EUROPEAN COURT OF HUMAN RIGHTS

3508.7.2004

GRAND CHAMBER JUDGMENT IN THE CASE OF VO v. FRANCE

Judgment of July 8, 2004 (Application No.53924/00 )

Chloé Baudens

Principle facts:

The case concerns an application brought by a French national, Mrs Thi-Nho Vo, who was born in 1967 and lives in Bourg-en-Bresse (France).

On 27 November 1991 she attended the Lyons General Hospital for a medical examination scheduled during the six month of pregnancy. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a coil removed at the same hospital.

Owing to a mix-up caused by the fact that both women shared the same surname, the doctor who examined the applicant pierced her amniotic sac, making a therapeutic abortion necessary.

Complaint from the applicant, Mrs Thi-Nho VoRelying on Article 2 of the Convention, the applicant complained of the authorities’ refusal to classify the unintentional killing of her unborn child as involuntary homocide. She maintained that France had an obligation to pass legislation making such acts a criminal offence.

Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms

Right to life:

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 acourt 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 orinsurrection.

Procedure :

Following a criminal complaint lodged by the applicant and her husband in 1991, the doctor was charged with causing unintentional injury, the charge subsequently being increased to one of unintentional homicide. On 3 June 1996 Lyons Criminal Court acquitted the doctor. The applicant appealed and on 13 March 1997 Lyons Court of Appeal overturned the Criminal Court’s judgment, convicted the doctor of unintentional homicide and imposed a six-month suspended sentence and a fine of 10,000 French francs. On 30 June 1999 the Court of Cassation reversed the Court of Appeal’s judgment, holding that the facts of the case did not constitute the offence of involuntary homicide; it thus refused to consider the foetus as a human being entitled to the protection of the criminal law.

The application was lodged on 20 December 1999. On 22 May 2003 the Chamber relinquished jurisdiction in favour of the Grand Chamber. On 25 November 2003 the President of the Grand Chamber gave leave to two non-governmental organisations, the Family Planning Association (London) and the Center for Reproductive Rights (New York) to intervene in the proceedings as third parties. A hearing on the admissibility and merits of the case was held in Strasbourg on 10 December 2003.

Issues from the case: According to French juridiction fetus has no legal personality before six months in the Penal Code.Which legal statute concerns the embryo/fetus?Can we qualify abortion as manslaughter?Is it the act which should be punished with criminal law?

Solution of the case :

The Court considered that the issue of when the right to life begins was a question to be decided at national level:

Firstly, because the issue had not been decided within the majority of the States which had ratified the Convention, in particular in France, where the issue has been the subject of public debate; and, secondly, because there was no European consensus on the scientific and legal definition of the beginning of life.

At European level, there was no consensus on the nature and status of the embryo and/or fetus. At best, it could be regarded as common ground between States that the embryo/fetus belonged to the human race. Its potential and capacity to become a person required protection in the name of human dignity, without making it a person with the right to life for the purposes of Article 2.

Having regard to those considerations;

At first, we are going to definite the fetus, this step would help us in the second part where we are going to debate if the abortion is a criminal act.

I- Definition of the fetus:

Let's definite some words:

Fetus: an unborn vertebrate especially after attaining the basic structural plan of its kind; specifically : a developing human from usually three months after conception to birth.

Embryo: the developing human individual from the time of implantation to the end of the eighth week after conception

Abortion: any of various surgical methods for terminating a pregnancy, during the first six months.

Issue of the fetus' definition:

Everyone’s right to life shall be protected by law.

Therfore, What does it means « Everyone »? Can we include the embryo/fetus?When does the right to life begin?It is the question asked by French jurisdictions, but it is impossible to definite

biologically the moment when the embryo becomes a “person”.In France, it is still a public debate.

The European Court refused to extend the right to life to unborn fetuses. It reasoned, "firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves...and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life." The Court further noted that "the life of the fetus was intimately connected with that of the mother and could be protected through her."“The potentiality of that being and its capacity to become a person – enjoying protection under the civil law »Therefore the Court refuses to say when the life begins, and there is no violation of article 2.

II- Fetus: Right to life?

Article 2:

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.

Therefore, the issue is:  prive someone of his life intentionally is a crime, so the abortion is a legal crime

As the Court says, it is hard to prononce it about this issue because the law is very different in each country.

There are actually five categories:

- To save the woman's life or prohibed altogether: it is an explicit exception to save a woman's life.- To preserve physical health: also to save the woman's life - To preserve mental health: also to save the woman's life and physical health- Socioeconomic grounds: also to save the woman's life, physical health and mental health. - Without restriction as to reason

About the case of Mrs Vo, , the Court considered it unnecessary to examine whether the abrupt end to the applicant’s pregnancy fell within the scope of Article 2, seeing that, even assuming that that provision was applicable, there had been no failure on the part of France to comply with the requirements relating to the preservation of life in the public-health sphere. The unborn child was not deprived of all protection under French law. Contrary to what had been submitted by Mrs Vo, the States’ positive obligation – which in the public-health sphere consisted of adopting appropriate measures for the protection of patients’ lives and of holding inquiries into the cause of death – did not necessarily require the provision of a criminal-law remedy.

"Had the Court gone the other way, abortion laws in thirty-nine countries across Europe would have been rendered invalid. The facts in this case

were extremely sad, but a woman's right to make her own decisions about her life and body were at stake," said Laura Katzive, Center for

Reproductive Rights Legal Adviser. "This is an important decision for European women, and for women around the world whose governments

are watching this influential Court."

Thank you for your attention