The Experience of the European Court of Human Rights with the European Convention on Human Rights and Biomedicine

Francesco Seatzu

doi:10.5334/ujiel.da

Abstract

Several papers have been written on the contribution of domestic courts to the interpretation of the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine, also known as the Oviedo Convention) and its Additional Protocols (the ‘Oviedo Convention system’) or to the development of new rules of international bio law. Nevertheless very few papers have thus far focused on the contribution of the European Court of Human Rights (‘ECtHR’) to the enforcement of the Oviedo Convention’s provisions. This is notwithstanding the very close relationship of the European Convention on Human Rights (ECHR) with the Oviedo Convention and its Additional Protocols, namely the fact that the Oviedo Convention: “elaborates some of the principles enshrined in the ECHR” as elucidated by the Explanatory Report of the European Convention on Human Rights and Biomedicine (the ‘Explanatory Report’). The purpose of this paper is to fill this major gap and to focus on the use of the Oviedo Convention when a specifi c biomedical issue is submitted to the ECtHR. The paper will briefly address, through some relevant examples, the ECtHR’s main contributions to implementation of the bio-law rights encompassed in the Oviedo Convention’s system. It also charts the evolution from the ECtHR’s original position, which tended to apply the Oviedo Convention directly, to its later less radical position, adopted in some of its most recent judgments, in which the Oviedo Convention is implemented exclusively: a) when the content of its provisions coincide with rights explicitly protected in the ECHR and b) when it helps to elucidate or understand better the ECHR. A correction article relating to the authorship of this publication can be found here: DOI: http://dx.doi.org/10.5334/ujiel.dk

Highlights

Very few papers have far focused on the contribution of the European Court of Human Rights (‘ECtHR’) to the enforcement of the Oviedo Convention’s provisions. This is notwithstanding the very close relationship of the European Convention on Human Rights (ECHR) with the Oviedo Convention and its Additional Protocols, namely the fact that the Oviedo Convention: “elaborates some of the principles enshrined in the ECHR” as elucidated by the Explanatory Report of the European Convention on Human Rights and Biomedicine
In the Introduction, we describe the characteristics of the Oviedo Convention
The basic criteria for the jurisdiction of the ECtHR are set by Article 32 of the ECHR, which provides that the Court can only examine violations of the ECHR itself.[26]

Summary

Introduction

The starting point of this work is the idea that the European Convention on Human Rights and Biomedicine[1] of 1997 (the Oviedo Convention)[2] represents a milestone in the protection of human rights in the bioethical and biomedical field on a regional scale,[3] and “the most elaborate and systematic attempt ever undertaken. The Oviedo Convention’s innovative role in the protection of bio-rights is a direct consequence of its binding nature, which entails the adoption of specific measures by the States Parties that are called upon to integrate the principles enshrined in the Convention into effective national regulations.[5] The content of the Oviedo Convention may be supplemented by various Additional Protocols, as was already the case for human cloning (January 1998), organ transplantation (January 2002), biomedical research (January 2004) and genetic testing for health purposes (November 2008) This helps to keep pace with the constant evolution of bio-law issues and to provide an appropriate regulatory response when necessary.[6].

The ECHR and the Oviedo Convention

The Oviedo Convention in the Experience of the European Human Rights System

T he European Court of Human Rights

Final Remarks