CEDH · CASELAW;CLIN;ENG — 8 juillet 2004

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 66 July 2004 Vo v. France [GC] - 53924/00 Judgment 8.7.2004 [GC] Article 2 Positive obligations Absence of provision in criminal law to sanction involuntary termination of pregnancy: no violation   Facts : Owing to a mix-up caused by the fact that two patients attending the same hospital department shared the same surname, a doctor carried out a medical act, intended for another person, on the applicant, despite the fact that she was pregnant. As a result of this error the applicant was obliged to undergo a therapeutic abortion. The foetus, which was healthy, was at that stage aged between 20 and 21 weeks. The applicant had intended to carry her pregnancy to term. She lodged a criminal complaint for unintentional physical injury to herself and homicide against her unborn child. The offence against the applicant was covered by an amnesty. With regard to the foetus, the Court of Cassation held that the fact of a doctor causing the death in utero of a human foetus which was not yet viable through carelessness or negligence did not constitute the offence of involuntary homicide, as the foetus was not considered as a human being entitled to the protection of the criminal law. The applicant considered that the lack of protection for her unborn child under French criminal law was unsatisfactory and constituted a violation of Article 2 of the Convention. Law : Article 2 – There was no clear legal definition in French law of the unborn child or a European consensus on the status of the embryo. The Court did not rule on whether the unborn child was a person for the purposes of Article 2. Noting in the instant case that the dispute concerned an involuntary fatal injury to the unborn child, counter to the mother’s wishes and at the cost of considerable suffering to her, the Court held that the interests of the foetus and its mother overlapped. Accordingly, it examined the protection available to the applicant from the angle of the adequacy of the mechanisms in place for proving the doctor’s negligence in the loss of her child in utero and obtaining redress for the forced termination of her pregnancy. As the case concerned an involuntary infringement of her right to physical integrity, the positive obligation in procedural matters which derived from Article 2 did not necessarily require a criminal-law remedy. The applicant could have brought an action for damages against the authorities on account of the doctor’s negligence. Such an action would have had good prospects of success and the applicant would have been able to obtain an order obliging the hospital to pay damages. That was clear from the findings of the expert reports drawn up as part of the criminal proceedings, which had indicated malfunctioning of the hospital department concerned and gross negligence by the doctor. Furthermore, in the circumstances of the case, the four-year limitation period applicable to actions for damages before the administrative courts did not, in the Court’s opinion, appear unduly short, although it had recently been extended to ten years by legislation. Consequently, even assuming that Article 2 of the Convention was applicable in the instant case, the action for damages against the authorities on account of the doctor’s alleged negligence could be viewed as an effective remedy available to the applicant. Conclusion : no violation (fourteen votes to three).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes