Conscientious objection in reproductive health care: Analysis of Pichon and Sajous v. France

This article explores the issue of conscientious objection invoked by health professionals in the reproductive and sexual health care context and its impact on women's ability to access health services. The right to exercise conscientious objection has been recognized by many international and European scholars as being derived from the right to freedom of thought, conscience and religion. It is not, however, an absolute right. When the exercise of conscientious objection conflicts with other human rights and fundamental freedoms, a balance must be struck between the right to conscientious objection and other affected rights such as the right to respect for private life, the right to equality and non-discrimination, and the right to receive and impart information. Particularly in the reproductive health care context, states that allow health professionals to exercise conscientious objection must accommodate this in such a way that its exercise does not compromise women's access to health services. This article analyses the European Court of Human Rights' decision on admissibility in Pichon and Sajous v. France (2001) and argues that a balancing approach should be applied in cases of conscientious objection in the sexual and reproductive health care context.     

Reproductive Health: Morals,Margins and Rights

Reproductive interventions and technologies have the capacity to generate profound societal unease and to provoke hostile reactions underpinned by various moral concerns. This paper shows that this position currently goes relatively unchecked by the European Court of Human Rights, which allows the margin of appreciation and consensus doctrines significantly to limit the scope of reproductive rights under the right to respect for private and family life under Article 8. This occurs both in relation to the interest in avoiding reproduction at stake in abortion, and that in achieving it at stake in medically assisted reproduction. The paper demonstrates significant flaws in the Court's framing and deployment of these doctrines in its reproductive jurisprudence. It argues that, as regards existing and upcoming reproductive interventions and technologies, the Court should attend to the concept of reproductive health, long recognised in international conventions and policy materials.     

Accommodating Religious Beliefs: Harm,Clothing or Symbols,and Refusals to Serve Others

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti‐discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non‐accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case‐by‐case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.     

"Braxton Hick's" or the birth of a new era? Tracing the development of Ireland's abortion laws in respect of European Court of Human Rights Jurisprudence

In Ireland, Article 40.3.3 degrees of Bunreacht na hEireann (the Irish Constitution) guarantees the right to life of the unborn child and the equal right to life of the mother. Abortion in Ireland is permissible only where there is a real and substantial risk to the mother's own life. Since Ireland became a signatory to the European Convention on Human Rights in 1950,2 there have been concerns that it could result in Ireland being compelled to introduce a right to abortion. This article commences with a review of the extant law on abortion in Ireland, tracing the Constitutional protection afforded to the unborn child. The article will discuss the impact of the European Court of Human Rights' jurisprudence in regard to access to abortion and to information on abortion services in Ireland in an effort to ascertain if it really has resulted in a radical change to Irish abortion laws. As such, it will also be necessary to examine the more recent decisions of the ECtHR such as Tysiac v. Poland, and A, B, and C v. Ireland, to determine both the approach of the ECtHR to access to abortion in general and also to consider if it has resulted in a liberalisation of abortion law in Ireland.     

International human rights for mentally ill persons: the Ontario experience

This article is part of a working project which assesses Ontario's mental health legislation and practice vis-à-vis international human rights standards. The paper focuses on procedural safeguards provided by the major international human rights instruments in the field of mental health law such as the UN Principles for the Protection of Persons with Mental Illness (MI Principles) and the European Convention on Human Rights as interpreted by the European Human Rights Court. In analysing Ontario's compliance with international standards, the paper will explore some problems arising from the implementation of the legislation with which the author is familiar with from his experience as counsel for the Consent and Capacity Board. The paper aims to generate discussion for potential reforms in domestic legal systems and to provide a methodology to be used as a tool to assess similar mental health legislation in other local contexts.     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Regulating surrogacy--a contravention of human rights?

On the 2nd of October 2000, The Human Rights Act 1998 came into full force, signalling the incorporation of The European Convention on Human Rights into U.K. law. Areas of law believed to be inconsistent with the Convention may now be challenged in both The European Court of Human Rights and domestic courts. This article considers whether existing laws on the regulation of access to infertility services, in particular surrogacy, will be deemed incompatible with the ECHR. Human rights as enshrined within Articles 8 and 12 will be examined in light of recent suggestions that there may arise legal challenges by those who have had access to reproductive services restricted or denied. It will be shown that, although existing and potential future controls may arguably infringe these rights, it is nevertheless unlikely that they will be held to be in contravention of The Human Rights Act 1998.     

Health and Efficiency: Community Law and National Health Systems in the Light of Müller-Fauré

In Müller-Fauré the Court of Justice has made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the free movement of services, particularly where the treatment is not in-patient. The patient should generally be able to go abroad for treatment at the expense of their national health authority. This has structural and financial repercussions for health care systems in several Member States, including the United Kingdom, whose systems are premised upon captive patients. It also has broader implications for welfare harmonisation and provision in the European Union. Exceptions are possible, where the implications for the national health system would be very serious, but Müller-Fauré indicates that the Court will not allow national courts or authorities to rely on these too freely.     

论欧洲人权机构对人身自由与安全权的保护

人身自由与安全权是一项重要的基本人权,同时也是实现其他权利的基础.作为<世界人权宣言>发表后诞生的第一个区域性人权保护组织,欧洲人权机构通过其丰富的判例对"人身自由"与"人身安全"内涵作出界定,确立了人身自由与安全权保护的一系列标准,并注重对被依法剥夺人身自由者所享有的权利的保护,但是,欧洲人权机构在保护人身自由与安全权方面存在人权委员会与人权法院对个案的决定相互矛盾的问题,欧洲人权法院对个别案件作出的判决也存在对公约的规定适用不当和对该项权利保护乏力的问题.     

N v UK: No Duty to Rescue the Nearby Needy?

This article discusses the deportation of a seriously ill foreign national to her country of origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment. It criticises the reasoning of the judgment N v UK of the European Court of Human Rights, and explores the circumstances under which removal of a severely ill non-national constitutes a breach of the prohibition against inhuman and degrading treatment under the European Convention on Human Rights.     

Mentally disordered offenders and the European Court of Human Rights

Mentally disordered offenders find themselves at the intersection of the healthcare system and the criminal justice system in most European countries. Decisions on their care often involve lengthy discussions in relation to care versus control in society. In this article, the focus is on one aspect of this debate — that of human rights. An analysis of cases, taken to the European Court of Human Rights by mentally disordered offenders, demonstrates the difficulties inherent in ensuring appropriate care to individuals and safeguards to the public at the same time. The issues raised include the problems raised by indeterminate sentences, the use of detention for preventive purposes, and debates about treatment.The countries represented in this selection of cases are Belgium, Norway, Poland, the Netherlands, Russia and the United Kingdom.     

MEDICALLY ASSISTED HUMAN REPRODUCTIVE TECHNOLOGIES (ART) AND HUMAN RIGHTS — THE EUROPEAN PERSPECTIVE

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.     

International Recognition of Victims' Rights

Since its inception, the United Nations has adopted two GeneralAssembly resolutions dealing with the rights of victims: the1985 Declaration of Basic Principles of Justice for Victimsof Crime and Abuse of Power and the 2006 Basic Principles andGuidelines on the Right to a Remedy and Reparation for Victimsof Gross Violations of International Human Rights Law and SeriousViolations of International Humanitarian Law. The focus of theformer was on victims of domestic crimes, while that of thelatter is on victims of international crimes; more particularly,gross violations of international human rights law and seriousviolations of international humanitarian law. The 2006 Principlesare, for all practical purposes, an international bill of rightsof victims. Their adoption has been hard-fought, but their implementationboth at the national and international levels is sure to stillface many obstacles. Parallel to this historic development havebeen decisions by the European Court of Human Rights and theInter-American Court of Human Rights, as well as provisionsin the statute of the International Criminal Court (ICC), givingstanding to victims in ICC proceedings, but also certain rightsof compensation. These parallel developments, as well as otherswithin domestic legal systems, evidence a wide movement towardsthe recognition of the rights of victims of crime, whether domesticor international, or gross violations of human rights. Thisarticle re-traces the historic origin of victims' rights indomestic and international legal systems, focusing particularlyon the adoption of the two international instruments mentionedabove, and more particularly on the negotiating history of the2006 Principles. A detailed commentary of these Principles constitutesthe centerpiece of this article.     

Networks of European National Human Rights Institutions

This article concerns the networks of European national human rights institutions (NHRIs). It examines how the sharing of best practices takes place through networks and how NHRIs achieve cooperation at both the international and regional levels. The article also analyses NHRI cooperation within three organisations: the United Nations, the Council of Europe and the EU. While cooperation at the international level facilitates their accreditation according to their compliance with the Paris Principles and enables them to participate in the sessions of the Human Rights Council, cooperation at the European level allows them to exchange information on issues of common concern and strengthens their relationship with regional bodies. In Europe, NHRIs cooperate with the Commissioner for Human Rights of the Council of Europe and might also do so with the recently established Fundamental Rights Agency of the EU.     

Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

Data retention and the future of large-scale surveillance: The evolution and contestation of judicial benchmarks

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR).     

荷兰刑事诉讼权利保障的法律基石

荷兰刑事司法受到了现代人权法律的深刻影响。在荷兰刑事诉讼过程中,诉讼权利保障主要依据国际性和地区性的人权条约以及相关国内法。荷兰刑事诉讼程序运作体现了对人权的真切关怀：荷兰签署加入了多部国际公约和欧洲区域公约,国际条约、欧洲人权法院的判例法都对荷兰刑事诉讼中的人权保障起到了重要作用。在国内法体系中,荷兰的《宪法》、《刑事诉讼法》以及其他法律也规定了刑事诉讼程序权利保障。荷兰的法院、检察机关组织运作体制和诉讼制度设计较为完备,保障了诉讼参与者在刑事诉讼程序中的权利。在刑事审前程序中,检察机关发挥了主导作用,但参与其问的侦查法官则对检察官和警察的侦查权形成了有效制衡。从刑事诉讼权利保障法律体系的整体而言,荷兰审前程序权利保障的体制属于适度的职权主义诉讼模式,而审判程序中的权利保障体制则兼采当事人主义和职权主义的混合式诉讼模式。     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

As easy as A, B and C: will A, B and C v. Ireland be Ireland's wake-up call for abortion rights?

This article examines the development of Ireland's abortion policy from 1861 to the present day. It explores the reasoning for this policy as well as the inherent problems with this policy. It examines in detail the A, B and C v. Ireland judgement and its impact, (if any) on Irish abortion law. Finally, it discusses the margin of appreciation doctrine used by the European Court of Human Rights in deciding cases of a moral nature.     

Abortion in Northern Ireland: Has the Rubicon Been Crossed?

On 7 June 2018, the Supreme Court delivered their long anticipated ruling on whether the abortion laws in Northern Ireland are compatible with the European Convention on Human Rights. Although the case was dismissed on procedural grounds, a majority of the court held that, obiter, the current Northern Irish law was incompatible with the right to respect for private and family life, protected by Article 8 ECHR, “insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality”. This Supreme Court decision, seen alongside the May 2018 Irish referendum liberalising abortion, and the 5 June 2018 Parliamentary debate seeking to liberalise abortion laws in Northern Ireland and the rest of the UK, places renewed focus upon the abortion laws of Northern Ireland and Great Britain, which suggests that the ‘halfway house’ of the Abortion Act 1967 Act finally be close to being reformed to hand the decision of abortion to women themselves.