“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

2011 ◽  
Vol 18 (4) ◽  
pp. 375-395 ◽  
Author(s):  
Brenda Daly

AbstractIn Ireland, Article 40.3.3° of Bunreacht na hÉireann (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.3 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’4 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,5 and A, B, and C v. Ireland,6 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.

2006 ◽  
Vol 7 (4) ◽  
pp. 433-444 ◽  
Author(s):  
Jakob Pichon

In the July 8, 2004 case of Vo v. France, the European Court of Human Rights (“ECtHR”) dealt with the question of whether the embryo/fetus (“the fetus”) enjoys the protection of the right to life provided by Article 2 of the European Convention on Human Rights (“the Convention”). Below, a pregnant woman lost her fetus due to an error made by the attending doctor, and the Cour de Cassation, the French court of last instance, acquitted the doctor of involuntary homicide on the grounds that a fetus is not a person within the meaning of the French Criminal Code. Claiming a violation of her child's right to life within the meaning of the Convention, the woman appealed to the ECtHR. The ECtHR left open the question whether or not a fetus falls within the scope of Article 2; declaring that, even assuming Article 2 was applicable to a fetus, there had been no failure by France to comply with its obligations under Article 2, because the ECtHR deemed the institution of criminal proceedings unnecessary. Rather, it considered the possibility for the applicant to bring an action for damages as sufficient and therefore found that there had been no violation of the fetus's right to life.


Author(s):  
James Gallen

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.


2021 ◽  
pp. 159-170
Author(s):  
Majida Lubura

A basic human right - the right to life, even today faces numerous questions when it comes to its scope. One of those questions is the issue of the right to abortion, which is the subject of numerous controversies among lawyers, philosophers, medical workers, theologists, as well as among citizens in the broadest sense. Debates that exist in various scientific disciplines indicate the complexity of these issues that needs to be legally regulated at the domestic and international level. For that reason, it is necessary to follow and study the judgments of international bodies that have been passed in connection with this issue. As the most developed system of Human Rights protection has been established within the European Convention on Human Rights, and at the same time the most relevant for our country, in this paper the author studies the current practice of the European Court of Human Rights related to the right to abortion. It is evident, from the case law presented in this paper that the Court had a very delicate and difficult task to balance between diametrically opposing rights and interests of various interested parties. The Court's judgments show a consensus only regarding the question of the existence of the right to abortion in cases where the right to life and health of women is endangered. Opponents of abortion claim that in this case, it is not the right to abortion, but the right to life of a woman and that only then an abortion is allowed and justified to be performed, as well as that it is a conclusion that can be deduced from the Court's case law. However, the author of this paper believes that even though the practice of the court is quite neutral, it still tends more towards granting the right to safe abortion.


2007 ◽  
Vol 8 (3) ◽  
pp. 231-253 ◽  
Author(s):  
Dimitris Xenos

In the liberal tradition, there has always been scepticism about the state's involvement in the activities of industry. Instead, internal measures by way of self-regulation and collective action have been preferred. In recognition of the reality that exclusive reliance on such solutions has not prevented violations of human rights, to which a high constitutional importance is attached, other arrangements have to be provided. In the system of the European Convention of Human Rights (hereinafter the Convention), positive obligations are imposed engaging the state in the active protection of human rights. The need to protect human rights against the hazards of industry has been the main issue in the case of Öneryildiz v. Turkey, in which, for the first time in the jurisprudence of the European Court of Human Rights (hereinafter the Court), a claim under the right to life (Article 2 of the Convention) has successfully been asserted in the context of industry.


Author(s):  
Andrew Yu. KLYUCHNIKOV

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.


Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first explains the background and rationale for the formation of the European Convention on Human Rights (ECHR), tracing its roots to the Council of Europe that was formed in 1949 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) established a year later. It then looks at the different kinds of human rights embedded in the ECHR, including the right to life, right to a fair trial, freedom of expression, right to property, and right to free elections. The chapter also provides an overview of the European Court of Human Rights (ECtHR), along with the major changes made to its complaints system and how it interprets the Convention rights. Finally, it considers the ECtHR’s use of proportionality and margin of appreciation doctrines to find the balance between the rights of the individual and the community when deciding upon qualified rights.


2004 ◽  
Vol 11 (4) ◽  
pp. 347-364 ◽  
Author(s):  
Rosamund Scott

AbstractFollowing the enactment of the Human Rights Act 1998 in English law, there was speculation as to whether the English legal position that the fetus has no right to life is compatible with Article 2 of the European Convention on Human Rights (ECHR). The recent decision of the European Court of Human Rights in Vo v. France provides an opportunity to reflect on the current English and ECtHR approaches to the fetus. The problems of finding a fetal right to life, which Vo sidesteps, are noted. At the same time, the "all or nothingness" of rights language is not without difficulties and troubled the judges in Vo. In particular, the idea that the fetus has no right to life gives the impression that neither English nor ECHR law values the fetus. In this light, we find English and ECtHR judges trying to express a concern for the fetus which does not undermine a pregnant woman's legal interests. This article considers these issues and highlights the importance, in a highly genetic age, of developing ways of valuing the fetus without invoking the language of rights and thus without affecting the current legal balance of interests in the maternal-fetal relationship. The idea of valuing the fetus in this way is briefly explored with particular reference to aspects of selective abortion.


TEME ◽  
2020 ◽  
pp. 607
Author(s):  
Ivan B Ilić ◽  
Saša Sava Knežević

In paragraph 1 of Article 2 of the European Convention on Human Rights (ECHR), the imposition of the death penalty is permitted, as a departure from the right to life. In the last decades there has been a tendency for the absolute abolition of the death penalty, in times of war and peace. As a result of this effort, almost all European countries abolished the death penalty. In addition, the Council of Europe adopted Protocol 6 and Protocol 13, which completely abolished the death penalty. The European Court also, in its practice, using the principle of "convention as a living instrument", has changed its approach to the scope of the ban on the application of the death penalty. The authors deal with a critical interpretation of the case-law of the European Court of Human Rights, trying to answer the question, of whether there has been an abrogation of the provision of paragraph 1 of Article 2, so that according to that provision, there is an absolute ban on the application of the death penalty in the Council of Europe member states.


2020 ◽  
Vol 7 (1) ◽  
pp. 61-67
Author(s):  
Jakub Czepek

AbstractThe main aim of this analysis is the synthetic reconstruction of the standards of European Court of Human Rights concerning the procedural aspect of the right to life, and particularly the obligation of conducting an effective investigation in the context of the Polish Air Force Tu-154 air crash in Smolensk on 10th April 2010.The right to life in the system of the European Convention of Human Rights has a particular character. It derives mostly from its paramount importance. Due to the character of the sphere guaranteed by the right to life, the European Court of Human Rights notices the need of protecting it, both in material and procedural aspect. This is also the reason why article 2 of the ECHR is backed up by the wide variety of positive obligations.The standards of article 2 of the ECHR and state’s positive obligations in this respect are fully applicable in relation to the air crash of the presidential Tu-154. State’s obligations focus on both material and procedural aspect of incident causing death. The air crash of Tu-154 concerns particularly the obligation to conduct adequate and effective official investigation. This obligation concerns both Polish and Russian authorities.The main aim of this research is to analyse which obligations are applicable in respect of this particular air crash.


2020 ◽  
pp. 87-112
Author(s):  
Екатерина Вячеславовна Киселева ◽  
Ольга Сергеевна Кажаева

В практике Европейского Суда по правам человека есть ряд решений, затрагивающих проблему абортов, последние из которых на октябрь 2020 г. были вынесены в марте 2020 г. (дела Гриммарк против Швеции и Стин против Швеции). Хотя права на аборт в Европейской конвенции по правам человека 1950 г. нет, такие дела рассматриваются, в частности, в контексте права на жизнь (как правило, беременной женщины, но не нерожденного ребенка), права на неприкосновенность частной жизни (как правило, беремен ной женщины, но не, например, отца нерождённого ребенка), свободы вероисповедания (как правило, медицинского работника, отказывающегося от проведения аборта по соображениям совести и обычно не защищаемого Судом) и др. Примечательно, что при вы несении решений по делам об абортах Суд de facto опирается на концепцию так называемых соматических прав человека и чем дальше, тем менее утруждает себя поиском действительного баланса между различными правами человека, оказывающимися в со прикосновении в связи с абортом. Теория о соматических правах человека как правах человека четвертого поколения исходит из мировоззренческого признания права человека на распоряжение собственным телом, чему способствует быстрое развитие биомедицины, биоинженерии и промышленного производства, но противоречит Православному вероучению. В настоящей статье раскрываются основные положения, относящиеся к так называемым соматическим правам человека, особенно репродуктивным, отмечается их расхождение с христианским отношением к жизни и телу человека, приводятся три при мера дел Европейского Суда по правам человека, связанных с абортами, которые свидетельствуют о тенденции признания «права на аборт» в целом и, в частности, в качестве более приоритетного, чем защита свободы вероисповедания, если речь идет об отказе от проведения аборта по соображениям совести медицинского работника. The caselaw of the European Court of Human Rights contains a range of decisions touching upon the problem of abortions. The latest of such decisions, as of October 2020, were issued in March 2020 (Grimmark v. Sweden and Steen v. Sweden). Although there is no right to abortion in the European Convention on Human Rights, the abortion cases are being taken by the Court, inter alia, in context of the right to life (usually that of the pregnant woman, but not of the unborn child), right to respect for private life (usually that of the pregnant woman, but not, e. g. of the father of the unborn child), freedom of religion (usually that of a health care worker refusing to carry out an abortion and generally being left without the protection of the Court), etc. It is notable that, when deciding the abortion cases, the Court de facto employs the concept of the so called somatic human rights and tends recently not to trouble itself with seeking the real balance between the different human rights that become intertwined in connection with abortion. The theory of somatic rights as of fourth generation human rights emanates from the world outlook accepting rights of a person to disposal of one’s body supported by the rapid development of bio medicine, bioengineering and industrial production, but being in contradiction with the Orthodox faith. The present article reveals the basic provisions related to the so called somatic rights, especially reproductive rights, notes their incongruity with the Christian attitude towards a human life and body, brings three examples of the European Court’s of Human Rights cases connected with abortions, that witness a tendency to accept ‘a right to abortion’ generally and, in particular, as a more prioritized one than the protection of the freedom of religion, if the matter concerns the conscientious abjection to carry out an abortion on the part of the health care worker.


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