SEPARATE OPINION OF JUDGE ROZAKIS JOINED BY JUDGES CAFLISCH, FISCHBACH, LORENZEN AND THOMASSEN

I have voted, together with the majority of the Grand Chamber, in favour of finding that there has been no violation of Article 2 of the Convention in the instant case. Yet, my approach differs in certain respects from that of the majority and I would therefore like to append to the judgment this separate opinion setting out the points on which my assessment of the law is at variance with that of the majority.

The Court in this case correctly stresses that research into French domestic law shows that the nature and legal status of the embryo and/or foetus are currently not defined in France and that the manner in which it is to be protected will ultimately be determined by very varied forces within French society ( see paragraph 83 in fine of the judgment ). It also stresses (and this was a forceful argument in the eyes of the Court) that at European level there is no consensus on the nature and status of the embryo and/or foetus and, at best, “it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person – enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom – require protection in the name of human dignity, without making it a ‘ person ’ with the ‘ right to life ’ for the purposes of Article 2” ( see paragraph 84 of the judgment ).

Despite these findings, with which I readily agree, the Court refuses to draw the relevant conclusions, namely that in the present state of development of science, law and morals, both in France and across Europe, the right to life of the unborn child has yet to be secured. Even if one accepts that life begins before birth, that does not automatically and unconditionally confer on this form of human life a right to life equivalent to the corresponding right of a child after its birth. This does not mean that the unborn child does not enjoy any protection by human society, since – as the relevant legislation of European States, and European agreements and relevant documents show – the unborn life is already considered to be worthy of protection. But as I read the relevant legal instruments, this protection, though afforded to a being considered worthy of it, is, as stated above, distinct from that given to a child after birth, and far narrower in scope. It consequently transpires from the present stage of development of the law and morals in Europe that the life of the unborn child, although protected in some of its attributes, cannot be equated to postnatal life, and, therefore, does not enjoy a right in the sense of “a right to life”, as protected by Article 2 of the Convention. Hence, there is a problem of applicability of Article 2 in the circumstances of the case.

Instead of reaching that unavoidable conclusion, as the very reasoning of the judgment dictated, the majority of the Grand Chamber opted for a neutral stance, declaring: “the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention” ( see paragraph 85 of the judgment ).

What also seems problematic with the majority ’ s reasoning is that, despite their obvious doubts or, at any rate, their reluctance to accept that Article 2 was applicable in this case, the majority ended up abandoning their neutral stance and based their finding of no violation on the argument that the procedural guarantees inherent in the protection of Article 2 had been satisfied in the circumstances of the case. By using the “even assuming” formula as to the applicability of Article 2, and by linking the life of the foetus to the life of the mother (“the life of the foetus was intimately connected with that of the mother and could be protected through her ... ” – see paragraph 86 of the judgment ), the majority surrepti ti ously brought Article 2 of the Convention to the fore of the case. Yet, it is obvious from the case-law that reliance on the procedural guarantees of Article 2 to determine whether or not there has been a violation presupposes the prima facie applicability of that Article (and using the “even assuming” formula does not alter the position if, in the end, the only real ground for the Court ’ s findings is the hypothesis referred to in the formula); and in the circumstances of the case there was not even the remotest threat to the mother ’ s right of life such as would justify bringing the procedural guarantees of Article 2 of the Convention into play.

For the reasons explained above, I am unable to agree with the reasoning of the majority and conclude that, as matters presently stand, Article 2 is inapplicable in this case.

SEPARATE OPINION OF JUDGE COSTA JOINED BY JUDGE TRAJA

( T ranslation )

1. In this case, in which a doctor ’ s negligence caused a pregnancy to be terminated after almost six months against the wishes of the woman carrying the unborn child , the Court has found no violation of Article 2 of the Convention.

2. Its reasoning , however, is cautious: the Court decid ed that it was unnecessary to determin e whether Article 2 was applicab le, holding that even assuming it wa s, there has been no violation on the facts.

3. I voted in favour of finding no violation of Article 2, but would have preferred the Court to hold th at Article 2 was applicable, even if such a conclusion is not self - evident. As I will attempt to demonstrate, such a decision would perhaps have been clearer with only minimal inconvenience as regards the scope of the judgment .

4. It seems to me , firstly , that it is not the Court ’ s role as a collegiate body to consider case s from a primarily ethical or philosophical standpoint (and, in my view, it has succe ssfully avoid ed this pitfall in this judgment ) . The Court must endeavour to remain within its own – legal – sphere of competence , although I accept that law does not exist in a vacuum and is not a chemically pure substance detached from moral or societal considerations. Whether or not the y choose to express the ir personal opinions as Article 45 of the Convention entitle s (but does not oblige ) them to do , individual judges are not, in my opinion, subject to the same constraints. The present case enters into the realm of deep personal conviction s and for my part I thought it necessary and perhaps help ful to set out my views. As the reader will have understood, they differ slightly from those of the majority.

5. From the ethical standpoint, the most natural way to attempt to interpret Article 2 of the Convention (“[e] veryone ’ s right to life shall be protected by law” – “ le droit de toute personne à la vie est protégé par la loi ” in the French text) is to ask what is meant by “everyone” ( “ toute personne ” ) and when life begin s . It is very difficult to obtain unanim ity or agreement here, as ethics are too heavily depend ent on individual ideology. In France, the National Advisory Committee, which has been doing a remarkable job for the past twenty years and has issued a number of opinions on the human embryo ( a term it generally prefers to “foetus” at all stages of development), has not been able to come up with a definitive answer to these questions. Th is is only to be expected, particularly bearing in mind the Committee ’ s composition, which President Mitterrand decided at its inception should be pluralist. To say (as the Committee has done since issuing its first opinion in 1984 ) that “the embryo must be recognised as a potential human person” does not solve the problem because a being that is recognised as potential is not necessarily a being and may in fact, by con verse implication, not be one. As to life and , therefore , the point at which life begins , everybody has his or her own conception (see the Committee ’ s fifth opinion , issued in 1985). All th is shows is that there perhaps exists a right for a potential person to a potential life ; for lawyers, however, there is a world of difference between the potential and the actual .

6. What is true for the ethical bodies of States such as the respondent State is also true international ly . The judgment rightly notes that the Oviedo Convention on Human Rights and Biomedicine ( a Council of Europe sponsored instrument signed in 1997) does not define what is meant by “ everyone ”. Nor does it provide any definition of “human being”, despite the importance it attaches to the dignity, identity, primacy, interests and welfare of human beings. Nor is there any reference to the beginning of life.

7. Does the present inability of ethics to reach a consensus on what is a person and who is entitled to the right to life prevent the law from defining these terms? I think not . It is the task of lawyers, and in particular judges, especially human rights judges , to identify the notions – which may, if necessary, be the autonomous notions the Court has always been prepared to use – that correspond to the words or expressions in the relevant legal instruments ( in the Court ’ s case, the Convention and its Protocols) . Why should the Court not deal with the terms “everyone” and the “right to life” (which the European Convention on Human Rights does not define) in the same way it has done from its inception with the terms “civil rights and obligations”, “criminal charges” and “tribunals”, even if we are here concerned with philosophical, not technical, concepts ?

8. Indeed, the Court has already embarked upon this course in the sphere of Article 2, at least as regards the right to life , for instance, by imposing positive obligations on States to protect human life , or holding that in exceptional circumstances the use of potentially lethal force by State agents may lead to a finding of a violation of Article 2. Th rough its case-law , therefore , th e Court has broad e n ed the notions of the right to life and unlawful killing, if not the notion of life itself.

9. Conversely, I do not believe that it is possible to take the convenient way out by saying that Mrs Vo, a “person”, had a right to life (of her unborn child). It is true that the notion of who constitutes a victim has been e nlarged by the case-law: a complaint by a nephew alleging a violation of Article 2 on account of his uncle ’ s murder has thus been declared admissible ( see Ya ş a v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI). However, in the instant case, the Court is concerned with a pleaded right to life of the unborn child and this type of decision can only appl y to the applicant ’ s case if it is accepted that the unborn child it self has a right to life, since, in order to be a victim within the meaning of Article 34 of the Convention, Mrs Vo must also be a victim of a violation that is recognised by the Convention, quod est demonstrandum .

10. Indeed, it seems to me that the Commission and the Court have already worked on the assumption that Article 2 is applicable to the unborn child (without, however, affirming that the unborn child is a person ). In a number of cases they have held that , even if they did not have to decide the question of applicability, there was in any event no violation of Article 2 on the facts, for instance in the case of a termination of pregnancy in accordance with legislation “which struck a fair balance between the woman ’ s interests and the need to ensure protection of the foetus” (see Boso v. Italy (dec.) , no. 50490/99 , ECHR 2002-VII, which is cited in the judgment ; but also, in less forthright terms, the Commission ’ s decision of 19 May 1992 in another cited case, H. v. Norway , no. 17004/90, Decisions and Reports 73 ). Had Article 2 been considered to be entirely inapplicable, there would have been no point – and this applies to the present case also – in examining the question of foetal protection and the possible violation of Article 2 , or in using this reasoning to find that there had been no violation of th at provision.

11. It is possible to turn to the law of the respondent State, not because it is a model to be imposed on others, but because it is directly in issue in the present case. As far back as 1990, the Conseil d ’ Etat held that the French Voluntary Termination of Pregnancy Act (which the Constitutional Council had declar ed in its decision no. 74- 5 4 DC of 15 January 1975 was not unconstitutional, while at the same time declining jurisdiction to examine its compatibility with the Convention) was not incompatible with Article 2 of the Convention or Article 6 of the International Covenant on Civil and Political Rights (which provides: “Every human being has the inherent right to life. This right shall be protected by law ...”). Above all , the Conseil d ’ Etat thereby recognised unambiguously, albeit implicitly, that that Act came within the scope of Article 2 (see its decision of 21 December 1990, Confédération nationale des associations familiales catholiques , Recueil Lebon , p. 369, and the submissions of Mr Bernard Stirn , which clarify it ).

12. To my mind, this judgment of the highest French administrative court demonstrates that a decision by the European Court of Human Rights in which it is plainly stat ed that the “end of life” of an unborn child is within the scope of Article 2 of the Convention would not threat en – at least not in essence – the domestic legislation of a large number of European countries that makes the voluntary termination of pregnancy lawful , subject, of course , to compliance with certain conditions. In a number of European States, such legislation has been held to be consistent with the domestic Constitution and even with Article 2 of the Convention. The Norwegian Supreme Court so found in 1983. The German Federal Constitutional Court and the Spanish Constitutional Court have also accepted that the right to life, as protected by Article 2 of the Convention, can apply to the embryo or the foetus (the question whether that right is absolute being a separate issue ). These are examples of decisions in which the highest courts of individual countries have recognised that the right to life, whether set out in Article 2 of the European Convention on Human Rights or enshrined in domestic constitutional principles of like content and scope , applies to the foetus , without being absolute. Is there any reason why the Court , which aspires to the role of a constitutional court with in the European human rights order , should be less bold ?

13. Obviously, were the Court to rule that Article 2 was applicable , either on its wording or in substance, it would have to examine in any event (and not just o n the facts of the individual case as here ) whether or not it had been complied with. This, though, should not be of concern to it either. In the aforementioned Boso decision, it applied the “fair balance” test to the impugned statute , so that it would have had to reach the opposite conclusion had the legislation been different and not str uc k a fair balance between the protection of the foetus and the mother ’ s interests. Potentially, therefore, the Court reviews compliance with Article 2 in all cases in which the “life” of the foetus is destroyed.

14. Similarly, it might be contended that, since Article 15 of the Convention states that no derogation may be made from Article 2, it would be preposterous for the Court to find that Article 2 is not absolute, or is subject to implied exceptions other than those exhaustively set out in the second paragraph thereof . This would militate in favour of holding that Article 2 does not apply to the unborn child (as the unborn child is not one of the exceptions set out in the second paragraph). However, I am not persuaded by either of these two arguments. The non-derogation rule only prohibits States P arties that derogat e from the Convention in time of war or other public emergency , as they are entitled to do by Article 15 , from infringing Article 2. However, quite clearly situations and exceptional circumstances of this kind are quite unrelated to the killing of an unborn child. More dis concer ting from a logical perspective is an argument based on the actual wording of Article 2. However, not only has the Court already decided the point ( as it indisputably did in Boso ), Article 2 cannot be conclusively construed as clearly prohibit ing all voluntary terminations of pregnancy, if only because a number of Contracting States have ratified the Convention without any apparent problem, despite already possessing legislation permitting voluntary termination in certain circumstances. Even more persuasive when it comes to an evolutive interpretation of Article 2 is the fact that a large number of European countries passed legislation in the 1970s permitting the voluntary termination of pregnancy within a strict framework.

15. As regards the potential effects of finding Article 2 applicable, it could perhaps be objected, con versely , that the present case can be distinguished from the voluntary termination of pregnancy cases and that the destruction of a foetus as a result of medical error, or any other negligent act or omission , is different from termination at the request of the mother in distress herself . In other words, those who, in the name of women ’ s freedom of choice, defend the principle of voluntary termination of pregnancy might fear that such legislation would indirectly be at risk if Article 2 were found to be applicab le . It is true that the “Garraud a mendment”, which is mentioned in the judgment and was finally withdrawn from Parliament, was fiercely opposed by sections of French society, in particular (but not only) supporters of the Voluntary Termination of Pregnancy Act, precisely for this reason (as it was intended to create a n of fence of involuntary termination of pregnancy).

16. However, I do not believe that such fears are legitimately justified, if only be cause a woman who loses her unborn child against her wi shes and sees her hopes of maternity dashed is in an entirely different situation from a woman resigned – albeit likewise in circumstances of suffering and bereavement – to ask for her pregnancy to be brought to an end. In any event, it is not a judicial decision (on the applicability or otherwise of Article 2 of the Convention) which will resolve this ethical debate, still less justify society ’ s policy choices. In addition, since Vo v. France does not require States to afford criminal-law protection against the risk of the loss of the foetus (and on that I agree) , it does not, in any event, plead in favour of making the involuntary termination of pregnancy a criminal offence.

17. In sum, I see no good legal reason or decisive policy consideration for not apply ing Article 2 in the present case. On a general level, I believe ( as do many senior judicial bodies in Europe) that there is life before birth, within the meaning of Article 2, that the law must therefore protect such life , and that if a national legislature considers that such protection cannot be absolute, then it should only derogate from it, particularly as regard s the voluntary termination of pregnancy, within a regulated framework that limits the scope of the derogation. The actual circumstances of Mrs Vo ’ s case made it all the more appropriate to find that Article 2 was applicable : she was six months ’ pregnant ( compare this – purely for illustration purposes – with the German Federal Constitutional Court ’ s view that life begins after fourteen days ’ gestation), there was every prospect that the f oe tus would be born viable and, lastly, the pregnancy was clearly ended by an act of negligence, against the applicant ’ s wishes.

18. I have nothing further to add , since , with minor differences , I agree with what the judgment has to say in finding that there has been no violation of Article 2.