DISSENTING OPINION OF JUDGE RESS

( T ranslation )

1. France ’ s positive obligation to protect unborn children against unintentional homicid e , that is to say against negligent acts that could cause a child ’ s death, can only be discharged if French law has effective procedures in place to prevent the recurrence of such acts. On this point, I am unable to agree with the opinion expressed by the majorit y that an action in damages in the administrative courts (on account of the hospital doctor ’ s alleged negligence ) afforded the unborn child adequate and effective protection against medical negligence. As Judge Rozakis , joined by Judges Bonello and Strážnická, pointed out in his partly dissenting opinion in Calvelli and Ciglio v. Italy ( [GC], no. 32967/96, ECHR 2002-I ), an action in pecuniary and even non-pecuniary damage s will not in all circumstances be capable of protect ing against the unintentional taking of life , especially in a case such as the present one in which a mother lost her child as a result of a doctor ’ s negligence. Even though I accept ed the outcome in Calvelli and Ciglio , which was based on the fact that the applicants had agreed to compensation under a friendly settlement, criminal proceedings were commenced in that case (al though they were not continued because prosecution of the offence became time -barred ) .

It is not retribution that makes protection by the criminal law desirable , but deterrence. In general, it is through the criminal law that society most clearly and strict ly conveys messages to its members and identifies values that are most in need of protecti on. Life, which is one of the value s , if not the main value , protected by the Convention ( see Streletz, Kessler and Krenz v. Germany [GC] , nos. 34044/96 , 35532/97 and 44801/98, §§ 92-94 , ECHR 2001-II , and McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), will in principle require the protection of the criminal law if it is to be adequately safeguarded and defended . Financial liability to pay compensation is only a secondary form of protection . In addition, hospitals and doctors are usually insured against such risks, so that the “pressure” on them is reduced .

2. One might consider that imposing a disciplinary penalty on a doctor could be regarded as equivalent to imposing a criminal penalty in certain circumstances. Disciplinary measures were viewed as an alternative means of discouraging negligence in Calvelli and Ciglio ( cited above, § 51). However, it is equally clear that, as unpleasant as the consequences may be professionally, a disciplinary penalty does not amount to general condemnation ( Unwerturteil ). Disciplinary penalt ies depend on conditions that are entirely specific to the profession concerned ( the bodies being self-regulating ) and in general do not afford the deterrence necessary to protect such an important value as life. Nevertheless, the question has to be asked

whether in the present case a disciplinary penalty for such a serious error could have prov ided sufficient deterren ce . Here, though, is where the problem lies , as the authorities at no stage brought disciplinary proceedings against the doctor. For an error as serious as that committed by Dr G., such disciplinary proceedings accompanied by an adequate measure could at least have sent an appropriate signal to the medical profession to prevent the recurrence of such tragic events. I do not think it necessary to say that France requires criminal legislation. However, it does need to take strict disciplinary action in order to meet its obligation to afford effective protection of the life of the unborn child. In my opinion, therefore, there was no effective protection.

3. In order to reach that conclusion , it seems necessary to find out whether Article 2 appl ies to the unborn child. I am prepared to accept that there may be acceptable differences in the level of protection afforded to an embryo and to a child after birth . Nevertheless, that does not justify the conclusion ( see paragraph 85 of the judgment) that it is not possible to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention. All the Court ’ s case-law and the Commission ’ s decisions (see paragraphs 75-80) are based on the “assuming that” argument ( in eventu ). Yet the failure to give a clear answer can no longer be justified by reasons of procedural economy. Nor can the problem of protecting the embryo through the Convention be solved solely through the protection of the mother ’ s life. As this case illustrates , the embryo and the mother , as two separate “human beings” , need separate protection .

4. The Vienna Convention on the Law of Treaties (Article 31 § 1) requires treaties to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose. The ordinary meaning can only be established from the text as a whole. Historically, lawyers have understood the notion of “everyone ” ( “ toute personne ” ) as including the human being before birth and, above all, the notion of “life” as covering all human life commencing with conception, that is to say from the moment an independent existence develops until it ends with death, birth being but a stage in that development.

The structure of Article 2 and, above all , the exceptions set out in paragraph 2 thereof, appear to indicate that persons are only entitled to protection thereunder once they have been born and that it is only after birth that they are regarded as having rights under the Convention. In view of the “aim” of the Convention to provide extended protection, this does not appear to be a conclusive argument. Firstly, a foetus may enjoy protection, especially within the framework of Article 8 § 2 (see Odièvre v. France [GC] , no. 42326/98, § 45, ECHR 2003-III) . In addition, the decisions of the Commission and the Court contain indications that Article 2 is applicable to

the unborn child. In all the cases in which that issue has been considered, the Commission and the Court have developed a concept of an implied limitation or of a fair balance between the interests of society and the interests of the individual, that is to say the mother or the unborn child. Admittedly, these concepts were developed in connection with legislation on the voluntary, but not the involuntary, termination of pregnancy. However, it is clear that they would not have been necessary if the Convention institutions had considered at the outset that Article 2 could not apply to the unborn child. Even though the Commission and the Court have left the question open formally, such a legal structure proves that both institutions were inclined to adopt the ordinary meaning of “human life” and “everyone” rather than the other meaning.

Similarly, the practice of the Contracting States, virtually all of which had constitutional problems with their laws on abortion (voluntary termination of pregnancy), clearly shows that the protection of life also extends in principle to the foetus. Specific laws on voluntary abortion would not have been necessary if the foetus did not have a life to protect and was fully dependent till birth on the unrestricted wishes of the pregnant mother. Nearly all the Contracting States have had problems because, in principle, the protection of life under their constitutional law also extends to the prenatal stage.

5. It is obvious that the premise of the debate on genetic safeguards in a number of recent conventions and the prohibition on the reproductive cloning of “ human beings ” in the Charter of Fundamental Rights of the European Union (Article 3 § 2, final sub - paragraph ) is that the protection of life extends to the initial phase of human life. The Convention, which was conceived as a living instrument to be interpreted in the light of present-day conditions in society, must take such a development into account in order to confirm the “ordinary meaning”, in accordance with Article 32 of the Vienna Convention.

Even if it is assumed that the ordinary meaning of “ human life ” in Article 2 of the Convention is not entirely clear and can be interpreted in different ways, the obligation to protect human life requires more extensive protection, particularly in view of the techniques available for genetic manipulation and the unlimited production of embryos for various purposes. The manner in which Article 2 is interpreted must evolve in accordance with these developments and constraints and confront the real dangers now facing human life. Any restriction on such a dynamic interpretation must take into account the relationship between the life of a person who has been born and the unborn life, which means that protecting the foetus to the mother ’ s detriment would be unacceptable.

6. The fact that various provisions of the Convention contain guarantees which by their nature cannot extend to the unborn cannot alter that position. If, by their very nature, the scope of such provisions can only extend to natural persons or legal entities, or to persons who have been born or are adults, that does not pre clude the conclusion that other provisions such as the first sentence of Article 2 incorporat e protection for the lives of human beings in the initial stage of their development.

7. It should be noted that the present case is wholly unrelated to laws on the voluntary termination of pregnancy. That is a separate issue which is fundamentally different from interference , against the mother ’ s wishes , in the life and welfare of her child. The present case concerns wrongdoing by a third party resulting in the loss of a foetus, if not the death of the mother, whereas voluntary abortion is solely concerned with the relationship between the mother and the child and the question of their protection by the State. Although holding that Article 2 applies to human life before birth may have repercussions on the laws regulating the voluntary termination of pregnancy, that is not a reason for saying that Article 2 is not applicable. Quite the opposite.

Furthermore, it is not necessary in the instant case to decide when life begins. It was noted that the 21- week - old foetus was viable, although I believe that the notion of viability cannot limit the States ’ positive obligation to protect the unborn child against interference and negligence by doctors.

8. There can be no margin of appreciation on the issue of the applicability of Article 2. A margin of appreciation may, in my opinion, exist to determine the measures that should be taken to discharge the positive obligation that arises because Article 2 is applicable, but it is not possible to restrict the applicability of Article 2 by reference to a margin of appreciation. The question of the interpretation or applicability of Article 2 (an absolute right) cannot depend on a margin of appreciation. If Article 2 is applicable, any margin of appreciation will be confined to the effect thereof.

9. Since I consider that Article 2 applies to human beings even before they are born, an interpretation which seems to me to be consistent with the approach of the Charter of Fundamental Rights of the European Union, and since France does not afford sufficient protection to the foetus against the negligent acts of third parties, I find that there has been a violation of Article 2 of the Convention. As regards the specific measures necessary to discharge that positive obligation, that is a matter for the respondent State, which should either take strict disciplinary measures or afford the protection of the criminal law (against unintentional homicide).