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

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

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

…where human rights protection, whether national or international, remains an aspiration rather than a reality; it is both a symbol of, and a catalyst for, the victory of democracy over totalitarian government; it is the ultimate expression of the capacity, indeed the necessity, for democracy and the rule of law to transcend frontiers”. (Judge Wildhaber, then President ECtHR, 20 January 2006)

ECHR v. Biomedicine Convention an unequal battle: geographical scope enforcement contents

Council of Europe

ECHR – signatories

Council of Europe

Biomed. Conv. – signatories 22 nd ratification: Switzerland 1 November 2008

ECHR – enforcement states (Art. 33 ECHR) indivi- duals (Art. 34 ECHR) inadmissible (Artt. 34, 35 ECHR) in practice: 92% friendly settlement (Art. 38 ECHR) judgment (Artt ECHR) Committee of Ministers supervises execution

Individual complaints...

Biomed. Conv. – enforcement four elements: Article 23 (“The Parties shall provide appropriate judicial protection...”) Article 29 (ECtHR may give advisory opinions) Article 30 (reports on application of Convention at request of SG CoE) “the Committee” (  intergovernmental Steering Committee on Bioethics (CDBI))

What about substance? ECHR health restrictions and limitations for public health reasons (Article 5, Articles ECHR)

ECHR & public health restrictions on rights – examples: ECtHR, 24 October 1979, Winterwerp v. NL (Appl. No. 6301/73) – compulsory confinement  “unsound mind” ECtHR, 25 January 2005, Enhorn v. Sweden (Appl. No /00) – compulsory isolation order  “infectious disease” ECtHR, 7 October 2008, Bogumil v. Portugal (Appl. No /03) – surgery (cocaine in stomach), therapeutic reasons

ECHR & public health on second thought – more issues: ECtHR, 29 April 2002, Pretty v. UK (Appl. No. 2346/02) – right to die? ECtHR, 8 July 2004, Vo v. France (Appl. No /00) – right to life for the unborn child? ECtHR, 20 March 2007, Tysiąc v. Poland (Appl. No. 5410/03) – right to abortion? ECtHR, 10 April 2007, Evans v. UK (Appl. No. 6339/05) – ’genetic parenthood’

ECHR & public health positive obligations: ECtHR, 29 April 2003, McGlinchey v. UK (Appl. No /9) – duty of care for prisoners ECtHR, 5 April 2005, Nevmerzhitsky v. Ukraine (Appl. No /00) – forced feeding of hunger striker ECtHR, 8 July 2003, Sentges v. NL (Appl. No /02, adm.) – robotic arm not provided

What about substance? ECHR health

ECHR & public health references to Biomedicine Convention: ECtHR, 10 May 2001, Cyprus v. Turkey (Appl. No /94) – partly dissenting opinion of Mr Marcus-Helmons “With the rapid evolution of biomedical techniques, new threats to human dignity may arise. The Convention on Human Rights and Biomedicine, signed at Oviedo in 1997, seeks to cover some of those dangers”

Cyprus v. Turkey (2001) Turkey “TRNC” Rep. of Cyprus UN buffer zone

Cyprus v. Turkey (2001) Judge Marcus-Helmons “My view is that, at a time when freedom of movement is regarded as essential, especially when it comes to obtaining optimal medical care, a denial of such freedom by the State amounts to a serious breach of its obligations towards those within its jurisdiction. I consider that is something which may amount to a violation of the State's undertaking under Article 2 of the Convention to protect everyone's right to life by law. We are living in a period of rapid scientific evolution and there may be substantial differences between institutions offering medical treatment, whether from one country to another or within the same country. For a State to use force to prevent a person from attending the institution which he considers offers him the best chance of recovery is to my mind highly reprehensible”

ECHR & public health references to Biomedicine Convention: ECtHR, 10 April 2007, Evans v. UK (Appl. No. 6339/05) – ’genetic parenthood’ ECtHR, 11 October 2007, Özalp v. Turkey (Appl. No /01, adm. dec.) – forced gynaecological examination following arrest ECtHR, 6 May 2008, Juhnke v. Turkey (Appl. No /99 – forced gynaecological examination following arrest “relevant international materials”

ECHR & public health more compelling references to Biomedicine Convention: ECtHR, 8 July 2004, Vo v. France (Appl. No /00) – right to life for the unborn child? ECtHR, 9 March 2004, Glass v. UK (Appl. No /00) – parental consent to medical treatment of child

ECHR & public health Vo: 84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus, although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation.... The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give a definition of the term “everyone”.... The same is true of the Additional Protocol

ECHR & public health more compelling references to Biomedicine Convention: ECtHR, 8 July 2004, Vo v. France (Appl. No /00) – right to life for the unborn child? ECtHR, 9 March 2004, Glass v. UK (Appl. No /00) – parental consent to medical treatment of child 75. The Court would... add that it does not consider that the regulatory framework in place in the United Kingdom is in any way inconsistent with the standards laid down in the Council of Europe's Convention on Human Rights and Biomedicine in the area of consent...

ECHR & public health latest news: ECtHR, 12 November 2008, Demir and Baykara v. Turkey (Appl. No /97) [after recalling reference to Biomed Conv in Glass] 85. The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

ECHR & public health The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases 86. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.

What about the future? ECHR Biomedicine Convention