DISSENTING OPINION OF JUDGE MULARONI

JOINED BY JUDGE STRÁŽNICKÁ

( Translation )

I am unable to concur with the majority ’ s finding that there has been no violation of Article 2 of the Convention because the applicant could have brought an action in negligence in the administrative courts for the damage caused by the hospital doctor (see paragraph 91 of the judgment). According to the majority, since the applicant did not bring such an action, there was no violation of Article 2.

I agree with the majority that it is necessary to consider “whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Article 2 of the Convention” (see paragraph 85 of the judgment) and that “the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the Stat e not only to refrain from the ‘ intentional ’ taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities , L.C.B. v. the United Kingdom , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36)” (see paragraph 88 of the judgment).

However, I come to entirely different conclusions.

I note that in December 1991, when the applicant and her partner lodged a criminal complaint , together with an application to join the proceedings as civil parties , alleging unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child, the Conseil d ’ Etat had not yet abandoned its position that a hospital department could incur liability only in cases of gross negligence (see paragraph 57 of the judgment – the Government ’ s submissions).

It is true that, as the majority note, the applicant could have tried to bring an action in damages against the authorities before it became time -barred. However, it seems to me that the Court may be demanding too much of this applicant when it is recalled that the position taken by the Court of Cassation in its judgment of 30 June 1999, and which it subsequently followed in its judgments of 29 June 2001 ( sitting as a f ull court) and 25 June 2002 (see paragraph 29 of the judgment) , was far from established , as witnessed by the court of appeal decisions t o the contrary , the submissions of the advocates - general at the Court of Cassation and , lastly, the almost universal criticism it attracted from legal commentators (see paragraph 31 of the judgment). Since it was doubtful that she would be

successful in an action in the administrative courts , the applicant brought criminal proceedings under the only two provisions of the Criminal Code that were open to her . She told the Court that she chose that course of action because a criminal investigation would aid in the task of establishing responsibility (see paragraph 50 of the judgment). That explanation is entirely logical: it is precisely what most victims of crime do in countries that offer a choice between proceedings in the criminal courts or in the civil or administrative courts .

It could be argued that the French legal system did not afford the applicant any “effective” remedy when these sad events took place.

Nevertheless , let us assume that the applicant had a choice between criminal and administrative remed ies . Since a victim cannot claim compensation for his or her damage twice over , it would to my mind be disproportionate to criticise the applicant for not having exercised both remedies simultaneously. It would also represent a departure from the Court ’ s case-law.

Under the case-law of the Convention institutions, where there is a choice of remedies open to the applicant, Article 35 must be applied to reflect the practical realities of the applicant ’ s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention ( see A l l g emeine Gold- und Silberscheideanstalt A.G. v. the United Kingdom , no. 9118/80, Commission decision of 9 March 1983, Decisions and Reports (DR) 32, p. 165). The applicant must have ma d e normal use of domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required ( see Wójcik v. Poland , no. 26757/95, Commission decision of 7 July 1997, DR 90 -A , p. 28; G ü naydin v. Turkey (dec . ), no. 27526/95, 25 April 2002; and Anagnostopoulos v. Greece , no. 54589/00, § 32, 3 April 2003). Furthermore, the applicant is only required to have recourse to such remedies as are both available and sufficient, that is to say capable of providing redress for his or her complaints ( see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, p. 11, § 19 , and Deweer v. Belgium , judgment of 27 February 1980, Series A no. 35, p. 16, § 29).

I would also note that the amount at stake in Anagnostopoulos (cited above) was 15,000 drachmas (approximately 44 euros), whereas in the present case we are dealing with an unborn child.

The majority make a number of references to Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002-I), in which the Court stated ( in paragraph 51): “ [I] f the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by

Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy . ” It added: “In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged . ”

I consider that the differences between the solutions afforded by the two domestic legal systems must outweigh the similarities. In Calvelli and Ciglio , the applicants – the father and mother of a newborn child who died two days after birth – had brought criminal proceedings which ended when the offence of involuntary manslaughter with which the obstetrician was charged became time -barred. However, the applicants were able to summon the doctor to appear in the civil courts after h e was convict ed at first instance in the criminal courts almost seven years after the death of the child and, with the civil proceedings still pending, they reached a settlement with the doctor ’ s and clinic ’ s insurers in respect of the damage they had sustained. The Court recognised that the Italian legal system afforded the applicants an effective alternative to criminal proceedings ( Calvelli and Ciglio , cited above, §§ 54-55 ) that enabled the respondent State to discharge its positive obligations under Article 2 of the Convention. In my opinion, the same cannot be said of its French counterpart in the present case.

I must confess that , had I been sitting in Calvelli and Ciglio , I would undoubtedly have concurred with the partly dissenting opinion of Judges Rozakis, Bonello and Strážnická. However, even if I had agreed with the majority, it does not seem to me that their conclusion in Calvelli and Ciglio can be transposed to the present case , in which the limitation period for an action in the administrative courts, which at the time was four years from the date of stabilisation of the damage, had expired by the time the criminal proceedings ended. The applicant received no reparation for her loss , not even for the offence of unintentionally causing injuries, for which the doctor was given an amnesty by the law of 3 August 1995 .

I conclude that, in the light of the loss of the child she was carrying, the legal protection France afforded the applicant did not satisfy the procedural requirements inherent in Article 2 of the Convention.

Obviously, since I do not accept the reasoning that led the majority to hold that there ha d been no violation of Article 2 on procedural grounds and that it was therefore un necessary to determine whether Article 2 was applicable, I must explain why I consider that that provision is applicable and has been violated.

Until now , while the Convention institutions have refrained from deciding whether or not Article 2 applies to unborn children (see paragraphs 75-80 of the judgment), they have not exclud ed the possibility that the foetus may enjoy a certain protection under Article 2, first sentence ( see H. v. Norway , no. 17004 /90 , Commission decision of 19 May 1992, DR 73, p. 1 67 , and Boso v. Italy (dec.), no. 50490/99, ECHR 2002-VII ).

Firstly, I think it necessary to bear in mind that the task of the national and international judge is not always easy, especially when a text may be construed in ways that are diametrically o p posed.

The travaux préparatoires on the Convention are silent on the scope of the words “everyone” and “life” and as to whether Article 2 is applicable prior to birth.

Yet , since the 1950s, considerable advances have been made in science, biology and medicine, including at the prenatal stage.

The political community is engaged at both national and international level in trying to identify the most suitable means of protecting, even prenatally , human rights and the dignity of the human being against certain biological and medical applications.

I consider that it is not possible to ignore the major debate that has taken place within national parliaments in recent years on the subject of bioethics and the desirability of introduc ing or reform ing legislation on medically assisted procreation and prenatal diagnosis, in order to reinforc e guarantees, prohibit techniques such as the reproductive cloning of human beings and provid e a strict framework for techniques with a proven medical interest.

The aim of the Convention on Human Rights and Biomedicine, which was opened for signature on 4 April 1997 in Oviedo and came into force on 1 December 1999, is to protect the dignity and identity of human beings and to guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. It protects the dignity of everyone, including the unborn , and its main concern is to ensure that no research or intervention may be carried out that would undermine respect for the dignity and identity of the human being. Although this c onvention is very recent, it does not define the terms “everyone” and “human being” either, although it affirms their primacy in Article 2 in these terms: “The interests and welfare of the human being shall prevail over the sole interests of society or science . ” As to the problem of defining the term “everyone”, the e xplanatory r eport produced by the Directorate General of Legal Affairs at the Council of Europe states, in paragraph 18: “In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention . ”

Furthermore, I note that this c onvention unquestionably contains provisions on the prenatal phase (see, for instance, Chapter IV – Human G e nome). Requests may be made to the European Court of Human Rights under Article 29 of the c onvention for advisory opinions on its interpretation. The Contracting States did not impose any restriction on the scope of such referrals confin ing the Court ’ s jurisdiction to questions arising postnatally .

Although the texts are either silen t or full of cross-references , the applicant is nevertheless entitled to an answer.

Secondly, I would stress that the Court must deliver a decision on the concrete case before it. The application concerns the termination of a pregnancy as a result of medical negligence that caused the loss of a foetus aged between 20 and 24 weeks, against the mother ’ s wishes.

In that connection, I consider that one should not overlook the fact that the foetus in the instant case was almost as old as foetuses that have survived and that scientific advances now make it possible to know virtually everything about a foetus of that age: its weight, sex, exact measurements, and whether it has any deformities or problems. Although it does not yet have any independent existence from that of its mother ( though having said that, in the first years of its life, a ch ild cannot survive alone without someone to look after it either ) , I believe that it is a being separate from its mother.

Although legal personality is only acquired at birth, th is does not to my mind mean that there must be no recogni tion or protect ion of “everyone ’ s right to life” before birth. Indeed, this seems to me to be a principle that is shared by all the member States of the Council of Europe , as domestic legislation permitting the voluntary termination of pregnancy would not have been necessary if the foetus was not regarded as having a life that should be protected. Abortion therefore constitutes an exception to the rule that the right to life should be protected, even before birth.

In any event , this case is wholly unconcerned with the States ’ domestic abortion laws , which have long been the subject matter of applications to the Convention institutions and have been found to be consistent with the Convention (see paragraph s 75-80 of the judgment).

I consider that, as with other Convention provisions, Article 2 must be interpreted in an evolutive manner so that the great dangers currently facing human life can be confront ed . Th is is made necessary by the potential that exists for genetic manipulation and the risk that scientific results will be used for a purpose that undermines the dignity and identity of the human being. The Court has, moreover, often stated that the Convention is a living instrument, to be interpreted in the light of present-d ay conditions (see, among other authorities, Tyrer v. the United Kingdom , judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31; Loizidou v. Turkey (preliminary objections) , judgment of 23 March 1995, Series A no. 310, p. 26, § 71; and Mazurek v. France , no . 34406/97, § 49, ECHR 2000-II).

I therefore find that Article 2 of the Convention is applicable in the present case and has been violated, as the right to life has not been protected by the law of the respondent State.