G.R. No. 213847 August 18, 2015 on July 8, 2014.
on July 8, 2014.13 In support of the motions, Enrile argued that he should be allowed to
JUAN PONCE ENRILE, Petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The decision whether to detain or release an accused before and during trial is
ultimately an incident of the judicial power to hear and determine his criminal case. The
strength of the Prosecution's case, albeit a good measure of the accused’s propensity
for flight or for causing harm to the public, is subsidiary to the primary objective of bail,
which is to ensure that the accused appears at trial.1
The Case
Before the Court is the petition for certiorari filed by Senator Juan Ponce Enrile to assail
and annul the resolutions dated July 14, 2014 2 and August 8, 20143 issued by the
Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238, where he has been
charged with plunder along with several others. Enrile insists that the resolutions, which
respectively denied his Motion To Fix Bail and his Motion For Reconsideration, were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
Antecedents
On June 5, 2014, the Office of the Ombudsman charged Enrile and several others with
plunder in the Sandiganbayan on the basis of their purported involvement in the
diversion and misuse of appropriations under the Priority Development Assistance
Fund (PDAF).4 On June 10, 2014 and June 16, 2014, Enrile respectively filed his
Omnibus Motion5 and Supplemental Opposition,6 praying, among others, that he be
allowed to post bail should probable cause be found against him. The motions were
heard by the Sandiganbayan after the Prosecution filed its Consolidated Opposition. 7
On July 3, 2014, the Sandiganbaya n issued its resolution denying Enrile’s motion,
particularly on the matter of bail, on the ground of its prematurity considering that Enrile
had not yet then voluntarily surrendered or been placed under the custody of the
law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile.9
On the same day that the warrant for his arrest was issued, Enrile voluntarily
surrendered to Director Benjamin Magalong of the Criminal Investigation and Detection
Group (CIDG) in Camp Crame, Quezon City, and was later on confined at the Philippine
National Police (PNP) General Hospital following his medical examination. 10
Thereafter, Enrile filed his Motion for Detention at the PNP General Hospital ,11 and his
Motion to Fix Bail ,12 both dated July 7, 2014, which were heard by the Sandiganbayan
post bail because: (a) the Prosecution had not yet established that the evidence of his
guilt was strong; (b) although he was charged with plunder, the penalty as to him would
only be reclusion temporal , not reclusion perpetua ; and (c) he was not a flight risk,
and his age and physical condition must further be seriously considered.
On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying
Enrile’s Motion to Fix Bail, disposing thusly:
x x x [I]t is only after the prosecution shall have presented its evidence and the Court
shall have made a determination that the evidence of guilt is not strong against accused
Enrile can he demand bail as a matter of right. Then and only then will the Court be
duty-bound to fix the amount of his bail.
To be sure, no such determination has been made by the Court. In fact, accused Enrile
has not filed an application for bail. Necessarily, no bail hearing can even commence.
It is thus exceedingly premature for accused Enrile to ask the Court to fix his bail.
Accused Enrile next argues that the Court should grant him bail because while he is
charged with plunder, "the maximum penalty that may be possibly imposed on him is
reclusion temporal, not reclusion perpetua." He anchors this claim on Section 2 of R.A.
No. 7080, as amended, and on the allegation that he is over seventy (70) years old and
that he voluntarily surrendered. "Accordingly, it may be said that the crime charged
against Enrile is not punishable by reclusion perpetua, and thus bailable."
The argument has no merit.
x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not taken into
consideration. These circumstances will only be appreciated in the imposition of the
proper penalty after trial should the accused be found guilty of the offense charged. x
xx
Lastly, accused Enrile asserts that the Court should already fix his bail because he is
not a flight risk and his physical condition must also be seriously considered by the
Court.
Admittedly, the accused’s age, physical condition and his being a flight risk are among
the factors that are considered in fixing a reasonable amount of bail. However, as
explained above, it is premature for the Court to fix the amount of bail without an
anterior showing that the evidence of guilt against accused Enrile is not strong.
WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix Bail
dated July 7, 2014 is DENIED for lack of merit.
SO ORDERED.14
On August 8, 2014, the Sandiganbayan issued it s second assailed resolution to deny
Enrile’s motion for reconsideration filed vis-à-vis the July 14, 2014 resolution.15
Enrile raises the following grounds in support of his petition for certiorari , namely:
A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter
of right. Enrile may be deemed to fall within the exception only upon
concurrence of two (2) circumstances: (i) where the offense is
punishable by reclusion perpetua, and (ii) when evidence of guilt is
strong.
B. The prosecution failed to show clearly and conclusively that Enrile, if
ever he would be convicted, is punishable by reclusion perpetua; hence,
Enrile is entitled to bail as a matter of right.
C. The prosecution failed to show clearly and conclusively that evidence
of Enrile’s guilt (if ever) is strong; hence, Enrile is entitled to bail as a
matter of right.
D. At any rate, Enrile may be bailable as he is not a flight risk. 16
Enrile claims that before judgment of conviction, an accused is entitled to bail as matter
of right; th at it is the duty and burden of the Prosecution to show clearly and
conclusively that Enrile comes under the exception and cannot be excluded from
enjoying the right to bail; that the Prosecution has failed to establish that Enrile, if
convicted of plunder, is punishable by reclusion perpetua considering the presence of
two mitigating circumstances – his age and his voluntary surrender; that the
Prosecution has not come forward with proof showing that his guilt for the crime of
plunder is strong; and that he should not be considered a flight risk taking into account
that he is already over the age of 90, his medical condition, and his social standing.
In its Comment ,17 the Ombudsman contends that Enrile’s right to bail is discretionary
as he is charged with a capital offense; that to be granted bail, it is mandatory that a
bail hearing be conducted to determine whether there is strong evidence of his guilt, or
the lack of it; and that entitlement to bail considers the imposable penalty, regardless
of the attendant circumstances.
Ruling of the Court
The petition for certiorari is meritorious.
1.
Bail protects the right of the accused to
due process and to be presumed innocent
In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved.18 The presumption of innocence is rooted in the guarantee of due process,
and is safeguarded by the constitutional right to be released on bail, 19 and further binds
the court to wait until after trial to impose any punishment on the accused. 20
It is worthy to note that bail is not granted to prevent the accused from committing
additional crimes.[[21] The purpose of bail is to guarantee the appearance of the
accused at the trial, or whenever so required by the trial court. The amount of bail
should be high enough to assure the presence of the accused when so required, but it
should be no higher than is reasonably calculated to fulfill this purpose. 22 Thus, bail
acts as a reconciling mechanism to accommodate both the accused’s interest in his
provisional liberty before or during the trial, and the society’s interest in assuring the
accused’s presence at trial.23
2.
Bail may be granted as a
matter of right or of discretion
The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the
Constitution, viz.:
x x x All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
This constitutional provision is repeated in Section 7, Rule 114 24 of the Rules of Court
, as follows:
Section 7. Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. — No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution.
A capital offense in the context of the rule refers to an offense that, under the law
existing at the time of its commission and the application for admission to bail, may be
punished with death.25
The general rule is, therefore, that any person, before being convicted of any criminal
offense, shall be bailable, unless he is charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt
is strong. Hence, from the moment he is placed under arrest, or is detained or
restrained by the officers of the law, he can claim the guarantee of his provisional liberty
under the Bill of Rights, and he retains his right to bail unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. 26 Once it has been established
that the evidence of guilt is strong, no right to bail shall be recognized. 27
As a result, all criminal cases within the competence of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court are
bailable as matter of right because these courts have no jurisdiction to try capital
offenses, or offenses punishable with reclusion perpetua or life imprisonment. Likewise,
bail is a matter of right prior to conviction by the Regional Trial Court (RTC) for any
offense not punishable by death, reclusion perpetua , or life imprisonment, or even prior
to conviction for an offense punishable by death, reclusion perpetua , or life
imprisonment when evidence of guilt is not strong.28
On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC
of an offense not punishable by death, reclusion perpetua or life imprisonment; 29 or (2)
if the RTC has imposed a penalty of imprisonment exceeding six years, provided none
of the circumstances enumerated under paragraph 3 of Section 5, Rule 114 is present,
as follows:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional
pardon;
(d) That the circumstances of hi s case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.
3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion
For purposes of admission to bail, the determination of whether or not evidence of guilt
is strong in criminal cases involving capital offenses, or offenses punishable with
reclusion perpetua or life imprisonment lies within the discretion of the trial court. But,
as the Court has held in Concerned Citizens v. Elma , 30 "such discretion may be
exercised only after the hearing called to ascertain the degree of guilt of the accused
for the purpose of whether or not he should be granted provisional liberty." It is
axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion
on the part of the trial court unless there has been a hearing with notice to the
Prosecution.31The indispensability of the hearing with notice has been aptly explained
in Aguirre v. Belmonte, viz. :32
x x x Even before its pronouncement in the Lim case, this Court already ruled in People
vs. Dacudao, etc., et al. that a hearing is mandatory before bail can be granted to an
accused who is charged with a capital offense, in this wise:
The respondent court acted irregularly in granting bail in a murder case without any
hearing on the motion asking for it, without bothering to ask the prosecution for its
conformity or comment, as it turned out later, over its strong objections. The court
granted bail on the sole basis of the complaint and the affidavits of three policemen,
not one of whom apparently witnessed the killing. Whatever the court possessed at the
time it issued the questioned ruling was intended only for prima facie determining
whether or not there is sufficient ground to engender a well-founded belief that the
crime was committed and pinpointing the persons who probably committed it. Whether
or not the evidence of guilt is strong for each individual accused still has to be
established unless the prosecution submits the issue on whatever it has already
presented. To appreciate the strength or weakness of the evidence of guilt, the
prosecution must be consulted or heard. It is equally entitled as the accused to due
process.
Certain guidelines in the fixing of a bailbond call for the presentation of evidence and
reasonable opportunity for the prosecution to refute it. Among them are the nature and
circumstances of the crime, character and reputation of the accused, the weight of the
evidence against him, the probability of the accused appearing at the trial, whether or
not the accused is a fugitive from justice, and whether or not the accused is under bond
in other cases. (Section 6, Rule 114, Rules of Court) It is highly doubtful if the trial court
can appreciate these guidelines in an ex-parte determination where the Fiscal is neither
present nor heard.
The hearing, which may be either summary or otherwise, in the discretion of the court,
should primarily determine whether or not the evidence of guilt against the accused is
strong. For this purpose, a summary hearing means:
x x x such brief and speedy method of receiving and considering the evidence of guilt
as is practicable and consistent with the purpose of hearing which is merely to
determine the weight of evidence for purposes of bail. On such hearing, the court does
not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate on the outcome
of the trial or on what further evidence may be therein offered or admitted. The course
of inquiry may be left to the discretion of the court which may confine itself to receiving
such evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross examination.33
In resolving bail applications of the accused who is charged with a capital offense, or
an offense punishable by reclusion perpetua or life imprisonment, the trial judge is
expected to comply with the guidelines outlined in Cortes v. Catral, 34 to wit:
1. In all cases, whether bail is a matter of right or of discretion, notify the
prosecutor of the hearing of the application for bail or require him to submit
his recommendation (Section 18, Rule 114 of the Rules of Court, as
amended);
2. Where bail is a matter of discretion, conduct a hearing of the application for
bail regardless of whether or not the prosecution refuses to present evidence
to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion; (Section 7 and 8, supra)
 3. Decide whether the guilt of the accused is strong based on the summary of
evidence of the prosecution;
4. If the guilt of the accused is no t strong, discharge the accused upon the
approval of the bailbond (Section 19, supra) Otherwise petition should be
denied.
3.
Enrile’s poor health justifies his admission to bail
We first note that Enrile has averred in his Motion to Fix Bail the presence of two
mitigating circumstances that should be appreciated in his favor, namely: that he was
already over 70 years at the time of the alleged commission of the offense, and that he
voluntarily surrendered.35
Enrile’s averment has been mainly uncontested by the Prosecution, whose Opposition
to the Motion to Fix Bail has only argued that –
8. As regards the assertion that the maximum possible penalty that might be imposed
upon Enrile is only reclusion temporal due to the presence of two mitigating
circumstances, suffice it to state that the presence or absence of mitigating
circumstances is also not consideration that the Constitution deemed worthy. The
relevant clause in Section 13 is "charged with an offense punishable by." It is, therefore,
the maximum penalty provided by the offense that has bearing and not the possibility
of mitigating circumstances being appreciated in the accused’s favor.36
Yet, we do not determine now the question of whether or not Enrile’s averment on the
presence of the two mitigating circumstances could entitle him to bail despite the crime
alleged against him being punishable with reclusion perpetua , 37 simply because the
determination, being primarily factual in context, is ideally to be made by the trial court.
Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the
earlier mentioned principal purpose of bail, which is to guarantee the appearance of the
accused at the trial, or whenever so required by the court. The Court is further mindful
of the Philippines’ responsibility in the international community arising from the national
commitment under the Universal Declaration of Human Rights to:
x x x uphold the fundamental human rights as well as value the worth and dignity of
every person. This commitment is enshrined in Section II, Article II of our Constitution
which provides: "The State values the dignity of every human person and guarantees
full respect for human rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a court, to
enable it to decide without delay on the legality of the detention and order their release
if justified. In other words, the Philippine authorities are under obligation to make
available to every person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right to be admitted to bail. 38
This national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not only to those
charged in criminal proceedings but also to extraditees upon a clear and convincing
showing: (1 ) that the detainee will not be a flight risk or a danger to the community;
and (2 ) that there exist special, humanitarian and compelling circumstances. 39
In our view, his social and political standing and his having immediately surrendered to
the authorities upon his being charged in court indicate that the risk of his flight or
escape from this jurisdiction is highly unlikely. His personal disposition from the onset
of his indictment for plunder, formal or otherwise, has demonstrated his utter respect
for the legal processes of this country. We also do not ignore that at an earlier time
many years ago when he had been charged with rebellion with murder and multiple
frustrated murder, he already evinced a similar personal disposition of respect for the
legal processes, and was granted bail during the pendency of his trial because he was
not seen as a flight risk.40 With his solid reputation in both his public and his private
lives, his long years of public service, and history’s judgment of him being at stake, he
should be granted bail.
The currently fragile state of Enrile’s health presents another compelling justification for
his admission to bail, but which the Sandiganbayan did not recognize.
In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the Director of the
Philippine General Hospital (PGH), classified Enrile as a geriatric patient who was
found during the medical examinations conducted at the UP-PGH to be suffering from
the following conditions:
(1) Chronic Hypertension with fluctuating blood pressure levels on multiple
drug therapy; (Annexes 1.1, 1.2, 1.3);
(2) Diffuse atherosclerotic cardiovascular disease composed of the following
:
a. Previous history of cerebrovascular disease with carotid and
vertebral artery disease ; (Annexes 1.4, 4.1)
b. Heavy coronary artery calcifications; (Annex 1.5)
c. Ankle Brachial Index suggestive of arterial calcifications. (Annex
1.6)
(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by
Holter monitoring ; (Annexes 1.7.1, 1.7.2)
(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome;
(Annexes 2.1, 2.2)
(5) Ophthalmology:
 a. Age-related mascular degeneration, neovascular s/p laser of the JUSTICE MARTIRES:
Retina, s/p Lucentis intra-ocular injections; (Annexes 3.0, 3.1, 3.2)
Director, doctor, do you feel comfortable with the continued confinement of Senator
b. S/p Cataract surgery with posterior chamber intraocular lens. Enrile at the PNP Hospital ?
(Annexes 3.1, 3.2)
PSUPT. JOCSON:
(6) Historical diagnoses of the following:
No, Your Honor.
a. High blood sugar/diabetes on medications;
JUSTICE MARTIRES:
b. High cholesterol levels/dyslipidemia;
Why?
c. Alpha thalassemia;
PSUPT. JOCSON:
d. Gait/balance disorder;
Because during emergency cases, Your Honor, we cannot give him the best.
e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;
JUSTICE MARTIRES:
f. Benign prostatic hypertrophy (with documented enlarged prostate
on recent ultrasound).42 At present, since you are the attending physician of the accused, Senator Enrile, are
you happy or have any fear in your heart of the present condition of the accused vis a
Dr. Gonzales attested that the following medical conditions, singly or collectively, could vis the facilities of the hospital?
pose significant risk s to the life of Enrile, to wit: (1) uncontrolled hypertension, because
it could lead to brain or heart complications, including recurrence of stroke; (2) DR. SERVILLANO:
arrhythmia, because it could lead to fatal or non-fatal cardiovascular events, especially
under stressful conditions; (3) coronary calcifications associated with coronary artery
disease, because they could indicate a future risk for heart attack under stressful Yes, Your Honor. I have a fear.
conditions; and (4) exacerbations of ACOS, because they could be triggered by certain
circumstances (like excessive heat, humidity, dust or allergen exposure) which could JUSTICE MARTIRES:
cause a deterioration in patients with asthma or COPD.43
That you will not be able to address in an emergency situation?
Based on foregoing, there is no question at all that Enrile’s advanced age and ill health
required special medical attention. His confinement at the PNP General Hospital, albeit DR. SERVILLANO:
at his own instance,44 was not even recommended by the officer-in-charge (O IC) and
the internist doctor of that medical facility because of the limitations in the medical
support at that hospital. Their testimonies ran as follows: Your Honor, in case of emergency situation we can handle it but probably if the
condition of the patient worsen, we have no facilities to do those things, Your Honor. 45
JUSTICE MARTIRES:
Bail for the provisional liberty of the accused, regardless of the crime charged, should
be allowed independently of the merits of the charge, provided his continued
The question is, do you feel comfortable with the continued confinement of Senator incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed,
Enrile at the Philippine National Police Hospital? denying him bail despite imperiling his health and life would not serve the true objective
of preventive incarceration during the trial.
DR. SERVILLANO:
Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has
No, Your Honor. already held in Dela Rama v. The People’s Court:46
x x x This court, in disposing of the first petition for certiorari, held the following: such, the Sandiganbayan gravely abused its discretion in denying Enrile’s Motion To
Fix Bail. Grave abuse of discretion, as the ground for the issuance of the writ of
x x x [ U]nless allowance of bail is forbidden by law in the particular case, the illness of certiorari , connotes whimsical and capricious exercise of judgment as is equivalent to
the prisoner, excess, or lack of jurisdiction.50 The abuse must be so patent and gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law as where the power is exercised in an arbitrary
independently of the merits of the case, is a circumstance, and the humanity of the law and despotic manner by reason of passion or hostility.51 WHEREFORE, the Court
makes it a consideration which should, regardless of the charge and the stage of the GRANTS the petition for certiorari ; ISSUES the writ of certiorari ANNULING and
proceeding, influence the court to exercise its discretion to admit the prisoner to bail ;47 SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in
Case No. SB-14 CRM-0238 on July 14, 2014 and August 8, 2014; ORDERS the
xxx PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case No. SB-14-CRM-
0238 upon posting of a cash bond of ₱1,000,000.00 in the Sandiganbayan; and
Considering the report of the Medical Director of the Quezon Institute to the effect that DIRECTS the immediate release of petitioner Juan Ponce Enrile from custody unless
the petitioner "is actually suffering from minimal, early, unstable type of pulmonary he is being detained for some other lawful cause.
tuberculosis, and chronic, granular pharyngitis," and that in said institute they "have
seen similar cases, later progressing into advance stages when the treatment and No pronouncement on costs of suit.
medicine are no longer of any avail;" taking into consideration that the petitioner’s
previous petition for bail was denied by the People’s Court on the ground that the SO ORDERED.
petitioner was suffering from quiescent and not active tuberculosis, and the implied
purpose of the People’s Court in sending the petitioner to the Quezon Institute for
clinical examination and diagnosis of the actual condition of his lungs, was evidently to
verify whether the petitioner is suffering from active tuberculosis, in order to act
accordingly in deciding his petition for bail; and considering further that the said
People’s Court has adopted and applied the well-established doctrine cited in our
above-quoted resolution, in several cases, among them, the cases against Pio Duran
(case No. 3324) and Benigno Aquino (case No. 3527), in which the said defendants
were released on bail on the ground that they were ill and their continued confinement
in New Bilibid Prison would be injurious to their health or endanger their life; it is evident
and we consequently hold that the People’s Court acted with grave abuse of discretion
in refusing to re lease the petitioner on bail.48

It is relevant to observe that granting provisional liberty to Enrile will then enable him to
have his medical condition be properly addressed and better attended to by competent
physicians in the hospitals of his choice. This will not only aid in his adequate
preparation of his defense but, more importantly , will guarantee his appearance in
court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before a meaningful
consideration of the application for bail can be had is to defeat the objective of bail,
which is to entitle the accused to provisional liberty pending the trial. There may be
circumstances decisive of the issue of bail – whose existence is either admitted by the
Prosecution, or is properly the subject of judicial notice – that the courts can already
consider in resolving the application for bail without awaiting the trial to finish.49 The
Court thus balances the scales of justice by protecting the interest of the People through
ensuring his personal appearance at the trial, and at the same time realizing for him
the guarantees of due process as well as to be presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of

bail to ensure the appearance of the accused during the trial; and unwarrantedly
disregarded the clear showing of the fragile health and advanced age of Enrile. As
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA,
minors, and represented by their parents ANTONIO and RIZALINA OPOSA,
ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and
ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed
FLORES, minors and represented by their parents ENRICO and NIDA FLORES,
GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA,
minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN
ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented
by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO
JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and
CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA.
ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by
their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY,
GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by
their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented
by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA,
DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their
parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati,
Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational justice." Specifically, it
touches on the issue of whether the said petitioners have a cause of action to "prevent
the misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch
66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original
defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this
petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."5
The complaint starts off with the general averments that the Philippine archipelago of
7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed
with rich, lush and verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other
uses; the distortion and disturbance of this balance as a consequence of deforestation
have resulted in a host of environmental tragedies, such as (a) water shortages
resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the
intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance
and dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the
entire country, (h) increasing velocity of typhoon winds which result from the absence
of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued
and deforestation are so capable of unquestionable demonstration that the same may
be submitted as a matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16)
million hectares of rainforests constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more
than 1.2 million hectares of said rainforests or four per cent (4.0%)
of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire land
mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have
granted timber license agreements ('TLA's') to various corporations
to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the corresponding areas covered is
hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares
per annum or 25 hectares per hour — nighttime, Saturdays, Sundays
and holidays included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury
and irreparable damage of this continued trend of deforestation to
the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and
deforest the remaining forest stands will work great damage and
irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this
rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust for the
benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and
healthful ecology and are entitled to protection by the State in its
capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon
defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached
as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing
TLA's to the continuing serious damage and extreme prejudice of
plaintiffs.
18. The continued failure and refusal by defendant to cancel the
TLA's is an act violative of the rights of plaintiffs, especially plaintiff
minors who may be left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the
policy of the State —
 (a) to create, develop, maintain and improve conditions under which
man and nature can thrive in productive and enjoyable harmony with
each other;
(b) to fulfill the social, economic and other requirements of present
and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June
1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy of
the State to —
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature."
(Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind — the natural law — and violative of plaintiffs' right to
self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other
than the instant action to arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion
is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss.7 In the said order, not only was the defendant's claim — that the
complaint states no cause of action against him and that it raises a political question —
sustained, the respondent Judge further ruled that the granting of the relief prayed for
would result in the impairment of contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal order
on the ground that the respondent Judge gravely abused his discretion in dismissing
the action. Again, the parents of the plaintiffs-minors not only represent their children,
but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties
to submit their respective Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action
as it contains sufficient allegations concerning their right to a sound environment based
on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive
Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to
self-preservation and self-perpetuation embodied in natural law. Petitioners likewise
rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs may be considered protected
by the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any relief
is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate
the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners' resources is not to
file an action to court, but to lobby before Congress for the passage of a bill that would
ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA remains
effective for a certain period of time — usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the
said civil case is indeed a class suit. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the said
civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to
the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of
a balanced and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed
to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the respondent Judge's challenged
order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the
Court cannot help but agree with the defendant. For although we
believe that plaintiffs have but the noblest of all intentions, it (sic) fell
short of alleging, with sufficient definiteness, a specific legal right
they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In
fine, plaintiffs fail to state a cause of action in its Complaint against
the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy,
may not be taken cognizance of by this Court without doing violence
to the sacred principle of "Separation of Powers" of the three (3) co-
equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how
we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed,
and that the complaint is replete with vague assumptions and conclusions based on
unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced
and healthful ecology which, for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people
to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
This right unites with the right to health which is provided for in the
preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration
of Principles and State Policies and not under the Bill of Rights, it does not follow that
it is less important than any of the civil and political rights enumerated in the latter. Such
a right belongs to a different category of rights altogether for it concerns nothing less
than self-preservation and self-perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are
now explicitly mentioned in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far
when all else would be lost not only for the present generation, but also for those to
come — generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary
sessions of the 1986 Constitutional Commission, the following exchange transpired
between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide
sanctions against all forms of pollution — air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the
correlative duty of not impairing the same and,
therefore, sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right
to health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section
4 of which expressly mandates that the Department of Environment and Natural
Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of
the State to ensure the sustainable use, development, management,
renewal, and conservation of the country's forest, mineral, land, off-
shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access
of the different segments of the population to the development and
the use of the country's natural resources, not only for the present
generation but for future generations as well. It is also the policy of
the state to recognize and apply a true value system including social
and environmental cost implications relative to their utilization,
development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the
benefit of the Filipino people, the full exploration and development as
well as the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources,
consistent with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment
and the objective of making the exploration, development and
utilization of such natural resources equitably accessible to the
different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system
that takes into account social and environmental cost implications
relative to the utilization, development and conservation of our
natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment." Section 2 of the same
Title, on the other hand, specifically speaks of the mandate of the DENR; however, it
makes particular reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural
Resources shall be primarily responsible for the implementation of
the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and conservation
of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which
will serve as the bases for policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the
present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.
The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and
guardian of the environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of
its powers and functions under E.O. No. 192 and the Administrative Code of 1987 —
to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation
to respect or protect the same gives rise to a cause of action. Petitioners maintain that
the granting of the TLAs, which they claim was done with grave abuse of discretion,
violated their right to a balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or
rights of the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or omission
of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only issue
to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under
the introductory affirmative allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the enforcement
of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield
that protects executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani
A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the
political departments of the government.
As worded, the new provision vests in the judiciary, and particularly
the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with
grave abuse of discretion. The catch, of course, is the meaning of
"grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature,
we would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even
 the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how
we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such
a sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license holders because
he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege granted
herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive
action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court
held:
. . . A timber license is an instrument by which the State regulates
the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest
or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority, federal,
state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a
privilege granted by the State to qualified entities, and do not vest in
the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive
when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant
case does not involve a law or even an executive issuance declaring the cancellation
or modification of existing timber licenses. Hence, the non-impairment clause cannot
as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not
meant to be absolute. The same is understood to be subject to
reasonable legislative regulation aimed at the promotion of public
health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the
exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.
29
The reason for this is emphatically set forth in Nebia vs. New York, quoted
in Philippine American Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern.
 The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use
his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
could apply with respect to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving new timber licenses for, save
in cases of renewal, no contract would have as of yet existed in the other instances.
Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case
No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint
to implead as defendants the holders or grantees of the questioned timber license
agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and
Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Paul KARA v. United Kingdom Training Administrator. Throughout the period of his employment he had, from time to
time, worn at work items of clothing which might conventionally be regarded as female,
The European Commission of Human Rights (First Chamber) sitting in private on 22 including leggings, tights, tee shirts with halter tops (which tie up behind the neck) and
October 1998, the following members being present: belts. On two occasions he wore a dress.

Following the second occasion on which he wore a dress, the applicant was interviewed
by a manager in the Social Services Department who told him that his style of dress
MM M.P. PELLONPÄÄ, President had become an issue in the department. As a result the applicant volunteered to desist
N. BRATZA from wearing "female" clothing. The matter was placed under internal review.
E. BUSUTTIL
A. WEITZEL In October 1993, the matter was referred to the Deputy Director of Social Services who
C.L. ROZAKIS interviewed the applicant at length. During the interview it was found that two principal
Mrs J. LIDDY issues arose out of the restrictions on the applicant’s preferred mode of dress. The first
MM L. LOUCAIDES concerned his religious beliefs and the second was whether such restrictions raised an
B. MARXER equal opportunities issues.
I. BÉKÉS
G. RESS On 16 November 1993, the applicant received a letter from the Deputy Director
A. PERENIC instructing him to desist from wearing women’s clothing at work as it was contrary to
M. VILA AMIGÓ the Council’s Code of Conduct and it was likely to bring the Council into disrepute.
Mrs M. HION Moreover, it was stated in the letter that this matter did not raise an equal opportunities
Mr R. NICOLINI issue.

Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of Human Rights and
Fundamental Freedoms;
Having regard to the application introduced on 12 November 1996 by Paul KARA
against the
United Kingdom and registered on 17 June 1997 under file No. 36528/97;
Having regard to the report provided for in Rule 47 of the Rules of
Procedure of the Commission; Having deliberated; Decides as follows:
THE FACTS
The applicant is a British citizen born in May 1960, resident in London. He is
represented before the Commission by Mr Philip Leach, a solicitor practising in London.
The applicant is a bisexual male transvestite and wears clothes which are
conventionally considered as "female". He is not transsexual and does not wish to
become a woman. He dresses in this way to give expression to his identity and sexuality
and to what he regards as the innate feminine aspects of his personality. He also
describes himself as a "Berdache Shaman" which is said to be an American indigenous
tradition in which certain men express themselves through dressing in conventionally
female clothing.
From 1986 to 1991, the applicant was employed by the Inner London Education
Authority (ILEA) until his employment was transferred to Hackney Council in April 1991.
He was initially a Careers Adviser in the Directorate of Education and was promoted to
The Council did not at the relevant time have a written dress policy. There was,
however, in place a requirement that all staff should attend work looking clean, neat
and appropriately dressed. In April 1994, the Council adopted a written dress policy
which was said to have been designed to enhance its image in its dealings with the
public, the business community and the representatives of Government. This policy
applied equally to male and female members of staff.
On 21 January 1994, the applicant brought proceedings against the Council before an
Industrial Tribunal alleging direct discrimination on grounds of gender contrary to
section 1 of the Sex Discrimination Act 1975. In particular, he alleged that female
employees had not been given similar instructions in relation to male clothing and other
members of staff who had engaged in what was described as "cross dressing" had not
been disciplined by the Council. On 13 January 1995, the tribunal dismissed the
applicant’s claim on the grounds that the Council genuinely and on reasonable grounds
believed that the clothes worn by the applicant were in breach of their policy with regard
to clothing and further found that there was no element of prejudice in the respondents’
actions to the applicant. Moreover, on the basis of the respondent’s evidence it was
satisfied that at all material times the policy was applied equally to both their male and
female members of staff.
On 20 March 1995, the applicant appealed against this decision to the Employment
Appeal Tribunal on the grounds that the industrial tribunal erred in law because they
misdirected themselves as to the correct legal test for determining whether the
applicant had suffered unlawful direct sex discrimination contrary to section 1(1)(a) of
the Sex Discrimination Act 1975. On 13 May 1996 the appeal was dismissed, on the
same grounds. On 10 September 1996 the applicant was advised that an appeal to the
Court of Appeal had no prospect of success.
COMPLAINTS
1. The applicant complains of a violation of his right to respect for his private life.
In particular, he submits that the dress code policy imposed by Hackney Council
effectively preventing him from wearing a dress at work, constitutes an arbitrary
interference with his private life. He invokes Article 8 para. 1 of the Convention.
2. The applicant also complains that he is prevented from expressing himself as
he wishes, through his dress. He invokes Article 10 para. 1 of the Convention.
3. The applicant further complains of a violation of Article 13 of the Convention
in that he has no effective remedy before a national authority in respect of the violation
of his rights under Articles 8, 1 and 10 of the Convention.
4. The applicant further complains that there is a breach of Article 14 when read
in conjunction with Articles 8 and 10 of the Convention. He submits that he was
discriminated against on grounds of sex.
THE LAW
1. The applicant complains that the dress code policy imposed by Hackney
Council effectively preventing him from wearing a dress at work, constitutes an arbitrary
interference with his private life contrary to Article 8 of the Convention which provides
as relevant:
"1. Everyone has the right to respect for his private and family life.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society … for the protection of the rights and freedoms of others".
The Commission finds that constraints imposed on a person’s choice of mode of dress
constitute an interference with the private life as ensured by Article 8 para. 1 of the
Convention (see McFeeley v. the United Kingdom No. 8317/78, Dec. 15.5.80, D.R. 20,
p.
91). It is therefore necessary to examine whether this interference was justified under
Article
8 para. 2, for which three conditions must be satisfied: the interference must be "in
accordance with the law", it must pursue one or more of the legitimate aims enunciated
in paragraph 2 of Article 8 and it must be "necessary in a democratic society" to achieve
any one of those legitimate aims (Eur. Court HR, Olsson judgment of 24 March 1988,
Series A no. 130, p. 29, para. 59, referring to Eur. Court HR, W v. UK judgment of 8
July 1987, Series A no. 121, p. 27, para. 59).
The Commission recalls that the Council’s restriction on the choice of mode of dress of
its employees was based on its internal policy which was confirmed by the Industrial
Tribunal to be lawful. Accordingly, the Commission considers that the interference was
"in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.
The Commission further recalls that the aim of its dress policy as stated by the Council
in April 1994 was to enable it to enhance its image in its dealings with the public, the
business community and representatives of Government. Accordingly, the Commission
considers that the interference could be said to pursue the legitimate aim of "the
protection of the rights of others", in the sense of protecting its own proper functioning
and carrying out of its duties on behalf of the public.
As to whether the interference was "necessary in a democratic society", the
Commission recalls that this phrase corresponds to the existence of a "pressing social
need" in particular, the interference must be proportionate to the legitimate aim pursued
(Eur. Court HR, Beldjoudi v. France judgment of 26 March 1992, Series A no. 234, p.
27, para. 74). The Contracting States however, have a certain margin of appreciation
in assessing whether such a need exits, but this goes hand in hand with a European
supervision (Eur. Court HR, Silver and others v. the United Kingdom judgment of 25
March 1983, Series A no. 61, pp. 37-38, para. 97).
The Commission notes that the rules as to the mode of dress at work affected the
applicant during work hours on work premises and that at other times he remained at
liberty to dress as he wished. The Commission considers that employers may require
their employees to conform to certain dress requirements which are reasonably related
to the type of work being undertaken eg. safety helmets, hygienic coverings, uniforms.
This may also involve requiring employees, who come into contact with the public or
other organisations to conform to a dress code which may reasonably be regarded as
enhancing the employer’s public image and facilitating its external contacts. While the
applicant has disputed that the Council provided support for its claims that the way he
dressed prejudiced its external image and the extent to which he came into contact with
members of the public and the representatives of other bodies in his daily work, the
Commission notes that the applicant did not deny that he had contacts outside his own
office and it is satisfied that the requirements in this case, that employees dress
"appropriately" to their gender, may be reasonably regarded by the employer as
necessary to safeguard their public image. Having regard to the circumstances of the
case, any restrictions on the applicant’s ability to dress at work in the manner which he
perceives as expressing his personality and fostering personal relationships was not
disproportionate.
The Commission finds that the interference in this case may be regarded as necessary
in a democratic society for the aim of protecting the rights of others within the meaning
of Article 8 para. 2 of the Convention.
This complaint must therefore be rejected as manifestly ill-founded within the meaning
of Article 27 para. 2 of the Convention.
2. The applicant complains that the restriction on his mode of dress constitutes an
interference with his right to freedom of expression in violation of Article 10 which
provides as relevant :
"1. Everyone has the right to freedom of expression. This right shall include freedom to 4. The applicant also complains under Article 13 of the Convention which provides that
hold opinions and to receive and impart information and ideas without interference by :
public authority and regardless of frontiers".
"Everyone who’s rights and freedoms as set forth in this Convention are violated shall
The Commission finds that although the right to freedom of expression may include the have an effective remedy before a national authority notwithstanding that the violation
right for a person to express his ideas through the way he dresses (No. 11674/85, Dec. has been committed by persons acting in an official capacity".
3.3.86, D.R. 46, p. 245 at p. 247), it has not been established on the facts of this case
that the applicant has been prevented from expressing a particular opinion or idea by The Commission recalls that Article 13 does not require a remedy under domestic law
means of his clothing. in respect of any alleged violation of the Convention. It only applies if the individual can
be said to have an arguable claim of a violation of the Convention (Eur. Court HR, Boyle
The Commission concludes, therefore, that an examination of this complaint as it has and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,
been submitted fails to disclose any appearance of a violation of Article 10 of the para. 52).
Convention.
The Commission finds that the applicant cannot be said, in light of its findings above to
It follows that this part of the application must also be rejected as being manifestly ill have an arguable claim of a violation of his Convention rights.
founded within the meaning of Article 27 para. 2 of the Convention.
It follows that this complaint must be rejected as manifestly ill-founded within the
3. The applicant further complains of a violation of Article 14 when read in conjunction meaning of Article 27 para. 2 of the Convention.
with Articles 8 and 10 of the Convention. Article 14 of the Convention provides:
For these reasons, the Commission, by a majority,
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, DECLARES THE APPLICATION INADMISSIBLE.
political or other opinion, national or social origin, association with a national minority,
property, birth or other status."
M.F. BUQUICCHIO M.P. PELLONPÄÄ
The case-law of the Convention organs establishes that it is not every difference in Secretary to the First Chamber President of the First Chamber
treatment which constitutes discrimination within the meaning of Article 14 of the
Convention. It must be established that other persons in an analogous or relevantly
similar situation enjoy preferential treatment and that there is no reasonable or objective
justification for this distinction (see eg. Eur. Court HR, Van der Mussele judgment of 21
November 1982, Series A no. 70, Fredin v. Sweden (No. 1) judgment of 18 February
1991 Series A no. 192, p. 19, para. 60).

The Commission recalls that the applicant claims that he has been sanctioned for
dressing as a "female" whereas the same restrictions have not been applied to women
who have been permitted to wear masculine clothes at work. The Commission notes
that this complaint was considered by the Industrial Tribunal which accepted the
evidence of the Council that, in respect of the example relied on by the applicant of a
woman wearing black trousers and a white shirt, this style of dress was smart and
wholly appropriate to the job which she did. It found no indication that the policy of
requiring appropriate dress was not applied to both genders. The Commission
observes that the range of dress which is considered appropriate for a woman may be
wider than that available to a man. However, that does not disclose any basis on which
the Commission may find that the applicant was subjected to a different rule on the
basis that he was a man, rather than a woman.

The Commission concluded that the applicant’s complaints disclose no appearance of

discrimination on the ground of sex. They must therefore be rejected as manifestly
illfounded within the meaning of Article 27 para. 2 of the Convention.
CASE OF VAN DROOGENBROECK v. BELGIUM and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,

(Application no. 7906/77) Having deliberated in private on 26 and 27 February and on 24, 25 and
27 May 1982,

JUDGMENT Delivers the following judgment, which was adopted on the lastmentioned date:

STRASBOURG PROCEDURE

24 June 1982
1. The Van Droogenbroeck case was referred to the Court by the
European Commission of Human Rights ("the Commission") and the Government of
In the Van Droogenbroeck case, the Kingdom of Belgium ("the Government"). The case originated in an application (no.
The European Court of Human Rights, taking its decision in plenary session in 7906/77) against the aforementioned State lodged with the Commission on 16 April
application of Rule 48 of the Rules of Court and composed of the following judges: 1977 under Article 25 (art. 25) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention") by a Belgian national, Mr. Valery Van
Mr. G. WIARDA, President,
Droogenbroeck.
Mr. M. ZEKIA,
2. Both the Commission’s request and the Government’s application were
Mr. J. CREMONA, lodged with the registry of the Court within the period of three months laid down by
Articles 32 par. 1 and 47 (art. 32-1, art. 47), the former on 18 December 1980 and the
Mr. W. GANSHOF VAN DER MEERSCH, latter on 5 January 1981. The request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby the Kingdom of Belgium recognised the compulsory
Mrs. D. BINDSCHEDLER-ROBERT, jurisdiction of the Court (Article 46) (art. 46); the application referred to Article 48 (art.
48). The purpose of the request and the application is to obtain a decision as to whether
Mr. D. EVRIGENIS, or not the facts of the case disclose a breach by the respondent State of its obligations
Mr. G. LAGERGREN, under Articles 4 and 5 (art. 4, art. 5); in particular, the Court is asked to clarify the scope
of the right, guaranteed by paragraph 4 of Article 5 (art. 5-4), to take proceedings
Mr. L. LIESCH, seeking a review of lawfulness.
3. The Chamber of seven judges to be constituted included, as ex officio
Mr. F. GÖLCÜKLÜ, members, Mr. W. Ganshof van der Meersch, the elected judge of Belgium nationality
(Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court
Mr. F. MATSCHER, (Rule 21 par. 3 (b) of the Rules of Court). On 31 January 1981, the President drew by
lot, in the presence of the Registrar, the names of the five other members, namely Mr.
Mr. J. PINHEIRO FARINHA,
J. Cremona, Mrs. D. Bindschedler-Robert, Mr. F. Gölcüklü, Mr. L.-E. Pettiti and Mr. B.
Mr. E. GARCIA DE ENTERRIA, Walsh (Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43). Mr. Pettiti was
subsequently prevented from taking part in the consideration of the case and was
Mr. L.-E. PETTITI, replaced by Mr. D. Evrigenis, the first substitute judge (Rules 22 par. 1 and 24 par. 1).
4. Having assumed the office of President of the Chamber (Rule 21 par. 5), Mr.
Mr. B. WALSH, Wiarda ascertained, through the Registrar, the views of the Agent of the Government
and of the Commission’s Delegate regarding the procedure to be followed. On 3
Sir Vincent EVANS,
February, he decided that the Agent should have until 15 April 1981 to file a memorial
Mr. C. RUSSO, and that the Delegate should be entitled to file a memorial in reply within two months
from the date of the transmission of the Government’s memorial to him by the Registrar.
Mr. R. BERNHARDT, The Government’s memorial was received at the registry on 21 April. On 20 July, the
Secretary to the Commission informed the Registrar that the Delegate would present
Mr. J. GERSING, his observations at the hearings.
 5. After consulting, through the Deputy Registrar, the Agent of the Government
and the Commission’s Delegate, the President directed on 23 July that the oral
proceedings should open on 20 October 1981.
6. The oral proceedings were held in public at the Human Rights Building,
Strasbourg, on 20 October. Immediately before their opening, the Court had held a
preparatory meeting.
There appeared before the Court:
- for the Government
Mr. J. NISET, Legal Adviser
at the Ministry of Justice, Agent,
Mr. E. JAKHIAN, avocet, Counsel,
Mrs. N. LAUWERS, Deputy Legal Adviser
at the General Directorate of Prisons,Adviser;
- for the Commission
Mr. S. TRECHSEL, Delegate,
Mr. S. BEUSELINCK and Mr. J. VAN DAMME, avocats,
assisting the Delegate (Rule 29 par. 1, second sentence, of
the Rules of Court).
The Court heard addresses by Mr. Trechsel, Mr. Beuselinck and Mr. Van Damme for
the Commission and by Mr. Jakhian for the Government, and also their replies to
questions put by it and two of its members.
7. Following deliberations held on 21 and 22 October and on 23 November 1981,
the Chamber decided under Rule 48 of the Rules of Court to relinquish jurisdiction
forthwith in favour of the plenary Court.
By letter of 8 December, the Agent of the Government indicated that he would not
request a further hearing and the same position was taken by the Commission’s
Delegate on 15 December. On the following day, the President of the Court authorised
the Agent, who had expressed a wish to that effect in the aforesaid letter, to file a
supplementary memorial by 18 January 1982 and the Delegate to reply in writing within
three weeks from the transmission of that memorial to him by the Registrar. On 28
January, the President extended the first of these time-limits to 10 February. The
Government’s supplementary memorial and the Delegate’s reply, the latter being
accompanied by the applicant’s observations, were received at the registry on 10 and
25 February, respectively.
Having taken note of the agreement of the Agent of the Government and the concurring
opinion of the Commission’s Delegate, the Court decided on 27 February that the
proceedings would continue without resumption of the hearings (Rule 26 of the Rules
of Court).
8. On various dates between 14 October and 18 March 1982, the Registrar
received from the Commission and the Government numerous documents and items
of information; they supplied some of these on their own initiative and others in
response to requests made by the Registrar on the instructions of either the President,
the Chamber or the plenary Court.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
9. The applicant is a Belgian national, born in 1940. He has no fixed
occupation.
On 29 July 1970, the Bruges criminal court (tribunal correctionnel) sentenced him to
two years’ imprisonment for theft, and attempted theft, committed with the aid of
skeleton keys. The court also ordered that he be "placed at the Government’s disposal"
for ten years, pursuant to section 23 of the "Social Protection" Act of 1 July 1964 (see
paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56
of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April
1968 to two years’ imprisonment for aggravated theft and who manifested a persistent
tendency to crime.
The applicant and the ministère public (public prosecuter’s department) appealed to
the Ghent Court of Appeal, which confirmed the first instance decision on 20 October
1970. It found that the placing at the Government’s disposal was justified by the danger
to which society and Mr. Van Droogenbroeck himself would be exposed were he to be
released on completion of his sentence (door het gevaar dat, na afloop van de straf die
tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de
maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point
of law was dismissed by the Court of Cassation on 19 January 1971.
10. On the completion (on 18 June 1972) of his principal sentence, which
he served at St. Giles prison, Brussels, and then at Malines, Mr. Van
Droogenbroeck did not remain in detention. It was true, according to the
medical officer specialised in psychology (médecin-anthropologue) at Malines
prison, that he was incapable of self-criticism and had no sense of
responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the
Minister of Justice, acting on the advice of the prison governor and following
a "policy of securing as far as possible the rehabilitation of released
prisoners", agreed to attempt to reintegrate him into society by placing him,
as from 1 August 1972, in semi-custodial care; this involved his working as an
apprentice in a central-heating installation firm in Brussels and attending
intensive vocational training courses in a specialised institution on Fridays and
Saturdays.
11. The applicant disappeared, however, on 8 August 1972. Three days
later, on the instructions of the procureur général (public prosecuter) attached
to the Ghent Court of Appeal, he was placed on the wanted list and, on 3
October 1972, he was arrested, pursuant to a warrant issued by an
investigating judge in connection with an attempt to commit aggravated theft,
 and detained at Forest prison, Brussels. On 17 November, he was found not
guilty by the Brussels criminal court, but on 27 November the Minister of
Justice decided to send him to Merksplas prison, in the block reserved for
recidivists placed at the Government’s disposal (te doen overbrengen naar de
afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was
because the Ministry’s individual Cases Department had expressed the
opinion, on 27 November, that the applicant had abused the opportunity
offered to him, that he was totally untrustworthy and that a further period of
detention was indicated (dat (hij) werkelijk misbruik heeft gemaakt van de hem
geboden kans, dat hij helemaal niet is te betrouwen en dat een nieuwe
interneringsperiode gewittigd is).
On the strength of a favourable opinion from the Recidivists Board (see paragraph 22
below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the
Minister of Justice decided on 22 June to release him conditionally on 25 July, since
the firm mentioned above was prepared to re-engage him as a trainee heating
technician.
12. The applicant disappeared again at the beginning of September
1973. He was arrested on 6 November and brought before the Antwerp
criminal court on a charge of aggravated theft, where he was sentenced on
16 January 1974 to three months’ imprisonment. On 4 February, on the
expiration of this sentence, he was released as the Minister had agreed to
make a further attempt at his reintegration into society, but at the end of March
the agency responsible for monitoring his rehabilitation lost trace of him. He
was arrested on 21 May 1974 and, until 16 January 1975, served a sentence
of eight months’ imprisonment for aggravated theft, imposed by the Brussels
criminal court on 9 August 1974; thereafter he returned to Merksplas prison
pursuant to a detention decision (te interneren) taken by the Minister of Justice
on 11 January. He left prison on 11 July 1975: two days previously and on the
recommendation of the Recidivists Board, the Minister had agreed to his
conditional release (te ontslaan), in the form of one month’s renewable leave,
with a view to rehabilitation in France.
13. Mr. Van Droogenbroeck accordingly went to France, accompanied
by a member of the Prisoners’ Aid committee, but the rehabilitation plan
proved impracticable and he therefore returned to Belgium. After different
setbacks in hostels, he was obliged to live alone in Brussels, without work and
completely without resources. On 10 September 1975, the Individual Cases
Department, citing the risk of recidivism, proposed that "steps be taken to
detain" the applicant at Merksplas; the Minister of Justice gave his consent on
the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the
third time; the authorities placed him on the wanted list, on account of his
conduct. After hiding for some months in the Netherlands and finding himself
in dire financial straits, he gave himself up on 21 January 1976 to the police
attached to the parquet du procureur du Roi (public prosecuter’s office) in
Brussels. He was detained at once in Forest prison before being sent back to
Merksplas. On 2 February, as he was unwilling to do the work offered to him,
he was placed in the cell block rather than in the recidivists block.
On 3 March 1976, the applicant appeared at his request before the Recidivists Board,
which decided to re-examine his case in September. At its meeting on 8 September,
the Board found that he had saved nothing during his detention and that he had no
prospects of finding work outside prison. It therefore declined to recommend his release
unless and until he had saved 12,000 BF through his prison work.
On 23 September, the applicant was transferred from Merksplas to Louvain prison.
14. On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of
the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur
général attached to the Ghent Court of Appeal an application for release from
the effects of the decision placing him at the Government’s disposal. The
Court of Appeal refused the application on 13 December: after rejecting the
arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5
par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court found
that each time the applicant had been released, he had yielded to impulse and
committed further offences; it concluded from this that he remained asocial
(zodat hij asociaal blijft). On 15 February 1977, his appeal on a point of law
was held by the Court of Cassation to be inadmissible on the ground that he
was no longer entitled to contest before that Court - as he had attempted to
do by pleading the Convention - the validity of the decision complained of, that
decision having been final since 19 January 1971.
15. On 13 March 1977, the applicant lodged with the Louvain procureur
du Roi a complaint of arbitrary detention and, in the alternative, of abuse of
authority (abus de pouvoir). He pointed out that since 28 February the balance
on his account had been more than 12,000 BF; in addition, he alleged that the
Recidivists Board, not being mentioned in the Act of 1 July 1964, was
"unlawful" and he accused the Minister of transforming his sentence into one
of "forced labour". On 19 August 1977, the complaint was set aside as
requiring no further action.
16. On 4 May 1977, Mr. Van Droogenbroeck appeared again before the
above-mentioned Board. Noting that he had by then saved 12,868 BF and
had been detained for long enough (lang genoeg), the Board recommended,
"without much enthusiasm" (zonder veel enthousiasme), that he be released
(te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him
one month’s renewable leave, to be preceded by a two month period of semi-
custodial care during which he was to be accommodated at night in St. Giles
prison (Brussels) but was to work outside the prison during the daytime.
However, he disappeared on the day after his first day out and was at once
placed on the wanted list for return to the recidivists block at Merksplas.
17. On 22 September 1977, Mr. Van Droogenbroeck was caught in the
act of stealing in Bruges and arrested. On 9 December, he was sentenced to
three month’s imprisonment by the Bruges criminal court and, on completing
that sentence on 21 December, was sent back to Merksplas. The Ministry of
Justice had found, on 19 December, that the applicant’s return to detention
did not require a fresh Ministrial decision since he had evaded detention on 8
June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn
internering, is geen ministeriële beslissing nodig om hem opnieuw te
interneren).
The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was
adjourned until September. On 13 September, the Board pointed out that, on account
of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and
it therefore proposed that he not be granted renewable leave until he had saved 12,000
BF. On 3 October, the Minister gave instructions to that effect; he also stipulated that
the applicant’s release should be subject to a series of condition similar to those
previously laid down by the Minister, namely submitting to the "guidance" of the
Brussels Social Rehabilitation Office, working regularly, not changing employer or
address without that Office’s consent, refraining from excessive consumption of alcohol
and not associating with former criminals. It proved impossible to implement this
decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached
thereto. On 14 March 1979, he appeared once more before the Recidivists Board,
which confirmed the advice it had tendered on 13 September 1978.
18. On 16 September 1979, the applicant lodged with the procureur
général attached to the Ghent Court of Appeal a second application based on
section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application
was granted on 18 March 1980: after considering the submissions to the
contrary on the part of the ministère public and although the Court rejected,
as in 1976, the arguments based on the Convention, it held that there were by
then reasons for releasing Mr. Van Droogenbroeck from the effects of the
decision placing him at the Government’s disposal. He was set free on the
same day, but shortly afterwards was again deprived of his liberty, the
Brussels criminal court and the Ghent Court of Appeal having sentenced him
on 10 September 1980 and 3 June 1981 to one month’s and to one year’s
imprisonment for aggravated theft, though without applying to him the Social
Protection Act.
II. THE LEGISLATION IN ISSUE
A. The placing of recidivists and habitual offenders at the Government’s
disposal
19. The placing of recidivists and habitual offenders at the Government’s
disposal was substituted for the placing under special police supervision that
had been provided for in the Criminal Code of 8 June 1867; it was introduced
by section 24 to 28 of the "Social Protection" Act of 9 April 1930 and is today
the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect
of Mental Defectives and Habitual Offenders Act of 1 July 1964 ("the 1964
Act").
According to Belgian case-law, being placed at the Government’s disposal is to be
classified as a penalty and not as a security measure; this has various consequences
in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975,
ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22
and 23 of the 1964 Act, the placing at the Government’s disposal is added on to a
principal penalty involving deprivation of liberty imposed at the same time, becomes
operative on the expiration of that penalty and applies for a period fixed by the Act,
namely twenty years, ten years, or from five to ten years, according to the nature of the
case.
A person who has committed one indictable offence (crime) after another must be
placed at the Government’s disposal (section 22), whereas in other cases - such as the
applicant’s - it is a matter for the court’s discretion (section 23): the latter rule applies
where a non-indictable offence (délit) has followed an indictable or a non-indictable
offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has
followed a non-indictable offence and to the case of "anyone who, having committed in
the previous fifteen years at least three offences each involving a penalty of
imprisonment for a non-indictable offence (emprisonnement correctionnel) of at least
six months, is shown to manifest a persistent tendency to crime". In the latter cases,
"particulars of the proceedings in respect of the offences which cause the individual
concerned to be classified as a recidivist have to be included in the current prosecution
file" and the court concerned must give "specific and precise" reasons for ordering the
penalty in question (section 24 and Court of Cassation, 3 January 1962, Pasicrisie
1962, I, pp. 525-526).
20. If a recidivist is sentenced to a further principal penalty of
imprisonment, the effects of any prior order placing him at the Government’s
disposal are suspended until that sentence has been served. Such was the
result, in the present case, of the judgments of 16 January 1974, 9 August
1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new
sentence of imprisonment may itself be accompanied by a further order
placing the individual concerned at the Government’s disposal, the latter
penalty to be served after the expiry of the first order, but as regards Mr. Van
Droogenbroeck this course was not followed by the Antwerp, Brussels and
Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and
1981 (see paragraphs 12, 17 and 18 above).
21. According to the Court of Cassation, the penalty of being placed at
the Government’s disposal - which can be the subject of a full appeal or of an
appeal to the Court of Cassation on a point of law - and the principal penalty
form an "inseparable whole" and the former penalty, like the latter, constitutes
a deprivation of liberty (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June
1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526;
22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I,
p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964
Act, "recidivists and habitual offenders who are at the Government’s disposal
shall, if necessary, be detained in an establishment specified by Royal
Decree" - in the instant case the establishment being Merksplas, which had
been designated for males not suffering from any mental illness (Royal Decree
of 8 February 1952).
As is indicated by the phrase "if necessary", the Act confers on the Government - here,
the Minister of Justice - a wide measure of discretion in deciding how the penalty shall
be implemented, the choice lying between detention, semi-custodial care, and
remaining at liberty under supervision or on probation. The Minister may conditionally
release the person concerned either at the end of the principal sentence - failing which
he will be detained - or during the course of detention; he may also revoke conditional
release at a later date.
The Minister of Justice takes various decisions in accordance with a procedure which
is laid down, in part, by Ministrial Decrees. Conditional release usually occurs:
 - whilst the principal penalty is being served, on a report from the
"medical officer specialised in psychology" and the governor of the
establishment where the convicted person is held (see paragraph 10 above);
- during detention, on a recommendation by the Recidivists Board
(see paragraph 11, 12 and 16 above and paragraph 22 below).
A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 above) is
generally taken by the Minister in the light of a report from the officer responsible for
the "guidance" of the person concerned, or of an recommendation by the procureur
général attached to the Court of Appeal within whose district the placing at the
Government’s disposal was ordered. These reports and recommendations will cover
the manner in which the person in question is observing the prescribed conditions, his
means of subsistence, his work, his conduct and the risk of recidivism on his part. If,
however, he is in the process of serving a further sentence of imprisonment, revocation
is normally based on reports from the "medical officer specialised in psychology" and
the governor of the establishment; these reports will contain information on the nature
of the offences for which the sentence was imposed, the offender’s criminal record, his
personality, his moral character, his family and occupational situation and his future
prospects.
22. The Board for Recidivists who have been placed at the
Government’s Disposal and are in Detention ("the Recidivists Board") was
established by a Ministerial Decree of 12 March 1946 which was modified and
supplemented on 20 May 1949 and 11 March 1968. The Board is composed
of a judge or retired judge, who acts as chairman, the medical director or
retired medical director of the Prison Psychological Service (Service
d’anthropologie) and a senior official of the Prison Social Service. A
representative of the Ministry of Justice attends meeting of the Board and the
Prisoners’ Aid Committees or the Social Rehabilitation Offices may be invited
to send a representative - who is entitled to speak and vote (Decree of 20 May
1949) - to those meetings at which the Board is to discuss the position of
detainees who have been or are to be placed under their supervision.
The Board is convened by its chairman at least once every two months. It is required
to supply the Minister of Justice with an opinion - which is not binding - "on the
advisability of releasing recidivists and habitual offenders who are in detention ... and
on the conditions" which should be attached to their release.
Offenders may apply to appear before the Board either at the meeting before the expiry
of the first six months of their detention, if it began as soon as they has finished serving
their principal sentence, or at the first meeting held after their return to detention, in
cases where the Minister has revoked a decision granting conditional release (see
paragraph 13 above). They will be heard again at the meeting before the expiry of the
first six months of their detention, if it six months, fixed by the Recidivists Board (see
paragraph 11, 12, 13, 16 and 17 above).
Although the texts are silent on the point, a detainee will be heard without the
assistance of a lawyer and without being able to inspect the prison file which contains,
inter alia, the results of the social enquiry. The Board’s Secretary will communicate to
him at once the opinion adopted by the Board at the end of its discussions. If the opinion
is favourable, the matter will be referred to the Minister for decision. The Minister may
also give directions for release at any time, without consulting the Board in advance.
The governors of the establishments involved inform the persons concerned of
Ministerial decisions that they be released. Such decisions will be subject to conditions
which will be recorded in a booklet and will always include an obligation to submit to
supervision arranged by the Social Rehabilitation Offices or the Prison Social Service.
23. Under section 26 of the 1964 Act, individuals placed at the Government’s
disposal pursuant to sections 22 and 23 may apply to the procureur général attached
to the Court of Appeal within whose district the decision was rendered to be released
"from the effects of the decision". If, as in the present case, the offender has been
placed at the Government’s disposal for not more than ten years, such an application
"can be made three years after completion of the [principal] sentence" (see paragraph
14 above) and, thereafter, "every three years" (see paragraph 18 above); these periods
are increased to five years "in the other cases". The procureur général "shall make
such enquiries as he sees fit, add the results to the case-file and lay it, with his
submissions, before a criminal chamber of the Court of Appeal; the Chamber shall give
a reasoned judgment after hearing the person concerned, who shall have the
assistance of a lawyer".
24. The practice followed in implementing the Acts of 1930 and 1964 has
developed considerably over the years. Initially, offenders were not released until after
a period of detention which varied according to the categories in which they ware
placed. Today, on the other hand, where it is the first time that the measure has been
ordered and the individual is not very dangerous, the authorities’ general rule is to
release him on trial once the principal sentence has been served, subject to detaining
him if he commits another offence or fails to observe one of the prescribed conditions
and is out of work and without means of subsistence. Moreover, detention for a long
period is now exceptional: according to the Government, the offender will in practice be
conditionally released - unless there is a serious danger to society - as soon as there
is a real possibility of rehabilitation.
25. According to Articles 62 and 63 of the General Prison Rules (Royal Decree of
21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for
a non-indictable offence (peine correctionnelle) and then detained pursuant to section
25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work.
B. Existence of remedies in respect of allegedly unlawful deprivation of liberty
26. The Government maintained that several remedies were available to the applicant:
(i) instituting or causing to be instituted a prosecution for arbitrary detention;
(ii) referring to the Ghent Court of Appeal any dispute between himself and the
ministère public regarding the execution of the judgment of 20 October 1970;
(iii) applying to that Court of Appeal for release from the effects of the measure
imposed on him;
(iv) applying to the President of the court of first instance in his capacity of juge
des référés (judge hearing urgent applications);
(v) bringing an action based directly on Article 5 par. 4 (art. 5-4) of the Convention.
On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth,
to paragraph 55 below.
27. As regards the first point, anyone who maintains that he has been unlawfully
deprived of his liberty, either by a private individual or by a public official, is entitled
under Belgian law either to file a complaint, with or without the joinder of a claim for
damages (constitution de partie civile), or to bring the matter before a criminal court by
means of a direct summons (Articles 147 and 434 to 436 of the Criminal Code; Articles
63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above).
28. As regards the second point, the Ghent Court of Appeal held, in 1897 and
1914 that disputes between the ministère public and a convicted person regarding the
execution of a sentence could be referred to the court which passed it, but these are
isolated decisions which have not been confirmed by other judgments.
29. As regards the fourth remedy mentioned above, the Court confines itself for
the moment to noting that under Articles 584 and 1039 of the 1967 Judicial Code it falls
to the President of the court of first instance to give a ruling, in the capacity of juge des
référés - that is to say, on a "provisional" basis, if the matter is urgent, and without
prejudice to the "merits" -, if so requested by anyone claiming to be the victim of, for
example, an administrative act constituting a "voie de fait" (manifest illegality). This
remedy is available "in all matters, except those which are excluded by law from the
competence of the courts". The case-law cited by the Government in this connection is
analysed at paragraph 54 below.
PROCEEDINGS BEFORE THE COMMISSION
30. On 2 January 1974, Mr. Van Droogenbroeck had lodged a first application (no.
6989/75) which the Commission declared inadmissible on 5 March 1976 on account of
failure to exhaust domestic remedies. In his second application, dated 16 April 1977
(no. 7906/77), he maintained that he was held in servitude and forced to work, contrary
to paragraphs 1 and 2 of Article 4 of the Convention (art. 4-1, art. 4-2). He further
alleged that his deprivation of liberty, which in his view had been ordered by the Minister
of Justice and not by a court, contravened paragraph 1 of Article 5 (art. 5-1) and that
he had not been able to seek a judicial review of the lawfulness of his various periods
of detention, as was required by paragraph 4 of the same Article (art. 5-4). Finally, he
complained of an interference with his freedom of expression, guaranteed by Article 10
(art. 10), contending that he was on two occasions subjected to disciplinary sanctions
for having protested against the Recidivists Board’s recommendations.
31. On 5 July 1979, the Commission rejected the last complaint as being
manifestly ill-founded (Article 27 par. 2) (art. 27-2) and declared the remainder of the
application admissible.
In its report of 9 July 1980 (Article 31 of the Convention) (art. 31), the Commission
expressed the opinion that there had been a violation of paragraph 4 of Article 5 (art.
5-4) (unanimously), but not of paragraph 1 (art. 5-1) (ten votes to two) or of Article 4
(art. 4) (unanimously).
The report contains one dissenting opinion.
SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT
32. In their memorial of April 1981 and in their supplementary memorial of February
1982, the Government submitted:
"that it may please the Court to hold that in the applicant’s case there has been
no violation of any provision of the European Convention for the Protection of
Human Rights and Fundamental Freedoms."
AS TO THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 1 (art. 5-1)
33. In so far as it is applicable in the present case, Article 5 par. 1 (art.
51) of the Convention reads:
"Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
..."
Sub-paragraphs (b) to (f) are clearly not relevant; besides, none of them was relied on
by the Government.
34. As regards paragraph 1 (a) (art. 5-1-a), there is no dispute as to the
"competence" of the "court" which ordered the measure complained of,
namely the Ghent Court of Appeal by its judgment of 20 October 1970 (see
paragraph 9 above).
The same is true of the question whether any deprivation of liberty occurred. In this
connection, it should be recalled that according to Belgian case-law the placing of
recidivists and habitual offenders at the Government’s disposal is to be classified as a
penalty involving deprivation of liberty; this is so irrespective of the form which
implementation of the order may take in a given case or at a gi1ven time, be it detention,
semicustodial care, or remaining at liberty under supervision or on probation (see
paragraphs 19 and 21 above - Court of Cassation, 4 April 1978, Pasicrisie 1978, I, p.
861). However, the Court will take into account solely the first of such forms, this being
the only one of which Mr. Van Droogenbroeck complained. In view of the particulars
supplied by the Commission’s Delegate at the hearings of 20 October 1981, the Court
will confine its examination to the periods of detention which were the subject of Mr.
Van Droogenbroeck’s application no. 7906/77 (see paragraph 30 above), namely those
running from 21 January 1976 to 1 June 1977 and from 21 December 1977 to 18 March
1980 (see paragraphs 13-18 above).
 35. The Court has to determine whether those periods of detention
occurred "after conviction" by the Ghent Court of Appeal.
Having regard to the French text, the word "conviction", for the purposes of Article 5
par. 1 (a) (art. 5-1-a), has to be understood as signifying both a "finding of guilt" after
"it has been established in accordance with the law that there has been an offence"
(see the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 37, par. 100), and
the imposition of a penalty or other measure involving deprivation of liberty. These
conditions are satisfied in the instant case.
The word "after" does not simply mean that the "detention" must follow the "conviction"
in point of time: in addition, the "detention" must result from, "follow and depend upon"
or occur "by virtue of" the "conviction" (see the X v. the United Kingdom judgment of 5
November 1981. Series A no. 46, p. 17, par. 39; the Engel and others judgment of 8
June 1976, Series A no. 22, p. 27, par. 68).
36. According to the applicant, the deprivations of liberty complained of
stemmed not from a sentence imposed by a "competent court" but from
decisions taken by the Minister of Justice.
The respondent State, on the other hand, maintained that detention occurred "by
operation of law" following the judicial decision placing a recidivist at the Government’s
disposal and represented "the principal method of implementing" such a decision: it
was only release that required "a Ministerial decision". The "task entrusted to the
Minister ... by the Act of 1 July 1964" was said to be confined "to determining the
modalities for the execution of a sentence involving deprivation of liberty", for example
"by suspending", on such conditions as he determined, "the detention entailed by such
a penalty ... or by revoking a decision to grant conditional release taken by him".
Accordingly, so it was argued, "by not deciding to release, the Minister does not decide
to detain".
37. This is a controversial point in Belgian law. The Government based
themselves to a large extent on a passage in the drafting history of the
predecessor of the 1964 Act, the Act of 9 April 1930 ("placing at the
Government’s disposal is detention in an establishment designated by Royal
Decree", Pasinomie 1930, p. 88, column 2), but there are other passages to
a different effect ("placing at the Government’s disposal is independent of the
detention which it may entail": Chambre des représentants, 1927-1928
session, document no. 11). The Commission’s Delegate pointed out that the
argument was inconsistent with the letter of section 25 of the 1964 Act (see
paragraph 21 above: "if necessary") and, above all, with the recent
administrative practice of the Ministry of Justice, since approximately twothirds
of the recidivists and habitual offenders who are placed at the Government’s
disposal remain at liberty (see paragraph 24 above, paragraph 16 of the
Commission’s report and the verbatim record of the hearings on the morning
of 20 October 1981).
Even when an offender is not set free after serving his initial sentence - something
which did not occur in the instant case and is nowadays exception -, this is apparently
the result of Ministerial instructions to the effect that he should be detained. At any rate,
that such is the position emerges from paragraph 6 of a circular of 20 December 1930,
which was supplied by the Government ("Convicted persons who have been placed at
the Government’s disposal after expiration of their sentence must be the subject of a
notification to the Minister of Justice so that the question of their detention may be
considered"), and from the summary of the facts appearing in one of the Commission’s
decisions (1 October 1975, application no. 6697t/74, R. V. v. Belgium, which was
subsequently joined to Mr. Van Droogenbroeck’s first application, no. 6989/75).
Besides, it is understandable that express instructions of this kind are needed
whenever the transfer of an individual who has to leave another prison for Merksplas
is to be effected.
In any event, the Ministerial decisions of 11 January and 11 September 1975 revoking
the conditional release granted to Mr. Van Droogenbroeck did order that he be
"detained" (see paragraphs 12-13 above).
38. Be that as it may, one must look beyond the appearances and the
language used and concentrate on the realities of the situation (see notably,
mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35,
p. 23, par. 44).
This is a matter in which the Government enjoy a wide measure of discretion. Case-
law and practice certainly confirm the meaning suggested by the text of section 25 of
the 1964 Act ("if necessary") and the actual phrase "placing at disposal". In a judgment
of 4 April 1978, the Belgian Court of Cassation observed that "execution of the penalty"
in question "is to a large extent a matter for the discretion" of the Minister of Justice
(Pasicrisie 1978, I, p. 861). One finds that far less fetters are imposed on Ministerial
decisions by a court’s decision to apply the Social Protection Act than in the analogous
area of the system of placing vagrants "at the Government’s disposal" (Act of 27
November 1891; see the De Wilde, Ooms and Versyp judgment of 18 June 1971,
Series A no. 12, pp. 24-25, par. 37, and pp. 33-34, par. 61). In short, to adopt the
language used by the Commission’s Delegate, "the court decision does not order the
detention" of recidivists and habitual offenders: it "authorises" it.
39. In these circumstances, the Court has to consider whether there was
a sufficient connection, for the purposes of Article 5 (art. 5), between the
lastmentioned decision and the deprivation of liberty at issue.
This question must receive an affirmative reply since the Minister’s discretion is
exercised within a framework set both by the Act and by the sentence pronounced by
the "competent court". In this respect, the Court notes that, according to Belgian case-
law, a judgment which sentences the person concerned to imprisonment and, by way
of a supplementary or accessory penalty, places him at the Government’s disposal
pursuant to section 22 or section 23 of the 1964 Act constitutes "an inseparable whole"
(see paragraph 21 above; Court of Cassation, 17 June 1975, Pasicrisie 1975, I, p. 999).
There are two components to the judgment: the first is a penalty involving deprivation
of liberty which the offender must undergo for a period specified in the court decision,
and the second is the placing of the offender at the Government’s disposal, the
execution of which may take different forms ranging from remaining at liberty under
supervision to detention.
The choice between these forms of execution is a matter for the discretion of the
Minister of Justice. Nevertheless he does not enjoy an unlimited power in making his
decision: within the bounds laid down by the Act, he must assess the degree of danger
presented by the individual concerned and the short- or medium-term prospects of
reintegrating him into society.
40. In fact, sight must not be lost of what the title and general structure
of the 1964 Act, the drafting history and Belgian case-law show to be the
objectives of this statute, that is to say not only "to protect society against the
danger presented by recidivists and habitual offenders" but also "to provide
[the Government] with the possibility of endeavouring to reform [them]" (Court
of Cassation, 11 December 1933, Pasicrisie 1934, I, p. 99). Attempting to
achieve these objectives requires that account be taken of circumstances that,
by their nature, differ from case to case and are susceptible of modification.
At the time of its decision, the court can, in the nature of things, do no more
than estimate how the individual will develop in the future. The Minister of
Justice, for his part, is able, through and with the assistance of his officials, to
monitor that development more closely and at frequent intervals but this very
fact means that with the passage of time the link between his decisions not to
release or to re-detain and the initial judgment gradually becomes less strong.
The link might eventually be broken if a position were reached in which those
decisions were based on grounds that had no connection with the objectives
of the legislature and the court or on an assessment that was unreasonable
in terms of those objectives. In those circumstances, a detention that was
lawful at the outset would be transformed into a deprivation of liberty that was
arbitrary and, hence, incompatible with Article 5 (art. 5) (see, notably, the
abovementioned X v. the United Kingdom judgment, Series A no. 46, p. 19,
par. 43).
Such a situation did not obtain in the present case. The Belgian authorities showed
patience and trust towards Mr. Van Droogenbroeck: notwithstanding his conduct, they
gave him several opportunities to mend his ways (see paragraphs 10, 11, 12 and 16
above). The manner in which they exercised their discretion respected the
requirements of the Convention, which allows a measure of indeterminacy in
sentencing and does not oblige the Contracting States to entrust to the courts the
general supervision of the execution of sentences.
41. Before the Commission (see paragraphs 27 in fine and 57 of the
report), the applicant also contended that his detention was neither "lawful"
nor effected "in accordance with a procedure prescribed by law", within the
meaning of Article 5 par. 1 (art. 5-1), arguing that the Minister of Justice had
appropriated to himself a power which section 25 of the 1964 Act conferred
on the Government as a whole.
On this point the Court, like the Commission, confines itself to observing that in Belgium
- as in other Contracting States - it is traditional for the execution of sentences and
other measures pronounced by criminal courts to fall within the province of the Minister
of Justice. The Court sees no reason to doubt that that Minister was, by virtue of the
general principles of Belgian public law concerning the attribution and the allocation of
powers, an appropriate authority to act in Mr. van Droogenbroeck’s case.
42. There has accordingly been no violation of Article 5 par. 1 (art. 5-1).
II. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 4 (art. 5-4)
43. The applicant also complained that when he was detained he was
unable to take any proceedings satisfying the requirements of paragraph 4 of
Article 5 (art. 5-4), which reads:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful."
The Court has to examine this complaint although there was no breach of paragraph 1
(art. 5-1); on this point, it refers to its case-law, and in particular to its De Wilde, Ooms
and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 39-40, par. 73).
A. The Government’s principal plea
44. The Government argued in the first place that the proceedings
conducted in 1970 and 1971 before the Bruges criminal court, the Ghent Court
of Appeal and the Court of Cassation (see paragraph 9 above) met the
requirements of Article 5 par. 4 (art. 5-4). They relied, inter alia, on the
following passage in the above-mentioned judgment of 18 June 1971 (ibid., p.
40, par. 76):
"At first sight, the wording of Article 5 par. 4 (art. 5-4) might make one think that
it guarantees the right of the detainee always to have supervised by a court the
lawfulness of a previous decision which has deprived him of his liberty. ... Where
[that] decision ... is one taken by an administrative body, there is no doubt that
Article 5 par. 4 (art. 5-4) obliges the Contracting States to make available to the
person detained a right of recourse to a court; but there is nothing to indicate that
the same applies when the decision is made by a court at the close of judicial
proceedings. In the latter case the supervision required by Article 5 par. 4 (art. 5-
4) is incorporated in the decision; this is so, for example, where a sentence of
imprisonment is pronounced after "conviction by a competent court" (Article 5 par.
1 (a) of the Convention) (art. 51-a)." (see also the above-mentioned Engel and
others judgment, Series A no. 22, p. 32, par. 77).
45. However, as the Court has recently pointed out, this passage
"speaks only of ‘the decision depriving a person of his liberty’; it does not
purport to deal with an ensuing period of detention in which new issues
affecting the lawfulness of the detention might subsequently arise" (see the
abovementioned X v. the United Kingdom judgment, Series A no. 46, p. 22,
par. 51). Besides, the De Wilde, Ooms and Versyp judgment had taken into
account, under Article 5 par. 4 (art. 5-4), not only the initial decisions to detain
the three applicants for vagrancy (Series A no. 12, pp. 40-43, par. 7480) but
also the procedure for the examination of their requests for release to the
extent that they raised questions concerning the lawfulness of the continuation
of their detention (ibid., pp. 43-44, par. 81-84).
The "detention" of vagrants falls within sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e)
and the same applies to the "detention" of persons of unsound mind. However, "the
reasons initially warranting confinement of this kind may cease to exist", a fact from
which the Court drew a consequence of some importance:
 "... it would be contrary to the object and purpose of Article 5 (art. 5) ... to
interpret paragraph 4 ... as making this category of confinement immune from
subsequent review of lawfulness merely provided that the initial decision issued
from a court. The very nature of the deprivation of liberty under consideration
would appear to require a review of lawfulness to be available at reasonable
intervals." (see the Winterwerp judgment of 24 October 1979 and the above-
mentioned judgment in the case of X v. the United Kingdom, Series A no. 33, p.
23, par. 55, and no. 46, pp. 22-23, par. 52)
46. The argument of the respondent State ran as follows. The placing of
recidivists and habitual offenders at the Government’s disposal presented
none of the features that called for the application of these precedents. It
amounted to a deprivation of liberty ordered by a court of law for a prescribed
period. It would not be valid unless objective conditions, which were
exhaustively listed in sections 22 and 23 of the 1964 Act and were, in principle,
not susceptible of modification with the course of time, were met on the day
when the penalty was imposed; its validity could not be brought into question
by any subsequent event. The measure thus authorised by the legislature,
utilised by the courts and implemented by the Minister of Justice in pursuance
of his role of "individualising this penalty" was certainly based on the need to
protect society against the activities of recidivists and habitual offenders, but
neither Belgian law nor the Convention stipulated that detention could
continue only if a danger to society would persist in the event of the individual’s
release. The Commission’s opinion to the contrary confuses lawfulness with
appropriateness, two radically different concepts, and would mean that every
convicted criminal ought to be entitled to contest at some point of time the
appropriateness of his detention, a position that did not obtain in any country.
47. The Court recalls that the scope of the obligation undertaken by the
Contracting States under paragraph 4 of Article 5 (art. 5-4) "will not necessarily
be the same in alle circumstances and as regards every category of
deprivation of liberty" (see the above-mentioned X v. the United Kingdom
judgment, Series A no. 46, p. 22, par. 52). It has not overlooked the fact that
in the present case the detention at issue was covered only by sub-paragraph
(a) of paragraph 1 (art. 5-1-a) and not by sub-paragraph (e) (art. 5-1-e), as in
the Winterwerp and the De Wilde, Ooms and Versyp cases, or by both of
those sub-paragraphs taken together, as in the case of X v. the United
Kingdom (ibid., pp. 17-18, par. 39).
Nevertheless, in this context the nature and purpose of a given type of "detention" are
of more importance than is the place which it occupies in the structure of the
Convention. The system of placing recidivists and habitual offenders at the
Government’s disposal was established with specific objectives in mind. The position
taken by the Court of Cassation is that the measure in question, although assimilated
to a penalty, is designed not only to protect society but also to provide the executive
with an opportunity of endeavouring to reform the individuals concerned (see paragraph
40 above). Except in the case of the commission of one indictable offence after another
(section 22 of the Act), the court ordering the penalty must give reasons for its decision
(section 24) and must, in particular, indicate "in specific and precise terms" why it
considers that the accused, who in the eyes of the law is classified as a recidivist,
manifests "a persistent tendency to crime", within the meaning of section 23 of the Act
(Court of Cassation, 3 January 1962, Pasicrisie 1962, I, p. 526; see paragraph 9
above). In practice, the court’s decision provides the Minister of Justice "with initial
authority for detention for a period ... whose actual duration" - "from nothing to ten
years" - is striking for it relatively indeterminate character and will vary, in principle,
according to the treatment required by the offender and the demands of the protection
of society (paragraph 64 of the Commission’s report and final decision of 5 July 1979
on the admissibility of the application). The detention which may be entailed by a
placing at the Government’s disposal occurs only "if necessary" (section 25 of the Act),
words which the Court of Cassation has taken as synonymous with the phrase "if the
protection of society so requires" (4 April 1978, Pasicrisie 1978, I, p. 861).
As the Commission pointed out in paragraph 66 of its report, this system is
fundamentally different from that - on which the Court does not have to express an
opinion on this occasion - of the conditional release of prisoners sentenced by a court
to a period of imprisonment imposed by the court as being appropriate to the case.
The discretion enjoyed by the Minister of Justice under the 1964 Act implies that he
should, throughout the period of application of the measure, direct his mind to the need
to deprive or continue to deprive the person concerned of his liberty or to the absence
or disappearance of such a need. "Persistent tendency to crime" and "danger to
society" are essentially relative concepts and they involve monitoring the development
of the offender’s personality and behaviour in order to adapt his situation to favourable
or unfavourable changes in his circumstances. To a certain extent this was recognised
both by the Belgian legislature when it made it possible for the Court of Appeal to grant
release from the effects of the initial judgment (section 26 of the Act; see paragraph 23
above) and by the Government when they set up the Recidivists Board and associated
"medical officers specialised in psychology" with the decisions taken by the Minister
(see paragraphs 21 and 22 above).
It must therefore be asked whether the very logic of the Belgian system does not require
subsequent judicial review, at reasonable intervals, of the justification for the
deprivation of liberty. If one were to consider such justification to have been established
once and for all at the moment of conviction, this would amount, in a way, to a
presumption that the detention would produce no useful result.
48. Admittedly, the Belgian Court of Cassation, in a judgment of 4 April 1978,
rejected this argument in favour of the theory of "incorporated supervision" (Pasicrisie
1978, I, p. 862; and see paragraph 44 above). However, for the purposes of Article 5
par. 4 (art. 5-4), the "lawfulness" of an "arrest or detention" has to be determined in the
light not only of domestic law but also of the text of the Convention, the general
principles embodied therein and the aim of the restrictions permitted by Article 5 par. 1
(art. 5-1) (see, mutatis mutandis, the above-mentioned X v. the United Kingdom,
judgment, Series A no. 46, p. 25, par. 57, to be read in conjunction with the above-
mentioned Winterwerp judgment, Series A no. 33, p. 17, par. 39, and pp. 19-20, par.
45).
Quite apart from conformity with domestic law, "no detention that is arbitrary can ever
be regarded as ‘lawful’" for the purposes of paragraph 1 (art. 5-1) (see, amongst others,
the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 19, par.
43). This is the limit which the Minister of Justice must not exceed in the exercise of the
wide discretion he enjoys in executing, or implementing, the initial court decision. This
requirement is rendered all the more compelling by the seriousness of what is at stake,
namely the possibility that the individual may be deprived of his liberty for up to ten
years (section 23 of the Act) or even longer (section 22). This type of detention would
no longer be in conformity with the Convention if it ceased to be based on reasons that
are plausible and consistent with the objectives of the Social Protection Act; for the
purposes of Article 5 (art. 5), it would become "unlawful". It follows that the individual
concerned must be entitled to apply to a "court" having jurisdiction to determine whether
or not there has been a violation of that kind; this possibility must be open to him during
the course of his detention - once a certain period has elapsed since the detention
began and thereafter at reasonable intervals (see, mutatis mutandis, the above-
mentioned X v. the United Kingdom judgment, Series A no. 46, pp. 22-23, par. 52) -
and also at the moment of any return to detention after being at liberty.
49. It is true that Article 5 par. 4 (art. 5-4) does not guarantee a right to judicial
control of such scope as to empower the court, on all aspects of the case, including
questions of pure expediency, to substitute its own discretion for that of the decision-
making authority. The review should, however, be wide enough to bear on those
conditions which, under the Convention, are essential for the "lawful" detention of a
person pursuant to Chapter VII of the 1964 Act; this is all the more so because, with
the exception of the status of recidivist or habitual offender itself, the conditions initially
justifying that detention may change to such an extent that they cease to exist (see,
mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A
nr. 46, p. 25, par. 57-58).
In the instant case, the Convention required an appropriate procedure allowing a court
to determine "speedily", on application by Mr. Van Droogenbroeck, whether the Minister
of Justice was entitled to hold that detention was still consistent with the object and
purpose of the 1964 Act (ibid.). For the purposes of Article 5 par. 4 (art. 5-4), this was
not simply a question of expediency but one that bore on the very "lawfulness" of the
deprivation of liberty at issue.
B. The Government’s alternative plea
50. The Government pleaded in the alternative that several remedies satisfying the
requirements of Article 5 par. 4 (art. 5-4) would have been available to the applicant,
namely:
(i) instituting or causing to be instituted a prosecution for arbitrary detention;
(ii) referring to the Ghent Court of Appeal any dispute between himself and the
ministère public regarding the execution of the judgment of 20 October 1970;
(iii) applying to that Court of Appeal for release from the effects of the measure
imposed on him;
(iv) applying to the President of the court of first instance in his capacity of juge
des référés (judge hearing urgent applications);
(v) bringing an action based directly on Article 5 par. 4 (art. 5-4).
At the hearings of 20 October 1981 and in their supplementary memorial of February
1982 (paragraphs 44-45), the Government withdrew their claim that Mr. Van
Droogenbroeck could, in addition, have lodged with the Conseil d’État a plea that the
decision to detain him was a nullity.
Neither does the Recidivists Board (see paragraphs 22 above) fall to be considered in
connection with Article 5 par. 4 (art. 5-4). The Board is not a "court" within the meaning
of the Convention, does not afford to detainees who appear before it the guarantees of
judicial procedure determine the "lawfulness" of the "detention" of the individuals
concerned or, a fortiori, to "order" the release of such of them whose deprivation of
liberty it may consider "unlawful" (see, notably, the above-mentioned X v. the United
Kingdom judgment, Series A no. 46, p. 23, par. 53, and p. 26, par. 61, and the Ireland
v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, par. 200).
51. The object of the first remedy mentioned by the Government (see paragraphs
26 and 50 above) is a finding not only that the detention is unlawful but also that an
offence has been committed, ex hypothesi in the case of detention of a recidivist or
habitual offender, by a civil servant, a public official or the governor of a prison
establishment (Article 147 of the Criminal Code and Article 609 of the Code of Criminal
Procedure), in other words a finding of personal guilt. In addition, the "court" (if any)
hearing the case - assuming that the proceedings were terminated "speedily" - could
at most convict the offender; it could not itself "order" the victim’s release. Finally, the
action might remain without effect if the accused sheltered behind the defence of
"orders from the competent authority" (Article 70 of the Criminal Code), that is to say
the Minister of Justice.
52. As regards the second alleged remedy, the Ghent Court of Appeal did in fact
hold, in 1897 and 1914, that disputes between the ministère public and a detainee
concerning the execution of a penal sentence could be referred to the court which
passed it (see paragraph 28 above; paragraphs 35, 39 and 71 in fine of the
Commission’s report; paragraph 53 of the Government’s memorial). However, as the
Government admitted in reply to a question from the Court, those old judgments have
remained isolated decisions and have not been confirmed by later jurisprudence. In
any event, they did not concern the system of social protection. They cannot therefore
be relied on as establishing the existence of a remedy as required by Article 5 par. 4
(art. 5-4).
53. The third remedy invoked, the application for release from the effects of the
measure in question, provided for by section 26 of the 1964 Act (see paragraph 23
above), undoubtedly involves proceedings before a "court" and is accompanied by the
guarantees of judicial procedure; however, when the person concerned is at liberty,
what he will be seeking by means of such an application will be the complete
cancellation of the sentence placing him at the Government’s disposal. It is therefore
the measure in its entirety which will be reviewed and not just the question of detention,
and the issue will be not so much the "lawfulness" of the detention as "the expediency
of early termination of the penalty" imposed by a judgment which is no longer open te
appeal (paragraph 33 of the Government’s supplementary memorial, and Court of
Cassation, 15 February 1977 - paragraph 14 above). As the Commission (paragraph
74 in fine of the report) and the applicant (written observations of February 1982)
pointed out, the Court of Appeal would not be in a position to "make a distinction
between the deprivation of liberty and such measures of guidance, assistance or
supervision" as might still be necessary, "even if the current behaviour of the individual
concerned were no longer in any way such as to justify in law continuation of the
detention". Moreover, the intervals of three, or even five, years that must elapse
between two applications to the court appear too long to be regarded as "reasonable"
for the purposes of Article 5 par. 4 (art. 5-4) (see paragraph 48 above). The Court notes
incidentally that the examination of Mr. Van Droogenbroeck’s applications took seven
months on the first occasion (12 May - 13 December 1976, see paragraph 14 above)
and six months on the second (16 September 1979 - 18 March 1980, see paragraph
18 above), a fact that sits ill with the notion of "speedily".
54. According to the Government, the juge des référés (see paragraph 29 above)
represents "the last bastion, if one were needed, of individual freedoms" in the Belgian
legal system. An application may be made to him when the matter is urgent and on the
basis of the general jurisdiction conferred on him by Article 584 of the Judicial Code to
give "a provisional ruling ... in all matters except those which are excluded by law from
the competence of the courts".
The juge des référés clearly has the characteristics of a "court" for the purposes of
Article 5 par. 4 (art. 5-4). It would also appear to be within the very nature of his function
to give a ruling "speedily" and, although he gives only a "provisional" decision, it is one
that is "immediately enforceable, notwithstanding any possible appeal" (paragraph 56
of the Government’s memorial).
The extent of his jurisdiction is expressed in wide terms and the drafting history of, and
the official statement of reasons accompanying, the Judicial Code indicate that it
includes all cases, civil, administrative and penal, within the competence of the courts,
save those for which a special procedure is laid down under substantive or procedural
criminal law. According to the information before the Court, the exception mentioned at
the end of Article 584 relates to matters which are the prerogative of the executive, but
would not prevent his finding that given acts on the part of such authorities were
unlawful.
The Court also recognises the particular importance to be attached to the case-law
cited by the Government. It notes, in particular, that on 22 February, 20 May and 14
August 1980, the Brussels juge des référés "enjoined" the defendant, the Belgian State,
to "release forthwith" persons whose detention he considered to be "unlawful" (Journal
des Tribunaux, 1980, pp. 578-580). However, the orders in question post-date both the
return to detention (21 December 1977) and, with the exception of the earliest of them,
the release of Mr. Van Droogenbroeck (18 March 1980). Furthermore, whilst these
orders concerned measures that deprived persons of their liberty, they did not relate to
the 1964 Act: the first and third were in respect of the placing of non-Belgian subjects
at the Government’s disposal under the legislation on the control of aliens; the second,
against which the Belgian State has lodged an appeal, was in respect of the revocation
of conditional release.
The same does not apply to a more recent order1: on 16 November 1981, the Brussels
juge des référés held that he had jurisdiction to hear an application inviting him to direct
the release of an individual detained, pursuant to section 14 of the 1964 Act, in the
psychiatric wing of a prison; he decided, however, that the circumstances of the case
were such that a provisional order should not be made.
1
Note by the registry: These decisions appear to be unreported at the date of adoption
of the present judgment.
On the other had, on 10 July 1981 the President of the Nivelles court of first instance
held that he did not have jurisdiction to order the restitution of a wireless transmitter
and aerial which had been seized on 3 June 1981 following a complaint by the
Telegraph and Telephone Office . This decision was confirmed by the Brussels Court
of Appeal on 18 January 1982; it referred to both Belgian and French case-law, pre-
dating the Judicial Code, and held that "a civil court, and hence the juge des référés,
has no jurisdiction over steps taken in the course of criminal investigations" .
In the light of the foregoing considerations, recourse to the juge des référés does not,
in the opinion of the Court, satisfy the requirements of Article 5 par. 4 (art. 5-4) of the
Convention in the present case for the following reasons.
In the first place, this is a matter which at present turns on issues of Belgian domestic
law that are unsettled (see, mutatis mutandis, the abovementioned Deweer judgment,
Series A no. 35, p. 28 in fine), with case-law of very recent date which is still being
developed and is the subject of debate. The Government have challenged that case-
law before the national courts; they did not rely on it before the Commission, either in
connection with Article 26 (art. 26) of the Convention or in connection with the merits.
The existence of a remedy must be sufficiently certain, failing which it will lack the
accessibility and effectiveness which are required by Article 5 par. 4 (art. 5-4) (see,
mutatis mutandis, the above-mentioned De Wilde, Ooms and Versyp judgment, Series
A no. 12, p. 34, par. 62). At least at the time of the events in question, the possibility of
applying to the juge des référés on a matter covered by the 1964 Act did not satisfy this
condition.
In the second place, since the decision by the juge des référés can contain only a
"provisional" ruling, it is given without prejudice to the merits of the case (see Article
1039 of the Judicial Code and, mutatis mutandis, the above-mentioned Deweer
judgment, Series A no. 35, p. 28, (a), in fine) and therefore does not have the authority
of res judicata. Furthermore, the state of the case-law is not yet such as to establish
with adequate clarity whether the review undertaken by the juge des référés meets,
from the point of view of its scope, the requirements of Article 5 par. 4 (art. 5-4)
regarding a decision on "lawfulness" (see paragraph 49 above). It is thus necessary to
know which court is empowered to dispose finally of the matter "on the merits". The
Court raised this question at the hearings and the Government replied that it would be
the court of first instance. However, they did not produce any evidence in support of
this statement or as to how, at the present time, the requirement of a "speedy" decision
would be satisfied.
55. Some of the preceding observations also apply to the fifth and last remedy
mentioned by the Government.
In a judgment of 28 February 1979, the Mons Court of Appeal held that, in the absence
of any special provision and by virtue of Article 568 of the Judicial Code, it was for the
court of first instance to hear applications challenging the validity of a deprivation of
liberty that are based directly on Article 5 par. 4 (art. 5-4) of the Convention (Journal
des Tribunaux, 1979, pp. 358-361). The case in question concerned the detention of
an individual who, "at the time when the facts occurred", was "in a serious state of
mental derangement rendering him incapable of regulating his conduct", this being a
matter governed by Chapters II to V (section 7 to 20) of the 1964 Act. The Court of
Cassation quashed that judgment on 14 February 1980, but for reasons unconnected
with the admissibility of the application, which indeed it appears to have accepted
implicitly (Revue de droit pénal et de criminologie, 1980, pp. 765-790, with submissions
to the same effect by the ministère public).
Again, in a judgment of 22 August 1974 (Military Court, Journal des Tribunaux, 1974,
pp. 611-612) and a decision of 10 June 1976 (Chamber of field court-martial, ibid.,
1976, pp. 646-647), it has been recognised, on the basis of Article 5 par. 4 (art. 5-4),
that there is nothing to prevent a serviceman placed in detention on remand by the
"Commission judiciaire" from applying for release to the court-martial or the Military
Court, as the case may be. Those precedents stated that the powers of those courts
were not derived from "current domestic legislation" but were a "creation of caselaw",
the origin whereof lay "in an international treaty and in the principle that priority must
be accorded to rules of international treaty law"; accordingly, the scope of those powers
did not go beyond the requirements of Article 5 par. 4 (art. 5-4) (review of lawfulness,
but not of expediency).
The Court has already had the occasion to draw attention to the importance and the
consequences of incorporating the Convention into domestic law (see the above-
mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, par. 239)
and of the direct applicability of the Convention (see the above-mentioned De Wilde,
Ooms and Versyp judgment, Series A no. 12, p. 46, par. 95, and the Van Oosterwijck
judgment of 6 November 1980, Series A no. 40, p. 16, par. 33). However, the
respondent State "is not aware of any decision on an application based directly on
Article 5 par. 4 (art. 5-4) of the Convention, lodged by a recidivist placed at the
Government’s disposal" (paragraph 39 of the supplementary memorial). Of those
applications it mentions, the oldest (1974/1976) concern the detention of servicemen
on remand. The judgment delivered by the Mons Court of Appeal on 28 February 1979
did, in fact, relate to a form of deprivation of liberty covered by Chapters II to V - and
not, as in the present case, Chapter VII - of the Social Protection Act. However, this
was an isolated decision which has not been expressly confirmed by the Court of
Cassation on the point at issue and which anyway post-dates Mr. Van Droogenbroeck’s
return to detention. Here again, Belgian case-law appears to be in a process of
evolution and the extent to which it will in the future affirm the existence of a judicial
power of review is uncertain.
56. The Court by no means excludes the possibility that, once the significant
developments described above have come to their conclusion, a result that meets the
requirements of Article 5 par. 4 (art. 5-4) might be achieved by combining an application
to the juge des référés with an action "on the merits" based on Article 5 par. 4 (art. 5-
4), or by exercising these two remedies concurrently or successively (see, mutatis
mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p.
26, par. 60). Nevertheless, it is obliged to find that such a result was not attained in the
instant case; there has accordingly been a violation of Article 5 par. 4 (art. 5-4).
III. THE ALLEGED VIOLATION OF ARTICLE 4 (art. 4)
57. Mr. Van Droogenbroeck also relied on Article 4 (art. 4), which reads:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory
labour.
3. For the purpose of this Article (art. 4) the term "forced or
compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 (art. 5) of [the] Convention or during
conditional release from such detention;
..."
58. The applicant’s first allegation was that by being placed at the
Government’s disposal he was held in "servitude", contrary to paragraph 1, in
that he was subjected "to the whims of the administration".
The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42
above). Accordingly, it could have been regarded as servitude only if it involved a
"particularly serious" form of "denial of freedom" (see paragraphs 79-80 of the
Commission’s report), which was not so in the present case.
59. Mr. Van Droogenbroeck further complained that, contrary to
paragraph 2 of Article 4 (art. 4-2), he was "forced" to work in order to save
12,000 BF. According to the Government, he was simply "invited" to work.
The Court considers that it may leave this question of fact open. In practice, once
release is conditional on the possession of savings from pay for work done in prison
(see paragraphs 13, 16 and 17 above), one is not far away from an obligation in the
strict sense of the term.
However, it does not follow that the complaint is well-founded, for failure to observe
Article 5 par. 4 (art. 5-4) (see paragraph 56 above) does not automatically mean that
there has been failure to observe Article 4 (art. 4): the latter Article authorises, in
paragraph 3 (a) (art. 4-3-a), work required to be done in the ordinary course of detention
which has been imposed, as was here the case, in a manner that does not infringe
paragraph 1 of Article 5 (art. 5-1). Moreover, the work which Mr. Van Droogenbroeck
was asked to do did not go beyond what is "ordinary" in this context since it was
calculated to assist him in reintegrating himself into society and had as its legal basis
provisions which find an equivalent in certain other member States of the Council of
Europe (see paragraph 25 above and, mutatis mutandis, the above-mentioned De
Wilde, Oms and Versyp judgment, Series A no. 12, pp. 44-45, par. 89-90).
60. Accordingly, the Belgian authorities did not fail to observe the
requirements of Article 4 (art. 4).
IV. THE APPLICATION OF ARTICLE 50 (art. 50)

61. At the hearings, one of the applicant’s lawyers requested the Court,
should it find a violation of the Convention, to afford his client just satisfaction
under Article 50 (art. 50). He declared that he would leave the item of
"pecuniary and non-pecuniary damage" to the Court’s discretion; as regards
"fees and expenses", he listed these in a note which the Secretary to the
Commission transmitted to the Registrar on 14 November 1981.
The Government did not indicate their position on this matter.

62. Accordingly, although it was raised under Rule 47 bis of the Rules of
Court, this question is not ready for decision and must be reserved; in the
circumstances of the case, the Court considers that the question should be
referred back to the Chamber in accordance with Rule 50 par. 4 of the Rules
of Court.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has not been a violation of Article 5 par. 1 (art. 5-1) of the
Convention;

2. Holds that there has been a violation of Article 5 par. 4 (art. 5-4);

3. Holds that there has not been a violation of Article 4 (art. 4);

4. Holds that the question of the application of Article 50 (art. 50) is not ready for
decision;
(a) accordingly reserves the whole of the said question;
(b) refers the said question back to the Chamber under Rule 50 par. 4 of the Rules
of Court.

Done in English and in French, the French text being authentic, at the Human Rights
Building, Strasbourg, this twenty-fourth day of June, one thousand nine hundred and
eighty-two.

Gérard WIARDA
President
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR.,
IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA,
in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary
of Justice, Immigration Commissioner, Secretary of National Defense and Chief
of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his
family at the present time and under present circumstances pose a threat to national
interest and welfare and in prohibiting their return to the Philippines. On September 28,
1989, former President Marcos died in Honolulu, Hawaii. In a statement, President
Aquino said:
In the interest of the safety of those who will take the death of Mr.
Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of Ferdinand
E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration,
p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the
following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to
deny them not only the inherent right of citizens to return to their country of birth but
also the protection of the Constitution and all of the rights guaranteed to Filipinos under
the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she
had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos,
Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to
return to the Philippines, and enjoin respondents from implementing President Aquino's
decision to bar the return of the remains of Mr. Marcos, and the other petitioners, to the
Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the
motion for reconsideration is moot and academic as to the deceased Mr. Marcos.
Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under the
label 'right to return', including the label 'return of Marcos' remains, is in reality or
substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that
the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon
the movants, petitioner herein, to show that there are compelling reasons to reconsider
the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration,
the Court is of the view that no compelling reasons have been established by petitioners
to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not
changed the factual scenario under which the Court's decision was rendered. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On the contrary,
instead of erasing fears as to the destabilization that will be caused by the return of the
Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when
she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino,
who is the "legal" President of the Philippines, and declared that the matter "should be
brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in the Constitution is
nothing new. This is recognized under the U.S. Constitution from which we have
patterned the distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be
vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow
it in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2
and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the Constitution...
It is not implied. Then, Amendment No. 6 refers to a grant to the President of the specific
power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or
her) oath of office, is to protect and promote the interest and welfare of the people. Her
decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos
at the present time and under present circumstances is in compliance with this bounden
duty. In the absence of a clear showing that she had acted with arbitrariness or with
grave abuse of discretion in arriving at this decision, the Court will not enjoin the
implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack
of merit."

In Myers v. United States, the Supreme Court — accepted

Hamilton's proposition, concluding that the federal executive, unlike
the Congress, could exercise power from sources not enumerated,
so long as not forbidden by the constitutional text: the executive
power was given in general terms, strengthened by specific terms
where emphasis was regarded as appropriate, and was limited by
direct expressions where limitation was needed. . ." The language of
Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit;
rather, the concept suggests only that not all powers granted in the
Constitution are themselves exhausted by internal enumeration, so
that, within a sphere properly regarded as one of "executive' power,
authority is implied unless there or elsewhere expressly limited.
[TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied
or residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there

exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power.
Case No: 2002/6948/Z3 Lord Justice Kennedy:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
This is a renewed application for leave to appeal against conviction, leave having been
refused on paper by the single judge. Only grounds 1 to 3 of the Grounds of Appeal are
now pursued, the remaining grounds having been abandoned, and, as Mr Geoffrey
Robertson QC on behalf of the applicant explains in the first paragraph of his written
submissions, the three grounds of appeal which remain can be combined into one
general ground, namely –

Strand, London, WC2A 2LL "That the conviction is unsafe because the trial was conducted in breach of Article 6 of
the European Convention on Human Rights, because the cumulative restrictions
Date: Tuesday 29th July, 2003 imposed upon the defendant deprived the proceedings of the character of an
adversarial criminal trial and/or unfairly discriminated against him because he had
Before : chosen to defend himself."

LORD JUSTICE KENNEDY It is clear from the surviving grounds of appeal and from the written submissions that
we are concerned only with certain rulings made by the trial judge on the 8 th, 14th and
30th October 2002. There is no other criticism of the proceedings, and thus in this
MR JUSTICE CRESSWELL judgment we do not have to concern ourselves with, for example, the details of the
evidence, or the content of the summing-up. But the background to the proceedings
and and to the rulings now being challenged is of some importance.

MR JUSTICE BENNETT Background.

--------------------- The applicant was a member of the Security Services between November 1991 and
October 1996. At the outset of his service he signed an Official Secrets Act 1989
declaration acknowledging the confidential nature of documents and other information
Between :
relating to security, intelligence, defence and international relations that might come
into his possession as a result of his position; he also signed an acknowledgement that
R he was under a contractual obligation not to disclose, without authority, any information
that came into his possession by virtue of his employment. When initially employed he
- and - was trained in the secure handling of classified information. He worked in the vetting
section first, carrying out checks for other government departments. He then joined the
David Michael Shayler branch concerned with "counter-subversion" followed by the section responsible for
countering Irish Republican terrorism. Lastly, he was posted to the section responsible
for countering Middle Eastern terrorism, where he remained for two years until he
--------------------- resigned.

--------------------- When he resigned he signed a further declaration under the 1989 Act acknowledging
that the provisions of the Act continued to apply to him, and that the same requirements
of confidentiality continued to apply to any information, documents, or other articles
Geoffrey Robertson QC for the applicant
relating to security, intelligence, defence or international relations which might have
come into his possession as a result of his previous employment.
Hearing date: 24th June 2003
By August 1997, without having alerted the Security Services of his intentions, the
--------------------- applicant was in contact with journalists from the Mail of Sunday, and was paid to write
articles about his period of employment and to voice criticisms of the services. Thirty
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO documents, including four classified as "top secret" and eighteen as "secret", with the
EDITORIAL CORRECTIONS) balance being classified or unclassified, were handed to journalists of the Mail on
Sunday. About two thirds of that documentation came from the Middle Eastern counter
terrorism section, and the applicant was the author of about half of the documents.
On 23rd August 1997 the applicant left the country and on the following day the Mail on
Sunday published a series of articles by him. On 30 th August and 4th September 1997
injunctions against the applicant and the publishers of the Mail on Sunday were granted
to the Attorney General, to prevent further disclosures. The documents passed by the
applicant to the newspaper were returned to the Treasury Solicitor in March 1998.
In August 2000 the applicant returned voluntarily from France and was arrested. He
was not interviewed but did state that he was relying in his defence on his "right to
freedom of expression as guaranteed by the common law, the Human Rights Act and
Article 10 of the European Convention on Human Rights".
The indictment which he faced contained three counts, namely –
(1) Disclosure of documents, contrary to section 1(1) of the 1989 Act.
(2) Disclosure of information obtained by interception of communications, contrary to
section 4(1) of the Act.
(3) Disclosure of information purporting to relate to security or intelligence contrary to
section 1(1) of the Act.
The wording of count 3 was amended, but nothing now turns on that.
On 4th November 2002 in the Central Criminal Court the applicant was convicted of all
three offences, and received a sentence of six months imprisonment on each count
concurrent.
Public Interest as a Defence?
The two statutory provisions relied upon in the indictment, so far as relevant, read as
follows –
"1(1) a person who …. has been –
(a) a member of the security and intelligence services … is guilty of an offence if without
lawful authority he discloses any information, document … relating to security or
intelligence which is or has been in his possession by virtue of his position as a member
of any of those services …..
(2). The reference in subsection (1) above to disclosing information relating to security
or intelligence includes a reference to making any statement which purports to be a
disclosure of such information or is intended to be taken by those to whom it is
addressed as being such a disclosure.
4(1) A person who is or has been a Crown servant or government contractor is guilty
of an offence if without lawful authority he discloses any information, document or other
article to which this section applies and which is or has been in his possession by virtue
of his position as such."
Subsection (2) applies the section to information, documents and other articles which
are not relevant for present purposes and section 4 continues –
"(3) this section also applies to –
(a) any information obtained by reason of the interception of any communication in
obedience to a warrant …"
The trial judge held a preparatory hearing during which he ruled that (1) the defence of
duress or necessity of circumstance was not open to the defendant, having been
excluded by implication by the 1989 Act, nor (2) could the defendant argue at common
law or as a result of the coming into force of the Human Rights Act 1998 that his
disclosures were necessary in the public interest to avert damage to life or limb or
serious damage to property. The Court of Appeal upheld both of the judge’s rulings
([2001] 1 WLR 2206). In the House of Lords the first ruling was said to be premature,
but the second ruling was upheld ([2003] 1 AC 247). Lord Bingham said at page 266
paragraph 20 –
"It is in my opinion plain, giving sections 1(1)(a) and 4(1) and (3)(a) their natural and
ordinary meaning and reading them in the context of the OSA 1989 as a whole, that a
defendant prosecuted under these sections is not entitled to be acquitted if he shows
that it was or that he believed that it was in the public or national interest to make the
disclosure in question or if the jury conclude that it may have been or that the defendant
may have believed it to be in the public or national interest to make the disclosure in
question. The sections impose no obligation on the prosecution to prove that the
disclosure was not in the public interest and give the defendant no opportunity to show
that the disclosure was in the public interest or that he thought it was. The sections
leave no room for doubt, and if they did the 1988 White Paper quoted above, which is
a legitimate aid to construction, makes the intention of Parliament clear beyond
argument."
The House of Lords gave its decision on 21st March 2002, and the trial judge, Moses
J, then resumed control of the case as preparations were made for the trial which was
arranged to take place in October and November 2002. That brings us to the period
during which the rulings with which we are concerned were made. During the summer
of 2002, as Mr Robertson told us, the appellant decided that he would represent
himself. He continued to have the services of a solicitor to advise him, and of a member
of the bar, Miss Holdsworth, to take a note. In relation to some matters he chose to
instruct Mr Robertson or Miss Holdsworth to make representations on his behalf. Mr
Robertson told us that it was because of the appellant’s decision to represent himself
that the prosecution decided to seek those orders made on 14thOctober 2002 of which
complaint is now made. But before we deal with those orders we look first at the ruling
made on 8th October 2002.
Certain witnesses to be screened and not named: Ruling of 8 th October 2002.
On 20th September 2002 the Crown gave notice of an application made pursuant to
section 8(4) of the Official Secrets Act 1920, section 11(4) of the 1989 Act and Rule
24A of the Crown Court Rules 1982 that "any part of the trial process which touches,
or purports to touch, whether directly or indirectly, upon any sensitive operational
techniques of the Security and Intelligence Services, and in particular upon their
sources of information, including the identity of any officer, contact, or agent (to) be
held in camera."
Section 8(4) of the 1920 Act enables the prosecution to apply for all or any portion of
the public to be excluded during any part of the hearing and enables the judge so to
order "on the ground that the publication of any evidence to be given or of any statement
to be made in the course of the proceedings would be prejudicial to the national safety."
Section 11(4) of the 1989 Act simply applies the earlier provisions to the 1989 Act and
Rule 24A of the Crown Court Rules sets out the procedure to be followed when it is
sought to obtain a ruling that all or part of a trial should be held in camera. There is no
suggestion that the proper procedure was not followed in this case.
In fact everyone – counsel on both sides and the judge – was anxious that so far as
possible the trial should be conducted in public, and what was proposed by the
prosecution before the hearing on 8th October 2002 was that –
(1) Certain prosecution witnesses should give evidence from behind screens without
being named, and –
(2) The defendant, if he wanted to raise certain matters in evidence should give prior
notice in writing to the Crown in relation to those matters.
The Judge dealt with the first of those proposals in the ruling which he made on
8th October 2002. The application was that three serving members of the Security
Services and one former member should give evidence without being named, and that
when giving their evidence they should be visible to the judge, the jury, the lawyers and
the applicant but should be screened from public view. The applicant knew all of their
names. The Crown’s application for parts of the trial to be heard in camera was
supported by two certificates from the Home Secretary, one dated 31 st October 2000
signed by Mr Straw, and another dated 4th October 2002 signed by his successor Mr
Blunkett. There was also, a certificate from Mr Straw as Foreign Secretary dated
4th October 2002. These certificates themselves were in general terms, but in
paragraphs 2 – 3 the two more recent certificates say –
"I am advised that in connection with this prosecution attempts may be made by the
defendant to make statements during the course of the proceedings or put into
evidence material which relates to certain security and intelligence matters. I have
formed the view that certain such statements or evidence, if received in open court,
would be prejudicial to national security."
The certificates go on to speak of possible danger to sources, methods of obtaining
information, and security services personnel, and say in paragraph 6 –
"It is not possible for me to be more specific in this Certificate about the information for
which non-publication is sought, or the precise harm that publication would cause, since
my doing so would be liable to cause the very damage that the Certificate seeks to
avoid. Full details are, however, given for the benefit of the Court in the sensitive
Schedule to the Certificate."
For the purposes of this application we were not invited to consider, the Schedules, but
they were, of course, considered by the trial judge.
The application made by the Crown was resisted by the applicant, who on this occasion
was represented by leading and junior counsel and it was also resisted by Mr M.
Tugendhat QC, instructed on behalf of the press.
As Mr Robertson acknowledges, the judge carefully considered the submissions
addressed to him in the light of the relevant authorities. He emphasised the importance
of open justice, and its potentially valuable effect on the extent and quality of the
evidence which a court receives. If that openness was to be curtailed the judge had to
be satisfied by the evidence adduced in support of the application that the departure
from open justice was justified in the overall interests of the administration of justice,
and the evidence had to be particular to the individuals who sought to cloak their
evidence in anonymity. It could not be general. The judge also recognised that there
must be no undue prejudice to the defendant. The judge accepted Mr Robertson’s
submission that he must take into account the prejudice likely to arise by reason of the
"aura" that anonymity would cast on the evidence in the case. The judge also
considered whether the evidence to be given by each witness was sufficiently relevant
and important to make it unfair to the prosecution to proceed without it; the extent to
which the credit-worthiness of each witness had been properly investigated by the
Crown, and the results of that investigation disclosed, and the need to balance the need
for protection to the necessary extent against any unfairness or appearance of
unfairness in the instant case.
On the basis of all the material before him, in particular that to be found in the
Certificates and the Schedules to the Certificates, the judge was satisfied that to
disclose the identity of the witnesses would give rise to "a real risk to the safety of those
individuals" (page 13F). He went on to find that because of the importance of the
witnesses to the prosecution case were he not to make the order sought preserving
their anonymity, the prosecution would be faced with a stark choice: either to call the
witnesses and expose them to the risk, or abandon the case (Page 15A). As to the
possible prejudice to the defendant, he knew the names of the witnesses, and having
regard to the nature of the trial their anonymity would not give rise to any real risk of
prejudice against him. In the particular case some of the well recognised advantages
of open justice were regarded by the judge as not significant factors (for example,
increased pressure on witnesses to tell the truth, and the possibility that some one
hearing the case would know something relevant to the defence).
Finally the judge specifically had regard to Article 10 of the European Convention when
declaring himself satisfied that –
"When one weighs the one against the other the need for protection of the anonymity
of those witnesses far outweighs any possible unfairness to the defendant in the
particular circumstances of this case."
He found that what was proposed was no more than was necessary to achieve the
legitimate aim of properly administering justice, and so he made the orders sought.
It was noteworthy that when making his submissions to us Mr Robertson did not criticise
the judge’s approach in any way. Of course Mr Robertson was hampered by not having
seen the Schedules, but there is, as it seems to us, no reason at present to conclude
that the contents of the Certificates and Schedules are not sufficient to support the
judge’s factual conclusions. Indeed Mr Robertson went so far as to concede that it
would be difficult to criticise any of the careful rulings made by the judge individually. It
was, he explained, the cumulative effect of which he complained. In our judgment there
is certainly no viable free standing complaint which can be made so far as the ruling of
8th October 2002 is concerned.
Evidence in camera: Rulings of 14th October 2002.
On 10th October 2002 the trial judge made a number of rulings in response to
substantial submissions made by the applicant in person. No ground of appeal is
founded on what happened on that day, but it is worth noting that the applicant again
raised the defence of necessity, and the judge said, at page 14G of the transcript –
"In my judgment the statute makes it plain that it is not open to him to argue that either
his ignorance of that defence or his belief that he, on the basis of his reasons for doing
what ever it is proved that he did, amounted to a belief in lawful authority"
On 14th October 2002 the applicant was again represented by leading and junior
counsel, and the judge gave further consideration to the Crown’s application for some
parts of the evidence to be heard in camera with particular reference to the second
proposal which had been made on 8th October 2002. The Crown invited the judge to
consider the Ministerial Certificates and in particular Schedules to the Certificates which
the judge had not previously considered. Mr Robertson objected to the judge seeing
the Schedules. Various alternatives were canvassed, but the judge concluded that he
had to see the Schedules to discover the foundation for the application to hear any
evidence in camera. As he put it –
"If a court is going to take the drastic step, as I acknowledge it to be, of ordering part,
any part of the trial not to be disclosed to the public, then questions of the cogency or
otherwise of the evidence and their foundation of any such application must surely be
considered before any ruling as to the form the evidence must take ….. I cannot make
such a ruling in a vacuum."
He said that he would look at the Schedules de bene esse, and he proceeded to do so.
Once again there is, at this stage, no real criticism of that decision of the trial judge, nor
in our judgment could there be.
On 8th October 2002 the Crown had given to the court and to the defence a document
headed "Suggested Procedure" which read as follows –
"1. Technically the defendant requires lawful authority under the Official Secrets Act
1989 before making any disclosure of any matters relating to security or intelligence in
furtherance of his defence.
2. Obviously and for the avoidance of doubt the Crown has confirmed with the Security
Services that they authorise, for the purposes of the trial, the defendant to make any
such disclosure which is necessary for the proper conduct of his defence with Moses
J. being the ultimate arbiter as to what is necessary in the proper conduct of his
defence.
3. However, this authorisation cannot in itself deal with the prevention of damage to
national security by mention of a matter in open court which results in damage.
4. Accordingly, in the light of the indications given by Moses J on 7th October, it is
proposed to invite Moses J. to approve the following regime (designed to avoid the
need for an in camera application to be made):
(a) the defendant to give notice in writing to the Crown of any matter relating or
purporting to relate to security or intelligence which he may seek to raise (whether
directly or indirectly); and
(b) if the Crown dispute relevance, that issue to be decided by Moses J. whether on
paper or in chambers (pursuant to the Court’s inherent powers) so as to avoid any risk
of damage;
5. Obviously all must understand that if the learned judge rules to be relevant (and thus
capable of being referred to in open court) a matter which is caught by the terms of the
notices then this will inevitably trigger an in camera application.
6. It should be understood that if this regime is approved, the prosecution in the event
of a breach, may apply to the judge to regard that breach as a contempt.
7. Any such breach will also inevitably lead to the resurrection of the in camera
application."
As the judge said on 14th October 2002 after he had considered the Certificates and
the Schedules, the object of the proposed regime, an object supported by both
prosecution and defence, was to conduct as much as possible of the trial in open court
without the need to hold it in camera. The judge then said –
"I am satisfied, having read the Schedules, that absent any regime imposed by the
Court there is a risk of disclosure of material which will give rise to a risk of damage to
national security. I reach that conclusion in the light of the whole history of this matter."
The judge then went on to refer to –
(1) the proceedings in the Court of Appeal and the House of Lords:
(2) Mr Robertson’s decision, after the ruling of the House of Lords to decline to
elaborate on the nature of the defence which the applicant wished to offer to the
prosecution:
(3) An article which the applicant chose to publish in the Mail of Sunday on 11 th August
2002, long after the decision of the House of Lords and shortly before the date fixed for
trial in which, as the judge put it, ‘he reiterated matters in relation to the defence he
wished to advance which were contrary to the rulings of the House of Lords. He wished
to persist in arguing that his disclosures were necessary in a democracy and asserted
that he wanted to ‘put the democratic values of the Human Rights Act at the heart of
my case’. He further said that he would be using British legislation to put the Labour
Government and the Intelligence Establishment on trial.
(4) The issues raised by the applicant last week (i.e. on 10 th October 2002) ‘which again
raised similar arguments as to the defence he wished to provide of essentially
justification in the public interest, or at least a belief that he was justified.’
The judge then referred to a document which we have not seen setting out Mr Shayler’s
proposed regime, in which the applicant said that it was not his intention to disclose
anything in the trial in such a way as to damage national security or to put any person
in danger, and that he would give notice to the Crown of any matter he might seek to
raise relating to security or intelligence which was not already in the public domain. In
the light of that indication of intention Mr Robertson submitted that there was no risk of
any disclosure, certainly during the prosecution case, of anything that might give rise
to a risk of damage to national security, and therefore it was not necessary to impose
upon the applicant the regime proposed by the Crown.
However, as the judge noted, the applicant maintained his stance that there were
matters about which he wanted to cross-examine which did not touch on the simple
issue which the jury would have to decide, namely whether or not it was he who
disclosed the matters to which the indictment referred. The judge noted that he had
received no open agreement by the applicant to confine his cross-examination to the
issues which the judge had identified as being material in the ruling which was endorsed
by the House of Lords. The judge continued –
"Had I received such a plain assurance, I would of course have been happy to accept
it from Mr Shayler, but I have not."
That is an important observation, because it seems to us to be a complete answer to
Mr Robertson’s submission that Mr Shayler was put at a disadvantage because he
chose to act in person. The truth is that he was not being allowed to try to secure for
himself an advantage which no advocate would have enjoyed.
The judge then noted the suggestion made on behalf of the applicant that the situation
might change at the close of the prosecution case, and that he might then want to raise
matters before the jury in his own evidence or in evidence which he might seek to
adduce going beyond the issues identified by the judge as the issues which were
relevant for the purposes of the case. The judge was cautious. He recognised the
possibility that such evidence might become admissible, and the right of the applicant
not to agree to confine his evidence to the simple issue raised by the charges, but in
that situation the judge said that he was satisfied that –
"There is a risk that he might, either in the course of cross-examination or in the course
of evidence adduced by him or through other witnesses, disclose matters that
themselves may cause a risk of damage to national security or put any person in
danger."
The judge went on to say that even if some matters were already in the public domain
repetition could give rise to a significant risk, so if the applicant wished to keep alive the
possibility of raising such matters the judge had to keep alive the possibility that part of
the proceedings would have to be conducted in camera. He said –
"It seems to me that the defendant does have a choice: either he makes no reference
to those matters at all, in which case there could be no justification for any in camera
hearing, or if he wishes to raise those matters, then the question of whether there
should be an in camera hearing arises at that point."
Of course that left open the question of how to know in sufficient time when an issue
might arise which would require the court to rule first as to admissibility and secondly
as to whether to proceed in open court or in camera, and it was in relation to that
question that the judge accepted the procedure suggested by the Crown, and ruled that
–
"If the defendant wishes to raise any matter relating or purporting to relate to security
or intelligence, he must give the Court advance notice of that, be it raised in the form
of questions to any witnesses or once the Crown case has closed, should it be
necessary and the case go any further in relation to any evidence he wishes to adduce."
It is to be noted that the judge did not require the applicant to give notice of the
questions he proposed to ask, or to provide any proof of evidence of himself or his
witnesses. All he had to do was to give notice of any matter relating or purporting to
relate to security or intelligence which he wished to raise. Having regard to the history
of the case up to that point we find it difficult to envisage how the judge could have
made a less restrictive ruling. Plainly the judge did not, as contended by Mr Robertson
in paragraph 2 of his written submissions to us –
"a. Require the defendant to disclose in detail all his cross-examination areas, and his
actual questions in advance to the prosecution for subsequent discussion with the
judge if the prosecution thought fit, or –
b. Require the defendant to disclose his evidence in chief in advance and in detail to
the prosecution for prior discussion with the judge should the prosecution wish."
It is clear from the opening words of the ruling made by the judge on 30 th October 2002
that by that date his ruling of 14th October 2002 had already been considered by this
court.
In fact there was an application for leave to appeal made under section 159(1) of the
Criminal Justice Act 1988 which, if leave is granted, enables a person aggrieved to
appeal against –
"any order restricting the access of the public to the whole or any part of a trial on
indictment or to any proceedings ancillary to such trial."
The application was considered by the Court on paper and on 23 rd October 2002 the
decision was given in open court. For the purposes of the application the court was
prepared to assume that the applicant was a person aggrieved but it found that on
14th October Moses J. had not made an order within the scope of section 159(1). As
Rose LJ said –
"He reached conclusions as to the desirability and character of a regime for dealing
with how matters, which might affect national security, should be raised by the
defendant. But he did not make any order restricting access to the public. On the
contrary he said in terms that, when under the regime which he established, notice was
given of matters to be raised, he would hear argument by reference to the actual
material and would then give a ruling as to whether the matters should be raised in
camera or in open court."
Questions as to Credit: Ruling of 30th October 2002.
We were told that the applicant chose to give written notice of questions which he
wished to put to various witnesses to be called by the Crown, and the judge then had
to rule as to whether he should be allowed to ask the questions of which he had given
notice. We asked for a copy of the written notice, and since the conclusion of the oral
hearing we have been provided by Miss Holdsworth with copies of not questions but a
handwritten note of cross-examination topics prepared by her. It helpfully illustrates
what was shown to the prosecution and considered by the trial judge.
The first question which the judge had to consider was the question of relevance, so
he summarised what the prosecution had to prove, and identified the matters with which
the Crown expected witness B to deal. The applicant wanted to cross-examine B in
relation to a number of matters which, he said, went to B’s credibility even though they
were not apparently related to the evidence which he was to be called to give. There
are of course limits as to what may be put to a witness by way of cross-examination as
to credit. In R v Sweet Escott [1971] 55 Cr App R 316 Lawton J said –
"Since the purpose of cross-examination as to credit is to show that the witness ought
not to be believed on oath, the matters about which he is questioned must relate to his
likely standing after cross-examination with the tribunal which is trying him or listening
to his evidence."
That statement of principle, which has been approved by this court, was cited by the
trial judge. Mr Robertson submitted to us that it was not relevant, but he did not explain
why. In our judgment it was plainly relevant, and the judge was right when he went on
to say –
"The question I have to ask is whether it is possible that after raising the topics which
Mr Shayler seeks to raise, the jury might take an adverse view of the witness’s account
of those facts of which he has given evidence."
The judge answered that question by saying –
"In my judgment it is not possible. When one considers the very limited nature of the
factual evidence of which the witness is to be asked, in particular in relation to the
service of this defendant and his knowledge of his obligations of secrecy, it is not
possible to conceive that general questions about his conduct in relation to totally
different matters in respect of which the defendant was or was not involved could lead
any reasonable jury properly directed to take an adverse view of his account of the
limited facts of which he seeks to speak."
The judge then went on to consider another factor which he regarded as important,
namely –
"The defendant has from the very start of these proceedings until today, and he has
repeated it today, sought to justify any conduct which may be proved against him by
reference to his decision to expose wrong doing of the Security and Intelligence
Services."
Against that background the judge said –
"I take the view that his desire to cross-examine the witness B on these topics is part
of a design to expose to the jury, and indeed for that matter to the public at large, his
justification in what he asserts to be the public interest in disclosure for his actions. In
short the proposed cross-examination is in my view no more than an attempt to go
beyond the rulings of the Courts which have been given hitherto including the House
of Lords and to raise by way of cross-examination a defence which it is not permissible
for him to raise as a result of those rulings."
So the judge ruled that the applicant was not permitted to ask certain questions of
witness B.
In our judgment it is impossible to fault either the approach adopted by the judge or, on
the information available to us, the conclusion at which he arrived.
Conclusion.
That leaves only Mr Robertson’s submission about cumulative effect. It is difficult to
see how a series of rulings, each of which was demonstrably correct, could lead to a
trial being unfair, but even if that be a theoretical possibility we are satisfied that no
unfairness resulted in the present case.

In his written submissions Mr Robertson reminded us of the history of the right of self-
defence. That right was carefully preserved by the trial judge in this case. We were also
reminded of what was said in Wakeley v The Queen [1990] 64 ALJR 321 as to the limits
of cross-examination. That seems to us to be entirely consistent with the English
authorities on which the judge relied. Mr Robertson even went so far as to suggest that
the trial "ceased to be a true adversarial process". That we cannot accept. It was further
submitted that the applicant was prejudiced by each of the restrictions in the
presentation of his case or in the eyes of the jury, and that there was no equality of
arms. We do not agree. As we have explained, the judge was careful to evaluate and
to give weight to any possible prejudice, and the cross-examination by the applicant
was only restricted in accordance with well established principle and to the extent that
it would have been restricted if the applicant had been represented by counsel. As we
have indicated, we see no reason to conclude that the judge failed to have regard to
the cumulative effect of his decisions, and we reject the contention that the regime
which he imposed was disproportionate. Indeed, as we have demonstrated, the rulings
he made only went as far in the circumstances they had to go.

Postscript.

Having drafted this judgment it seemed to us to be right to examine the schedules which
were placed before Moses J, and to which he referred when making the rulings under
challenge, so as to satisfy ourselves that the material in the schedules provided proper
support for the judge’s conclusions. We have now seen those schedules, and are
satisfied that on the basis of the material which they contain the judge was entitled to
rule as he did.

This renewed application for leave to appeal is therefore dismissed.

 2. The applicant was represented by Mr B. Le Griel, of the Paris Bar. The French
Government (“the Government”) were represented by their Agent, Mr R. Abraham,
CASE OF VO v. FRACE Director of Legal Affairs at the Ministry of Foreign Affairs.

(Application no. 53924/00) 3. The applicant alleged, in particular, a violation of Article 2 of the Convention on the
JUDGMENT ground that the conduct of a doctor who was responsible for the death of her child
STRASBOURG in utero was not classified as unintentional homicide.
8 July 2004
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber to which the case had been
assigned decided on 22 May 2003 to relinquish jurisdiction in favour of the Grand
Chamber with immediate effect, none of the parties having objected to
In the case of Vo v. France, relinquishment (Article 30 of the Convention and Rule 72).
The European Court of Human Rights, sitting as a Grand Chamber composed of: 5. The composition of the Grand Chamber was determined according to the provisions
of Article 27 §§ 2 and 3 of the Convention and Rule 24.
Mr L. Wildhaber, President,
Mr C.L. Rozakis, 6. The applicant and the Government each filed observations on the admissibility and
Mr J.-P. Costa, merits of the case. In addition, observations were also received from the Center for
Mr G. Ress, Reproductive Rights and the Family Planning Association, which had been given
Sir Nicolas Bratza, leave by the President to intervene in the written procedure (Article 36 § 2 of the
Mr L. Caflisch, Convention and Rule 44 § 2).
Mrs V. Strážnická,
Mr P. Lorenzen 7. A hearing on the admissibility and merits of the case took place in public in the
Mr K. Jungwiert, Human Rights Building, Strasbourg, on 10 December 2003 (Rule 59 § 3).
Mr M. Fischbach,
Mr J. Hedigan,
There appeared before the Court:
Mrs W. Thomassen,
Mr A.B. Baka, (a) for the Government
Mr K. Traja, Mr F. Alabrune, Deputy Director of Legal Affairs,
Mr M. Ugrekhelidze, Ministry of Foreign Affairs, Agent,
Mrs A. Mr G. Dutertre, Drafting Secretary,
Mularoni, Human Rights Section,
Mr K. Legal Affairs Department,
Hajiyev, Ministry of Foreign Affairs,
judges, and Mrs J. Vailhe, Drafting Secretary,
Mr P.J. European and International Affairs Department,
Mahoney, Ministry of Justice,
Registrar, Mr P. Prache, Department of Criminal Affairs and Pardons,
Ministry of Justice,
Having deliberated in private on 10 December 2003 and 2 June 2004,
Mr H. Blondet, judge of the Court of Cassation,
Delivers the following judgment, which was adopted on the last-mentioned date: Mrs V. Sagant, European and International Affairs
Department, Ministry of Justice, Counsel;
PROCEDURE
(b) for the applicant
1. The case originated in an application (no. 53924/00) against the French Republic Mr B. Le Griel, of the Paris Bar, Counsel.
lodged with the Court under Article 34 of the Convention for the Protection of
The Court heard addresses by Mr Le Griel and Mr Alabrune.
Human Rights and Fundamental Freedoms (“the Convention”) by a French
national, Mrs Thi-Nho Vo (“the applicant”), on 20 December 1999.
8. In accordance with the provisions of Article 29 § 3 of the Convention and Rule 54A
§ 3, the Court decided to examine the issue of admissibility of the application with the
merits.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1967 and lives in Bourg-en-Bresse.
10. On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese
origin, attended Lyons General Hospital for a medical examination scheduled
during the sixth month of pregnancy.
11. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a
contraceptive coil removed at the same hospital. When Dr G., who was to remove
the coil, called out the name “Mrs Vo” in the waiting-room, it was the applicant
who answered.
After a brief interview, the doctor noted that the applicant had difficulty in understanding
French. Having consulted the medical file, he sought to remove the coil without
examining her beforehand. In so doing, he pierced the amniotic sac causing the loss of
a substantial amount of amniotic fluid.
After finding on clinical examination that the uterus was enlarged, the doctor ordered a
scan. He then discovered that one had just been performed and realised that there had
been a case of mistaken identity. The applicant was immediately admitted to hospital.
Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was
unsuccessful and so prescribed an operation under general anaesthetic for the
following morning. A further error was then made when the applicant was taken to the
operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery
intended for her namesake after she protested and was recognised by an anaesthetist.
12. The applicant left the hospital on 29 November 1991. She returned on 4
December 1991 for further tests. The doctors found that the amniotic fluid had not
been replaced and that the pregnancy could not continue further. The pregnancy
was terminated on health grounds on 5 December 1991.
13. On 11 December 1991 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. Three expert
reports were subsequently filed.
14. The first, which was filed on 16 January 1992, concluded that the foetus, a baby
girl, was between 20 and 21 weeks old, weighed 375 grams, was 28 centimetres
long, had a cranial perimeter of 17 centimetres and had not breathed after
delivery. The expert also concluded that there was no indication that the foetus
had been subjected to violence or was malformed and no evidence that the death
was attributable to a morphological cause or to damage to an organ. Further, the
autopsy performed after the abortion and an anatomico-pathological examination
of the body indicated that the foetal lung was 20 to 24 weeks old.
15. On 3 August 1992 a second report was filed concerning the applicant’s injuries:
“(a) There is a period of temporary total unfitness for work from 27 November 1991 to
13 December 1991, when the patient was admitted to the Tonkin Clinic with an entirely
unconnected pathology (appendectomy)
(b) the date of stabilisation can be put at 13 December 1991
(c) there is no loss of amenity
(d) there is no aesthetic damage
(e) there is no occupational damage
(f) there is no partial permanent unfitness for work
Damage in terms of pain and suffering resulting from this incident still has to be
assessed. The assessment should be carried out with a doctor of Vietnamese
extraction specialising in psychiatry or psychology.”
16. The third report, which was issued on 29 September 1992, referred to the
malfunctioning of the hospital department concerned and to negligence on the part of
the doctor:
“1. The manner in which appointments in the departments run by Professors [T.] and
[R.] at Lyons General Hospital are organised is not beyond reproach, in particular in
that namesakes are common among patients of foreign origin and create a risk of
confusion, a risk that is undoubtedly increased by the patients’ unfamiliarity with or
limited understanding of our language.
2. The fact that patients were not given precise directions and the consulting
rooms and names of the doctors holding surgeries in them were not marked sufficiently
clearly increased the likelihood of confusion between patients with similar surnames
and explains why, after Dr [G.] had acquainted himself with Mrs Thi Thanh Van Vo’s
medical file, it was [the applicant] who came forward in response to his call.
3. The doctor acted negligently, by omission, and relied solely on the paraclinical
examinations. He did not examine his patient and by an unfortunate error ruptured the
amniotic sac, causing the pregnancy to terminate at five months. He is accountable for
that error, although there are mitigating circumstances.”
17. On 25 January 1993, and also following supplemental submissions by the
prosecution on
26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27
November 1991 by:
(i) through his inadvertence, negligent act or inattention, perforating the amniotic
sac in which the applicant’s live and viable foetus was developing, thereby
unintentionally causing the child’s death (a criminal offence under Article 319 of the
former Criminal Code – which was applicable at the material time – now Article 221-6
of the Criminal Code);
(ii) through his inadvertence, negligent act, inattention, negligent omission or
breach of a statutory or regulatory duty of protection or care, causing the applicant
bodily injury that resulted in her total unfitness for work for a period not exceeding three
months (a criminal offence under Article R. 40, sub-paragraph 4, of the former Criminal
Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-
4 of the Criminal Code).
18. By an order of 31 August 1995, Dr G. was committed to stand trial in the Lyons
Criminal Court on counts of unintentional homicide and unintentionally causing injuries.
19. By a judgment of 3 June 1996, the Criminal Court found that the accused was
entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect
of the offence of unintentionally causing injuries entailing temporary unfitness for work
of less than three months. As to the offence of unintentional homicide of the foetus, it
held:
“The issue before the Court is whether the offence of unintentional homicide or the
unintentional taking of the foetus’s life is made out when the life concerned is that of a
foetus – if a 20 to 21 week-old foetus is a human person (‘another’ within the meaning
of Article 221-6 of the Criminal Code).
...
The expert evidence must be accepted. The foetus was between 20 and 21
weeks old. At what stage of maturity can an embryo be considered a human
person?
The Voluntary Termination of Pregnancy Act of 17 January 1975 provides: ‘The law
guarantees respect of every human being from the beginning of life.’
The Law of 29 July 1994 (Article 16 of the Civil Code) provides: ‘The law secures the
primacy of the person, prohibits any assault on human dignity and guarantees the
respect of every human being from the beginning of its life’.
The laws of 29 July 1994 expressly employed the terms ‘embryo’ and ‘human embryo’
for the first time. However, the term ‘human embryo’ is not defined in any of them.
When doing the preparatory work for the legislation on bioethics, a number of
parliamentarians (both members of the National Assembly and senators) sought to
define ‘embryo’. Charles de Courson proposed the following definition: ‘Every human
being shall be respected from the start of life; the human embryo is a human being.’
Jean-François Mattéi stated: ‘The embryo is in any event merely the morphological
expression of one and the same life that begins with impregnation and continues till
death after passing through various stages. It is not yet known with precision when the
zygote becomes an embryo and the embryo a foetus, the only indisputable fact being
that the life process starts with impregnation.’
It thus appears that there is no legal rule to determine the position of the foetus in law
either when it is formed or during its development. In view of this lack of a legal definition
it is necessary to return to the known scientific facts. It has been established that a
foetus is viable at 6 months and on no account, on present knowledge, at 20 or 21
weeks.
The Court must have regard to that fact (viability at 6 months) and cannot create law
on an issue which the legislators have not yet succeeded in defining.
The Court thus notes that a foetus becomes viable at the age of 6 months; a 20 to 21
week-old foetus is not viable and is not a ‘human person’ or ‘another’ within the meaning
of former Article 319 and Article 221-6 of the Criminal Code.
The offence of unintentional homicide or of unintentionally taking the life of a 20 to 21
weekold foetus has not been made out, since the foetus was not a ‘human person’ or
‘another’...
Acquits Dr G. on the charge without penalty or costs ...”
20. On 10 June 1996 the applicant appealed against that judgment. She argued
that Dr G. had been guilty of personal negligence severable from the functioning of the
public service and sought 1,000,000 French francs (FRF) in damages, comprising FRF
900,000 for the death of the child and FRF 100,000 for the injury she had sustained.
The public prosecutor’s office, as second appellant, submitted that the acquittal should
be overturned. It observed: “By failing to carry out a clinical examination, the accused
was guilty of negligence that caused the death of the foetus, which at the time of the
offence was between 20 and 24 weeks old and following, normally and inexorably, the
path of life on which it had embarked, there being no medical doubt over its future.”
21. In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the
judgment in so far as it had declared the prosecution of the offence of unintentionally
causing injuries timebarred but overturned the remainder of the judgment and found
the doctor guilty of unintentional homicide. It imposed a six-month suspended prison
sentence and a fine of FRF 10,000, holding:
“... In the instant case Dr [G.]’s negligence is characterised in particular by the fact that
the patient’s knowledge of French was insufficient to enable her to explain her condition
to him, to answer his questions or to give him the date of her last period, circumstances
that should have further impressed upon him the need for a thorough clinical
examination. The assertion that he was entitled to rely on the medical records alone
shows that, though an able scientist, this young doctor was nonetheless unaware of
one of the essential skills of the practice of medicine: listening to, getting to know and
examining the patient. Indeed, before this Court Dr [G.] said that the accident had
impressed upon him how vital it was to take precautions before operating.
There is a clear causal link between this negligent act and omission and the death of
the child Mrs Vo was carrying. The accused has himself acknowledged, with
commendable honesty, that a clinical examination would have alerted him to the fact
that the patient was pregnant and had been mistaken for another patient.
As regards the classification of the offence as unintentional homicide, it is first
necessary to reiterate the legal principles governing this sphere.
Various provisions of international treaties, such as Article 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6
of the International Covenant on Civil and Political Rights and Article 6 of the
Convention on the Rights of the Child signed in New York on 26 January 1990,
recognise a right to life protected by law for everyone, and notably children.
Under domestic law, section 1 of the Voluntary Termination of Pregnancy Act (Law no.
7517 of 17 January 1975) specifies: ‘The law guarantees respect of every human being
from the beginning of life ... this principle may only be derogated from in the event of
necessity and in accordance with the conditions set out in this statute.’
Further, Law no. 94-653 of 29 July 1994 on the respect of the human body lays down
in Article 16 of the Civil Code: ‘The law secures the primacy of the person, prohibits
any assault on human dignity and guarantees the respect of every human being from
the beginning of its
life.’
These statutory provisions cannot be regarded as mere statements of intent, devoid of
any legal effect, since Article 16-9 of the Civil Code indicates that the provisions of
Article 16 are mandatory.
For its part the Criminal Division of the Court of Cassation applied these rules of
international and domestic law in two judgments it delivered on 27 November 1996,
specifying that the Act of 17 January 1975 only permits derogation from the rule stated
in section 1 thereof that every human being is entitled to respect from the beginning of
life in cases of necessity and subject to the conditions and limitations set out in it.
The Court of Cassation added that, having regard to the conditions laid down by the
legislature, the provisions of that statute and of the law of 31 December 1979 on the
voluntary termination of pregnancy, taken as a whole, were not incompatible with the
aforementioned treaty provisions.
In a different case, moreover, the Court of Cassation pointed out that on signing the
Convention on the Rights of the Child in New York on 26 January 1990, France made
a declaration concerning interpretation in which it stated that the convention could not
be interpreted as constituting any obstacle to the implementation of the provisions of
French legislation on the voluntary termination of pregnancy. That reservation shows,
by converse implication, that that convention could concern a foetus aged less than 10
weeks, the statutory maximum foetal age in France for a voluntary termination of
pregnancy.
It follows that, subject to the provisions on the voluntary termination of pregnancies and
therapeutic abortions, the right to respect for every human being from the beginning of
life is guaranteed by law, without any requirement that the child be born as a viable
human being, provided it was alive when the injury occurred.
Indeed, viability is a scientifically indefinite and uncertain concept, as the accused, who
is currently studying in the United States, himself acknowledged, informing the Court
that foetuses born between 23 and 24 weeks after conception could now be kept alive,
a situation that was inconceivable a few years ago. In the opinion prepared by Professor
[T.] and adduced in evidence by Dr [G.], reference is made to a report by Professor
Mattéi in which it is indicated that the embryo is merely the morphological expression
of one and the same life that begins with impregnation and continues till death after
passing through various stages. It is not yet known with precision when the zygote
becomes an embryo and the embryo a foetus, the only indisputable fact being that the
life process starts with impregnation. ...
Thus the issue of viability at birth, a notion that is uncertain scientifically, is in addition
devoid of all legal effect, as the law makes no distinction on that basis.
In the instant case it has been established that when the scan was performed on 27
November 1991 – before the amniotic fluid was lost later that day – the [applicant’s]
pregnancy had been proceeding normally and the child she was carrying was alive.
When the therapeutic abortion was performed on 5 December 1991, it was noted that
a comparison of the child’s measurements with published tables suggested that the
foetus was between 20 and 21 weeks old and possibly older, as it is not certain that
the tables take into account the specific morphology of children of Vietnamese origin.
Dr [G.], when questioned on this point at the hearing, was unable to provide any further
information. The conclusion from the anatomopathological examination was that the
foetal lung indicated an age of between 20 and 24 weeks, its measurements suggesting
that an age at the lower end of that range was the most likely. In any event, as Dr [G.]
said in evidence, the age of the foetus was very close to that of certain foetuses that
have managed to survive in the United States. The photographs at page D 32 of the
trial bundle show a perfectly formed child whose life was cut short by the accused’s
negligence.
As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the assault
on the child concerned inflicted a non-fatal wound, it would have been classified without
any hesitation as an offence of unintentionally causing injuries. A fortiori, an assault
leading to the child’s death must be classified as unintentional homicide.
Thus, the strict application of the legal principles, established scientific fact and
elementary common sense all dictate that a negligent act or omission causing the death
of a 20 to 24 week-old foetus in perfect health should be classified as unintentional
homicide.
Consequently, the impugned judgment must be overturned ...
While [the applicant’s] civil action is admissible, if only to corroborate the prosecution
case, this Court has no jurisdiction to hear the claim for reparation. This is because
despite the serious nature of the negligent act and omission of Dr [G.], a doctor in a
public hospital, they do not constitute personal misconduct of such exceptional gravity
entailing a total disregard for the most elementary principles and duties inherent in his
function as to make them severable from public service.
Nonetheless, it is appropriate to order Dr [G.] to pay to this civil party compensation in
the sum of 5,000 francs under Article 475-1 of the Code of Criminal Procedure on
account of costs which she has incurred, but which have not been paid by the State.
...”
22. On 30 June 1999, on an appeal on points of law by the doctor, the Court of
Cassation reversed the judgment of the Lyons Court of Appeal and ruled that there was
no reason to remit the case for retrial:
“Having regard to Article 111-4 of the Criminal Code:
Criminal-law provisions must be strictly construed.
...
In convicting [the doctor] of unintentional homicide, the appellate court noted that Article
2 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms and Article 6 of the International Covenant on Civil and Political Rights
recognise the existence for all persons of a right to life protected by law. The appellate
court stated that the Voluntary Termination of Pregnancy Act of 17 January 1975
establishes the rule that the life of every human being must be respected from the
beginning of life. That rule is now restated in Article 16 of the Civil Code as worded
following the amendment made by the Law of 29 July 1994. The appellate court went
on to state that, by operating without performing a prior clinical examination, the doctor
was guilty of a negligent act or omission that had a definite causal link with the death
of the child the patient was carrying.
However, by so holding, when the matters of which the defendant was accused did not
come within the definition of the offences set out in former Article 319 and Article 221-
6 of the Criminal Code, the Court of Appeal misinterpreted the aforementioned
provisions.
...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Code
23. The provision dealing with the unintentional taking of life at the material time
and until 1 March 1994 was Article 319 of the Criminal Code, which read as follows:
“Anyone who through his or her inadvertence, negligent act, inattention, negligent
omission or breach of regulation unintentionally commits homicide or unintentionally
causes death, shall be liable to imprisonment of between three months and two years
and a fine of between 1,000 and 30,000 francs.”
24. Since 1 March 1994, the relevant provision has been Article 221-6 of the
Criminal Code (as amended by Law no. 2000-647 of 10 July 2000 and Order no. 2000-
916 of 19 September
2000), which is to be found in Section II (“Unintentional taking of life”) of Chapter I
(“Offences against the life of the person”) of Part II (“Offences against the human
person”) of Book II (“Serious crimes (crimes) and other major offences (délits) against
the person”). Article 221-6 provides:
“It shall be an offence of unintentional homicide punishable by three years’
imprisonment and a fine of 45,000 euros to cause the death of another in the conditions
and in accordance with the distinctions set out in Article 121-3 by inadvertence,
negligent act, inattention, negligent omission or breach of a statutory or regulatory duty
of safety or care.
In the event of a manifestly deliberate breach of a special statutory or regulatory duty
of safety or care, the maximum sentences shall be increased to five years’
imprisonment and a fine of 75,000 euros.”
25. Article 223-10 of the Criminal Code, which concerns the voluntary termination
of pregnancy by a third party without the mother’s consent, is to be found in Section V
under the heading “Unlawful termination of pregnancy” of Chapter III, entitled
“Endangering the person”, in Part II of Book II. It reads as follows:
“It shall be an offence punishable by five years’ imprisonment and a fine of 75,000 euros
to terminate a pregnancy without the mother’s consent.”
26. Section III entitled “Protection of the human embryo” of Chapter I (“Offences
against biomedical ethics”) of Part I (“Public-health offences”) of Book V (“Other serious
crimes (crimes) and other major offences (délits)”) prohibits various types of conduct
on grounds of medical ethics (Articles 511-15 to 511-25), including the conception of
human embryos in vitro for research or experimental purposes (Article 511-18).
B. The Public Health Code
27. At the material time the limitation period for an action in damages in the
administrative courts was four years, while the period in which a pregnancy could be
voluntarily terminated lawfully was ten weeks following conception.
28. The provisions of the Public Health Code as worded since the Patients’ Rights
and Quality of the Health Service Act (Law no. 2002-303 of 4 March 2002) came into
force read as follows:
Article L. 1142-1
“Save where they incur liability as a result of a defect in a health product, the medical
practitioners mentioned in Part IV of this Code and all hospitals, clinics, departments
and organisations in which preventive medicine, diagnosis or treatment is performed
on individuals shall only be liable for damage caused by preventive medicine, diagnosis
or treatment if they have been at fault.
...”
Article L. 1142-2
“Private medical practitioners, the hospitals, clinics, health services and organisations
mentioned in Article L. 1142-1 and any other legal entity other than the State that is
engaged in preventive medicine, diagnosis or treatment and the producers and
suppliers of and dealers in health products in the form of finished goods mentioned in
Article L. 5311-1 with the exception of sub-paragraph 5 thereof, subject to the
provisions of Article L. 1222-9, and subparagraphs 11, 14 and 15, that are used in
connection with such activities shall be under a duty to take out insurance in respect of
any third-party or administrative liability they may incur for damage sustained by third
parties as a result of an assault against the person in the course of that activity taken
as a whole.
...”
Article L. 1142-28
“The limitation period for actions against medical practitioners and public or private
hospitals or clinics in respect of preventive medicine, diagnosis or treatment shall be
ten years from the date the condition stabilises.”
Article L. 2211-1
“As stated in Article 16 of the Civil Code as hereafter reproduced: ‘
‘The law secures the primacy of the person, prohibits any assault on human dignity and
guarantees the respect of every human being from the beginning of its life.’ ”
Article L. 2211-2
“The principle referred to in Article L. 2211-1 may only be derogated from in the event
of necessity and in accordance with the conditions set out in this Part. It shall be the
nation’s duty to educate society on this principle and its consequences, [to provide]
information on life’s problems and on national and international demography, to
inculcate a sense of responsibility, to receive children into society and to uphold family
life. The State, aided by the local and regional authorities, shall perform these
obligations and support initiatives that assist it to do so.”
Article L. 2212-1
“A pregnant woman whose condition causes her distress may ask a doctor to terminate
her pregnancy. The pregnancy may only be terminated within the first twelve weeks.”
Article L. 2213-1
“A pregnancy may be voluntarily terminated at any time if two doctors from a
pluridisciplinary team certify, after the team has issued a consultative opinion, that
either the woman’s continued pregnancy puts her health at serious risk or that it is
highly likely that the unborn child is suffering from a particularly serious affection which
is recognised as incurable at the time of diagnosis.
...”
C. The position taken by the Court of Cassation
29. The Court of Cassation has followed its decision in the instant case (see paragraph
22 above) on two occasions (in its judgments of 29 June 2001 (full court), Bulletin no.
165, and of 25 June 2002 (Criminal Division), Bulletin no. 144), despite submissions
from the advocates-general concerned to the contrary.
1. Judgment of the full court of 29 June 2001
“As regards the two grounds of appeal of the public prosecutor at the Metz Court of
Appeal and of Mrs X which have been joined together ... :
On 29 July 1995 a vehicle being driven by Mr Z collided with a vehicle being driven by
Mrs X, who was six months pregnant. She was injured and as a result of the impact
lost the foetus she was carrying. In the impugned judgment (Metz Court of Appeal, 3
September 1998), Mr Z was convicted of unintentionally injuring Mrs X, aggravated by
the fact that he was under the influence of drink. However, he was acquitted of the
unintentional killing of the unborn child.
The grounds of appeal against that decision are, firstly, that Article 221-6 of the Criminal
Code, which makes it an offence to cause the death of another, does not exclude from
its scope a viable unborn child and that, by holding that this provision applied only to a
child whose heart was beating at birth and who was breathing, the Court of Appeal had
added a condition that was not contained in the statute, and, secondly, unintentionally
causing the death of an unborn child constituted the offence of unintentional homicide
if the unborn child was viable at the material time, irrespective of whether or not it
breathed when it was separated from the mother, with the result that there had been a
violation of Articles 111-3, 111-4 and 221-6 of the Criminal Code and Article 593 of the
Code of Criminal Procedure.
The rule that offences and punishment must be defined by law, which requires that
criminal statutes be construed strictly, pleads against extending the scope of Article
221-6 of the Criminal Code, which makes unintentional homicide an offence, to cover
unborn children whose status in law is governed by special provisions concerning
embryos and foetuses.
...”
2. Judgment of the Criminal Division of 25 June 2002
“...
Having regard to former Article 319, Article 221-6 and Article 111-4 of the Criminal
Code:
The rule that offences and punishment must be defined by law, which requires that
criminal statutes be construed strictly, pleads against a charge of unintentional
homicide lying in the case of a child that is not born alive.
The impugned judgment established that Z, whose pregnancy under the supervision of
X came to term on 10 November 1991, attended the clinic in order to give birth on 17
November. She was placed under observation at about 8.30 p.m. and drew the
attention of the midwife, Y, to an anomaly in the child’s cardiac rhythm. Y refused to
call the doctor. A further test carried out at 7 a.m. the following morning showed a like
anomaly and subsequently that the heart had stopped beating altogether. At about 8
a.m., X pronounced the baby dead. In the evening he proceeded to extract the stillborn
child by caesarean section. According to the autopsy report, the child did not present
any malformation but had suffered from anoxia.
In finding Y guilty of unintentional homicide and X, who was acquitted by the Criminal
Court, liable for the civil consequences of that offence, the Court of Appeal held that
the child’s death was a result of the negligent acts and omissions of both the doctor in
failing to place the patient, who was beyond term, under closer observation and of the
midwife in failing to notify an unequivocal anomaly noted when the child’s cardiac
rhythm was recorded.
After noting that the stillborn child did not present any organic lesion capable of
explaining its death, the Court of Appeal stated: ‘This child had reached term several
days previously and, but for the fault that has been found, would have been capable of
independent survival, with a human existence separate from its mother’s.’
However, by so holding, the Court of Appeal misapplied the provisions referred to
above and the aforementioned principles.
It follows that this appeal on points of law is allowed. The case will not be remitted, as
the facts are not capable of coming within the definition of any criminal offence.
...”
30. The Criminal Division of the Court of Cassation has held that a court of appeal
gave valid reasons for finding a defendant guilty of the unintentional homicide of a child
who died an hour after its birth on the day of a road traffic accident in which its mother,
who was eight months’ pregnant, was seriously injured, when it held that, by failing to
control his vehicle, the driver had caused the child’s death an hour after birth as a result
of irreversible lesions to vital organs sustained at the moment of impact (Court of
Cassation, Criminal Division, 2 December 2003).
31. An article entitled “Unintentional violence on pregnant women and the offence
of unintentional homicide” (Recueil Dalloz 2004, p. 449) notes that in twenty-eight out
of a total of thirty-four articles commenting on the Criminal Division of the Court of
Cassation’s judgment of 2 December 2003 (see paragraph 30 above) the authors are
critical of the Court of Cassation’s case-law (see paragraph 29 above).
The criticism includes: the laconic reasoning of the Court of Cassation’s judgments and
incoherence of the protection afforded, as a person causing unintentional injury is liable
to criminal prosecution while a person who unintentionally causes the death of the
foetus goes unpunished; the fact that a child who has lived for a few minutes is
recognised as having standing as a victim, whereas a child that dies in utero is ignored
by the law; and the fact that freedom to procreate is less well protected than freedom
to have an abortion.
D. The Garraud amendment
32. On 27 November 2003 the National Assembly adopted on its second reading
a bill to adapt the criminal justice system to changes in criminality. The bill included the
Garraud amendment, so named after the member of parliament who introduced it,
which created an offence of involuntary termination of pregnancy (ITP).
33. The adoption of this amendment gave rise to fierce controversy and, after a
week of consultations, the Minister of Justice, Mr Perben, declared on 5 December
2003 that the member’s proposal “caused more problems than it solved” and that he
was in favour of abandoning it. On 23 January 2004 the Senate unanimously deleted
the amendment. This was the second time the senators had rejected such a proposal,
as they had already opposed it in April 2003 when examining the Reinforcement of
Protection against Road Violence Act, passed on 12 June 2003.
E. The laws on bioethics
34. On 11 December 2003 the National Assembly adopted on its second reading a bill
on bioethics with a view to reforming the 1994 laws on the donation and use of parts
and products of the human body, medically assisted procreation and prenatal
diagnosis, as envisaged by the legislature at the time, in order to take into account
subsequent scientific and medical progress and new issues with which society was
confronted. In view of the speed with which technological advances are made, the bill
reinforces the guarantees on the provision of information and on seeking and obtaining
consent, prohibits certain practices that are technically feasible (reproductive cloning)
and provides a framework for those with a proven medical interest (research on
embryos in vitro). It establishes a regulatory and supervisory body (the Procreation,
Embryology and Human Genetics Agency) whose functions also include acting as a
watchdog and providing support and expert guidance in these spheres
(http://www.assemblee-nationale.fr/dossiers/bioethique.asp).
III. EUROPEAN LAW
A. The Oviedo Convention on Human Rights and Biomedicine
35. The Convention for the Protection of Human Rights and Dignity of the Human
Being with regard to the Application of Biology and Medicine, also known as the
Convention on Human Rights and Biomedicine, which was opened for signature on 4
April 1997 in Oviedo, came into force on 1 December 1999. In this convention, the
member States of the Council of Europe, the other States and the European
Community signatories to it,
“...
Resolving to take such measures as are necessary to safeguard human dignity and the
fundamental rights and freedoms of the individual with regard to the application of
biology and medicine,
... agreed as follows:
Chapter I – General provisions “16. This Article defines the Convention’s scope and purpose.

Article 1 – Purpose and object
Parties to this Convention shall protect the dignity and identity of all human beings and
guarantee everyone, without discrimination, respect for their integrity and other rights
and fundamental freedoms with regard to the application of biology and medicine.
Each Party shall take in its internal law the necessary measures to give effect to the
provisions of this Convention.
Article 2 – Primacy of the human being
The interests and welfare of the human being shall prevail over the sole interest of
society or science.
Chapter V – Scientific research
17. The aim of the Convention is to guarantee everyone’s rights and fundamental
freedoms and, in particular, their integrity and to secure the dignity and identity of
human beings in this sphere.
18. The Convention does not define the term ‘everyone’ (in French ‘toute
personne’). These two terms are equivalent and found in the English and French
versions of the European Convention on Human Rights, which however does not define
them. 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.
19. The Convention also uses the expression ‘human being’ to state the necessity
to protect the dignity and identity of all human beings. It was acknowledged that it was
a generally accepted principle that human dignity and the identity of the human being
had to be respected as soon as life began.

... ...”

Article 18 – Research on embryos in vitro B. Additional Protocol to the Convention on Human Rights and Biomedicine, on the
Prohibition of Cloning Human Beings (12 January 1998)
1. Where the law allows research on embryos in vitro, it shall ensure adequate
protection of the embryo. 37. Article 1 of the Protocol provides:

“1. Any intervention seeking to create a human being genetically identical to another
2. The creation of human embryos for research purposes is prohibited. human being, whether living or dead, is prohibited.

... 2. For the purpose of this Article, the term human being ‘genetically identical’ to another
human being means a human being sharing with another the same nuclear gene set.”
Chapter XI – Interpretation and follow-up of the Convention
C. Additional Protocol to the Convention on Human Rights and Biomedicine,
Article 29 – Interpretation of the Convention concerning Biomedical Research

The European Court of Human Rights may give, without direct reference to any specific
proceedings pending in a court, advisory opinions on legal questions concerning the
interpretation of the present Convention at the request of:
– the Government of a Party, after having informed the other Parties;
– the Committee set up by Article 32, with membership restricted to the
Representatives of the Parties to this Convention, by a decision adopted by a two-
thirds majority of votes cast.
...”
36. The commentary on Article 1 (see paragraphs 16 to 19 of the explanatory report
on the convention) states:
38. The draft Protocol was approved by the Steering Committee on Bioethics on 20
June 2003. It was submitted for approval to the Committee of Ministers of the Council
of Europe, which sought a consultative opinion from the Parliamentary Assembly. On
30 April 2004 the Assembly issued an opinion (no. 252 (2004)) in which it declared itself
in favour of the draft Protocol. On 30 June 2004 the Committee of Ministers adopted
the text.
Article 1 – Object and purpose
“Parties to this Protocol shall protect the dignity and identity of all human beings and
guarantee everyone, without discrimination, respect for their integrity and other rights
and fundamental freedoms with regard to any research involving interventions on
human beings in the field of biomedicine.”
Article 2 – Scope

Article 1 – Purpose and object

“1. This Protocol covers the full range of research activities in the health field involving
interventions on human beings.
2. This Protocol does not apply to research on embryos in vitro. It does apply to
research on foetuses and embryos in vivo.
...”
Article 3 – Primacy of the human being
“The interests and welfare of the human being participating in research shall prevail
over the sole interest of society or science.”
Article 18 – Research during pregnancy or breastfeeding
“1. Research on a pregnant woman which does not have the potential to produce
results of direct benefit to her health, or to that of her embryo, foetus or child after birth,
may only be undertaken if the following additional conditions are met:
(i) the research has the aim of contributing to the ultimate attainment of results capable
of conferring benefit to other women in relation to reproduction or to other embryos,
foetuses or children;
...”
The explanatory report repeats the terms of the explanatory report on the convention.
D. The Working Party on the Protection of the Human Embryo and Foetus: protection
of the human embryo in vitro (2003)
39. The Working Party on the Protection of the Human Embryo and Foetus set up by
the Steering Committee on Bioethics reached the following conclusion in a report drawn
up in 2003:
“This report aimed at giving an overview of current positions found in Europe regarding
the protection of the human embryo in vitro and the arguments supporting them.
It shows a broad consensus on the need for the protection of the embryo in vitro.
However, the definition of the status of the embryo remains an area where fundamental
differences are encountered, based on strong arguments. These differences largely
form the basis of most divergences around the other issues related to the protection of
the embryo in vitro.
Nevertheless, even if agreement cannot be reached on the status of the embryo, the
possibility of re-examining certain issues in the light of the latest developments in the
biomedical field and related potential therapeutic advances could be considered. In this
context, while acknowledging and respecting the fundamental choices made by the
different countries, it seems possible and desirable with regard to the need to protect
the embryo in vitro on which all countries have agreed, that common approaches be
identified to ensure proper conditions for the application of procedures involving the
creation and use of embryos in vitro. The purpose of this report is to aid reflection
towards that objective.”
E. The European Group on Ethics in Science and New Technologies at the European
Commission
40. The Group has issued, inter alia, the following opinion on the ethical aspects of
research involving the use of human embryos in the context of the 5th Framework
Programme (23 November 1998):
“...
Legal background
Controversies on the concept of beginning of life and ‘personhood’
Existing legislation in the Member States differs considerably from one another
regarding the question of when life begins and about the definition of ‘personhood’. As
a result, no consensual definition, neither scientifically nor legally, of when life begins
exists.
Two main views about the moral status of the embryo and thus regarding the legal
protection afforded to them with respect to scientific research exist:
(i) human embryos are not considered as human beings and consequently have
a relative worth of protection;
(ii) human embryos have the same moral status as human beings and
consequently are equally worthy of protection.
The discussion of common rules on embryo research is continuing. Recently many
European countries, when discussing and signing the Council of Europe Convention
on Human Rights and Biomedicine, failed to reach a consensus concerning the
definition of the embryo, and, therefore, were unable to find common ground on which
to place the admissibility of human embryo research within the Convention. Hence, it
is up to the Member States to legislate in this area. Yet, nevertheless, Article 18.1 of
the Convention stipulates ‘where the law allows research on embryos in vitro, it shall
ensure adequate protection of the embryo’.
...
Different approaches regarding the definition of the human embryo
In most Member States there is presently no legal definition of the human embryo
(Belgium,
Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal
and Sweden). Among those Member States which define the embryo in their legislation,
the existing definitions vary considerably from one country to another (Austria,
Germany, Spain and the United Kingdom) ...
...
Different scope of national legislation
Among the Member States with legal provisions on embryo research, there are many
differences regarding the activities allowed and prohibited.
There are countries where embryo research is allowed only for the benefit of the
particular embryo (Austria, Germany). There are Member States where embryo
research is exceptionally allowed (France, Sweden), or allowed under strict conditions
(Denmark, Finland, Spain, United Kingdom).
...
Diversity of views
The diversity of views regarding the question whether or not research on human
embryos in vitro is morally acceptable, depends on differences in ethical approaches,
philosophical theories and national traditions, which are deeply rooted in European
culture. Two contrasting approaches exist: a deontological approach, in which duties
and principles control the ends and consequences of our actions; and utilitarian or
consequentialist approaches in which human actions are evaluated in terms of means
and ends or consequences.
...
The group submits the following opinion
In the preamble it appeared crucial to recall that the progress of knowledge of life
sciences, which in itself has an ethical value, cannot, in any case, prevail over
fundamental human rights and the respect which is due to all the members of the
human family.
The human embryo, whatever the moral or legal status conferred upon it in the different
European cultures and ethical approaches, deserves legal protection. Even if taking
into account the continuity of human life, this protection ought to be reinforced as the
embryo and the foetus develop.
The Treaty on European Union, which does not foresee legislative competence in the
fields of research and medicine, implies that such protection falls within the competence
of national legislation (as is the case for medically assisted procreation and voluntary
interruption of pregnancy). However, Community authorities should be concerned with
ethical questions resulting from medical practice or research dealing with early human
development.
However, when doing so, the said Community authorities have to address these ethical
questions taking into account the moral and philosophical differences, reflected by the
extreme diversity of legal rules applicable to human embryo research, in the 15 Member
States. It is not only legally difficult to seek harmonisation of national laws at Community
level, but because of lack of consensus, it would be inappropriate to impose one
exclusive moral code.
The respect for different philosophical, moral or legal approaches and for diverse
national culture is essential to the building of Europe.
From an ethical point of view, the multicultural character of European society requires
mutual tolerance to be shown by the citizens and political figures of the European
Nation States that have chosen uniquely to tie their destiny together, while at the same
time ensuring mutual respect for different historical traditions which are exceedingly
strong.
From a legal point of view, this multiculturalism is based upon Article 6 of the
Amsterdam
Treaty (ex Article F of the Treaty on European Union) which recognises fundamental
rights at Union level notably based on ‘constitutional traditions common to the Member
States’. It also declares that ‘the Union shall respect the national identity of its Member
States’.
It results from the aforementioned principles, that, in the scope of European research
programmes, the question of research on the human embryo has to be approached,
not only with regard to the respect for fundamental ethical principles, common to all
Member States, but equally taking into consideration diverse philosophical and ethical
conceptions, expressed through the practices and the national regulations in force in
this field.
...”
IV. COMPARATIVE LAW
41. In the majority of the member States of the Council of Europe, the offence of
unintentional homicide does not apply to the foetus. However, three countries have
chosen to create specific offences. In Italy a person who negligently causes a
pregnancy to terminate is liable to a prison sentence of between three months and two
years under section 17 of the Abortion Act of 22 May 1978. In Spain Article 157 of the
Criminal Code makes it a criminal offence to cause damage to the foetus and Article
146 an offence to cause an abortion through gross negligence. In Turkey Article 456 of
the Criminal Code lays down that a person who causes damage to another shall be
liable to a prison sentence of between six months and one year; if the victim is a
pregnant woman and the damage results in premature birth, the Criminal Code
prescribes a sentence of between two and five years’ imprisonment.
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
42. The Government’s main submission was that the application was
incompatible ratione materiae with the provisions of the Convention in that Article 2 did
not apply to the unborn child. They further submitted that the applicant had had a legal
remedy capable of redressing her complaint, namely an action for damages against
the hospital in the administrative courts. Accordingly, she had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention. In the alternative, they
considered that the application should be rejected as being manifestly ill-founded.
43. The applicant complained of the lack of protection of the unborn child under
French criminal law and argued that the State had failed to discharge its obligations
under Article 2 of the Convention by not allowing the offence of unintentional homicide
to cover injury to an unborn child. She further submitted that the remedy available in
the administrative courts was ineffective as it was incapable of securing judicial
acknowledgment of the homicide of her child as such. Lastly, the applicant asserted
that she had had a choice between instituting criminal and administrative proceedings
and that, while her recourse to the criminal courts had, unforeseeably, proved
unsuccessful, the possibility of applying to the administrative courts had in the
meantime become statute-barred.
44. The Court observes that an examination of the application raises the issue
whether Article 2 of the Convention is applicable to the involuntary termination of
pregnancy and, if so, whether that provision required a criminal remedy to be available
in the circumstances of the case or whether its requirements were satisfied by the
possibility of an action for damages in the administrative courts. Considered in those
terms, the objections that the application is incompatible ratione materiae with the
provisions of the Convention and that the applicant failed to exhaust domestic remedies
are very closely linked to the substance of the applicant’s complaint under Article 2.
Consequently, the Court considers it appropriate to join them to the merits (see, among
other authorities, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 11,
§ 19).
45. The application cannot therefore be declared inadmissible either as being
incompatible ratione materiae with the provisions of the Convention or for failure to
exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. The
Court further considers that the application raises issues of fact and law which require
examination of the merits. It accordingly concludes that the application is not manifestly
ill-founded. Having also established that no other obstacle to its admissibility exists, the
Court declares it admissible.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
46. The applicant complained of the authorities’ refusal to classify the taking of her
unborn child’s life as unintentional homicide. She argued that the absence of criminal
legislation to prevent and punish such an act breached Article 2 of the Convention,
which provides:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The parties’ submissions
1. The applicant
47. The applicant asserted that the point at which life began had a universal
meaning and definition. Even though that was in the nature of things, it was now
scientifically proven that all life began at fertilisation. That was an experimental finding.
A child that had been conceived but not yet born was neither a cluster of cells nor an
object, but a person. Otherwise, it would have to be concluded that in the instant case
she had not lost anything.
Such an argument was unacceptable for a pregnant woman. Accordingly, the term
“everyone” (“toute personne”) in Article 2 of the Convention was to be taken to mean
human beings rather than individuals with the attributes of legal personality. Indeed,
that had been the position taken by the Conseil d’Etat and the Court of Cassation,
which, having agreed to review the compatibility of the Termination of Pregnancy Act
with Article 2, had been compelled to accept that, from the first moments of its life in
the womb, the unborn child came within the scope of that provision (Conseil d’Etat (full
court), 21 December 1990, Recueil Lebon, p. 368; Court of Cassation (Criminal
Division), 27 November 1996, Bulletin criminel no. 431).
48. In the applicant’s submission, French law guaranteed all human beings the
right to life from conception, subject to certain exceptions provided for by law in the
case of abortion. In that connection, she added that all forms of abortion, with the
exception of therapeutic abortion, were incompatible with Article 2 of the Convention
on account of the interference with the right to life of the conceived child. Even if it were
accepted that, subject to certain conditions, States could allow women to have an
abortion if they requested one, the Contracting States were not at liberty to exclude the
unborn child from the protection of
Article 2. A distinction should be made between the rule and the exception. Section 1
of the Voluntary Termination of Pregnancy Act of 1975 (reproduced in Article 16 of the
Civil Code and Article L. 2211-1 of the Public Health Code – see paragraph 28 above)
laid down the rule, namely respect for every human being from the beginning of its life,
and subsequently provided for an exception in case of necessity and in accordance
with conditions defined by law. The legislature had also implicitly accepted that life
began at the moment of conception by laying down a number of rules protecting the
embryo in vitro in the laws on bioethics of 29 July 1994 (see paragraph 34 above).
Accordingly, although death could in exceptional cases prevail over life, life remained
the fundamental value protected by the Convention. The exception should not rule out
the possibility of punishing a third party who, through negligence, caused an unborn
child to die. The mother’s wishes could not be equated with negligence on the part of
a third party. The Court could therefore validly hold that the Contracting Parties’
legislation should ensure the protection of the conceived child by making unintentional
homicide of the latter a criminal offence, even if their legislation also permitted abortion.
49. The applicant pointed out that, as the Court had held, States had “a primary
duty ... to secure the right to life by putting in place effective criminal-law provisions to
deter the commission of offences against the person, backed up by law-enforcement
machinery for the prevention, suppression and punishment of breaches of such
provisions” (see Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III, and Mahmut Kaya
v. Turkey, no. 22535/93, § 85, ECHR 2000-III). In her submission, the new line of case-
law adopted by the Court in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR
2002-I), to the effect that where the right to life had been infringed unintentionally the
judicial system did not necessarily require the provision of a criminal-law remedy, could
not be followed in the instant case, because a civil remedy did not “satisfy the
requirement of expressing public disapproval of a serious offence, such as the taking
of life” (see the partly dissenting opinion of Judge Rozakis joined by Judges Bonello
and Strážnická in the above-mentioned case). That would amount to debasing the right
to life protected by Article 2. The applicant therefore considered that creating the
offence of involuntary termination of pregnancy would fill the vacuum created by the
Court of Cassation and would compensate for the State’s failure to fulfil its duty to
protect the human being at the earliest stages of its development (see paragraph 32
above).
50. The applicant argued that she had had the option of instituting criminal or
administrative proceedings and had been able to choose between the two types of
court. She explained that she had chosen to bring criminal proceedings because, firstly,
they were the only remedy capable of securing judicial acknowledgment of the
unintentional homicide of her child as such and, secondly, because a criminal
investigation aided in the task of establishing responsibility. In her submission, there
had been nothing to suggest that the criminal proceedings were bound to fail, as the
position adopted by the Court of Cassation in her case in 1999 and subsequently
confirmed in 2001 and 2002 had by no means been definitively established, in view of
the resistance shown in decisions by courts of appeal and the virtually unanimous
criticism by legal writers (see paragraph 31 above). For example, in a judgment of 3
February 2000 (Reims Court of Appeal, Dalloz 2000, case-law, p. 873), the Court of
Appeal had convicted a motorist of unintentional homicide for driving into another
vehicle, seriously injuring the driver, who was eight months’ pregnant, and
subsequently causing the death of the baby (see also Versailles Court of Appeal, 19
January 2000, unreported). The applicant submitted in conclusion that, on the face of
it, she had had no reason to apply to the administrative courts and contended that she
could not have known whether to do so until Dr G. had been acquitted by the Criminal
Court. However, by that time an action against the administrative authorities had
already become statute-barred. The remedy in the administrative courts could not
therefore be regarded as effective within the meaning of Article 35 § 1 of the
Convention.
2. The Government
51. After emphasising that neither metaphysics nor medicine had given a
definitive answer to the question whether and from what moment a foetus was a human
being, the Government asserted that from a legal standpoint Article 2 of the Convention
did not protect the foetus’s right to life as a person. The use of the term “everyone”
(“toute personne”) in Article 2 and in Articles 5, 6, 8 to 11 and 13 of the Convention was
such that it could apply only postnatally (see X v. the United Kingdom, no. 8416/79,
Commission decision of 13 May 1980, Decisions and Reports (DR) 19, p. 244). The
same observation applied to Article 2 taken separately, as all the restrictions on
“everyone’s” right to life provided for in paragraph 2 concerned, by their very nature,
persons who had already been born.
52. Nor could the “right to life” referred to in the same Article be construed as
applying to the foetus; it concerned only the life of persons who had already been born
alive, since it would be neither consistent nor justified to detach that right from the entity
in which it was vested, namely the person. Whereas, by contrast, Article 4 § 1 of the
1969 American Convention on Human Rights provided: “Every person has the right to
have his life respected. This right shall be protected by law and, in general, from the
moment of conception”, the signatories to the Convention would not have envisaged
such an extension of Article 2 of the Convention since by 1950 virtually all the
Contracting Parties had already authorised abortion in certain circumstances. To
acknowledge that the foetus had the right to life within the meaning of Article 2 would
place the mother’s life and that of the foetus on an equal footing. Furthermore,
prioritising the protection of the foetus’s life or restricting it solely in the event of a
severe, immediate and insurmountable risk to the mother’s life would constitute a step
backwards historically and socially and would call into question the legislation in force
in many States Parties to the Convention.
53. The Government pointed out that the Commission had considered whether it
was appropriate to recognise the foetus as having the right to life subject to certain
restrictions relating to the protection of the mother’s life and health (see X. v. the United
Kingdom, cited above). They submitted that such a limitation would not allow recourse
to abortion for therapeutic, moral or social reasons, which at the time when the text of
the Convention was being negotiated had nonetheless already been authorised by the
legislation of a number of countries. It would amount to penalising States that had opted
for the right to abortion as an expression and application of a woman’s autonomy over
her own body and her right to control her maternity. The States Parties had not intended
to confer on the expression “right to life” a meaning that extended to the foetus and
was manifestly contrary to their domestic legislation.
54. Having regard to the foregoing, the Government considered that the
Convention was not designed to cover the foetus and that if the European States
wished to ensure effective protection of the foetus’s right to life, a provision separate
from Article 2 would have to be drawn up. To construe Article 2 as allowing implicit
exceptions to the right to life would be at variance with both the letter and the spirit of
that Article. Firstly, the permissible exceptions formed an exhaustive list, there being
no other option where such a fundamental right was concerned; here, the Government
referred to the Pretty case in which the Court had stated: “[Article 2] sets out the limited
circumstances when deprivation of life may be justified” (see Pretty v. the United
Kingdom, no. 2346/02, § 37, ECHR 2002-III). Secondly, the exceptions were to be
understood and construed strictly (see Öcalan v. Turkey, no. 46221/99, § 201, 12
March 2003).
55. The Government observed that in the instant case the applicant had
undergone a therapeutic abortion as a result of acts carried out by the doctor outside
the statutory period within which abortion was permitted, which had been ten weeks at
the time and was now twelve weeks (see paragraphs 27-28 above). However, if the
Court were to take the view that that factor rendered Article 2 applicable, and that the
foetus should therefore be regarded as a person protected by that provision, they
pointed out that in several European States the statutory period for abortion was more
than twenty weeks, for example in the Netherlands or in England (where abortions
could be carried out at up to twenty-four weeks). Unless domestic legislation and the
national authorities’ margin of appreciation in this sphere were to be called into
question, Article 2 could consequently not apply to the unborn child. That also meant,
in the Government’s submission, that the issue of the viability of the foetus was
irrelevant in the instant case. It would be paradoxical for States to have a margin of
appreciation allowing them to exclude the foetus from protection under Article 2 where
a pregnancy was terminated intentionally with the mother’s consent – and sometimes
on that condition alone – if they were not granted the same margin of appreciation in
excluding the foetus from the scope of that provision where a pregnancy was
interrupted on account of unintentional negligence.
56. In the alternative, the Government pointed out that in French law the foetus
was protected indirectly through the pregnant woman’s body, of which it was an
extension. That was the case where abortion was carried out intentionally but not in
one of the cases exhaustively listed in the relevant legislation (Article 223-10 of the
Criminal Code – see paragraph 25 above), or in the event of an accident. In the latter
case, the ordinary remedies for establishing civil liability could be used, and the mother
could be awarded compensation for personal, pecuniary and non-pecuniary damage,
her pregnant state being necessarily taken into account. Furthermore, under the
criminal law, anyone who through inadvertence caused a pregnancy to be terminated
could be prosecuted for causing unintentional injury, the destruction of the foetus being
regarded as damage to the woman’s organs.
57. The Government argued that the applicant could have sought damages from
the hospital for the doctor’s negligence within the four-year limitation period for actions
for damages in the administrative courts. They explained that victims of damage
caused by public servants had two distinct remedies available. If the damage resulted
from personal negligence on the part of the public servant, not intrinsically connected
with the performance of his or her duties, the victim could obtain compensation by suing
the person concerned in the ordinary courts, whereas if the damage resulted from
negligence that disclosed failings on the part of the authority in question, the matter
would be classified as official negligence and come within the jurisdiction of the
administrative courts. The Government submitted that in Epoux V. (judgment of 10 April
1992) the Conseil d’Etat had abandoned its position that a hospital department could
incur liability only in cases of gross negligence. Furthermore, an exception to the rule
that the hospital was liable in the event of medical negligence occurred where
negligence was deemed to be severable from the public service, either because it was
purely personal and thus wholly unrelated to the performance of official duties – which
had not been the case in this instance – or because it was intentional or exceptionally
serious, amounting to inexcusable professional misconduct of such gravity that it
ceased to be regarded as indissociable from the performance of the official duties in
question. The Government explained that personal and official negligence were in fact
usually interlinked, particularly in cases of unintentional injury or homicide. For that
reason, the Conseil d’Etat had accepted long ago that the personal liability of a public
servant did not exclude the liability of the authority to which he or she was attached
(Epoux Lemonnier, 1918). The Government therefore considered that the applicant had
had the possibility of seeking redress in the administrative courts as soon as the
damage had occurred, without having to wait for the criminal proceedings to end. Such
an action would have been all the more likely to succeed as, for the hospital to be held
liable, only ordinary negligence had to be made out, and the expert reports ordered by
the courts had referred precisely to the hospital department’s organisational problems.
The administrative courts could therefore legitimately have been expected to reach the
same conclusion.
58. The Government asserted that that remedy had been effective and adequate
in terms of the positive obligations under Article 2 of the Convention (see Calvelli and
Ciglio, cited above) and that the applicant had, through her own inaction or negligence,
deprived herself of a remedy which had nonetheless been available to her for four years
from the time when the damage had occurred, and in respect of which she could have
received advice from her lawyers. In Calvelli and Ciglio there had been no doubt that
Article 2 of the Convention was applicable to a newborn child. In the instant case, in
which the applicability of Article 2 was questionable, there were therefore additional
reasons for considering that the possibility of using civil or administrative remedies to
establish liability was sufficient. In the
Government’s submission, such an action for damages could have been based on the
taking of the life of the child the applicant was carrying, since the relevant case-law of
the administrative courts did not appear thus far to preclude the possibility of affording
embryos protection under Article 2 of the Convention (Conseil d’Etat (full court),
Confédération nationale des associations familiales catholiques et autres, judgment of
21 December 1990 – see paragraph 47 above). At the material time, in any event, the
issue had not been clearly resolved by the Conseil d’Etat.
59. In conclusion, the Government considered that, even supposing that Article 2
was applicable in the instant case, that provision did not require the life of the foetus to
be protected by the criminal law in the event of unintentional negligence, as was the
position in many European countries.
B. Third-party interventions
1. Center for Reproductive Rights
60. The Center for Reproductive Rights (CRR) submitted that unborn foetuses could
not be treated as persons under the law and hence covered by Article 2 of the
Convention because there was no legal basis for such an approach (i), and
because granting them that status would interfere with women’s basic human
rights (ii). Lastly, they argued that it would be inadvisable to extend rights to the
foetus because the loss of a wanted foetus constituted an injury to the expectant
mother (iii).
61. (i) The assertion that a foetus was a person ran counter to the case-law of the
Convention institutions, the legislation of the member States of the Council of
Europe, international standards and the case-law of courts throughout the world.
Relying on the decisions in X v. the United Kingdom (Commission decision cited
above), H. v. 4orway (no. 17004/90, Commission decision of 19 May 1992, DR
73, p. 155) and, most recently, Boso v. Italy (no. 50490/99, ECHR 2002-VII), in
which the Commission and the Court had held that granting a foetus the same
 rights as a person would place unreasonable limitations on the Article 2 rights of
persons already born, the CRR saw no reason to depart from that conclusion
unless the right to abortion in all Council of Europe member States were to be
called into question.
62. The foetus was not recognised as a person in European domestic legislation or
by the national courts interpreting it. The CRR drew attention to the Court of
Cassation’s settled position (see paragraph 29 above), which was consistent with
the distinction made in French law between the concepts of “human being” and
“person”, the former being a biological concept and the latter a legal term attached
to a legal category whose rights took effect and were perfected at birth, although
in certain circumstances the rights acquired at birth were retroactive to
conception. The national courts had also addressed the issue of the legal status
of the person in the context of abortion. For example, the Austrian and
Netherlands Constitutional Courts had held that Article 2 should not be interpreted
as protecting the unborn child, and the French Constitutional Council had found
no conflict between legislation on the voluntary termination of pregnancy and the
constitutional protection of the child’s right to health (decision no. 74-54 of 15
January 1975). That reading was consistent with the relevant legislation
throughout Europe: thirty-nine member States of the Council of Europe – the
exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San Marino,
which had maintained severe restrictions on abortion (with only very narrow
therapeutic exceptions) – permitted a woman to terminate a pregnancy without
restriction during the first trimester or on very broad therapeutic grounds.
63. With regard to international and regional standards, the CRR observed that the
International Covenant on Civil and Political Rights provided no indication that the
right to life applied to a foetus. It added that the Human Rights Committee had
routinely emphasised the threat to women’s lives posed by illegal abortions. The
same was true of the Convention on the Rights of the Child and the interpretation
by the Committee on the Rights of the Child of Article 6, which provided: “Every
child has the inherent right to life.” On several occasions the Committee had
stated its concern about the difficulties of adolescent girls in having their
pregnancies terminated in safe conditions and had expressed its fears as to the
impact of punitive legislation on maternal mortality rates. The case-law of the
Inter-American regional system, notwithstanding Article 4 of the American
Convention on Human Rights (see paragraph 52 above), did not provide absolute
protection to a foetus before birth. The InterAmerican Commission on Human
Rights had held in Baby Boy (1981) that Article 4 did not preclude liberal national-
level abortion legislation. Furthermore, the Organisation of African Unity had
adopted the Protocol on the Rights of Women on 11 July 2003 to supplement the
African Charter on Human and Peoples’ Rights of 27 June 1981, broadening the
protection of the right of women to terminate a pregnancy.
64. Lastly, with regard to non-European States, the CRR noted that the Supreme
Courts of
Canada and the United States had declined to treat unborn foetuses as persons under
the law
(in Winnipeg Child Family Services v. G. (1997) and Roe v. Wade (1973)). The United
States Supreme Court had reaffirmed that position in a recent case in 2000 (Stenberg
v. Carhart), in which it had declared unconstitutional a State law prohibiting certain
methods of abortion and providing no protection for women’s health. Similarly, in South
Africa, ruling on a constitutional challenge to the recently enacted Choice on
Termination of Pregnancy Act, which permitted abortion without restriction during the
first trimester and on broad grounds at later stages of pregnancy, the High Court had
considered that the foetus was not a legal person (Christian Lawyers Association of
South Africa and Others v. Minister of Health and Others, 1998).
65. (ii) In the CRR’s submission, recognition of the foetus’s rights interfered, in
particular, with women’s fundamental right to a private life. In Brüggemann and
Scheuten v. Germany (no. 6959/75, Commission’s report of 12 July 1977, DR 10,
p. 100), the Commission had implicitly accepted that an absolute prohibition on
abortion would be an impermissible interference with privacy rights under Article
8 of the Convention. Subsequently, while rejecting the suggestion that Article 2
protected the right to life of foetuses, the Convention institutions had further
recognised that the right to respect for the private life of the pregnant woman, as
the person primarily concerned by the pregnancy and its continuation or
termination, prevailed over the father’s rights (see paragraph 61 above). In
addition to respect for private life, the preservation of the pregnant woman’s life
and health took precedence. In holding that restrictions on the exchange of
information on abortion created a risk to the health of women whose pregnancies
posed a threat to their lives, the Court had ruled that the injunction in question had
been “disproportionate to the aims pursued” and that, consequently, a woman’s
health interest prevailed over a State’s declared moral interest in protecting the
rights of a foetus (see Open Door and Dublin Well Woman v. Ireland, judgment of
29 October 1992, Series A no. 246-A).
66. (iii) In the CRR’s submission, declining to recognise the foetus as a person under
Article 2 did not preclude a remedy for injuries such as the one that had given rise
to the instant case. The loss of a wanted foetus was an injury suffered by the
expectant mother. Consequently, the rights that were entitled to protection in the
instant case were those of the applicant and not those of the foetus she had lost.
It was within the power of the legislature of every Council of Europe member State
to recognise both civil and criminal offences committed by individuals who injured
a woman by causing the termination of a wanted pregnancy.
2. Family Planning Association
67. The Family Planning Association (FPA) set out primarily to argue that the right to
life enshrined in Article 2 of the Convention should not be interpreted as extending
to the unborn (i). In support of that argument, the FPA provided the Court with
information on the current legal position on abortion in the member States of the
Council of Europe (ii), and a summary of the legal status of the unborn in United
Kingdom law (iii).
68. (i) The FPA pointed out that Article 2 was drafted in such a way as to allow only
very limited exceptions to the prohibition it imposed on intentional deprivation of
life. Voluntary termination of pregnancy was not one of those exceptions; nor
 could any of the exceptions be interpreted to include that practice. Recent
evidence showed that voluntary termination of pregnancy on request in the first
trimester was now widely accepted across Europe, as was termination on certain
grounds in the second trimester. If Article 2 were interpreted as applying to the
unborn from the moment of conception, as contended by the applicant, the Court
would be calling into question the laws on abortion enacted in most Contracting
States. Furthermore, that would render illegal the majority of methods of
contraception currently in use throughout Europe, since they acted or could act
after conception to prevent implantation. There would therefore be devastating
implications in terms of both individual choices and lives and social policy. The
English High Court had recently acknowledged that that would be the undesirable
consequence if it were to accept the argument of the Society for the Protection of
Unborn Children that emergency hormonal contraceptives were abortifacients
because pregnancy began at conception (see Society for the Protection of Unborn
Children v. Secretary of State for Health [2002] High Court, Administrative Court
(England and Wales)).
69. The possibility that Article 2 applied to the foetus but with certain implied
limitations, for example only after a critical point in time (viability or some other
gestational stage) should likewise be rejected. Recent evidence showed that,
beyond the broad consensus identified above, there was a complete lack of any
generally accepted standard in relation to the gestational limit on the availability
of abortion, the grounds on which termination was available after that point in time,
or the conditions that had to be satisfied.
70. (ii) Recent survey information was available (Abortion Legislation in Europe,
International Planned Parenthood Federation (IPPF) European Network, July 2002,
and Abortion Policies: a Global Review, United Nations Population Division, June 2002)
in relation to the legal position on abortion in the Council of Europe member States with
the exception of Serbia and Montenegro. The surveys showed that four States
essentially prohibited abortion, except where the pregnant woman’s life was
endangered (Andorra, Liechtenstein, San Marino and Ireland), whereas the great
majority of member States provided for much wider access to abortion services. Such
evidence of the availability of abortion across Europe was in keeping with the general
trend towards the liberalisation of abortion laws. No general consensus emerged from
the practice of the member States as to the period during which abortion was permitted
after the first trimester or the conditions that had to be satisfied for abortion to be
available in the later stages of pregnancy. Furthermore, the grounds on which abortion
was permitted without a time-limit were many and varied. The FPA accordingly
contended that if Article 2 were interpreted as applying to the unborn from some
particular point in time, that would call into question the legal position in a number of
States where termination was available on certain grounds at a later stage than that
determined by the Court.
71. (iii) It was now a settled general principle of the common law that in the United
Kingdom legal personality crystallised upon birth. Up until that point, the unborn had no
legal personality independent of the pregnant woman. However, despite that lack of
legal personality, the interests of the unborn were often protected while they were in
the womb, even though those interests could not be realised as enforceable rights until
the attainment of legal personality on birth.
72. In the civil law, that specifically meant that prior to birth the unborn had no standing
to bring proceedings for compensation or other judicial remedies in relation to any
harm done or injury sustained while in the womb, and that no claim could be made
on their behalf (see Paton v. British Pregnancy Advisory Service Trustees [1979]
Queen’s Bench Reports 276). Efforts had been made to persuade the courts
dealing with such cases that according to the law of succession, the unborn could
be deemed to be “born” or “persons in being” whenever their interests so
demanded. However, Burton confirmed that that principle was also subject to the
live birth of a child ([1993] Queen’s Bench Reports 204, 227).
73. In the criminal law, it was well established that the unborn were not treated as
legal persons for the purpose of the common-law rules of murder or manslaughter.
In AttorneyGeneral’s Reference (no. 3, 1994), the House of Lords had concluded
that injury of the unborn without a live birth could not lead to a conviction for
murder, manslaughter or any other violent crime. The rights of the unborn were
further protected by the criminal law on abortion. Sections 58 and 59 of the
Offences against the Person Act 1861 had introduced the statutory offences of
procuring abortion and procuring the means to cause abortion. Similarly, by
section 1 of the Infant Life (Preservation) Act 1929 the destruction of the unborn,
where capable of live birth, was a serious offence. Those Acts were still in force.
Abortion and child destruction remained illegal, subject to the application of the
Abortion Act 1967.
C. The Court’s assessment
74. The applicant complained that she had been unable to secure the conviction of the
doctor whose medical negligence had caused her to have to undergo a therapeutic
abortion. It has not been disputed that she intended to carry her pregnancy to full term
and that her child was in good health. Following the material events, 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 and
unintentional homicide of the child she was carrying. The courts held that the
prosecution of the offence of unintentional injury to the applicant was statute-barred
and, quashing the Court of Appeal’s judgment on the second point, the Court of
Cassation held that, regard being had to the principle that the criminal law was to be
strictly construed, a foetus could not be the victim of unintentional homicide. The central
question raised by the application is whether the absence of a criminal remedy within
the French legal system to punish the unintentional destruction of a foetus constituted
a failure on the part of the State to protect by law the right to life within the meaning of
Article 2 of the Convention.
1. Existing case-law
75. Unlike Article 4 of the American Convention on Human Rights, which provides
that the right to life must be protected “in general, from the moment of conception”,
Article 2 of the Convention is silent as to the temporal limitations of the right to life and,
in particular, does not define “everyone” (“toute personne”) whose “life” is protected by
the Convention. The Court has yet to determine the issue of the “beginning” of
“everyone’s right to life” within the meaning of this provision and whether the unborn
child has such a right.
To date it has been raised solely in connection with laws on abortion. Abortion does not
constitute one of the exceptions expressly listed in paragraph 2 of Article 2, but the
Commission has expressed the opinion that it is compatible with the first sentence of
Article 2 § 1 in the interests of protecting the mother’s life and health because “if one
assumes that this provision applies at the initial stage of the pregnancy, the abortion is
covered by an implied limitation, protecting the life and health of the woman at that
stage, of the ‘right to life’ of the foetus” (see X v. the United Kingdom, Commission
decision cited above, p. 253).
76. Having initially refused to examine in abstracto the compatibility of abortion
laws with Article 2 of the Convention (see X v. 4orway, no. 867/60, Commission
decision of 29 May 1961, Collection of Decisions, vol. 6, p. 34, and X v. Austria, no.
7045/75, Commission decision of 10 December 1976, DR 7, p. 87), the Commission
acknowledged in Brüggemann and Scheuten (cited above) that women complaining
under Article 8 of the Convention about the Constitutional Court’s decision restricting
the availability of abortions had standing as victims. It stated on that occasion: “...
pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a
woman is pregnant her private life becomes closely connected with the developing
foetus” (ibid., p. 116, § 59). However, the Commission did not find it “necessary to
decide, in this context, whether the unborn child is to be considered as ‘life’ in the sense
of Article 2 of the Convention, or whether it could be regarded as an entity which under
Article 8 § 2 could justify an interference ‘for the protection of others’ ” (ibid., p.
116, § 60). It expressed the opinion that there had been no violation of Article 8 of the
Convention because “not every regulation of the termination of unwanted pregnancies
constitutes an interference with the right to respect for the private life of the mother”
(ibid., pp. 116-17, § 61), while emphasising: “There is no evidence that it was the
intention of the Parties to the Convention to bind themselves in favour of any particular
solution” (ibid., pp. 117-18, § 64).
77. In X v. the United Kingdom (cited above), the Commission considered an
application by a man complaining that his wife had been allowed to have an abortion
on health grounds. While it accepted that the potential father could be regarded as the
“victim” of a violation of the right to life, it considered that the term “everyone” in several
Articles of the Convention could not apply prenatally, but observed that “such
application in a rare case – e.g. under Article 6, paragraph 1 – cannot be excluded” (p.
249, § 7; for such an application in connection with access to a court, see Reeve v. the
United Kingdom, no. 24844/94, Commission decision of 30 November 1994, DR 79-A,
p. 146). The Commission added that the general usage of the term “everyone” (“toute
personne”) and the context in which it was used in Article 2 of the Convention did not
include the unborn. As to the term “life” and, in particular, the beginning of life, the
Commission noted a “divergence of thinking on the question of where life begins” and
added: “While some believe that it starts already with conception, others tend to focus
upon the moment of nidation, upon the point that the foetus becomes ‘viable’, or upon
live birth” (X v. the United Kingdom, p. 250, § 12).
The Commission went on to examine whether Article 2 was “to be interpreted: as not
covering the foetus at all; as recognising a ‘right to life’ of the foetus with certain implied
limitations; or as recognising an absolute ‘right to life’ of the foetus” (ibid. p. 251, § 17).
Although it did not express an opinion on the first two options, it categorically ruled out
the third interpretation, having regard to the need to protect the mother’s life, which was
indissociable from that of the unborn child: “The ‘life’ of the foetus is intimately
connected with, and it cannot be regarded in isolation of, the life of the pregnant woman.
If Article 2 were held to cover the foetus and its protection under this Article were, in
the absence of any express limitation, seen as absolute, an abortion would have to be
considered as prohibited even where the continuance of the pregnancy would involve
a serious risk to the life of the pregnant woman. This would mean that the ‘unborn life’
of the foetus would be regarded as being of a higher value than the life of the pregnant
woman” (ibid., p. 252, § 19). The Commission adopted that solution, noting that by 1950
practically all the Contracting Parties had “permitted abortion when necessary to save
the life of the mother” and that in the meantime the national law on termination of
pregnancy had “shown a tendency towards further liberalisation” (ibid., p. 252, § 20).
78. In H. v. 4orway (cited above), concerning an abortion carried out on non-
medical grounds against the father’s wishes, the Commission added that Article 2
required the State not only to refrain from taking a person’s life intentionally but also to
take appropriate steps to safeguard life (p. 167). It considered that it did not have to
decide “whether the foetus may enjoy a certain protection under Article 2, first
sentence”, but did not exclude the possibility that “in certain circumstances this may be
the case notwithstanding that there is in the Contracting States a considerable
divergence of views on whether or to what extent Article 2 protects the unborn life”
(ibid.). It further noted that in such a delicate area the Contracting States had to have
a certain discretion, and concluded that the mother’s decision, taken in accordance
with Norwegian legislation, had not exceeded that discretion ( p. 168).
79. The Court has only rarely had occasion to consider the application of Article
2 to the foetus. In Open Door and Dublin Well Woman (cited above), the Irish
Government relied on the protection of the life of the unborn child to justify their
legislation prohibiting the provision of information concerning abortion facilities abroad.
The only issue that was resolved was whether the restrictions on the freedom to receive
and impart the information in question had been necessary in a democratic society,
within the meaning of paragraph 2 of Article 10 of the Convention, to pursue the
“legitimate aim of the protection of morals of which the protection in Ireland of the right
to life of the unborn is one aspect” (pp. 27-28, § 63), since the Court did not consider it
relevant to determine “whether a right to abortion is guaranteed under the Convention
or whether the foetus is encompassed by the right to life as contained in Article 2” (p.
28, § 66). Recently, in circumstances similar to those in H. v. 4orway (cited above),
where a woman had decided to terminate her pregnancy against the father’s wishes,
the Court held that it was not required to determine “whether the foetus may qualify for
protection under the first sentence of Article 2 as interpreted [in the case-law relating
to the positive obligation to protect life]”, and continued: “Even supposing that, in certain
circumstances, the foetus might be considered to have rights protected by Article 2 of
the Convention, ... in the instant case ... [the] pregnancy was terminated in conformity
with section 5 of Law no. 194 of 1978” – a law which struck a fair balance between the
woman’s interests and the need to ensure protection of the foetus (see Boso, cited
above).
80. It follows from this recapitulation of the case-law that in the circumstances
examined to date by the Convention institutions – that is, in the various laws on abortion
– the unborn child is not regarded as a “person” directly protected by Article 2 of the
Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the
mother’s rights and interests. The Convention institutions have not, however, ruled out
the possibility that in certain circumstances safeguards may be extended to the unborn
child. That is what appears to have been contemplated by the Commission in
considering that “Article 8 § 1 cannot be interpreted as meaning that pregnancy and its
termination are, as a principle, solely a matter of the private life of the mother” (see
Brüggemann and Scheuten, cited above, pp. 116-17, § 61) and by the Court in the
above-mentioned Boso decision. It is also clear from an examination
of these cases that the issue has always been determined by weighing up various, and
sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in
relation to one another or vis-à-vis an unborn child.
2. Approach in the instant case
81. The special nature of the instant case raises a new issue. The Court is faced with
a woman who intended to carry her pregnancy to term and whose unborn child
was expected to be viable, at the very least in good health. Her pregnancy had to
be terminated as a result of an error by a doctor and she therefore had to have a
therapeutic abortion on account of negligence by a third party. The issue is
consequently whether, apart from cases where the mother has requested an
abortion, harming a foetus should be treated as a criminal offence in the light of
Article 2 of the Convention, with a view to protecting the foetus under that Article.
This requires a preliminary examination of whether it is advisable for the Court to
intervene in the debate as to who is a person and when life begins, in so far as
Article 2 provides that the law must protect “everyone’s right to life”.
82. As is apparent from the above recapitulation of the case-law, the interpretation of
Article
2 in this connection has been informed by a clear desire to strike a balance, and the
Convention institutions’ position in relation to the legal, medical, philosophical, ethical
or religious dimensions of defining the human being has taken into account the various
approaches to the matter at national level. This has been reflected in the consideration
given to the diversity of views on the point at which life begins, of legal cultures and of
national standards of protection, and the State has been left with considerable
discretion in the matter, as the opinion of the European Group on Ethics in Science and
New Technologies at the European Commission appositely puts it: “the ... Community
authorities have to address these ethical questions taking into account the moral and
philosophical differences, reflected by the extreme diversity of legal rules applicable to
human embryo research ... It is not only legally difficult to seek harmonisation of
national laws at Community level, but because of lack of consensus, it would be
inappropriate to impose one exclusive moral code” (see paragraph 40 above).
It follows that the issue of when the right to life begins comes within the margin of
appreciation which the Court generally considers that States should enjoy in this
sphere, notwithstanding an evolutive interpretation of the Convention, a “living
instrument which must be interpreted in the light of present-day conditions” (see Tyrer
v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31,
and subsequent case-law). The reasons for that conclusion are, firstly, that the issue
of such protection has not been resolved within the majority of the Contracting States
themselves, in France in particular, where it is the subject of debate (see paragraph 83
below) and, secondly, that there is no European consensus on the scientific and legal
definition of the beginning of life (see paragraph 84 below).
83. The Court observes that the French Court of Cassation, in three successive
judgments delivered in 1999, 2001 and 2002 (see paragraphs 22 and 29 above),
considered that the rule that offences and punishment must be defined by law, which
required criminal statutes to be construed strictly, excluded acts causing a fatal injury
to a foetus from the scope of Article 221-6 of the Criminal Code, under which
unintentional homicide of “another” is an offence. However, if, as a result of
unintentional negligence, the mother gives birth to a live child who dies shortly after
being born, the person responsible may be convicted of the unintentional homicide of
the child (see paragraph 30 above). The first-mentioned approach, which conflicts with
that of several courts of appeal (see paragraphs 21 and 50 above), was interpreted as
an invitation to the legislature to fill a legal vacuum. That was also the position of the
Criminal Court in the instant case: “The court ... cannot create law on an issue which
[the legislature has] not yet succeeded in defining.” The French parliament attempted
such a definition in proposing to create the offence of involuntary termination of
pregnancy (see paragraph 32 above), but the bill containing that proposal was lost, on
account of the fears and uncertainties that the creation of the offence might arouse as
to the determination of when life began, and the disadvantages of the proposal, which
were thought to outweigh its advantages (see paragraph 33 above). The Court further
notes that alongside the Court of Cassation’s repeated rulings that Article 221-6 of the
Criminal Code does not apply to foetuses, the French parliament is currently revising
the 1994 laws on bioethics, which added provisions to the Criminal Code on the
protection of the human embryo (see paragraph 25 above) and required re-examination
in the light of scientific and technological progress (see paragraph 34 above). It is clear
from this overview that in France the nature and legal status of the embryo and/or
foetus are currently not defined and that the manner in which it is to be protected will
be determined by very varied forces within French society.
84. At European level, the Court observes that there is no consensus on the
nature and status of the embryo and/or foetus (see paragraphs 39-40 above), although
they are beginning to receive some protection in the light of scientific progress and the
potential consequences of research into genetic engineering, medically assisted
procreation or embryo experimentation. 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 (see paragraph 72 above) – require protection in the
name of human dignity, without making it a “person” with the “right to life” for the
purposes of Article 2. The Oviedo Convention on Human Rights and Biomedicine,
indeed, is careful not to give a definition of the term “everyone”, and its explanatory
report indicates that, in the absence of a unanimous agreement on the definition, the
member States decided to allow domestic law to provide clarification for the purposes
of the application of that Convention (see paragraph 36 above). The same is true of the
Additional Protocol on the Prohibition of Cloning Human Beings and the Additional
Protocol on Biomedical Research, which do not define the concept of “human being”
(see paragraphs 37-38 above). It is worth noting that the Court may be requested under
Article 29 of the Oviedo Convention to give advisory opinions on the interpretation of
that instrument.
85. Having regard to the foregoing, 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
(“personne” in the French text). As to the instant case, it considers it unnecessary to
examine whether the abrupt end to the applicant’s pregnancy falls within the scope of
Article 2, seeing that, even assuming that that provision was applicable, there was no
failure on the part of the respondent State to comply with the requirements relating to
the preservation of life in the public-health sphere. With regard to that issue, the Court
has considered 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.
86. In that connection, it observes that the unborn child’s lack of a clear legal
status does not necessarily deprive it of all protection under French law. However, in
the circumstances of the present case, the life of the foetus was intimately connected
with that of the mother and could be protected through her, especially as there was no
conflict between the rights of the mother and the father or of the unborn child and the
parents, the loss of the foetus having been caused by the unintentional negligence of
a third party.
87. In Boso, cited above, the Court said that even supposing that the foetus might
be considered to have rights protected by Article 2 of the Convention (see paragraph
79 above), Italian law on the voluntary termination of pregnancy struck a fair balance
between the woman’s interests and the need to ensure protection of the unborn child.
In the present case, the dispute concerns the involuntary killing of an unborn child
against the mother’s wishes, causing her particular suffering. The interests of the
mother and the child clearly coincided. The Court must therefore examine, from the
standpoint of the effectiveness of existing remedies, the protection which the applicant
was afforded in seeking to establish the liability of the doctor concerned for the loss of
her child in utero and to obtain compensation for the abortion she had to undergo. The
applicant argued that only a criminal remedy would have been capable of satisfying the
requirements of Article 2 of the Convention. The Court does not share that view, for the
following reasons.
88. The Court reiterates 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 State 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, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998-III, p. 1403, § 36).
89. Those principles apply in the public-health sphere too. The positive obligations
require States to make regulations compelling hospitals, whether private or public, to
adopt appropriate measures for the protection of patients’ lives. They also require an
effective independent judicial system to be set up so that the cause of death of patients
in the care of the medical profession, whether in the public or the private sector, can
be determined and those responsible made accountable (see Powell v. the United
Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, §
49).
90. Although the right to have third parties prosecuted or sentenced for a criminal
offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, §
70, ECHR 2004I), the Court has stated on a number of occasions that an effective
judicial system, as required by Article 2, may, and under certain circumstances must,
include recourse to the criminal law. However, if the infringement of the right to life or
to physical 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 in every case. 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” (see Calvelli
and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7
November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
91. In the instant case, in addition to the criminal proceedings which the applicant
instituted against the doctor for unintentionally causing her injury – which, admittedly,
were terminated because the offence was covered by an amnesty, a fact that did not
give rise to any complaint on her part – she had the possibility of bringing an action for
damages against the authorities on account of the doctor’s alleged negligence (see
Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so,
the applicant would have been entitled to have an adversarial hearing on her
allegations of negligence (see Powell, cited above) and to obtain redress for any
damage sustained. A claim for compensation in the administrative courts would have
had fair prospects of success and the applicant could have obtained damages from the
hospital. That is apparent from the findings clearly set out in the expert reports (see
paragraph 16 above) in 1992 – before the action had become statute-barred –
concerning the poor organisation of the hospital department in question and the serious
negligence on the doctor’s part, which nonetheless, in the Court of Appeal’s opinion
(see paragraph 21 above), did not reflect a total disregard for the most fundamental
principles and duties of his profession such as to render him personally liable.
92. The applicant’s submission concerning the fact that the action for damages in
the administrative courts was statute-barred cannot succeed in the Court’s view. In this
connection, it refers to its case-law to the effect that the “right to a court”, of which the
right of access is one aspect, is not absolute; it is subject to limitations permitted by
implication, in particular where the conditions of admissibility of an appeal are
concerned, since by its very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard (see, among other authorities, Brualla
Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997-VIII, p.
2955, § 33). These legitimate restrictions include the imposition of statutory limitation
periods, which, as the Court has held in personal injury cases, “serve several important President
purposes, namely to ensure legal certainty and finality, protect potential defendants Paul Mahoney
from stale claims which might be difficult to counter and prevent the injustice which Registrar
might arise if courts were required to decide upon events which took place in the distant
past on the basis of evidence which might have become unreliable and incomplete
because of the passage of time” (see Stubbings and Others v. the United Kingdom,
judgment of 22 October 1996, Reports 1996-IV, pp. 1502-03, § 51).

93. In the instant case, a four-year limitation period does not in itself seem unduly
short, particularly in view of the seriousness of the damage suffered by the applicant
and her immediate desire to prosecute the doctor. However, the evidence indicates
that the applicant deliberately turned to the criminal courts, apparently without ever
being informed of the possibility of applying to the administrative courts. Admittedly, the
French parliament recently extended the time allowed to ten years under the Law of 4
March 2002 (see paragraph 28 above). It did so with a view to standardising limitation
periods for actions for damages in all courts, whether administrative or ordinary. This
enables the general emergence of a system increasingly favourable to victims of
medical negligence to be taken into account, an area in which the administrative courts
appear capable of striking an appropriate balance between consideration of the
damage to be redressed and the excessive “judicialisation” of the responsibilities of the
medical profession. The Court does not consider, however, that these new rules can
be said to imply that the previous period of four years was too short.

94. In conclusion, the Court considers that in the circumstances of the case an
action for damages in the administrative courts could be regarded as an effective
remedy that was available to the applicant. Such an action, which she failed to use,
would have enabled her to prove the medical negligence she alleged and to obtain full
redress for the damage resulting from the doctor’s negligence, and there was therefore
no need to institute criminal proceedings in the instant case.

95. The Court accordingly concludes that, even assuming that Article 2 was
applicable in the instant case (see paragraph 85 above), there has been no violation of
Article 2 of the Convention.

FOR THESE REASONS, THE COURT

1.Joins to the merits unanimously the Government’s preliminary objections of the
application’s incompatibility ratione materiae with the provisions of the Convention
and of failure to exhaust domestic remedies, and dismisses them;

2. Declares unanimously the application admissible;

3. Holds by fourteen votes to three that there has been no violation of Article 2 of the
Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights
Building, Strasbourg, on 8 July 2004.

Luzius Wildhaber