PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I voted against a finding of a violation of Article 8 “as regards the determination of access to lawful abortion in respect of both applicants” (point 3 of the operative part of the judgment) for substantially the same reasons advanced in paragraphs 4 and 5 of my partly dissenting opinion in R.R. v. Poland (no. 27617/04, 26 May 2011). Neither the Convention generally nor Article 8 in particular confer a right to abortion. The issue was in this case – as it was in many other cases – one of regulatory frameworks and procedural mechanisms: in essence, how to enforce a “right” granted by domestic law in the face of opposition, direct or oblique, from public authorities. The issue should therefore have been examined under Article 6. Invoking Article 8 in such cases not only distorts the true meaning of “private life”, but ignores the most fundamental of values underpinning the Convention, namely the value of life, of which the unborn child is the carrier. Calling the unborn child a foetus does not change the essential nature of what is at stake and of what an abortion entails.

2. Moreover, I fail to understand how it is possible to find also a violation of Article 8 in this case in respect of the second applicant (the mother of the minor). Apart from the fact that in this two-month saga the second applicant appears to have been something of an éminence grise in respect of the decision which should have been exclusively the first applicant’s, to state, as the judgment does in paragraph 109, that “it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not” (my italics) gives a venal or mercenary slant to the concept of private life. Fundamental rights cannot be gauged by the yardstick of convenience or, worse, selfish interest.

3. As to Article 3 – and here I voted with the majority for a finding of a violation – just as the second applicant had a right and a duty to advise her daughter (but not to decide on her behalf) as to whether or not to terminate the pregnancy, the public authorities also had the duty to advise the second applicant as to what an abortion entails and of all its consequences. Such advice, however, should never have been allowed to degenerate, as happened in the instant case, into trickery, deceit and the emotional manipulation of a vulnerable person, which constitute an abuse of the dignity of the person. While the reluctance, indeed refusal, of some of the doctors to perform the abortion was understandable and was within their right to conscientious objection, the authorities’ overall handling of the case was at best shambolic and at worst disgraceful. The violation of Article 3 stems not from the simple fact that some people (including the priest) tried to persuade the first applicant not to have an abortion but because of the way they went about it, coupled with the publicity that was given by the authorities to the case, their disclosure of confidential information and their illegal arrest of the first applicant. Indeed, instead of being treated as a victim of rape and as person in need of help, she was treated as a criminal. Her parents fared only slightly better.