CONSEIL
DE L’EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF VO v. FRANCE
(Application no. 53924/00)
JUDGMENT
STRASBOURG
8 July 2004
VO v. FRANCE JUDGMENT 1
In the case of Vo v. France,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Mr L. WILDHABER, President,
Mr C.L. ROZAKIS,
Mr J.-P. COSTA,
Mr G. RESS,
Sir Nicolas BRATZA,
Mr L. CAFLISCH,
Mrs V. STRÁŽNICKÁ,
Mr P. LORENZEN
Mr K. JUNGWIERT,
Mr M. FISCHBACH,
Mr J. HEDIGAN,
Mrs W. THOMASSEN,
Mr A.B. BAKA,
Mr K. TRAJA,
Mr M. UGREKHELIDZE,
Mrs A. MULARONI,
Mr K. HAJIYEV, judges,
and Mr P.J. MAHONEY, Registrar,
Having deliberated in private on 10 December 2003 and 2 June 2004,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case originated in an application (no. 53924/00) against the
French Republic lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Mrs Thi-Nho Vo (“the applicant”), on
20 December 1999.
2. The applicant was represented by Mr B. Le Griel, of the Paris Bar.
The French Government (“the Government”) were represented by their
Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign
Affairs.
3. The applicant alleged, in particular, a violation of Article 2 of the
Convention on the ground that the conduct of a doctor who was responsible
for the death of her child in utero was not classified as unintentional
homicide.
4. The application was allocated to the Third Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber to
2 VO v. FRANCE JUDGMENT
which the case had been assigned decided on 22 May 2003 to relinquish
jurisdiction in favour of the Grand Chamber with immediate effect, none of
the parties having objected to relinquishment (Article 30 of the Convention
and Rule 72).
5. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
6. The applicant and the Government each filed observations on the
admissibility and merits of the case. In addition, observations were also
received from the Center for Reproductive Rights and the Family Planning
Association, which had been given leave by the President to intervene in the
written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
7. A hearing on the admissibility and merits of the case took place in
public in the Human Rights Building, Strasbourg, on 10 December 2003
(Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr F. ALABRUNE, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr G. DUTERTRE, Drafting Secretary,
Human Rights Section,
Legal Affairs Department,
Ministry of Foreign Affairs,
Mrs J. VAILHE, Drafting Secretary,
European and International Affairs Department,
Ministry of Justice,
Mr P. PRACHE, Department of Criminal Affairs and Pardons,
Ministry of Justice,
Mr H. BLONDET, judge of the Court of Cassation,
Mrs V. SAGANT, European and International Affairs Department,
Ministry of Justice, Counsel;
(b) for the applicant
Mr B. LE GRIEL, of the Paris Bar, Counsel.
The Court heard addresses by Mr Le Griel and Mr Alabrune.
8. In accordance with the provisions of Article 29 § 3 of the Convention
and Rule 54A § 3, the Court decided to examine the issue of admissibility of
the application with the merits.
VO v. FRANCE JUDGMENT 3
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1967 and lives in Bourg-en-Bresse.
10. On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of
Vietnamese origin, attended Lyons General Hospital for a medical
examination scheduled during the sixth month of pregnancy.
11. On the same day another woman, Mrs Thi Thanh Van Vo, was due
to have a contraceptive coil removed at the same hospital. When Dr G., who
was to remove the coil, called out the name “Mrs Vo” in the waiting-room,
it was the applicant who answered.
After a brief interview, the doctor noted that the applicant had difficulty
in understanding French. Having consulted the medical file, he sought to
remove the coil without examining her beforehand. In so doing, he pierced
the amniotic sac causing the loss of a substantial amount of amniotic fluid.
After finding on clinical examination that the uterus was enlarged, the
doctor ordered a scan. He then discovered that one had just been performed
and realised that there had been a case of mistaken identity. The applicant
was immediately admitted to hospital.
Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo,
but was unsuccessful and so prescribed an operation under general
anaesthetic for the following morning. A further error was then made when
the applicant was taken to the operating theatre instead of Mrs Thi Thanh
Van Vo, and only escaped the surgery intended for her namesake after she
protested and was recognised by an anaesthetist.
12. The applicant left the hospital on 29 November 1991. She returned
on 4 December 1991 for further tests. The doctors found that the amniotic
fluid had not been replaced and that the pregnancy could not continue
further. The pregnancy was terminated on health grounds on 5 December
1991.
13. On 11 December 1991 the applicant and her partner lodged a
criminal complaint, together with an application to join the proceedings as
civil parties, alleging unintentional injury to the applicant entailing total
unfitness for work for a period not exceeding three months and
unintentional homicide of her child. Three expert reports were subsequently
filed.
14. The first, which was filed on 16 January 1992, concluded that the
foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grams,
was 28 centimetres long, had a cranial perimeter of 17 centimetres and had
not breathed after delivery. The expert also concluded that there was no
indication that the foetus had been subjected to violence or was malformed
and no evidence that the death was attributable to a morphological cause or
4 VO v. FRANCE JUDGMENT
to damage to an organ. Further, the autopsy performed after the abortion and
an anatomico-pathological examination of the body indicated that the foetal
lung was 20 to 24 weeks old.
15. On 3 August 1992 a second report was filed concerning the
applicant’s injuries:
“(a) There is a period of temporary total unfitness for work from 27 November
1991 to 13 December 1991, when the patient was admitted to the Tonkin Clinic with
an entirely unconnected pathology (appendectomy)
(b) the date of stabilisation can be put at 13 December 1991
(c) there is no loss of amenity
(d) there is no aesthetic damage
(e) there is no occupational damage
(f) there is no partial permanent unfitness for work
Damage in terms of pain and suffering resulting from this incident still has to be
assessed. The assessment should be carried out with a doctor of Vietnamese extraction
specialising in psychiatry or psychology.”
16. The third report, which was issued on 29 September 1992, referred
to the malfunctioning of the hospital department concerned and to
negligence on the part of the doctor:
“1. The manner in which appointments in the departments run by Professors [T.]
and [R.] at Lyons General Hospital are organised is not beyond reproach, in particular
in that namesakes are common among patients of foreign origin and create a risk of
confusion, a risk that is undoubtedly increased by the patients’ unfamiliarity with or
limited understanding of our language.
2. The fact that patients were not given precise directions and the consulting rooms
and names of the doctors holding surgeries in them were not marked sufficiently
clearly increased the likelihood of confusion between patients with similar surnames
and explains why, after Dr [G.] had acquainted himself with Mrs Thi Thanh Van Vo’s
medical file, it was [the applicant] who came forward in response to his call.
3. The doctor acted negligently, by omission, and relied solely on the paraclinical
examinations. He did not examine his patient and by an unfortunate error ruptured the
amniotic sac, causing the pregnancy to terminate at five months. He is accountable for
that error, although there are mitigating circumstances.”
17. On 25 January 1993, and also following supplemental submissions
by the prosecution on 26 April 1994, Dr G. was charged with causing
unintentional injury at Lyons on 27 November 1991 by:
(i) through his inadvertence, negligent act or inattention, perforating the
amniotic sac in which the applicant’s live and viable foetus was developing,
thereby unintentionally causing the child’s death (a criminal offence under
VO v. FRANCE JUDGMENT 5
Article 319 of the former Criminal Code – which was applicable at the
material time – now Article 221-6 of the Criminal Code);
(ii) through his inadvertence, negligent act, inattention, negligent
omission or breach of a statutory or regulatory duty of protection or care,
causing the applicant bodily injury that resulted in her total unfitness for
work for a period not exceeding three months (a criminal offence under
Article R. 40, sub-paragraph 4, of the former Criminal Code – which was
applicable at the material time – now Articles R. 625-2 and R. 625-4 of the
Criminal Code).
18. By an order of 31 August 1995, Dr G. was committed to stand trial
in the Lyons Criminal Court on counts of unintentional homicide and
unintentionally causing injuries.
19. By a judgment of 3 June 1996, the Criminal Court found that the
accused was entitled as of right to an amnesty under the Amnesty Law of
3 August 1995 in respect of the offence of unintentionally causing injuries
entailing temporary unfitness for work of less than three months. As to the
offence of unintentional homicide of the foetus, it held:
“The issue before the Court is whether the offence of unintentional homicide or the
unintentional taking of the foetus’s life is made out when the life concerned is that of a
foetus – if a 20 to 21 week-old foetus is a human person (‘another’ within the meaning
of Article 221-6 of the Criminal Code).
...
The expert evidence must be accepted. The foetus was between 20 and 21 weeks
old.
At what stage of maturity can an embryo be considered a human person?
The Voluntary Termination of Pregnancy Act of 17 January 1975 provides: ‘The
law guarantees respect of every human being from the beginning of life.’
The Law of 29 July 1994 (Article 16 of the Civil Code) provides: ‘The law secures
the primacy of the person, prohibits any assault on human dignity and guarantees the
respect of every human being from the beginning of its life’.
The laws of 29 July 1994 expressly employed the terms ‘embryo’ and ‘human
embryo’ for the first time. However, the term ‘human embryo’ is not defined in any of
them.
When doing the preparatory work for the legislation on bioethics, a number of
parliamentarians (both members of the National Assembly and senators) sought to
define ‘embryo’. Charles de Courson proposed the following definition: ‘Every human
being shall be respected from the start of life; the human embryo is a human being.’
Jean-François Mattéi stated: ‘The embryo is in any event merely the morphological
expression of one and the same life that begins with impregnation and continues till
death after passing through various stages. It is not yet known with precision when the
zygote becomes an embryo and the embryo a foetus, the only indisputable fact being
that the life process starts with impregnation.’
6 VO v. FRANCE JUDGMENT
It thus appears that there is no legal rule to determine the position of the foetus in
law either when it is formed or during its development. In view of this lack of a legal
definition it is necessary to return to the known scientific facts. It has been established
that a foetus is viable at 6 months and on no account, on present knowledge, at 20 or
21 weeks.
The Court must have regard to that fact (viability at 6 months) and cannot create law
on an issue which the legislators have not yet succeeded in defining.
The Court thus notes that a foetus becomes viable at the age of 6 months; a 20 to 21
week-old foetus is not viable and is not a ‘human person’ or ‘another’ within the
meaning of former Article 319 and Article 221-6 of the Criminal Code.
The offence of unintentional homicide or of unintentionally taking the life of a 20 to
21 week-old foetus has not been made out, since the foetus was not a ‘human person’
or ‘another’...
Acquits Dr G. on the charge without penalty or costs ...”
20. On 10 June 1996 the applicant appealed against that judgment. She
argued that Dr G. had been guilty of personal negligence severable from the
functioning of the public service and sought 1,000,000 French francs (FRF)
in damages, comprising FRF 900,000 for the death of the child and
FRF 100,000 for the injury she had sustained. The public prosecutor’s
office, as second appellant, submitted that the acquittal should be
overturned. It observed: “By failing to carry out a clinical examination, the
accused was guilty of negligence that caused the death of the foetus, which
at the time of the offence was between 20 and 24 weeks old and following,
normally and inexorably, the path of life on which it had embarked, there
being no medical doubt over its future.”
21. In a judgment of 13 March 1997, the Lyons Court of Appeal upheld
the judgment in so far as it had declared the prosecution of the offence of
unintentionally causing injuries time-barred but overturned the remainder of
the judgment and found the doctor guilty of unintentional homicide. It
imposed a six-month suspended prison sentence and a fine of FRF 10,000,
holding:
“... In the instant case Dr [G.]’s negligence is characterised in particular by the fact
that the patient’s knowledge of French was insufficient to enable her to explain her
condition to him, to answer his questions or to give him the date of her last period,
circumstances that should have further impressed upon him the need for a thorough
clinical examination. The assertion that he was entitled to rely on the medical records
alone shows that, though an able scientist, this young doctor was nonetheless unaware
of one of the essential skills of the practice of medicine: listening to, getting to know
and examining the patient. Indeed, before this Court Dr [G.] said that the accident had
impressed upon him how vital it was to take precautions before operating.
There is a clear causal link between this negligent act and omission and the death of
the child Mrs Vo was carrying. The accused has himself acknowledged, with
VO v. FRANCE JUDGMENT 7
commendable honesty, that a clinical examination would have alerted him to the fact
that the patient was pregnant and had been mistaken for another patient.
As regards the classification of the offence as unintentional homicide, it is first
necessary to reiterate the legal principles governing this sphere.
Various provisions of international treaties, such as Article 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6
of the International Covenant on Civil and Political Rights and Article 6 of the
Convention on the Rights of the Child signed in New York on 26 January 1990,
recognise a right to life protected by law for everyone, and notably children.
Under domestic law, section 1 of the Voluntary Termination of Pregnancy Act
(Law no. 75-17 of 17 January 1975) specifies: ‘The law guarantees respect of every
human being from the beginning of life ... this principle may only be derogated from
in the event of necessity and in accordance with the conditions set out in this statute.’
Further, Law no. 94-653 of 29 July 1994 on the respect of the human body lays
down in Article 16 of the Civil Code: ‘The law secures the primacy of the person,
prohibits any assault on human dignity and guarantees the respect of every human
being from the beginning of its life.’
These statutory provisions cannot be regarded as mere statements of intent, devoid
of any legal effect, since Article 16-9 of the Civil Code indicates that the provisions of
Article 16 are mandatory.
For its part the Criminal Division of the Court of Cassation applied these rules of
international and domestic law in two judgments it delivered on 27 November 1996,
specifying that the Act of 17 January 1975 only permits derogation from the rule
stated in section 1 thereof that every human being is entitled to respect from the
beginning of life in cases of necessity and subject to the conditions and limitations set
out in it.
The Court of Cassation added that, having regard to the conditions laid down by the
legislature, the provisions of that statute and of the law of 31 December 1979 on the
voluntary termination of pregnancy, taken as a whole, were not incompatible with the
aforementioned treaty provisions.
In a different case, moreover, the Court of Cassation pointed out that on signing the
Convention on the Rights of the Child in New York on 26 January 1990, France made
a declaration concerning interpretation in which it stated that the convention could not
be interpreted as constituting any obstacle to the implementation of the provisions of
French legislation on the voluntary termination of pregnancy. That reservation shows,
by converse implication, that that convention could concern a foetus aged less than
10 weeks, the statutory maximum foetal age in France for a voluntary termination of
pregnancy.
It follows that, subject to the provisions on the voluntary termination of pregnancies
and therapeutic abortions, the right to respect for every human being from the
beginning of life is guaranteed by law, without any requirement that the child be born
as a viable human being, provided it was alive when the injury occurred.
Indeed, viability is a scientifically indefinite and uncertain concept, as the accused,
who is currently studying in the United States, himself acknowledged, informing the
8 VO v. FRANCE JUDGMENT
Court that foetuses born between 23 and 24 weeks after conception could now be kept
alive, a situation that was inconceivable a few years ago. In the opinion prepared by
Professor [T.] and adduced in evidence by Dr [G.], reference is made to a report by
Professor Mattéi in which it is indicated that the embryo is merely the morphological
expression of one and the same life that begins with impregnation and continues till
death after passing through various stages. It is not yet known with precision when the
zygote becomes an embryo and the embryo a foetus, the only indisputable fact being
that the life process starts with impregnation. ...
Thus the issue of viability at birth, a notion that is uncertain scientifically, is in
addition devoid of all legal effect, as the law makes no distinction on that basis.
In the instant case it has been established that when the scan was performed on
27 November 1991 – before the amniotic fluid was lost later that day – the
[applicant’s] pregnancy had been proceeding normally and the child she was carrying
was alive. When the therapeutic abortion was performed on 5 December 1991, it was
noted that a comparison of the child’s measurements with published tables suggested
that the foetus was between 20 and 21 weeks old and possibly older, as it is not certain
that the tables take into account the specific morphology of children of Vietnamese
origin. Dr [G.], when questioned on this point at the hearing, was unable to provide
any further information. The conclusion from the anatomo-pathological examination
was that the foetal lung indicated an age of between 20 and 24 weeks, its
measurements suggesting that an age at the lower end of that range was the most
likely. In any event, as Dr [G.] said in evidence, the age of the foetus was very close to
that of certain foetuses that have managed to survive in the United States. The
photographs at page D 32 of the trial bundle show a perfectly formed child whose life
was cut short by the accused’s negligence.
As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the
assault on the child concerned inflicted a non-fatal wound, it would have been
classified without any hesitation as an offence of unintentionally causing injuries. A
fortiori, an assault leading to the child’s death must be classified as unintentional
homicide.
Thus, the strict application of the legal principles, established scientific fact and
elementary common sense all dictate that a negligent act or omission causing the death
of a 20 to 24 week-old foetus in perfect health should be classified as unintentional
homicide.
Consequently, the impugned judgment must be overturned ...
While [the applicant’s] civil action is admissible, if only to corroborate the
prosecution case, this Court has no jurisdiction to hear the claim for reparation. This is
because despite the serious nature of the negligent act and omission of Dr [G.], a
doctor in a public hospital, they do not constitute personal misconduct of such
exceptional gravity entailing a total disregard for the most elementary principles and
duties inherent in his function as to make them severable from public service.
Nonetheless, it is appropriate to order Dr [G.] to pay to this civil party compensation
in the sum of 5,000 francs under Article 475-1 of the Code of Criminal Procedure on
account of costs which she has incurred, but which have not been paid by the State.
...”
VO v. FRANCE JUDGMENT 9
22. On 30 June 1999, on an appeal on points of law by the doctor, the
Court of Cassation reversed the judgment of the Lyons Court of Appeal and
ruled that there was no reason to remit the case for retrial:
“Having regard to Article 111-4 of the Criminal Code:
Criminal-law provisions must be strictly construed.
...
In convicting [the doctor] of unintentional homicide, the appellate court noted that
Article 2 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms and Article 6 of the International Covenant on Civil and
Political Rights recognise the existence for all persons of a right to life protected by
law. The appellate court stated that the Voluntary Termination of Pregnancy Act of
17 January 1975 establishes the rule that the life of every human being must be
respected from the beginning of life. That rule is now restated in Article 16 of the
Civil Code as worded following the amendment made by the Law of 29 July 1994.
The appellate court went on to state that, by operating without performing a prior
clinical examination, the doctor was guilty of a negligent act or omission that had a
definite causal link with the death of the child the patient was carrying.
However, by so holding, when the matters of which the defendant was accused did
not come within the definition of the offences set out in former Article 319 and
Article 221-6 of the Criminal Code, the Court of Appeal misinterpreted the
aforementioned provisions.
...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Code
23. The provision dealing with the unintentional taking of life at the
material time and until 1 March 1994 was Article 319 of the Criminal Code,
which read as follows:
“Anyone who through his or her inadvertence, negligent act, inattention, negligent
omission or breach of regulation unintentionally commits homicide or unintentionally
causes death, shall be liable to imprisonment of between three months and two years
and a fine of between 1,000 and 30,000 francs.”
24. Since 1 March 1994, the relevant provision has been Article 221-6 of
the Criminal Code (as amended by Law no. 2000-647 of 10 July 2000 and
Order no. 2000-916 of 19 September 2000), which is to be found in
Section II (“Unintentional taking of life”) of Chapter I (“Offences against
the life of the person”) of Part II (“Offences against the human person”) of
10 VO v. FRANCE JUDGMENT
Book II (“Serious crimes (crimes) and other major offences (délits) against
the person”). Article 221-6 provides:
“It shall be an offence of unintentional homicide punishable by three years’
imprisonment and a fine of 45,000 euros to cause the death of another in the
conditions and in accordance with the distinctions set out in Article 121-3 by
inadvertence, negligent act, inattention, negligent omission or breach of a statutory or
regulatory duty of safety or care.
In the event of a manifestly deliberate breach of a special statutory or regulatory
duty of safety or care, the maximum sentences shall be increased to five years’
imprisonment and a fine of 75,000 euros.”
25. Article 223-10 of the Criminal Code, which concerns the voluntary
termination of pregnancy by a third party without the mother’s consent, is to
be found in Section V under the heading “Unlawful termination of
pregnancy” of Chapter III, entitled “Endangering the person”, in Part II of
Book II. It reads as follows:
“It shall be an offence punishable by five years’ imprisonment and a fine of
75,000 euros to terminate a pregnancy without the mother’s consent.”
26. Section III entitled “Protection of the human embryo” of Chapter I
(“Offences against biomedical ethics”) of Part I (“Public-health offences”)
of Book V (“Other serious crimes (crimes) and other major offences
(délits)”) prohibits various types of conduct on grounds of medical ethics
(Articles 511-15 to 511-25), including the conception of human embryos in
vitro for research or experimental purposes (Article 511-18).
B. The Public Health Code
27. At the material time the limitation period for an action in damages in
the administrative courts was four years, while the period in which a
pregnancy could be voluntarily terminated lawfully was ten weeks
following conception.
28. The provisions of the Public Health Code as worded since the
Patients’ Rights and Quality of the Health Service Act (Law no. 2002-303
of 4 March 2002) came into force read as follows:
Article L. 1142-1
“Save where they incur liability as a result of a defect in a health product, the
medical practitioners mentioned in Part IV of this Code and all hospitals, clinics,
departments and organisations in which preventive medicine, diagnosis or treatment is
performed on individuals shall only be liable for damage caused by preventive
medicine, diagnosis or treatment if they have been at fault.
...”
VO v. FRANCE JUDGMENT 11
Article L. 1142-2
“Private medical practitioners, the hospitals, clinics, health services and
organisations mentioned in Article L. 1142-1 and any other legal entity other than the
State that is engaged in preventive medicine, diagnosis or treatment and the producers
and suppliers of and dealers in health products in the form of finished goods
mentioned in Article L. 5311-1 with the exception of sub-paragraph 5 thereof, subject
to the provisions of Article L. 1222-9, and sub-paragraphs 11, 14 and 15, that are used
in connection with such activities shall be under a duty to take out insurance in respect
of any third-party or administrative liability they may incur for damage sustained by
third parties as a result of an assault against the person in the course of that activity
taken as a whole.
...”
Article L. 1142-28
“The limitation period for actions against medical practitioners and public or private
hospitals or clinics in respect of preventive medicine, diagnosis or treatment shall be
ten years from the date the condition stabilises.”
Article L. 2211-1
“As stated in Article 16 of the Civil Code as hereafter reproduced: ‘
‘The law secures the primacy of the person, prohibits any assault on human dignity
and guarantees the respect of every human being from the beginning of its life.’ ”
Article L. 2211-2
“The principle referred to in Article L. 2211-1 may only be derogated from in the
event of necessity and in accordance with the conditions set out in this Part. It shall be
the nation’s duty to educate society on this principle and its consequences, [to provide]
information on life’s problems and on national and international demography, to
inculcate a sense of responsibility, to receive children into society and to uphold
family life. The State, aided by the local and regional authorities, shall perform these
obligations and support initiatives that assist it to do so.”
Article L. 2212-1
“A pregnant woman whose condition causes her distress may ask a doctor to
terminate her pregnancy. The pregnancy may only be terminated within the first
twelve weeks.”
Article L. 2213-1
“A pregnancy may be voluntarily terminated at any time if two doctors from a
pluridisciplinary team certify, after the team has issued a consultative opinion, that
either the woman’s continued pregnancy puts her health at serious risk or that it is
12 VO v. FRANCE JUDGMENT
highly likely that the unborn child is suffering from a particularly serious affection
which is recognised as incurable at the time of diagnosis.
...”
C. The position taken by the Court of Cassation
29. The Court of Cassation has followed its decision in the instant case
(see paragraph 22 above) on two occasions (in its judgments of 29 June
2001 (full court), Bulletin no. 165, and of 25 June 2002 (Criminal Division),
Bulletin no. 144), despite submissions from the advocates-general
concerned to the contrary.
1. Judgment of the full court of 29 June 2001
“As regards the two grounds of appeal of the public prosecutor at the Metz Court of
Appeal and of Mrs X which have been joined together ... :
On 29 July 1995 a vehicle being driven by Mr Z collided with a vehicle being
driven by Mrs X, who was six months pregnant. She was injured and as a result of the
impact lost the foetus she was carrying. In the impugned judgment (Metz Court of
Appeal, 3 September 1998), Mr Z was convicted of unintentionally injuring Mrs X,
aggravated by the fact that he was under the influence of drink. However, he was
acquitted of the unintentional killing of the unborn child.
The grounds of appeal against that decision are, firstly, that Article 221-6 of the
Criminal Code, which makes it an offence to cause the death of another, does not
exclude from its scope a viable unborn child and that, by holding that this provision
applied only to a child whose heart was beating at birth and who was breathing, the
Court of Appeal had added a condition that was not contained in the statute, and,
secondly, unintentionally causing the death of an unborn child constituted the offence
of unintentional homicide if the unborn child was viable at the material time,
irrespective of whether or not it breathed when it was separated from the mother, with
the result that there had been a violation of Articles 111-3, 111-4 and 221-6 of the
Criminal Code and Article 593 of the Code of Criminal Procedure.
The rule that offences and punishment must be defined by law, which requires that
criminal statutes be construed strictly, pleads against extending the scope of
Article 221-6 of the Criminal Code, which makes unintentional homicide an offence,
to cover unborn children whose status in law is governed by special provisions
concerning embryos and foetuses.
...”
VO v. FRANCE JUDGMENT 13
2. Judgment of the Criminal Division of 25 June 2002
“...
Having regard to former Article 319, Article 221-6 and Article 111-4 of the
Criminal Code:
The rule that offences and punishment must be defined by law, which requires that
criminal statutes be construed strictly, pleads against a charge of unintentional
homicide lying in the case of a child that is not born alive.
The impugned judgment established that Z, whose pregnancy under the supervision
of X came to term on 10 November 1991, attended the clinic in order to give birth on
17 November. She was placed under observation at about 8.30 p.m. and drew the
attention of the midwife, Y, to an anomaly in the child’s cardiac rhythm. Y refused to
call the doctor. A further test carried out at 7 a.m. the following morning showed a
like anomaly and subsequently that the heart had stopped beating altogether. At about
8 a.m., X pronounced the baby dead. In the evening he proceeded to extract the
stillborn child by caesarean section. According to the autopsy report, the child did not
present any malformation but had suffered from anoxia.
In finding Y guilty of unintentional homicide and X, who was acquitted by the
Criminal Court, liable for the civil consequences of that offence, the Court of Appeal
held that the child’s death was a result of the negligent acts and omissions of both the
doctor in failing to place the patient, who was beyond term, under closer observation
and of the midwife in failing to notify an unequivocal anomaly noted when the child’s
cardiac rhythm was recorded.
After noting that the stillborn child did not present any organic lesion capable of
explaining its death, the Court of Appeal stated: ‘This child had reached term several
days previously and, but for the fault that has been found, would have been capable of
independent survival, with a human existence separate from its mother’s.’
However, by so holding, the Court of Appeal misapplied the provisions referred to
above and the aforementioned principles.
It follows that this appeal on points of law is allowed. The case will not be remitted,
as the facts are not capable of coming within the definition of any criminal offence.
...”
30. The Criminal Division of the Court of Cassation has held that a court
of appeal gave valid reasons for finding a defendant guilty of the
unintentional homicide of a child who died an hour after its birth on the day
of a road traffic accident in which its mother, who was eight months’
pregnant, was seriously injured, when it held that, by failing to control his
vehicle, the driver had caused the child’s death an hour after birth as a result
of irreversible lesions to vital organs sustained at the moment of impact
(Court of Cassation, Criminal Division, 2 December 2003).
14 VO v. FRANCE JUDGMENT
31. An article entitled “Unintentional violence on pregnant women and
the offence of unintentional homicide” (Recueil Dalloz 2004, p. 449) notes
that in twenty-eight out of a total of thirty-four articles commenting on the
Criminal Division of the Court of Cassation’s judgment of 2 December
2003 (see paragraph 30 above) the authors are critical of the Court of
Cassation’s case-law (see paragraph 29 above).
The criticism includes: the laconic reasoning of the Court of Cassation’s
judgments and incoherence of the protection afforded, as a person causing
unintentional injury is liable to criminal prosecution while a person who
unintentionally causes the death of the foetus goes unpunished; the fact that
a child who has lived for a few minutes is recognised as having standing as
a victim, whereas a child that dies in utero is ignored by the law; and the
fact that freedom to procreate is less well protected than freedom to have an
abortion.
D. The Garraud amendment
32. On 27 November 2003 the National Assembly adopted on its second
reading a bill to adapt the criminal justice system to changes in criminality.
The bill included the Garraud amendment, so named after the member of
parliament who introduced it, which created an offence of involuntary
termination of pregnancy (ITP).
33. The adoption of this amendment gave rise to fierce controversy and,
after a week of consultations, the Minister of Justice, Mr Perben, declared
on 5 December 2003 that the member’s proposal “caused more problems
than it solved” and that he was in favour of abandoning it. On 23 January
2004 the Senate unanimously deleted the amendment. This was the second
time the senators had rejected such a proposal, as they had already opposed
it in April 2003 when examining the Reinforcement of Protection against
Road Violence Act, passed on 12 June 2003.
E. The laws on bioethics
34. On 11 December 2003 the National Assembly adopted on its second
reading a bill on bioethics with a view to reforming the 1994 laws on the
donation and use of parts and products of the human body, medically
assisted procreation and prenatal diagnosis, as envisaged by the legislature
at the time, in order to take into account subsequent scientific and medical
progress and new issues with which society was confronted. In view of the
speed with which technological advances are made, the bill reinforces the
guarantees on the provision of information and on seeking and obtaining
consent, prohibits certain practices that are technically feasible
(reproductive cloning) and provides a framework for those with a proven
medical interest (research on embryos in vitro). It establishes a regulatory
VO v. FRANCE JUDGMENT 15
and supervisory body (the Procreation, Embryology and Human Genetics
Agency) whose functions also include acting as a watchdog and providing
support and expert guidance in these spheres (http://www.assemblee-
nationale.fr/dossiers/bioethique.asp).
III. EUROPEAN LAW
A. The Oviedo Convention on Human Rights and Biomedicine
35. The Convention for the Protection of Human Rights and Dignity of
the Human Being with regard to the Application of Biology and Medicine,
also known as the Convention on Human Rights and Biomedicine, which
was opened for signature on 4 April 1997 in Oviedo, came into force on
1 December 1999. In this convention, the member States of the Council of
Europe, the other States and the European Community signatories to it,
“...
Resolving to take such measures as are necessary to safeguard human dignity and
the fundamental rights and freedoms of the individual with regard to the application of
biology and medicine,
... agreed as follows:
Chapter I – General provisions
Article 1 – Purpose and object
Parties to this Convention shall protect the dignity and identity of all human beings
and guarantee everyone, without discrimination, respect for their integrity and other
rights and fundamental freedoms with regard to the application of biology and
medicine.
Each Party shall take in its internal law the necessary measures to give effect to the
provisions of this Convention.
Article 2 – Primacy of the human being
The interests and welfare of the human being shall prevail over the sole interest of
society or science.
...
16 VO v. FRANCE JUDGMENT
Chapter V – Scientific research
...
Article 18 – Research on embryos in vitro
1. Where the law allows research on embryos in vitro, it shall ensure adequate
protection of the embryo.
2. The creation of human embryos for research purposes is prohibited.
...
Chapter XI – Interpretation and follow-up of the Convention
Article 29 – Interpretation of the Convention
The European Court of Human Rights may give, without direct reference to any
specific proceedings pending in a court, advisory opinions on legal questions
concerning the interpretation of the present Convention at the request of:
– the Government of a Party, after having informed the other Parties;
– the Committee set up by Article 32, with membership restricted to the
Representatives of the Parties to this Convention, by a decision adopted by a twothirds
majority of votes cast.
...”
36. The commentary on Article 1 (see paragraphs 16 to 19 of the
explanatory report on the convention) states:
Article 1 – Purpose and object
“16. This Article defines the Convention’s scope and purpose.
17. The aim of the Convention is to guarantee everyone’s rights and fundamental
freedoms and, in particular, their integrity and to secure the dignity and identity of
human beings in this sphere.
18. The Convention does not define the term ‘everyone’ (in French ‘toute
personne’). These two terms are equivalent and found in the English and French
versions of the European Convention on Human Rights, which however does not
define them. In the absence of a unanimous agreement on the definition of these terms
among member States of the Council of Europe, it was decided to allow domestic law
to define them for the purposes of the application of the present Convention.
VO v. FRANCE JUDGMENT 17
19. The Convention also uses the expression ‘human being’ to state the necessity to
protect the dignity and identity of all human beings. It was acknowledged that it was a
generally accepted principle that human dignity and the identity of the human being
had to be respected as soon as life began.
...”
B. Additional Protocol to the Convention on Human Rights and
Biomedicine, on the Prohibition of Cloning Human Beings
(12 January 1998)
37. Article 1 of the Protocol provides:
“1. Any intervention seeking to create a human being genetically identical to
another human being, whether living or dead, is prohibited.
2. For the purpose of this Article, the term human being ‘genetically identical’ to
another human being means a human being sharing with another the same nuclear
gene set.”
C. Additional Protocol to the Convention on Human Rights and
Biomedicine, concerning Biomedical Research
38. The draft Protocol was approved by the Steering Committee on
Bioethics on 20 June 2003. It was submitted for approval to the Committee
of Ministers of the Council of Europe, which sought a consultative opinion
from the Parliamentary Assembly. On 30 April 2004 the Assembly issued
an opinion (no. 252 (2004)) in which it declared itself in favour of the draft
Protocol. On 30 June 2004 the Committee of Ministers adopted the text.
Article 1 – Object and purpose
“Parties to this Protocol shall protect the dignity and identity of all human beings
and guarantee everyone, without discrimination, respect for their integrity and other
rights and fundamental freedoms with regard to any research involving interventions
on human beings in the field of biomedicine.”
Article 2 – Scope
“1. This Protocol covers the full range of research activities in the health field
involving interventions on human beings.
2. This Protocol does not apply to research on embryos in vitro. It does apply to
research on foetuses and embryos in vivo.
...”
18 VO v. FRANCE JUDGMENT
Article 3 – Primacy of the human being
“The interests and welfare of the human being participating in research shall prevail
over the sole interest of society or science.”
Article 18 – Research during pregnancy or breastfeeding
“1. Research on a pregnant woman which does not have the potential to produce
results of direct benefit to her health, or to that of her embryo, foetus or child after
birth, may only be undertaken if the following additional conditions are met:
(i) the research has the aim of contributing to the ultimate attainment of results
capable of conferring benefit to other women in relation to reproduction or to other
embryos, foetuses or children;
...”
The explanatory report repeats the terms of the explanatory report on the
convention.
D. The Working Party on the Protection of the Human Embryo and
Foetus: protection of the human embryo in vitro (2003)
39. The Working Party on the Protection of the Human Embryo and
Foetus set up by the Steering Committee on Bioethics reached the following
conclusion in a report drawn up in 2003:
“This report aimed at giving an overview of current positions found in Europe
regarding the protection of the human embryo in vitro and the arguments supporting
them.
It shows a broad consensus on the need for the protection of the embryo in vitro.
However, the definition of the status of the embryo remains an area where
fundamental differences are encountered, based on strong arguments. These
differences largely form the basis of most divergences around the other issues related
to the protection of the embryo in vitro.
Nevertheless, even if agreement cannot be reached on the status of the embryo, the
possibility of re-examining certain issues in the light of the latest developments in the
biomedical field and related potential therapeutic advances could be considered. In
this context, while acknowledging and respecting the fundamental choices made by
the different countries, it seems possible and desirable with regard to the need to
protect the embryo in vitro on which all countries have agreed, that common
approaches be identified to ensure proper conditions for the application of procedures
involving the creation and use of embryos in vitro. The purpose of this report is to aid
reflection towards that objective.”
VO v. FRANCE JUDGMENT 19
E. The European Group on Ethics in Science and New Technologies
at the European Commission
40. The Group has issued, inter alia, the following opinion on the ethical
aspects of research involving the use of human embryos in the context of
the 5th Framework Programme (23 November 1998):
“...
Legal background
Controversies on the concept of beginning of life and ‘personhood’
Existing legislation in the Member States differs considerably from one another
regarding the question of when life begins and about the definition of ‘personhood’.
As a result, no consensual definition, neither scientifically nor legally, of when life
begins exists.
Two main views about the moral status of the embryo and thus regarding the legal
protection afforded to them with respect to scientific research exist:
(i) human embryos are not considered as human beings and consequently have a
relative worth of protection;
(ii) human embryos have the same moral status as human beings and consequently
are equally worthy of protection.
The discussion of common rules on embryo research is continuing. Recently many
European countries, when discussing and signing the Council of Europe Convention
on Human Rights and Biomedicine, failed to reach a consensus concerning the
definition of the embryo, and, therefore, were unable to find common ground on
which to place the admissibility of human embryo research within the Convention.
Hence, it is up to the Member States to legislate in this area. Yet, nevertheless,
Article 18.1 of the Convention stipulates ‘where the law allows research on embryos
in vitro, it shall ensure adequate protection of the embryo’.
...
Different approaches regarding the definition of the human embryo
In most Member States there is presently no legal definition of the human embryo
(Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg,
Netherlands, Portugal and Sweden). Among those Member States which define the
embryo in their legislation, the existing definitions vary considerably from one
country to another (Austria, Germany, Spain and the United Kingdom) ...
...
20 VO v. FRANCE JUDGMENT
Different scope of national legislation
Among the Member States with legal provisions on embryo research, there are
many differences regarding the activities allowed and prohibited.
There are countries where embryo research is allowed only for the benefit of the
particular embryo (Austria, Germany). There are Member States where embryo
research is exceptionally allowed (France, Sweden), or allowed under strict conditions
(Denmark, Finland, Spain, United Kingdom).
...
Diversity of views
The diversity of views regarding the question whether or not research on human
embryos in vitro is morally acceptable, depends on differences in ethical approaches,
philosophical theories and national traditions, which are deeply rooted in European
culture. Two contrasting approaches exist: a deontological approach, in which duties
and principles control the ends and consequences of our actions; and utilitarian or
consequentialist approaches in which human actions are evaluated in terms of means
and ends or consequences.
...
The group submits the following opinion
In the preamble it appeared crucial to recall that the progress of knowledge of life
sciences, which in itself has an ethical value, cannot, in any case, prevail over
fundamental human rights and the respect which is due to all the members of the
human family.
The human embryo, whatever the moral or legal status conferred upon it in the
different European cultures and ethical approaches, deserves legal protection. Even if
taking into account the continuity of human life, this protection ought to be reinforced
as the embryo and the foetus develop.
The Treaty on European Union, which does not foresee legislative competence in
the fields of research and medicine, implies that such protection falls within the
competence of national legislation (as is the case for medically assisted procreation
and voluntary interruption of pregnancy). However, Community authorities should be
concerned with ethical questions resulting from medical practice or research dealing
with early human development.
However, when doing so, the said Community authorities have to address these
ethical questions taking into account the moral and philosophical differences, reflected
by the extreme diversity of legal rules applicable to human embryo research, in the
15 Member States. It is not only legally difficult to seek harmonisation of national
laws at Community level, but because of lack of consensus, it would be inappropriate
to impose one exclusive moral code.
The respect for different philosophical, moral or legal approaches and for diverse
national culture is essential to the building of Europe.
VO v. FRANCE JUDGMENT 21
From an ethical point of view, the multicultural character of European society
requires mutual tolerance to be shown by the citizens and political figures of the
European Nation States that have chosen uniquely to tie their destiny together, while
at the same time ensuring mutual respect for different historical traditions which are
exceedingly strong.
From a legal point of view, this multiculturalism is based upon Article 6 of the
Amsterdam Treaty (ex Article F of the Treaty on European Union) which recognises
fundamental rights at Union level notably based on ‘constitutional traditions common
to the Member States’. It also declares that ‘the Union shall respect the national
identity of its Member States’.
It results from the aforementioned principles, that, in the scope of European research
programmes, the question of research on the human embryo has to be approached, not
only with regard to the respect for fundamental ethical principles, common to all
Member States, but equally taking into consideration diverse philosophical and ethical
conceptions, expressed through the practices and the national regulations in force in
this field.
...”
IV. COMPARATIVE LAW
41. In the majority of the member States of the Council of Europe, the
offence of unintentional homicide does not apply to the foetus. However,
three countries have chosen to create specific offences. In Italy a person
who negligently causes a pregnancy to terminate is liable to a prison
sentence of between three months and two years under section 17 of the
Abortion Act of 22 May 1978. In Spain Article 157 of the Criminal Code
makes it a criminal offence to cause damage to the foetus and Article 146 an
offence to cause an abortion through gross negligence. In Turkey Article
456 of the Criminal Code lays down that a person who causes damage to
another shall be liable to a prison sentence of between six months and one
year; if the victim is a pregnant woman and the damage results in premature
birth, the Criminal Code prescribes a sentence of between two and five
years’ imprisonment.
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
42. The Government’s main submission was that the application was
incompatible ratione materiae with the provisions of the Convention in that
Article 2 did not apply to the unborn child. They further submitted that the
22 VO v. FRANCE JUDGMENT
applicant had had a legal remedy capable of redressing her complaint,
namely an action for damages against the hospital in the administrative
courts. Accordingly, she had not exhausted domestic remedies as required
by Article 35 § 1 of the Convention. In the alternative, they considered that
the application should be rejected as being manifestly ill-founded.
43. The applicant complained of the lack of protection of the unborn
child under French criminal law and argued that the State had failed to
discharge its obligations under Article 2 of the Convention by not allowing
the offence of unintentional homicide to cover injury to an unborn child.
She further submitted that the remedy available in the administrative courts
was ineffective as it was incapable of securing judicial acknowledgment of
the homicide of her child as such. Lastly, the applicant asserted that she had
had a choice between instituting criminal and administrative proceedings
and that, while her recourse to the criminal courts had, unforeseeably,
proved unsuccessful, the possibility of applying to the administrative courts
had in the meantime become statute-barred.
44. The Court observes that an examination of the application raises the
issue whether Article 2 of the Convention is applicable to the involuntary
termination of pregnancy and, if so, whether that provision required a
criminal remedy to be available in the circumstances of the case or whether
its requirements were satisfied by the possibility of an action for damages in
the administrative courts. Considered in those terms, the objections that the
application is incompatible ratione materiae with the provisions of the
Convention and that the applicant failed to exhaust domestic remedies are
very closely linked to the substance of the applicant’s complaint under
Article 2. Consequently, the Court considers it appropriate to join them to
the merits (see, among other authorities, Airey v. Ireland, judgment of
9 October 1979, Series A no. 32, p. 11, § 19).
45. The application cannot therefore be declared inadmissible either as
being incompatible ratione materiae with the provisions of the Convention
or for failure to exhaust domestic remedies within the meaning of Article 35
§ 1 of the Convention. The Court further considers that the application
raises issues of fact and law which require examination of the merits. It
accordingly concludes that the application is not manifestly ill-founded.
Having also established that no other obstacle to its admissibility exists, the
Court declares it admissible.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
46. The applicant complained of the authorities’ refusal to classify the
taking of her unborn child’s life as unintentional homicide. She argued that
the absence of criminal legislation to prevent and punish such an act
breached Article 2 of the Convention, which provides:
VO v. FRANCE JUDGMENT 23
“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.”
A. The parties’ submissions
1. The applicant
47. The applicant asserted that the point at which life began had a
universal meaning and definition. Even though that was in the nature of
things, it was now scientifically proven that all life began at fertilisation.
That was an experimental finding. A child that had been conceived but not
yet born was neither a cluster of cells nor an object, but a person. Otherwise,
it would have to be concluded that in the instant case she had not lost
anything. Such an argument was unacceptable for a pregnant woman.
Accordingly, the term “everyone” (“toute personne”) in Article 2 of the
Convention was to be taken to mean human beings rather than individuals
with the attributes of legal personality. Indeed, that had been the position
taken by the Conseil d’Etat and the Court of Cassation, which, having
agreed to review the compatibility of the Termination of Pregnancy Act
with Article 2, had been compelled to accept that, from the first moments of
its life in the womb, the unborn child came within the scope of that
provision (Conseil d’Etat (full court), 21 December 1990, Recueil Lebon,
p. 368; Court of Cassation (Criminal Division), 27 November 1996, Bulletin
criminel no. 431).
48. In the applicant’s submission, French law guaranteed all human
beings the right to life from conception, subject to certain exceptions
provided for by law in the case of abortion. In that connection, she added
that all forms of abortion, with the exception of therapeutic abortion, were
incompatible with Article 2 of the Convention on account of the
interference with the right to life of the conceived child. Even if it were
accepted that, subject to certain conditions, States could allow women to
have an abortion if they requested one, the Contracting States were not at
liberty to exclude the unborn child from the protection of Article 2. A
24 VO v. FRANCE JUDGMENT
distinction should be made between the rule and the exception. Section 1 of
the Voluntary Termination of Pregnancy Act of 1975 (reproduced in
Article 16 of the Civil Code and Article L. 2211-1 of the Public Health
Code – see paragraph 28 above) laid down the rule, namely respect for
every human being from the beginning of its life, and subsequently
provided for an exception in case of necessity and in accordance with
conditions defined by law. The legislature had also implicitly accepted that
life began at the moment of conception by laying down a number of rules
protecting the embryo in vitro in the laws on bioethics of 29 July 1994 (see
paragraph 34 above). Accordingly, although death could in exceptional
cases prevail over life, life remained the fundamental value protected by the
Convention. The exception should not rule out the possibility of punishing a
third party who, through negligence, caused an unborn child to die. The
mother’s wishes could not be equated with negligence on the part of a third
party. The Court could therefore validly hold that the Contracting Parties’
legislation should ensure the protection of the conceived child by making
unintentional homicide of the latter a criminal offence, even if their
legislation also permitted abortion.
49. The applicant pointed out that, as the Court had held, States had “a
primary duty ... to secure the right to life by putting in place effective
criminal-law provisions to deter the commission of offences against the
person, backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions” (see Kılıç v.
Turkey, no. 22492/93, § 62, ECHR 2000-III, and Mahmut Kaya v. Turkey,
no. 22535/93, § 85, ECHR 2000-III). In her submission, the new line of
case-law adopted by the Court in Calvelli and Ciglio v. Italy ([GC],
no. 32967/96, § 51, ECHR 2002-I), to the effect that where the right to life
had been infringed unintentionally the judicial system did not necessarily
require the provision of a criminal-law remedy, could not be followed in the
instant case, because a civil remedy did not “satisfy the requirement of
expressing public disapproval of a serious offence, such as the taking of
life” (see the partly dissenting opinion of Judge Rozakis joined by Judges
Bonello and Strážnická in the above-mentioned case). That would amount
to debasing the right to life protected by Article 2. The applicant therefore
considered that creating the offence of involuntary termination of pregnancy
would fill the vacuum created by the Court of Cassation and would
compensate for the State’s failure to fulfil its duty to protect the human
being at the earliest stages of its development (see paragraph 32 above).
50. The applicant argued that she had had the option of instituting
criminal or administrative proceedings and had been able to choose between
the two types of court. She explained that she had chosen to bring criminal
proceedings because, firstly, they were the only remedy capable of securing
judicial acknowledgment of the unintentional homicide of her child as such
and, secondly, because a criminal investigation aided in the task of
VO v. FRANCE JUDGMENT 25
establishing responsibility. In her submission, there had been nothing to
suggest that the criminal proceedings were bound to fail, as the position
adopted by the Court of Cassation in her case in 1999 and subsequently
confirmed in 2001 and 2002 had by no means been definitively established,
in view of the resistance shown in decisions by courts of appeal and the
virtually unanimous criticism by legal writers (see paragraph 31 above). For
example, in a judgment of 3 February 2000 (Reims Court of Appeal, Dalloz
2000, case-law, p. 873), the Court of Appeal had convicted a motorist of
unintentional homicide for driving into another vehicle, seriously injuring
the driver, who was eight months’ pregnant, and subsequently causing the
death of the baby (see also Versailles Court of Appeal, 19 January 2000,
unreported). The applicant submitted in conclusion that, on the face of it,
she had had no reason to apply to the administrative courts and contended
that she could not have known whether to do so until Dr G. had been
acquitted by the Criminal Court. However, by that time an action against the
administrative authorities had already become statute-barred. The remedy in
the administrative courts could not therefore be regarded as effective within
the meaning of Article 35 § 1 of the Convention.
2. The Government
51. After emphasising that neither metaphysics nor medicine had given a
definitive answer to the question whether and from what moment a foetus
was a human being, the Government asserted that from a legal standpoint
Article 2 of the Convention did not protect the foetus’s right to life as a
person. The use of the term “everyone” (“toute personne”) in Article 2 and
in Articles 5, 6, 8 to 11 and 13 of the Convention was such that it could
apply only postnatally (see X v. the United Kingdom, no. 8416/79,
Commission decision of 13 May 1980, Decisions and Reports (DR) 19,
p. 244). The same observation applied to Article 2 taken separately, as all
the restrictions on “everyone’s” right to life provided for in paragraph 2
concerned, by their very nature, persons who had already been born.
52. Nor could the “right to life” referred to in the same Article be
construed as applying to the foetus; it concerned only the life of persons
who had already been born alive, since it would be neither consistent nor
justified to detach that right from the entity in which it was vested, namely
the person. Whereas, by contrast, Article 4 § 1 of the 1969 American
Convention on Human Rights provided: “Every person has the right to have
his life respected. This right shall be protected by law and, in general, from
the moment of conception”, the signatories to the Convention would not
have envisaged such an extension of Article 2 of the Convention since by
1950 virtually all the Contracting Parties had already authorised abortion in
certain circumstances. To acknowledge that the foetus had the right to life
within the meaning of Article 2 would place the mother’s life and that of the
foetus on an equal footing. Furthermore, prioritising the protection of the
26 VO v. FRANCE JUDGMENT
foetus’s life or restricting it solely in the event of a severe, immediate and
insurmountable risk to the mother’s life would constitute a step backwards
historically and socially and would call into question the legislation in force
in many States Parties to the Convention.
53. The Government pointed out that the Commission had considered
whether it was appropriate to recognise the foetus as having the right to life
subject to certain restrictions relating to the protection of the mother’s life
and health (see X. v. the United Kingdom, cited above). They submitted that
such a limitation would not allow recourse to abortion for therapeutic, moral
or social reasons, which at the time when the text of the Convention was
being negotiated had nonetheless already been authorised by the legislation
of a number of countries. It would amount to penalising States that had
opted for the right to abortion as an expression and application of a
woman’s autonomy over her own body and her right to control her
maternity. The States Parties had not intended to confer on the expression
“right to life” a meaning that extended to the foetus and was manifestly
contrary to their domestic legislation.
54. Having regard to the foregoing, the Government considered that the
Convention was not designed to cover the foetus and that if the European
States wished to ensure effective protection of the foetus’s right to life, a
provision separate from Article 2 would have to be drawn up. To construe
Article 2 as allowing implicit exceptions to the right to life would be at
variance with both the letter and the spirit of that Article. Firstly, the
permissible exceptions formed an exhaustive list, there being no other
option where such a fundamental right was concerned; here, the
Government referred to the Pretty case in which the Court had stated:
“[Article 2] sets out the limited circumstances when deprivation of life may
be justified” (see Pretty v. the United Kingdom, no. 2346/02, § 37, ECHR
2002-III). Secondly, the exceptions were to be understood and construed
strictly (see Öcalan v. Turkey, no. 46221/99, § 201, 12 March 2003).
55. The Government observed that in the instant case the applicant had
undergone a therapeutic abortion as a result of acts carried out by the doctor
outside the statutory period within which abortion was permitted, which had
been ten weeks at the time and was now twelve weeks (see
paragraphs 27-28 above). However, if the Court were to take the view that
that factor rendered Article 2 applicable, and that the foetus should therefore
be regarded as a person protected by that provision, they pointed out that in
several European States the statutory period for abortion was more than
twenty weeks, for example in the Netherlands or in England (where
abortions could be carried out at up to twenty-four weeks). Unless domestic
legislation and the national authorities’ margin of appreciation in this sphere
were to be called into question, Article 2 could consequently not apply to
the unborn child. That also meant, in the Government’s submission, that the
issue of the viability of the foetus was irrelevant in the instant case. It would
VO v. FRANCE JUDGMENT 27
be paradoxical for States to have a margin of appreciation allowing them to
exclude the foetus from protection under Article 2 where a pregnancy was
terminated intentionally with the mother’s consent – and sometimes on that
condition alone – if they were not granted the same margin of appreciation
in excluding the foetus from the scope of that provision where a pregnancy
was interrupted on account of unintentional negligence.
56. In the alternative, the Government pointed out that in French law the
foetus was protected indirectly through the pregnant woman’s body, of
which it was an extension. That was the case where abortion was carried out
intentionally but not in one of the cases exhaustively listed in the relevant
legislation (Article 223-10 of the Criminal Code – see paragraph 25 above),
or in the event of an accident. In the latter case, the ordinary remedies for
establishing civil liability could be used, and the mother could be awarded
compensation for personal, pecuniary and non-pecuniary damage, her
pregnant state being necessarily taken into account. Furthermore, under the
criminal law, anyone who through inadvertence caused a pregnancy to be
terminated could be prosecuted for causing unintentional injury, the
destruction of the foetus being regarded as damage to the woman’s organs.
57. The Government argued that the applicant could have sought
damages from the hospital for the doctor’s negligence within the four-year
limitation period for actions for damages in the administrative courts. They
explained that victims of damage caused by public servants had two distinct
remedies available. If the damage resulted from personal negligence on the
part of the public servant, not intrinsically connected with the performance
of his or her duties, the victim could obtain compensation by suing the
person concerned in the ordinary courts, whereas if the damage resulted
from negligence that disclosed failings on the part of the authority in
question, the matter would be classified as official negligence and come
within the jurisdiction of the administrative courts. The Government
submitted that in Epoux V. (judgment of 10 April 1992) the Conseil d’Etat
had abandoned its position that a hospital department could incur liability
only in cases of gross negligence. Furthermore, an exception to the rule that
the hospital was liable in the event of medical negligence occurred where
negligence was deemed to be severable from the public service, either
because it was purely personal and thus wholly unrelated to the performance
of official duties – which had not been the case in this instance – or because
it was intentional or exceptionally serious, amounting to inexcusable
professional misconduct of such gravity that it ceased to be regarded as
indissociable from the performance of the official duties in question. The
Government explained that personal and official negligence were in fact
usually interlinked, particularly in cases of unintentional injury or homicide.
For that reason, the Conseil d’Etat had accepted long ago that the personal
liability of a public servant did not exclude the liability of the authority to
which he or she was attached (Epoux Lemonnier, 1918). The Government
28 VO v. FRANCE JUDGMENT
therefore considered that the applicant had had the possibility of seeking
redress in the administrative courts as soon as the damage had occurred,
without having to wait for the criminal proceedings to end. Such an action
would have been all the more likely to succeed as, for the hospital to be held
liable, only ordinary negligence had to be made out, and the expert reports
ordered by the courts had referred precisely to the hospital department’s
organisational problems. The administrative courts could therefore
legitimately have been expected to reach the same conclusion.
58. The Government asserted that that remedy had been effective and
adequate in terms of the positive obligations under Article 2 of the
Convention (see Calvelli and Ciglio, cited above) and that the applicant had,
through her own inaction or negligence, deprived herself of a remedy which
had nonetheless been available to her for four years from the time when the
damage had occurred, and in respect of which she could have received
advice from her lawyers. In Calvelli and Ciglio there had been no doubt that
Article 2 of the Convention was applicable to a newborn child. In the instant
case, in which the applicability of Article 2 was questionable, there were
therefore additional reasons for considering that the possibility of using civil
or administrative remedies to establish liability was sufficient. In the
Government’s submission, such an action for damages could have been
based on the taking of the life of the child the applicant was carrying, since
the relevant case-law of the administrative courts did not appear thus far to
preclude the possibility of affording embryos protection under Article 2 of
the Convention (Conseil d’Etat (full court), Confédération nationale des
associations familiales catholiques et autres, judgment of 21 December
1990 – see paragraph 47 above). At the material time, in any event, the issue
had not been clearly resolved by the Conseil d’Etat.
59. In conclusion, the Government considered that, even supposing that
Article 2 was applicable in the instant case, that provision did not require
the life of the foetus to be protected by the criminal law in the event of
unintentional negligence, as was the position in many European countries.
B. Third-party interventions
1. Center for Reproductive Rights
60. The Center for Reproductive Rights (CRR) submitted that unborn
foetuses could not be treated as persons under the law and hence covered by
Article 2 of the Convention because there was no legal basis for such an
approach (i), and because granting them that status would interfere with
women’s basic human rights (ii). Lastly, they argued that it would be
inadvisable to extend rights to the foetus because the loss of a wanted foetus
constituted an injury to the expectant mother (iii).
VO v. FRANCE JUDGMENT 29
61. (i) The assertion that a foetus was a person ran counter to the caselaw
of the Convention institutions, the legislation of the member States of
the Council of Europe, international standards and the case-law of courts
throughout the world. Relying on the decisions in X v. the United Kingdom
(Commission decision cited above), H. v. Norway (no. 17004/90,
Commission decision of 19 May 1992, DR 73, p. 155) and, most recently,
Boso v. Italy (no. 50490/99, ECHR 2002-VII), in which the Commission
and the Court had held that granting a foetus the same rights as a person
would place unreasonable limitations on the Article 2 rights of persons
already born, the CRR saw no reason to depart from that conclusion unless
the right to abortion in all Council of Europe member States were to be
called into question.
62. The foetus was not recognised as a person in European domestic
legislation or by the national courts interpreting it. The CRR drew attention
to the Court of Cassation’s settled position (see paragraph 29 above), which
was consistent with the distinction made in French law between the
concepts of “human being” and “person”, the former being a biological
concept and the latter a legal term attached to a legal category whose rights
took effect and were perfected at birth, although in certain circumstances the
rights acquired at birth were retroactive to conception. The national courts
had also addressed the issue of the legal status of the person in the context
of abortion. For example, the Austrian and Netherlands Constitutional
Courts had held that Article 2 should not be interpreted as protecting the
unborn child, and the French Constitutional Council had found no conflict
between legislation on the voluntary termination of pregnancy and the
constitutional protection of the child’s right to health (decision no. 74-54 of
15 January 1975). That reading was consistent with the relevant legislation
throughout Europe: thirty-nine member States of the Council of Europe –
the exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San
Marino, which had maintained severe restrictions on abortion (with only
very narrow therapeutic exceptions) – permitted a woman to terminate a
pregnancy without restriction during the first trimester or on very broad
therapeutic grounds.
63. With regard to international and regional standards, the CRR
observed that the International Covenant on Civil and Political Rights
provided no indication that the right to life applied to a foetus. It added that
the Human Rights Committee had routinely emphasised the threat to
women’s lives posed by illegal abortions. The same was true of the
Convention on the Rights of the Child and the interpretation by the
Committee on the Rights of the Child of Article 6, which provided: “Every
child has the inherent right to life.” On several occasions the Committee had
stated its concern about the difficulties of adolescent girls in having their
pregnancies terminated in safe conditions and had expressed its fears as to
the impact of punitive legislation on maternal mortality rates. The case-law
30 VO v. FRANCE JUDGMENT
of the Inter-American regional system, notwithstanding Article 4 of the
American Convention on Human Rights (see paragraph 52 above), did not
provide absolute protection to a foetus before birth. The Inter-American
Commission on Human Rights had held in Baby Boy (1981) that Article 4
did not preclude liberal national-level abortion legislation. Furthermore, the
Organisation of African Unity had adopted the Protocol on the Rights of
Women on 11 July 2003 to supplement the African Charter on Human and
Peoples’ Rights of 27 June 1981, broadening the protection of the right of
women to terminate a pregnancy.
64. Lastly, with regard to non-European States, the CRR noted that the
Supreme Courts of Canada and the United States had declined to treat
unborn foetuses as persons under the law (in Winnipeg Child Family
Services v. G. (1997) and Roe v. Wade (1973)). The United States Supreme
Court had reaffirmed that position in a recent case in 2000 (Stenberg v.
Carhart), in which it had declared unconstitutional a State law prohibiting
certain methods of abortion and providing no protection for women’s
health. Similarly, in South Africa, ruling on a constitutional challenge to the
recently enacted Choice on Termination of Pregnancy Act, which permitted
abortion without restriction during the first trimester and on broad grounds
at later stages of pregnancy, the High Court had considered that the foetus
was not a legal person (Christian Lawyers Association of South Africa and
Others v. Minister of Health and Others, 1998).
65. (ii) In the CRR’s submission, recognition of the foetus’s rights
interfered, in particular, with women’s fundamental right to a private life. In
Brüggemann and Scheuten v. Germany (no. 6959/75, Commission’s report
of 12 July 1977, DR 10, p. 100), the Commission had implicitly accepted
that an absolute prohibition on abortion would be an impermissible
interference with privacy rights under Article 8 of the Convention.
Subsequently, while rejecting the suggestion that Article 2 protected the
right to life of foetuses, the Convention institutions had further recognised
that the right to respect for the private life of the pregnant woman, as the
person primarily concerned by the pregnancy and its continuation or
termination, prevailed over the father’s rights (see paragraph 61 above). In
addition to respect for private life, the preservation of the pregnant woman’s
life and health took 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).
66. (iii) In the CRR’s submission, declining to recognise the foetus as a
person under Article 2 did not preclude a remedy for injuries such as the one
VO v. FRANCE JUDGMENT 31
that had given rise to the instant case. The loss of a wanted foetus was an
injury suffered by the expectant mother. Consequently, the rights that were
entitled to protection in the instant case were those of the applicant and not
those of the foetus she had lost. It was within the power of the legislature of
every Council of Europe member State to recognise both civil and criminal
offences committed by individuals who injured a woman by causing the
termination of a wanted pregnancy.
2. Family Planning Association
67. The Family Planning Association (FPA) set out primarily to argue
that the right to life enshrined in Article 2 of the Convention should not be
interpreted as extending to the unborn (i). In support of that argument, the
FPA provided the Court with information on the current legal position on
abortion in the member States of the Council of Europe (ii), and a summary
of the legal status of the unborn in United Kingdom law (iii).
68. (i) The FPA pointed out that Article 2 was drafted in such a way as
to allow only very limited exceptions to the prohibition it imposed on
intentional deprivation of life. Voluntary termination of pregnancy was not
one of those exceptions; nor could any of the exceptions be interpreted to
include that practice. Recent evidence showed that voluntary termination of
pregnancy on request in the first trimester was now widely accepted across
Europe, as was termination on certain grounds in the second trimester. If
Article 2 were interpreted as applying to the unborn from the moment of
conception, as contended by the applicant, the Court would be calling into
question the laws on abortion enacted in most Contracting States.
Furthermore, that would render illegal the majority of methods of
contraception currently in use throughout Europe, since they acted or could
act after conception to prevent implantation. There would therefore be
devastating implications in terms of both individual choices and lives and
social policy. The English High Court had recently acknowledged that that
would be the undesirable consequence if it were to accept the argument of
the Society for the Protection of Unborn Children that emergency hormonal
contraceptives were abortifacients because pregnancy began at conception
(see Society for the Protection of Unborn Children v. Secretary of State for
Health [2002] High Court, Administrative Court (England and Wales)).
69. The possibility that Article 2 applied to the foetus but with certain
implied limitations, for example only after a critical point in time (viability
or some other gestational stage) should likewise be rejected. Recent
evidence showed that, beyond the broad consensus identified above, there
was a complete lack of any generally accepted standard in relation to the
gestational limit on the availability of abortion, the grounds on which
termination was available after that point in time, or the conditions that had
to be satisfied.
32 VO v. FRANCE JUDGMENT
70. (ii) Recent survey information was available (Abortion Legislation
in Europe, International Planned Parenthood Federation (IPPF) European
Network, July 2002, and Abortion Policies: a Global Review, United
Nations Population Division, June 2002) in relation to the legal position on
abortion in the Council of Europe member States with the exception of
Serbia and Montenegro. The surveys showed that four States essentially
prohibited abortion, except where the pregnant woman’s life was
endangered (Andorra, Liechtenstein, San Marino and Ireland), whereas the
great majority of member States provided for much wider access to abortion
services. Such evidence of the availability of abortion across Europe was in
keeping with the general trend towards the liberalisation of abortion laws.
No general consensus emerged from the practice of the member States as to
the period during which abortion was permitted after the first trimester or
the conditions that had to be satisfied for abortion to be available in the later
stages of pregnancy. Furthermore, the grounds on which abortion was
permitted without a time-limit were many and varied. The FPA accordingly
contended that if Article 2 were interpreted as applying to the unborn from
some particular point in time, that would call into question the legal position
in a number of States where termination was available on certain grounds at
a later stage than that determined by the Court.
71. (iii) It was now a settled general principle of the common law that in
the United Kingdom legal personality crystallised upon birth. Up until that
point, the unborn had no legal personality independent of the pregnant
woman. However, despite that lack of legal personality, the interests of the
unborn were often protected while they were in the womb, even though
those interests could not be realised as enforceable rights until the
attainment of legal personality on birth.
72. In the civil law, that specifically meant that prior to birth the unborn
had no standing to bring proceedings for compensation or other judicial
remedies in relation to any harm done or injury sustained while in the
womb, and that no claim could be made on their behalf (see Paton v. British
Pregnancy Advisory Service Trustees [1979] Queen’s Bench Reports 276).
Efforts had been made to persuade the courts dealing with such cases that
according to the law of succession, the unborn could be deemed to be
“born” or “persons in being” whenever their interests so demanded.
However, Burton confirmed that that principle was also subject to the live
birth of a child ([1993] Queen’s Bench Reports 204, 227).
73. In the criminal law, it was well established that the unborn were not
treated as legal persons for the purpose of the common-law rules of murder
or manslaughter. In Attorney-General’s Reference (no. 3, 1994), the House
of Lords had concluded that injury of the unborn without a live birth could
not lead to a conviction for murder, manslaughter or any other violent
crime. The rights of the unborn were further protected by the criminal law
on abortion. Sections 58 and 59 of the Offences against the Person Act 1861
VO v. FRANCE JUDGMENT 33
had introduced the statutory offences of procuring abortion and procuring
the means to cause abortion. Similarly, by section 1 of the Infant Life
(Preservation) Act 1929 the destruction of the unborn, where capable of live
birth, was a serious offence. Those Acts were still in force. Abortion and
child destruction remained illegal, subject to the application of the Abortion
Act 1967.
C. The Court’s assessment
74. The applicant complained that she had been unable to secure the
conviction of the doctor whose medical negligence had caused her to have
to undergo a therapeutic abortion. It has not been disputed that she intended
to carry her pregnancy to full term and that her child was in good health.
Following the material events, the applicant and her partner lodged a
criminal complaint, together with an application to join the proceedings as
civil parties, alleging unintentional injury to the applicant and unintentional
homicide of the child she was carrying. The courts held that the prosecution
of the offence of unintentional injury to the applicant was statute-barred
and, quashing the Court of Appeal’s judgment on the second point, the
Court of Cassation held that, regard being had to the principle that the
criminal law was to be strictly construed, a foetus could not be the victim of
unintentional homicide. The central question raised by the application is
whether the absence of a criminal remedy within the French legal system to
punish the unintentional destruction of a foetus constituted a failure on the
part of the State to protect by law the right to life within the meaning of
Article 2 of the Convention.
1. Existing case-law
75. Unlike Article 4 of the American Convention on Human Rights,
which provides that the right to life must be protected “in general, from the
moment of conception”, Article 2 of the Convention is silent as to the
temporal limitations of the right to life and, in particular, does not define
“everyone” (“toute personne”) whose “life” is protected by the Convention.
The Court has yet to determine the issue of the “beginning” of “everyone’s
right to life” within the meaning of this provision and whether the unborn
child has such a right.
To date it has been raised solely in connection with laws on abortion.
Abortion does not constitute one of the exceptions expressly listed in
paragraph 2 of Article 2, but the Commission has expressed the opinion that
it is compatible with the first sentence of Article 2 § 1 in the interests of
protecting the mother’s life and health because “if one assumes that this
provision applies at the initial stage of the pregnancy, the abortion is
covered by an implied limitation, protecting the life and health of the
34 VO v. FRANCE JUDGMENT
woman at that stage, of the ‘right to life’ of the foetus” (see X v. the United
Kingdom, Commission decision cited above, p. 253).
76. Having initially refused to examine in abstracto the compatibility of
abortion laws with Article 2 of the Convention (see X v. Norway,
no. 867/60, Commission decision of 29 May 1961, Collection of Decisions,
vol. 6, p. 34, and X v. Austria, no. 7045/75, Commission decision of
10 December 1976, DR 7, p. 87), the Commission acknowledged in
Brüggemann and Scheuten (cited above) that women complaining under
Article 8 of the Convention about the Constitutional Court’s decision
restricting the availability of abortions had standing as victims. It stated on
that occasion: “... pregnancy cannot be said to pertain uniquely to the sphere
of private life. Whenever a woman is pregnant her private life becomes
closely connected with the developing foetus” (ibid., p. 116, § 59).
However, the Commission did not find it “necessary to decide, in this
context, whether the unborn child is to be considered as ‘life’ in the sense of
Article 2 of the Convention, or whether it could be regarded as an entity
which under Article 8 § 2 could justify an interference ‘for the protection of
others’ ” (ibid., p. 116, § 60). It expressed the opinion that there had been no
violation of Article 8 of the Convention because “not every regulation of the
termination of unwanted pregnancies constitutes an interference with the
right to respect for the private life of the mother” (ibid., pp. 116-17, § 61),
while emphasising: “There is no evidence that it was the intention of the
Parties to the Convention to bind themselves in favour of any particular
solution” (ibid., pp. 117-18, § 64).
77. In X v. the United Kingdom (cited above), the Commission
considered an application by a man complaining that his wife had been
allowed to have an abortion on health grounds. While it accepted that the
potential father could be regarded as the “victim” of a violation of the right
to life, it considered that the term “everyone” in several Articles of the
Convention could not apply prenatally, but observed that “such application
in a rare case – e.g. under Article 6, paragraph 1 – cannot be excluded”
(p. 249, § 7; for such an application in connection with access to a court, see
Reeve v. the United Kingdom, no. 24844/94, Commission decision of
30 November 1994, DR 79-A, p. 146). The Commission added that the
general usage of the term “everyone” (“toute personne”) and the context in
which it was used in Article 2 of the Convention did not include the unborn.
As to the term “life” and, in particular, the beginning of life, the
Commission noted a “divergence of thinking on the question of where life
begins” and added: “While some believe that it starts already with
conception, others tend to focus upon the moment of nidation, upon the
point that the foetus becomes ‘viable’, or upon live birth” (X v. the United
Kingdom, p. 250, § 12).
The Commission went on to examine whether Article 2 was “to be
interpreted: as not covering the foetus at all; as recognising a ‘right to life’
VO v. FRANCE JUDGMENT 35
of the foetus with certain implied limitations; or as recognising an absolute
‘right to life’ of the foetus” (ibid. p. 251, § 17). Although it did not express
an opinion on the first two options, it categorically ruled out the third
interpretation, having regard to the need to protect the mother’s life, which
was indissociable from that of the unborn child: “The ‘life’ of the foetus is
intimately connected with, and it cannot be regarded in isolation of, the life
of the pregnant woman. If Article 2 were held to cover the foetus and its
protection under this Article were, in the absence of any express limitation,
seen as absolute, an abortion would have to be considered as prohibited
even where the continuance of the pregnancy would involve a serious risk to
the life of the pregnant woman. This would mean that the ‘unborn life’ of
the foetus would be regarded as being of a higher value than the life of the
pregnant woman” (ibid., p. 252, § 19). The Commission adopted that
solution, noting that by 1950 practically all the Contracting Parties had
“permitted abortion when necessary to save the life of the mother” and that
in the meantime the national law on termination of pregnancy had “shown a
tendency towards further liberalisation” (ibid., p. 252, § 20).
78. In H. v. Norway (cited above), concerning an abortion carried out on
non-medical grounds against the father’s wishes, the Commission added
that Article 2 required the State not only to refrain from taking a person’s
life intentionally but also to take appropriate steps to safeguard life (p. 167).
It considered that it did not have to decide “whether the foetus may enjoy a
certain protection under Article 2, first sentence”, but did not exclude the
possibility that “in certain circumstances this may be the case
notwithstanding that there is in the Contracting States a considerable
divergence of views on whether or to what extent Article 2 protects the
unborn life” (ibid.). It further noted that in such a delicate area the
Contracting States had to have a certain discretion, and concluded that the
mother’s decision, taken in accordance with Norwegian legislation, had not
exceeded that discretion ( p. 168).
79. The Court has only rarely had occasion to consider the application of
Article 2 to the foetus. In Open Door and Dublin Well Woman (cited
above), the Irish Government relied on the protection of the life of the
unborn child to justify their legislation prohibiting the provision of
information concerning abortion facilities abroad. The only issue that was
resolved was whether the restrictions on the freedom to receive and impart
the information in question had been necessary in a democratic society,
within the meaning of paragraph 2 of Article 10 of the Convention, to
pursue the “legitimate aim of the protection of morals of which the
protection in Ireland of the right to life of the unborn is one aspect”
(pp. 27-28, § 63), since the Court did not consider it relevant to determine
“whether a right to abortion is guaranteed under the Convention or whether
the foetus is encompassed by the right to life as contained in Article 2”
(p. 28, § 66). Recently, in circumstances similar to those in H. v. Norway
36 VO v. FRANCE JUDGMENT
(cited above), where a woman had decided to terminate her pregnancy
against the father’s wishes, the Court held that it was not required to
determine “whether the foetus may qualify for protection under the first
sentence of Article 2 as interpreted [in the case-law relating to the positive
obligation to protect life]”, and continued: “Even supposing that, in certain
circumstances, the foetus might be considered to have rights protected by
Article 2 of the Convention, ... in the instant case ... [the] pregnancy was
terminated in conformity with section 5 of Law no. 194 of 1978” – a law
which struck a fair balance between the woman’s interests and the need to
ensure protection of the foetus (see Boso, cited above).
80. It follows from this recapitulation of the case-law that in the
circumstances examined to date by the Convention institutions – that is, in
the various laws on abortion – the unborn child is not regarded as a “person”
directly protected by Article 2 of the Convention and that if the unborn do
have a “right” to “life”, it is implicitly limited by the mother’s rights and
interests. The Convention institutions have not, however, ruled out the
possibility that in certain circumstances safeguards may be extended to the
unborn child. That is what appears to have been contemplated by the
Commission in considering that “Article 8 § 1 cannot be interpreted as
meaning that pregnancy and its termination are, as a principle, solely a
matter of the private life of the mother” (see Brüggemann and Scheuten,
cited above, pp. 116-17, § 61) and by the Court in the above-mentioned
Boso decision. It is also clear from an examination of these cases that the
issue has always been determined by weighing up various, and sometimes
conflicting, rights or freedoms claimed by a woman, a mother or a father in
relation to one another or vis-à-vis an unborn child.
2. Approach in the instant case
81. The special nature of the instant case raises a new issue. The Court is
faced with a woman who intended to carry her pregnancy to term and whose
unborn child was expected to be viable, at the very least in good health. Her
pregnancy had to be terminated as a result of an error by a doctor and she
therefore had to have a therapeutic abortion on account of negligence by a
third party. The issue is consequently whether, apart from cases where the
mother has requested an abortion, harming a foetus should be treated as a
criminal offence in the light of Article 2 of the Convention, with a view to
protecting the foetus under that Article. This requires a preliminary
examination of whether it is advisable for the Court to intervene in the
debate as to who is a person and when life begins, in so far as Article 2
provides that the law must protect “everyone’s right to life”.
82. As is apparent from the above recapitulation of the case-law, the
interpretation of Article 2 in this connection has been informed by a clear
desire to strike a balance, and the Convention institutions’ position in
relation to the legal, medical, philosophical, ethical or religious dimensions
VO v. FRANCE JUDGMENT 37
of defining the human being has taken into account the various approaches
to the matter at national level. This has been reflected in the consideration
given to the diversity of views on the point at which life begins, of legal
cultures and of national standards of protection, and the State has been left
with considerable discretion in the matter, as the opinion of the European
Group on Ethics in Science and New Technologies at the European
Commission appositely puts it: “the ... Community authorities have to
address these ethical questions taking into account the moral and
philosophical differences, reflected by the extreme diversity of legal rules
applicable to human embryo research ... It is not only legally difficult to
seek harmonisation of national laws at Community level, but because of
lack of consensus, it would be inappropriate to impose one exclusive moral
code” (see paragraph 40 above).
It follows that the issue of when the right to life begins comes within the
margin of appreciation which the Court generally considers that States
should enjoy in this sphere, notwithstanding an evolutive interpretation of
the Convention, a “living instrument which must be interpreted in the light
of present-day conditions” (see Tyrer v. the United Kingdom, judgment of
25 April 1978, Series A no. 26, pp. 15-16, § 31, and subsequent case-law).
The reasons for that conclusion are, firstly, that the issue of such protection
has not been resolved within the majority of the Contracting States
themselves, in France in particular, where it is the subject of debate (see
paragraph 83 below) and, secondly, that there is no European consensus on
the scientific and legal definition of the beginning of life (see paragraph 84
below).
83. The Court observes that the French Court of Cassation, in three
successive judgments delivered in 1999, 2001 and 2002 (see paragraphs 22
and 29 above), considered that the rule that offences and punishment must
be defined by law, which required criminal statutes to be construed strictly,
excluded acts causing a fatal injury to a foetus from the scope of
Article 221-6 of the Criminal Code, under which unintentional homicide of
“another” is an offence. However, if, as a result of unintentional negligence,
the mother gives birth to a live child who dies shortly after being born, the
person responsible may be convicted of the unintentional homicide of the
child (see paragraph 30 above). The first-mentioned approach, which
conflicts with that of several courts of appeal (see paragraphs 21 and 50
above), was interpreted as an invitation to the legislature to fill a legal
vacuum. That was also the position of the Criminal Court in the instant
case: “The court ... cannot create law on an issue which [the legislature has]
not yet succeeded in defining.” The French parliament attempted such a
definition in proposing to create the offence of involuntary termination of
pregnancy (see paragraph 32 above), but the bill containing that proposal
was lost, on account of the fears and uncertainties that the creation of the
offence might arouse as to the determination of when life began, and the
38 VO v. FRANCE JUDGMENT
disadvantages of the proposal, which were thought to outweigh its
advantages (see paragraph 33 above). The Court further notes that alongside
the Court of Cassation’s repeated rulings that Article 221-6 of the Criminal
Code does not apply to foetuses, the French parliament is currently revising
the 1994 laws on bioethics, which added provisions to the Criminal Code on
the protection of the human embryo (see paragraph 25 above) and required
re-examination in the light of scientific and technological progress (see
paragraph 34 above). It is clear from this overview that in France the nature
and legal status of the embryo and/or foetus are currently not defined and
that the manner in which it is to be protected will be determined by very
varied forces within French society.
84. At European level, the Court observes that there is no consensus on
the nature and status of the embryo and/or foetus (see paragraphs 39-40
above), although they are beginning to receive some protection in the light
of scientific progress and the potential consequences of research into genetic
engineering, medically assisted procreation or embryo experimentation. At
best, it may be regarded as common ground between States that the
embryo/foetus belongs to the human race. The potentiality of that being and
its capacity to become a person – enjoying protection under the civil law,
moreover, in many States, such as France, in the context of inheritance and
gifts, and also in the United Kingdom (see paragraph 72 above) – require
protection in the name of human dignity, without making it a “person” with
the “right to life” for the purposes of Article 2. The Oviedo Convention on
Human Rights and Biomedicine, indeed, is careful not to give a definition
of the term “everyone”, and its explanatory report indicates that, in the
absence of a unanimous agreement on the definition, the member States
decided to allow domestic law to provide clarification for the purposes of
the application of that Convention (see paragraph 36 above). The same is
true of the Additional Protocol on the Prohibition of Cloning Human Beings
and the Additional Protocol on Biomedical Research, which do not define
the concept of “human being” (see paragraphs 37-38 above). It is worth
noting that the Court may be requested under Article 29 of the Oviedo
Convention to give advisory opinions on the interpretation of that
instrument.
85. Having regard to the foregoing, the Court is convinced that it is
neither desirable, nor even possible as matters stand, to answer in the
abstract the question whether the unborn child is a person for the purposes
of Article 2 of the Convention (“personne” in the French text). As to the
instant case, it considers it unnecessary to examine whether the abrupt end
to the applicant’s pregnancy falls within the scope of Article 2, seeing that,
even assuming that that provision was applicable, there was no failure on
the part of the respondent State to comply with the requirements relating to
the preservation of life in the public-health sphere. With regard to that issue,
the Court has considered whether the legal protection afforded the applicant
VO v. FRANCE JUDGMENT 39
by France in respect of the loss of the unborn child she was carrying
satisfied the procedural requirements inherent in Article 2 of the
Convention.
86. In that connection, it observes that the unborn child’s lack of a clear
legal status does not necessarily deprive it of all protection under French
law. However, in the circumstances of the present case, the life of the foetus
was intimately connected with that of the mother and could be protected
through her, especially as there was no conflict between the rights of the
mother and the father or of the unborn child and the parents, the loss of the
foetus having been caused by the unintentional negligence of a third party.
87. In Boso, cited above, the Court said that even supposing that the
foetus might be considered to have rights protected by Article 2 of the
Convention (see paragraph 79 above), Italian law on the voluntary
termination of pregnancy struck a fair balance between the woman’s
interests and the need to ensure protection of the unborn child. In the present
case, the dispute concerns the involuntary killing of an unborn child against
the mother’s wishes, causing her particular suffering. The interests of the
mother and the child clearly coincided. The Court must therefore examine,
from the standpoint of the effectiveness of existing remedies, the protection
which the applicant was afforded in seeking to establish the liability of the
doctor concerned for the loss of her child in utero and to obtain
compensation for the abortion she had to undergo. The applicant argued that
only a criminal remedy would have been capable of satisfying the
requirements of Article 2 of the Convention. The Court does not share that
view, for the following reasons.
88. The Court reiterates that the first sentence of Article 2, which ranks
as one of the most fundamental provisions in the Convention and also
enshrines one of the basic values of the democratic societies making up the
Council of Europe (see McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147),
requires the State not only to refrain from the “intentional” taking of life,
but also to take appropriate steps to safeguard the lives of those within its
jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of
9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36).
89. Those principles apply in the public-health sphere too. The positive
obligations require States to make regulations compelling hospitals, whether
private or public, to adopt appropriate measures for the protection of
patients’ lives. They also require an effective independent judicial system to
be set up so that the cause of death of patients in the care of the medical
profession, whether in the public or the private sector, can be determined
and those responsible made accountable (see Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above,
§ 49).
40 VO v. FRANCE JUDGMENT
90. Although the right to have third parties prosecuted or sentenced for a
criminal offence cannot be asserted independently (see Perez v. France
[GC], no. 47287/99, § 70, ECHR 2004-I), the Court has stated on a number
of occasions that an effective judicial system, as required by Article 2, may,
and under certain circumstances must, include recourse to the criminal law.
However, if the infringement of the right to life or to physical integrity is
not caused intentionally, the positive obligation imposed by Article 2 to set
up an effective judicial system does not necessarily require the provision of
a criminal-law remedy in every case. In the specific sphere of medical
negligence, “the obligation may for instance also be satisfied if the legal
system affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any liability of
the doctors concerned to be established and any appropriate civil redress,
such as an order for damages and for the publication of the decision, to be
obtained. Disciplinary measures may also be envisaged” (see Calvelli and
Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.),
no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC],
no. 37703/97, § 90, ECHR 2002-VIII).
91. In the instant case, in addition to the criminal proceedings which the
applicant instituted against the doctor for unintentionally causing her
injury – which, admittedly, were terminated because the offence was
covered by an amnesty, a fact that did not give rise to any complaint on her
part – she had the possibility of bringing an action for damages against the
authorities on account of the doctor’s alleged negligence (see Kress v.
France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done
so, the applicant would have been entitled to have an adversarial hearing on
her allegations of negligence (see Powell, cited above) and to obtain redress
for any damage sustained. A claim for compensation in the administrative
courts would have had fair prospects of success and the applicant could
have obtained damages from the hospital. That is apparent from the findings
clearly set out in the expert reports (see paragraph 16 above) in 1992 –
before the action had become statute-barred – concerning the poor
organisation of the hospital department in question and the serious
negligence on the doctor’s part, which nonetheless, in the Court of Appeal’s
opinion (see paragraph 21 above), did not reflect a total disregard for the
most fundamental principles and duties of his profession such as to render
him personally liable.
92. The applicant’s submission concerning the fact that the action for
damages in the administrative courts was statute-barred cannot succeed in
the Court’s view. In this connection, it refers to its case-law to the effect that
the “right to a court”, of which the right of access is one aspect, is not
absolute; it is subject to limitations permitted by implication, in particular
where the conditions of admissibility of an appeal are concerned, since by
its very nature it calls for regulation by the State, which enjoys a certain
VO v. FRANCE JUDGMENT 41
margin of appreciation in this regard (see, among other authorities, Brualla
Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports
1997-VIII, p. 2955, § 33). These legitimate restrictions include the
imposition of statutory limitation periods, which, as the Court has held in
personal injury cases, “serve several important purposes, namely to ensure
legal certainty and finality, protect potential defendants from stale claims
which might be difficult to counter and prevent the injustice which might
arise if courts were required to decide upon events which took place in the
distant past on the basis of evidence which might have become unreliable
and incomplete because of the passage of time” (see Stubbings and Others
v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV,
pp. 1502-03, § 51).
93. In the instant case, a four-year limitation period does not in itself
seem unduly short, particularly in view of the seriousness of the damage
suffered by the applicant and her immediate desire to prosecute the doctor.
However, the evidence indicates that the applicant deliberately turned to the
criminal courts, apparently without ever being informed of the possibility of
applying to the administrative courts. Admittedly, the French parliament
recently extended the time allowed to ten years under the Law of 4 March
2002 (see paragraph 28 above). It did so with a view to standardising
limitation periods for actions for damages in all courts, whether
administrative or ordinary. This enables the general emergence of a system
increasingly favourable to victims of medical negligence to be taken into
account, an area in which the administrative courts appear capable of
striking an appropriate balance between consideration of the damage to be
redressed and the excessive “judicialisation” of the responsibilities of the
medical profession. The Court does not consider, however, that these new
rules can be said to imply that the previous period of four years was too
short.
94. In conclusion, the Court considers that in the circumstances of the
case an action for damages in the administrative courts could be regarded as
an effective remedy that was available to the applicant. Such an action,
which she failed to use, would have enabled her to prove the medical
negligence she alleged and to obtain full redress for the damage resulting
from the doctor’s negligence, and there was therefore no need to institute
criminal proceedings in the instant case.
95. The Court accordingly concludes that, even assuming that Article 2
was applicable in the instant case (see paragraph 85 above), there has been
no violation of Article 2 of the Convention.
42 VO v. FRANCE JUDGMENT
FOR THESE REASONS, THE COURT
1. Joins to the merits unanimously the Government’s preliminary
objections of the application’s incompatibility ratione materiae with the
provisions of the Convention and of failure to exhaust domestic
remedies, and dismisses them;
2. Declares unanimously the application admissible;
3. Holds by fourteen votes to three that there has been no violation of
Article 2 of the Convention.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 8 July 2004.
Luzius WILDHABER
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) separate opinion of Mr Rozakis joined by Mr Caflisch,
Mr Fischbach, Mr Lorenzen and Mrs Thomassen;
(b) separate opinion of Mr Costa joined by Mr Traja;
(c) dissenting opinion of Mr Ress;
(d) dissenting opinion of Mrs Mularoni joined by Mrs Strážnická.
L.W.
P.J.M.
VO v. FRANCE JUDGMENT 43
SEPARATE OPINION OF JUDGE ROZAKIS
JOINED BY JUDGES CAFLISCH, FISCHBACH, LORENZEN
AND THOMASSEN
I have voted, together with the majority of the Grand Chamber, in favour
of finding that there has been no violation of Article 2 of the Convention in
the instant case. Yet, my approach differs in certain respects from that of the
majority and I would therefore like to append to the judgment this separate
opinion setting out the points on which my assessment of the law is at
variance with that of the majority.
The Court in this case correctly stresses that research into French
domestic law shows that the nature and legal status of the embryo and/or
foetus are currently not defined in France and that the manner in which it is
to be protected will ultimately be determined by very varied forces within
French society (see paragraph 83 in fine of the judgment). It also stresses
(and this was a forceful argument in the eyes of the Court) that at European
level there is no consensus on the nature and status of the embryo and/or
foetus and, at best, “it may be regarded as common ground between States
that the embryo/foetus belongs to the human race. The potentiality of that
being and its capacity to become a person – enjoying protection under the
civil law, moreover, in many States, such as France, in the context of
inheritance and gifts, and also in the United Kingdom – require protection in
the name of human dignity, without making it a ‘person’ with the ‘right to
life’ for the purposes of Article 2” (see paragraph 84 of the judgment).
Despite these findings, with which I readily agree, the Court refuses to
draw the relevant conclusions, namely that in the present state of
development of science, law and morals, both in France and across Europe,
the right to life of the unborn child has yet to be secured. Even if one
accepts that life begins before birth, that does not automatically and
unconditionally confer on this form of human life a right to life equivalent
to the corresponding right of a child after its birth. This does not mean that
the unborn child does not enjoy any protection by human society, since – as
the relevant legislation of European States, and European agreements and
relevant documents show – the unborn life is already considered to be
worthy of protection. But as I read the relevant legal instruments, this
protection, though afforded to a being considered worthy of it, is, as stated
above, distinct from that given to a child after birth, and far narrower in
scope. It consequently transpires from the present stage of development of
the law and morals in Europe that the life of the unborn child, although
protected in some of its attributes, cannot be equated to postnatal life, and,
therefore, does not enjoy a right in the sense of “a right to life”, as protected
by Article 2 of the Convention. Hence, there is a problem of applicability of
Article 2 in the circumstances of the case.
44 VO v. FRANCE JUDGMENT – SEPARATE OPINION
Instead of reaching that unavoidable conclusion, as the very reasoning of
the judgment dictated, the majority of the Grand Chamber opted for a
neutral stance, declaring: “the Court is convinced that it is neither desirable,
nor even possible as matters stand, to answer in the abstract the question
whether the unborn child is a person for the purposes of Article 2 of the
Convention” (see paragraph 85 of the judgment).
What also seems problematic with the majority’s reasoning is that,
despite their obvious doubts or, at any rate, their reluctance to accept that
Article 2 was applicable in this case, the majority ended up abandoning their
neutral stance and based their finding of no violation on the argument that
the procedural guarantees inherent in the protection of Article 2 had been
satisfied in the circumstances of the case. By using the “even assuming”
formula as to the applicability of Article 2, and by linking the life of the
foetus to the life of the mother (“the life of the foetus was intimately
connected with that of the mother and could be protected through her ...” –
see paragraph 86 of the judgment), the majority surreptitiously brought
Article 2 of the Convention to the fore of the case. Yet, it is obvious from
the case-law that reliance on the procedural guarantees of Article 2 to
determine whether or not there has been a violation presupposes the prima
facie applicability of that Article (and using the “even assuming” formula
does not alter the position if, in the end, the only real ground for the Court’s
findings is the hypothesis referred to in the formula); and in the
circumstances of the case there was not even the remotest threat to the
mother’s right of life such as would justify bringing the procedural
guarantees of Article 2 of the Convention into play.
For the reasons explained above, I am unable to agree with the reasoning
of the majority and conclude that, as matters presently stand, Article 2 is
inapplicable in this case.
VO v. FRANCE JUDGMENT 45
SEPARATE OPINION OF JUDGE COSTA
JOINED BY JUDGE TRAJA
(Translation)
1. In this case, in which a doctor’s negligence caused a pregnancy to be
terminated after almost six months against the wishes of the woman
carrying the unborn child, the Court has found no violation of Article 2 of
the Convention.
2. Its reasoning, however, is cautious: the Court decided that it was
unnecessary to determine whether Article 2 was applicable, holding that
even assuming it was, there has been no violation on the facts.
3. I voted in favour of finding no violation of Article 2, but would have
preferred the Court to hold that Article 2 was applicable, even if such a
conclusion is not self-evident. As I will attempt to demonstrate, such a
decision would perhaps have been clearer with only minimal inconvenience
as regards the scope of the judgment.
4. It seems to me, firstly, that it is not the Court’s role as a collegiate
body to consider cases from a primarily ethical or philosophical standpoint
(and, in my view, it has successfully avoided this pitfall in this judgment).
The Court must endeavour to remain within its own – legal – sphere of
competence, although I accept that law does not exist in a vacuum and is not
a chemically pure substance detached from moral or societal considerations.
Whether or not they choose to express their personal opinions as Article 45
of the Convention entitles (but does not oblige) them to do, individual
judges are not, in my opinion, subject to the same constraints. The present
case enters into the realm of deep personal convictions and for my part I
thought it necessary and perhaps helpful to set out my views. As the reader
will have understood, they differ slightly from those of the majority.
5. From the ethical standpoint, the most natural way to attempt to
interpret Article 2 of the Convention (“[e]veryone’s right to life shall be
protected by law” – “le droit de toute personne à la vie est protégé par la
loi” in the French text) is to ask what is meant by “everyone” (“toute
personne”) and when life begins. It is very difficult to obtain unanimity or
agreement here, as ethics are too heavily dependent on individual ideology.
In France, the National Advisory Committee, which has been doing a
remarkable job for the past twenty years and has issued a number of
opinions on the human embryo (a term it generally prefers to “foetus” at all
stages of development), has not been able to come up with a definitive
answer to these questions. This is only to be expected, particularly bearing
in mind the Committee’s composition, which President Mitterrand decided
at its inception should be pluralist. To say (as the Committee has done since
issuing its first opinion in 1984) that “the embryo must be recognised as a
potential human person” does not solve the problem because a being that is
46 VO v. FRANCE JUDGMENT – SEPARATE OPINION
OF JUDGE COSTA JOINED BY JUDGE TRAJA
recognised as potential is not necessarily a being and may in fact, by
converse implication, not be one. As to life and, therefore, the point at
which life begins, everybody has his or her own conception (see the
Committee’s fifth opinion, issued in 1985). All this shows is that there
perhaps exists a right for a potential person to a potential life; for lawyers,
however, there is a world of difference between the potential and the actual.
6. What is true for the ethical bodies of States such as the respondent
State is also true internationally. The judgment rightly notes that the Oviedo
Convention on Human Rights and Biomedicine (a Council of Europe
sponsored instrument signed in 1997) does not define what is meant by
“everyone”. Nor does it provide any definition of “human being”, despite
the importance it attaches to the dignity, identity, primacy, interests and
welfare of human beings. Nor is there any reference to the beginning of life.
7. Does the present inability of ethics to reach a consensus on what is a
person and who is entitled to the right to life prevent the law from defining
these terms? I think not. It is the task of lawyers, and in particular judges,
especially human rights judges, to identify the notions – which may, if
necessary, be the autonomous notions the Court has always been prepared to
use – that correspond to the words or expressions in the relevant legal
instruments (in the Court’s case, the Convention and its Protocols). Why
should the Court not deal with the terms “everyone” and the “right to life”
(which the European Convention on Human Rights does not define) in the
same way it has done from its inception with the terms “civil rights and
obligations”, “criminal charges” and “tribunals”, even if we are here
concerned with philosophical, not technical, concepts?
8. Indeed, the Court has already embarked upon this course in the sphere
of Article 2, at least as regards the right to life, for instance, by imposing
positive obligations on States to protect human life, or holding that in
exceptional circumstances the use of potentially lethal force by State agents
may lead to a finding of a violation of Article 2. Through its case-law,
therefore, the Court has broadened the notions of the right to life and
unlawful killing, if not the notion of life itself.
9. Conversely, I do not believe that it is possible to take the convenient
way out by saying that Mrs Vo, a “person”, had a right to life (of her unborn
child). It is true that the notion of who constitutes a victim has been
enlarged by the case-law: a complaint by a nephew alleging a violation of
Article 2 on account of his uncle’s murder has thus been declared
admissible (see Yaşa v. Turkey, judgment of 2 September 1998, Reports of
Judgments and Decisions 1998-VI). However, in the instant case, the Court
is concerned with a pleaded right to life of the unborn child and this type of
decision can only apply to the applicant’s case if it is accepted that the
unborn child itself has a right to life, since, in order to be a victim within the
meaning of Article 34 of the Convention, Mrs Vo must also be a victim of a
violation that is recognised by the Convention, quod est demonstrandum.
VO v. FRANCE JUDGMENT – SEPARATE OPINION 47
OF JUDGE COSTA JOINED BY JUDGE TRAJA
10. Indeed, it seems to me that the Commission and the Court have
already worked on the assumption that Article 2 is applicable to the unborn
child (without, however, affirming that the unborn child is a person). In a
number of cases they have held that, even if they did not have to decide the
question of applicability, there was in any event no violation of Article 2 on
the facts, for instance in the case of a termination of pregnancy in
accordance with legislation “which struck a fair balance between the
woman’s interests and the need to ensure protection of the foetus” (see Boso
v. Italy (dec.), no. 50490/99, ECHR 2002-VII, which is cited in the
judgment; but also, in less forthright terms, the Commission’s decision of
19 May 1992 in another cited case, H. v. Norway, no. 17004/90, Decisions
and Reports 73). Had Article 2 been considered to be entirely inapplicable,
there would have been no point – and this applies to the present case also –
in examining the question of foetal protection and the possible violation of
Article 2, or in using this reasoning to find that there had been no violation
of that provision.
11. It is possible to turn to the law of the respondent State, not because it
is a model to be imposed on others, but because it is directly in issue in the
present case. As far back as 1990, the Conseil d’Etat held that the French
Voluntary Termination of Pregnancy Act (which the Constitutional Council
had declared in its decision no. 74-54 DC of 15 January 1975 was not
unconstitutional, while at the same time declining jurisdiction to examine its
compatibility with the Convention) was not incompatible with Article 2 of
the Convention or Article 6 of the International Covenant on Civil and
Political Rights (which provides: “Every human being has the inherent right
to life. This right shall be protected by law ...”). Above all, the Conseil
d’Etat thereby recognised unambiguously, albeit implicitly, that that Act
came within the scope of Article 2 (see its decision of 21 December 1990,
Confédération nationale des associations familiales catholiques, Recueil
Lebon, p. 369, and the submissions of Mr Bernard Stirn, which clarify it).
12. To my mind, this judgment of the highest French administrative
court demonstrates that a decision by the European Court of Human Rights
in which it is plainly stated that the “end of life” of an unborn child is within
the scope of Article 2 of the Convention would not threaten – at least not in
essence – the domestic legislation of a large number of European countries
that makes the voluntary termination of pregnancy lawful, subject, of
course, to compliance with certain conditions. In a number of European
States, such legislation has been held to be consistent with the domestic
Constitution and even with Article 2 of the Convention. The Norwegian
Supreme Court so found in 1983. The German Federal Constitutional Court
and the Spanish Constitutional Court have also accepted that the right to
life, as protected by Article 2 of the Convention, can apply to the embryo or
the foetus (the question whether that right is absolute being a separate
issue). These are examples of decisions in which the highest courts of
48 VO v. FRANCE JUDGMENT – SEPARATE OPINION
OF JUDGE COSTA JOINED BY JUDGE TRAJA
individual countries have recognised that the right to life, whether set out in
Article 2 of the European Convention on Human Rights or enshrined in
domestic constitutional principles of like content and scope, applies to the
foetus, without being absolute. Is there any reason why the Court, which
aspires to the role of a constitutional court within the European human
rights order, should be less bold?
13. Obviously, were the Court to rule that Article 2 was applicable,
either on its wording or in substance, it would have to examine in any event
(and not just on the facts of the individual case as here) whether or not it had
been complied with. This, though, should not be of concern to it either. In
the aforementioned Boso decision, it applied the “fair balance” test to the
impugned statute, so that it would have had to reach the opposite conclusion
had the legislation been different and not struck a fair balance between the
protection of the foetus and the mother’s interests. Potentially, therefore, the
Court reviews compliance with Article 2 in all cases in which the “life” of
the foetus is destroyed.
14. Similarly, it might be contended that, since Article 15 of the
Convention states that no derogation may be made from Article 2, it would
be preposterous for the Court to find that Article 2 is not absolute, or is
subject to implied exceptions other than those exhaustively set out in the
second paragraph thereof. This would militate in favour of holding that
Article 2 does not apply to the unborn child (as the unborn child is not one
of the exceptions set out in the second paragraph). However, I am not
persuaded by either of these two arguments. The non-derogation rule only
prohibits States Parties that derogate from the Convention in time of war or
other public emergency, as they are entitled to do by Article 15, from
infringing Article 2. However, quite clearly situations and exceptional
circumstances of this kind are quite unrelated to the killing of an unborn
child. More disconcerting from a logical perspective is an argument based
on the actual wording of Article 2. However, not only has the Court already
decided the point (as it indisputably did in Boso), Article 2 cannot be
conclusively construed as clearly prohibiting all voluntary terminations of
pregnancy, if only because a number of Contracting States have ratified the
Convention without any apparent problem, despite already possessing
legislation permitting voluntary termination in certain circumstances. Even
more persuasive when it comes to an evolutive interpretation of Article 2 is
the fact that a large number of European countries passed legislation in the
1970s permitting the voluntary termination of pregnancy within a strict
framework.
15. As regards the potential effects of finding Article 2 applicable, it
could perhaps be objected, conversely, that the present case can be
distinguished from the voluntary termination of pregnancy cases and that
the destruction of a foetus as a result of medical error, or any other negligent
act or omission, is different from termination at the request of the mother in
VO v. FRANCE JUDGMENT – SEPARATE OPINION 49
OF JUDGE COSTA JOINED BY JUDGE TRAJA
distress herself. In other words, those who, in the name of women’s freedom
of choice, defend the principle of voluntary termination of pregnancy might
fear that such legislation would indirectly be at risk if Article 2 were found
to be applicable. It is true that the “Garraud amendment”, which is
mentioned in the judgment and was finally withdrawn from Parliament, was
fiercely opposed by sections of French society, in particular (but not only)
supporters of the Voluntary Termination of Pregnancy Act, precisely for
this reason (as it was intended to create an offence of involuntary
termination of pregnancy).
16. However, I do not believe that such fears are legitimately justified, if
only because a woman who loses her unborn child against her wishes and
sees her hopes of maternity dashed is in an entirely different situation from
a woman resigned – albeit likewise in circumstances of suffering and
bereavement – to ask for her pregnancy to be brought to an end. In any
event, it is not a judicial decision (on the applicability or otherwise of
Article 2 of the Convention) which will resolve this ethical debate, still less
justify society’s policy choices. In addition, since Vo v. France does not
require States to afford criminal-law protection against the risk of the loss
of the foetus (and on that I agree), it does not, in any event, plead in favour
of making the involuntary termination of pregnancy a criminal offence.
17. In sum, I see no good legal reason or decisive policy consideration
for not applying Article 2 in the present case. On a general level, I believe
(as do many senior judicial bodies in Europe) that there is life before birth,
within the meaning of Article 2, that the law must therefore protect such
life, and that if a national legislature considers that such protection cannot
be absolute, then it should only derogate from it, particularly as regards the
voluntary termination of pregnancy, within a regulated framework that
limits the scope of the derogation. The actual circumstances of Mrs Vo’s
case made it all the more appropriate to find that Article 2 was applicable:
she was six months’ pregnant (compare this – purely for illustration
purposes – with the German Federal Constitutional Court’s view that life
begins after fourteen days’ gestation), there was every prospect that the
foetus would be born viable and, lastly, the pregnancy was clearly ended by
an act of negligence, against the applicant’s wishes.
18. I have nothing further to add, since, with minor differences, I agree
with what the judgment has to say in finding that there has been no violation
of Article 2.
50 VO v. FRANCE JUDGMENT
DISSENTING OPINION OF JUDGE RESS
(Translation)
1. France’s positive obligation to protect unborn children against
unintentional homicide, that is to say against negligent acts that could cause
a child’s death, can only be discharged if French law has effective
procedures in place to prevent the recurrence of such acts. On this point, I
am unable to agree with the opinion expressed by the majority that an action
in damages in the administrative courts (on account of the hospital doctor’s
alleged negligence) afforded the unborn child adequate and effective
protection against medical negligence. As Judge Rozakis, joined by
Judges Bonello and Strážnická, pointed out in his partly dissenting opinion
in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002-I), an
action in pecuniary and even non-pecuniary damages will not in all
circumstances be capable of protecting against the unintentional taking of
life, especially in a case such as the present one in which a mother lost her
child as a result of a doctor’s negligence. Even though I accepted the
outcome in Calvelli and Ciglio, which was based on the fact that the
applicants had agreed to compensation under a friendly settlement, criminal
proceedings were commenced in that case (although they were not
continued because prosecution of the offence became time-barred).
It is not retribution that makes protection by the criminal law desirable,
but deterrence. In general, it is through the criminal law that society most
clearly and strictly conveys messages to its members and identifies values
that are most in need of protection. Life, which is one of the values, if not
the main value, protected by the Convention (see Streletz, Kessler and
Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §§ 92-94,
ECHR 2001-II, and McCann and Others v. the United Kingdom, judgment
of 27 September 1995, Series A no. 324, pp. 45-46, § 147), will in principle
require the protection of the criminal law if it is to be adequately
safeguarded and defended. Financial liability to pay compensation is only a
secondary form of protection. In addition, hospitals and doctors are usually
insured against such risks, so that the “pressure” on them is reduced.
2. One might consider that imposing a disciplinary penalty on a doctor
could be regarded as equivalent to imposing a criminal penalty in certain
circumstances. Disciplinary measures were viewed as an alternative means
of discouraging negligence in Calvelli and Ciglio (cited above, § 51).
However, it is equally clear that, as unpleasant as the consequences may be
professionally, a disciplinary penalty does not amount to general
condemnation (Unwerturteil). Disciplinary penalties depend on conditions
that are entirely specific to the profession concerned (the bodies being selfregulating)
and in general do not afford the deterrence necessary to protect
such an important value as life. Nevertheless, the question has to be asked
VO v. FRANCE JUDGMENT – 51
DISSENTING OPINION OF JUDGE RESS
whether in the present case a disciplinary penalty for such a serious error
could have provided sufficient deterrence. Here, though, is where the
problem lies, as the authorities at no stage brought disciplinary proceedings
against the doctor. For an error as serious as that committed by Dr G., such
disciplinary proceedings accompanied by an adequate measure could at
least have sent an appropriate signal to the medical profession to prevent the
recurrence of such tragic events. I do not think it necessary to say that
France requires criminal legislation. However, it does need to take strict
disciplinary action in order to meet its obligation to afford effective
protection of the life of the unborn child. In my opinion, therefore, there was
no effective protection.
3. In order to reach that conclusion, it seems necessary to find out
whether Article 2 applies to the unborn child. I am prepared to accept that
there may be acceptable differences in the level of protection afforded to an
embryo and to a child after birth. Nevertheless, that does not justify the
conclusion (see paragraph 85 of the judgment) that it is not possible to
answer in the abstract the question whether the unborn child is a person for
the purposes of Article 2 of the Convention. All the Court’s case-law and
the Commission’s decisions (see paragraphs 75-80) are based on the
“assuming that” argument (in eventu). Yet the failure to give a clear answer
can no longer be justified by reasons of procedural economy. Nor can the
problem of protecting the embryo through the Convention be solved solely
through the protection of the mother’s life. As this case illustrates, the
embryo and the mother, as two separate “human beings”, need separate
protection.
4. The Vienna Convention on the Law of Treaties (Article 31 § 1)
requires treaties to be interpreted in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its
objects and purpose. The ordinary meaning can only be established from the
text as a whole. Historically, lawyers have understood the notion of
“everyone” (“toute personne”) as including the human being before birth
and, above all, the notion of “life” as covering all human life commencing
with conception, that is to say from the moment an independent existence
develops until it ends with death, birth being but a stage in that
development.
The structure of Article 2 and, above all, the exceptions set out in
paragraph 2 thereof, appear to indicate that persons are only entitled to
protection thereunder once they have been born and that it is only after birth
that they are regarded as having rights under the Convention. In view of the
“aim” of the Convention to provide extended protection, this does not
appear to be a conclusive argument. Firstly, a foetus may enjoy protection,
especially within the framework of Article 8 § 2 (see Odièvre v. France
[GC], no. 42326/98, § 45, ECHR 2003-III). In addition, the decisions of the
Commission and the Court contain indications that Article 2 is applicable to
52 VO v. FRANCE JUDGMENT –
DISSENTING OPINION OF JUDGE RESS
the unborn child. In all the cases in which that issue has been considered,
the Commission and the Court have developed a concept of an implied
limitation or of a fair balance between the interests of society and the
interests of the individual, that is to say the mother or the unborn child.
Admittedly, these concepts were developed in connection with legislation
on the voluntary, but not the involuntary, termination of pregnancy.
However, it is clear that they would not have been necessary if the
Convention institutions had considered at the outset that Article 2 could not
apply to the unborn child. Even though the Commission and the Court have
left the question open formally, such a legal structure proves that both
institutions were inclined to adopt the ordinary meaning of “human life” and
“everyone” rather than the other meaning.
Similarly, the practice of the Contracting States, virtually all of which
had constitutional problems with their laws on abortion (voluntary
termination of pregnancy), clearly shows that the protection of life also
extends in principle to the foetus. Specific laws on voluntary abortion would
not have been necessary if the foetus did not have a life to protect and was
fully dependent till birth on the unrestricted wishes of the pregnant mother.
Nearly all the Contracting States have had problems because, in principle,
the protection of life under their constitutional law also extends to the
prenatal stage.
5. It is obvious that the premise of the debate on genetic safeguards in a
number of recent conventions and the prohibition on the reproductive
cloning of “human beings” in the Charter of Fundamental Rights of the
European Union (Article 3 § 2, final sub-paragraph) is that the protection of
life extends to the initial phase of human life. The Convention, which was
conceived as a living instrument to be interpreted in the light of present-day
conditions in society, must take such a development into account in order to
confirm the “ordinary meaning”, in accordance with Article 32 of the
Vienna Convention.
Even if it is assumed that the ordinary meaning of “human life” in
Article 2 of the Convention is not entirely clear and can be interpreted in
different ways, the obligation to protect human life requires more extensive
protection, particularly in view of the techniques available for genetic
manipulation and the unlimited production of embryos for various purposes.
The manner in which Article 2 is interpreted must evolve in accordance
with these developments and constraints and confront the real dangers now
facing human life. Any restriction on such a dynamic interpretation must
take into account the relationship between the life of a person who has been
born and the unborn life, which means that protecting the foetus to the
mother’s detriment would be unacceptable.
6. The fact that various provisions of the Convention contain guarantees
which by their nature cannot extend to the unborn cannot alter that position.
If, by their very nature, the scope of such provisions can only extend to
VO v. FRANCE JUDGMENT – 53
DISSENTING OPINION OF JUDGE RESS
natural persons or legal entities, or to persons who have been born or are
adults, that does not preclude the conclusion that other provisions such as
the first sentence of Article 2 incorporate protection for the lives of human
beings in the initial stage of their development.
7. It should be noted that the present case is wholly unrelated to laws on
the voluntary termination of pregnancy. That is a separate issue which is
fundamentally different from interference, against the mother’s wishes, in
the life and welfare of her child. The present case concerns wrongdoing by a
third party resulting in the loss of a foetus, if not the death of the mother,
whereas voluntary abortion is solely concerned with the relationship
between the mother and the child and the question of their protection by the
State. Although holding that Article 2 applies to human life before birth
may have repercussions on the laws regulating the voluntary termination of
pregnancy, that is not a reason for saying that Article 2 is not applicable.
Quite the opposite.
Furthermore, it is not necessary in the instant case to decide when life
begins. It was noted that the 21-week-old foetus was viable, although I
believe that the notion of viability cannot limit the States’ positive
obligation to protect the unborn child against interference and negligence by
doctors.
8. There can be no margin of appreciation on the issue of the
applicability of Article 2. A margin of appreciation may, in my opinion,
exist to determine the measures that should be taken to discharge the
positive obligation that arises because Article 2 is applicable, but it is not
possible to restrict the applicability of Article 2 by reference to a margin of
appreciation. The question of the interpretation or applicability of Article 2
(an absolute right) cannot depend on a margin of appreciation. If Article 2 is
applicable, any margin of appreciation will be confined to the effect thereof.
9. Since I consider that Article 2 applies to human beings even before
they are born, an interpretation which seems to me to be consistent with the
approach of the Charter of Fundamental Rights of the European Union, and
since France does not afford sufficient protection to the foetus against the
negligent acts of third parties, I find that there has been a violation of
Article 2 of the Convention. As regards the specific measures necessary to
discharge that positive obligation, that is a matter for the respondent State,
which should either take strict disciplinary measures or afford the protection
of the criminal law (against unintentional homicide).
54 VO v. FRANCE JUDGMENT
DISSENTING OPINION OF JUDGE MULARONI
JOINED BY JUDGE STRÁŽNICKÁ
(Translation)
I am unable to concur with the majority’s finding that there has been no
violation of Article 2 of the Convention because the applicant could have
brought an action in negligence in the administrative courts for the damage
caused by the hospital doctor (see paragraph 91 of the judgment). According
to the majority, since the applicant did not bring such an action, there was
no violation of Article 2.
I agree with the majority that it is necessary to consider “whether the
legal protection afforded the applicant by France in respect of the loss of the
unborn child she was carrying satisfied the procedural requirements inherent
in Article 2 of the Convention” (see paragraph 85 of the judgment) and that
“the first sentence of Article 2, which ranks as one of the most fundamental
provisions in the Convention and also enshrines one of the basic values of
the democratic societies making up the Council of Europe (see McCann and
Others v. the United Kingdom, judgment of 27 September 1995, Series A
no. 324, pp. 45-46, § 147), requires the State not only to refrain from the
‘intentional’ taking of life, but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (see, among other authorities, L.C.B. v.
the United Kingdom, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998-III, p. 1403, § 36)” (see paragraph 88 of the judgment).
However, I come to entirely different conclusions.
I note that in December 1991, when the applicant and her partner lodged
a criminal complaint, together with an application to join the proceedings as
civil parties, alleging unintentional injury to the applicant entailing total
unfitness for work for a period not exceeding three months and
unintentional homicide of her child, the Conseil d’Etat had not yet
abandoned its position that a hospital department could incur liability only
in cases of gross negligence (see paragraph 57 of the judgment – the
Government’s submissions).
It is true that, as the majority note, the applicant could have tried to bring
an action in damages against the authorities before it became time-barred.
However, it seems to me that the Court may be demanding too much of this
applicant when it is recalled that the position taken by the Court of
Cassation in its judgment of 30 June 1999, and which it subsequently
followed in its judgments of 29 June 2001 (sitting as a full court) and
25 June 2002 (see paragraph 29 of the judgment), was far from established,
as witnessed by the court of appeal decisions to the contrary, the
submissions of the advocates-general at the Court of Cassation and, lastly,
the almost universal criticism it attracted from legal commentators (see
paragraph 31 of the judgment). Since it was doubtful that she would be
VO v. FRANCE JUDGMENT – DISSENTING OPINION 55
OF JUDGE MULARONI JOINED BY JUDGE STRÁŽNICKÁ
successful in an action in the administrative courts, the applicant brought
criminal proceedings under the only two provisions of the Criminal Code
that were open to her. She told the Court that she chose that course of action
because a criminal investigation would aid in the task of establishing
responsibility (see paragraph 50 of the judgment). That explanation is
entirely logical: it is precisely what most victims of crime do in countries
that offer a choice between proceedings in the criminal courts or in the civil
or administrative courts.
It could be argued that the French legal system did not afford the
applicant any “effective” remedy when these sad events took place.
Nevertheless, let us assume that the applicant had a choice between
criminal and administrative remedies. Since a victim cannot claim
compensation for his or her damage twice over, it would to my mind be
disproportionate to criticise the applicant for not having exercised both
remedies simultaneously. It would also represent a departure from the
Court’s case-law.
Under the case-law of the Convention institutions, where there is a
choice of remedies open to the applicant, Article 35 must be applied to
reflect the practical realities of the applicant’s position in order to ensure the
effective protection of the rights and freedoms guaranteed by the
Convention (see Allgemeine Gold- und Silberscheideanstalt A.G. v. the
United Kingdom, no. 9118/80, Commission decision of 9 March 1983,
Decisions and Reports (DR) 32, p. 165). The applicant must have made
normal use of domestic remedies which are likely to be effective and
sufficient. When a remedy has been attempted, use of another remedy which
has essentially the same objective is not required (see Wójcik v. Poland,
no. 26757/95, Commission decision of 7 July 1997, DR 90-A, p. 28;
Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002; and
Anagnostopoulos v. Greece, no. 54589/00, § 32, 3 April 2003).
Furthermore, the applicant is only required to have recourse to such
remedies as are both available and sufficient, that is to say capable of
providing redress for his or her complaints (see Airey v. Ireland, judgment
of 9 October 1979, Series A no. 32, p. 11, § 19, and Deweer v. Belgium,
judgment of 27 February 1980, Series A no. 35, p. 16, § 29).
I would also note that the amount at stake in Anagnostopoulos (cited
above) was 15,000 drachmas (approximately 44 euros), whereas in the
present case we are dealing with an unborn child.
The majority make a number of references to Calvelli and Ciglio v. Italy
([GC], no. 32967/96, ECHR 2002-I), in which the Court stated (in
paragraph 51): “[I]f the infringement of the right to life or to personal
integrity is not caused intentionally, the positive obligation imposed by
56 VO v. FRANCE JUDGMENT – DISSENTING OPINION
OF JUDGE MULARONI JOINED BY JUDGE STRÁŽNICKÁ
Article 2 to set up an effective judicial system does not necessarily require
the provision of a criminal-law remedy.” It added: “In the specific sphere of
medical negligence the obligation may for instance also be satisfied if the
legal system affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any liability of
the doctors concerned to be established and any appropriate civil redress,
such as an order for damages and for the publication of the decision, to be
obtained. Disciplinary measures may also be envisaged.”
I consider that the differences between the solutions afforded by the two
domestic legal systems must outweigh the similarities. In Calvelli and
Ciglio, the applicants – the father and mother of a newborn child who died
two days after birth – had brought criminal proceedings which ended when
the offence of involuntary manslaughter with which the obstetrician was
charged became time-barred. However, the applicants were able to summon
the doctor to appear in the civil courts after he was convicted at first
instance in the criminal courts almost seven years after the death of the child
and, with the civil proceedings still pending, they reached a settlement with
the doctor’s and clinic’s insurers in respect of the damage they had
sustained. The Court recognised that the Italian legal system afforded the
applicants an effective alternative to criminal proceedings (Calvelli and
Ciglio, cited above, §§ 54-55) that enabled the respondent State to discharge
its positive obligations under Article 2 of the Convention. In my opinion,
the same cannot be said of its French counterpart in the present case.
I must confess that, had I been sitting in Calvelli and Ciglio, I would
undoubtedly have concurred with the partly dissenting opinion of Judges
Rozakis, Bonello and Strážnická. However, even if I had agreed with the
majority, it does not seem to me that their conclusion in Calvelli and Ciglio
can be transposed to the present case, in which the limitation period for an
action in the administrative courts, which at the time was four years from
the date of stabilisation of the damage, had expired by the time the criminal
proceedings ended. The applicant received no reparation for her loss, not
even for the offence of unintentionally causing injuries, for which the doctor
was given an amnesty by the law of 3 August 1995.
I conclude that, in the light of the loss of the child she was carrying, the
legal protection France afforded the applicant did not satisfy the procedural
requirements inherent in Article 2 of the Convention.
Obviously, since I do not accept the reasoning that led the majority to
hold that there had been no violation of Article 2 on procedural grounds and
that it was therefore unnecessary to determine whether Article 2 was
applicable, I must explain why I consider that that provision is applicable
and has been violated.
Until now, while the Convention institutions have refrained from
deciding whether or not Article 2 applies to unborn children (see
paragraphs 75-80 of the judgment), they have not excluded the possibility
VO v. FRANCE JUDGMENT – DISSENTING OPINION 57
OF JUDGE MULARONI JOINED BY JUDGE STRÁŽNICKÁ
that the foetus may enjoy a certain protection under Article 2, first sentence
(see H. v. Norway, no. 17004/90, Commission decision of 19 May 1992,
DR 73, p. 167, and Boso v. Italy (dec.), no. 50490/99, ECHR 2002-VII).
Firstly, I think it necessary to bear in mind that the task of the national
and international judge is not always easy, especially when a text may be
construed in ways that are diametrically opposed.
The travaux préparatoires on the Convention are silent on the scope of
the words “everyone” and “life” and as to whether Article 2 is applicable
prior to birth.
Yet, since the 1950s, considerable advances have been made in science,
biology and medicine, including at the prenatal stage.
The political community is engaged at both national and international
level in trying to identify the most suitable means of protecting, even
prenatally, human rights and the dignity of the human being against certain
biological and medical applications.
I consider that it is not possible to ignore the major debate that has taken
place within national parliaments in recent years on the subject of bioethics
and the desirability of introducing or reforming legislation on medically
assisted procreation and prenatal diagnosis, in order to reinforce guarantees,
prohibit techniques such as the reproductive cloning of human beings and
provide a strict framework for techniques with a proven medical interest.
The aim of the Convention on Human Rights and Biomedicine, which
was opened for signature on 4 April 1997 in Oviedo and came into force on
1 December 1999, is to protect the dignity and identity of human beings and
to guarantee everyone, without discrimination, respect for their integrity and
other rights and fundamental freedoms with regard to the application of
biology and medicine. It protects the dignity of everyone, including the
unborn, and its main concern is to ensure that no research or intervention
may be carried out that would undermine respect for the dignity and identity
of the human being. Although this convention is very recent, it does not
define the terms “everyone” and “human being” either, although it affirms
their primacy in Article 2 in these terms: “The interests and welfare of the
human being shall prevail over the sole interests of society or science.” As
to the problem of defining the term “everyone”, the explanatory report
produced by the Directorate General of Legal Affairs at the Council of
Europe states, in paragraph 18: “In the absence of a unanimous agreement
on the definition of these terms among member States of the Council of
Europe, it was decided to allow domestic law to define them for the
purposes of the application of the present Convention.”
Furthermore, I note that this convention unquestionably contains
provisions on the prenatal phase (see, for instance, Chapter IV – Human
Genome). Requests may be made to the European Court of Human Rights
under Article 29 of the convention for advisory opinions on its
interpretation. The Contracting States did not impose any restriction on the
58 VO v. FRANCE JUDGMENT – DISSENTING OPINION
OF JUDGE MULARONI JOINED BY JUDGE STRÁŽNICKÁ
scope of such referrals confining the Court’s jurisdiction to questions
arising postnatally.
Although the texts are either silent or full of cross-references, the
applicant is nevertheless entitled to an answer.
Secondly, I would stress that the Court must deliver a decision on the
concrete case before it. The application concerns the termination of a
pregnancy as a result of medical negligence that caused the loss of a foetus
aged between 20 and 24 weeks, against the mother’s wishes.
In that connection, I consider that one should not overlook the fact that
the foetus in the instant case was almost as old as foetuses that have
survived and that scientific advances now make it possible to know virtually
everything about a foetus of that age: its weight, sex, exact measurements,
and whether it has any deformities or problems. Although it does not yet
have any independent existence from that of its mother (though having said
that, in the first years of its life, a child cannot survive alone without
someone to look after it either), I believe that it is a being separate from its
mother.
Although legal personality is only acquired at birth, this does not to my
mind mean that there must be no recognition or protection of “everyone’s
right to life” before birth. Indeed, this seems to me to be a principle that is
shared by all the member States of the Council of Europe, as domestic
legislation permitting the voluntary termination of pregnancy would not
have been necessary if the foetus was not regarded as having a life that
should be protected. Abortion therefore constitutes an exception to the rule
that the right to life should be protected, even before birth.
In any event, this case is wholly unconcerned with the States’ domestic
abortion laws, which have long been the subject matter of applications to
the Convention institutions and have been found to be consistent with the
Convention (see paragraphs 75-80 of the judgment).
I consider that, as with other Convention provisions, Article 2 must be
interpreted in an evolutive manner so that the great dangers currently facing
human life can be confronted. This is made necessary by the potential that
exists for genetic manipulation and the risk that scientific results will be
used for a purpose that undermines the dignity and identity of the human
being. The Court has, moreover, often stated that the Convention is a living
instrument, to be interpreted in the light of present-day conditions (see,
among other authorities, Tyrer v. the United Kingdom, judgment of 25 April
1978, Series A no. 26, pp. 15-16, § 31; Loizidou v. Turkey (preliminary
objections), judgment of 23 March 1995, Series A no. 310, p. 26, § 71; and
Mazurek v. France, no. 34406/97, § 49, ECHR 2000-II).
I therefore find that Article 2 of the Convention is applicable in the
present case and has been violated, as the right to life has not been protected
by the law of the respondent State.