law; it constitutes a shining example law; it constitutes a shining example in those parts of the world …in those parts of the world …

……where human rights protection, where human rights protection, whether national or international, whether national or international, remains an aspiration rather than a remains an aspiration rather than a reality; it is both a symbol of, and a reality; it is both a symbol of, and a catalyst for, the victory of democracy catalyst for, the victory of democracy over totalitarian government; it is the over totalitarian government; it is the ultimate expression of the capacity, ultimate expression of the capacity, indeed the necessity, for democracy indeed the necessity, for democracy and the rule of law to transcend and the rule of law to transcend frontiers”.frontiers”.

(Judge Wildhaber, then President ECtHR, (Judge Wildhaber, then President ECtHR, 20 January 2006)20 January 2006)

ECHR v. Biomedicine Convention

an unequal battle:• geographical scope• enforcement• contents

Council of Europe

ECHR – signatories

Council of Europe

Biomed. Conv. – signatories

22nd ratification: Switzerland1 November 2008

ECHR – enforcement

states(Art. 33 ECHR)

indivi-duals(Art. 34 ECHR)

inadmissible(Artt. 34, 35 ECHR)in practice: 92%

friendly settlement (Art. 38 ECHR)

judgment(Artt. 41-46 ECHR)

Committee of Ministers

supervises execution

Individual complaints...

Biomed. Conv. – enforcement

four elements:

• Article 23 (“The Parties shall provide appropriate judicial protection ...”)

• Article 29 (ECtHR may give advisory opinions)• Article 30 (reports on application of

Convention at request of SG CoE)• “the Committee” ( intergovernmental

Steering Committee on Bioethics (CDBI))

What about substance?

ECHR

health

restrictions and

limitations for public

health reasons

(Article 5, Articles 8-11 ECHR)

ECHR & public health

restrictions on rights – examples:

• ECtHR, 24 October 1979, Winterwerp v. NL (Appl. No. 6301/73) – compulsory confinement “unsound mind”

• ECtHR, 25 January 2005, Enhorn v. Sweden (Appl. No. 56529/00) – compulsory isolation order “infectious disease”

• ECtHR, 7 October 2008, Bogumil v. Portugal (Appl. No. 35228/03) – surgery (cocaine in stomach), therapeutic reasons

ECHR & public health

on second thought – more issues:

• ECtHR, 29 April 2002, Pretty v. UK (Appl. No. 2346/02) – right to die?

• ECtHR, 8 July 2004, Vo v. France (Appl. No. 53924/00) – right to life for the unborn child?

• ECtHR, 20 March 2007, Tysiąc v. Poland (Appl. No. 5410/03) – right to abortion?

• ECtHR, 10 April 2007, Evans v. UK (Appl. No. 6339/05) – ’genetic parenthood’

ECHR & public health

positive obligations:

• ECtHR, 29 April 2003, McGlinchey v. UK (Appl. No. 50390/9) – duty of care for prisoners

• ECtHR, 5 April 2005, Nevmerzhitsky v. Ukraine (Appl. No. 54825/00) – forced feeding of hunger striker

• ECtHR, 8 July 2003, Sentges v. NL (Appl. No. 27677/02, adm.) – robotic arm not provided

What about substance?

ECHRhealth

ECHR & public health

references to Biomedicine Convention:

• ECtHR, 10 May 2001, Cyprus v. Turkey (Appl. No. 25781/94) – partly dissenting opinion of Mr Marcus-Helmons

“With the rapid evolution of biomedical techniques, new threats to human dignity may arise. The

Convention on Human Rights and Biomedicine, signed at Oviedo in 1997, seeks to cover some of

those dangers”

Cyprus v. Turkey (2001)

Turkey

“TRNC”

Rep. of Cyprus

UN buffer zone

Cyprus v. Turkey (2001)

Judge Marcus-Helmons “My view is that, at a time when freedom of movement is regarded as essential, especially when it comes to obtaining optimal medical care, a denial of such freedom by the State amounts to a serious breach of its obligations towards those within its jurisdiction. I consider that is something which may amount to a violation of the State's undertaking under Article 2 of the Convention to protect everyone's right to life by law.

We are living in a period of rapid scientific evolution and there may be substantial differences between institutions offering medical treatment, whether from one country to another or within the same country. For a State to use force to prevent a person from attending the institution which he considers offers him the best chance of recovery is to my mind highly reprehensible”

ECHR & public health

references to Biomedicine Convention:

• ECtHR, 10 April 2007, Evans v. UK (Appl. No. 6339/05) – ’genetic parenthood’

• ECtHR, 11 October 2007, Özalp v. Turkey (Appl. No. 74300/01, adm. dec.) – forced gynaecological examination following arrest

• ECtHR, 6 May 2008, Juhnke v. Turkey (Appl. No. 52515/99 – forced gynaecological examination following arrest

“relevant international materials”

ECHR & public health

more compelling references to Biomedicine Convention:

• ECtHR, 8 July 2004, Vo v. France (Appl. No. 53924/00) – right to life for the unborn child?

• ECtHR, 9 March 2004, Glass v. UK (Appl. No. 61827/00) – parental consent to medical treatment of child

ECHR & public health

Vo:

84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or

foetus, although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic

engineering, medically assisted procreation or embryo experimentation. ... The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give

a definition of the term “everyone” .... The same is true of the Additional Protocol

ECHR & public health

more compelling references to Biomedicine Convention:

• ECtHR, 8 July 2004, Vo v. France (Appl. No. 53924/00) – right to life for the unborn child?

• ECtHR, 9 March 2004, Glass v. UK (Appl. No. 61827/00) – parental consent to medical treatment of child

75. The Court would ... add that it does not consider that the regulatory framework in place in

the United Kingdom is in any way inconsistent with the standards laid down in the Council of Europe's Convention on Human Rights and

Biomedicine in the area of consent ...

ECHR & public health

latest news: ECtHR, 12 November 2008, Demir and Baykara v. Turkey (Appl. No. 34503/97)

[after recalling reference to Biomed Conv in Glass]

85.  The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

ECHR & public health

The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases 86.  In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned.

It will be sufficient for the Court that the relevant international

instruments denote a continuous evolution in the

norms and principles applied in international law or in the

domestic law of the majority of member States of the Council

of Europe and show, in a precise area, that there is

common ground in modern societies.

What about the future?

ECHR BiomedicineConvention