The Experience of the European Court of Human Rights with the European Convention on Human Rights and Biomedicine

AuthorFrancesco Seatzu
PositionProfessor of International and European Union Law, University of Cagliari (Italy)
Pages5-16
Francesco Seatzu, ‘The Experience of the European Court of Human Rights with
the European Convention on Human Rights and Biomedicine’ (2015) 31(81) Utrecht
Journal of International and European Law 5, DOI: http://dx.doi.org/10.5334/ujiel.da
RESEARCH ARTICLE
The Experience of the European Court of
Human Rights with the European Convention on
Human Rights and Biomedicine
Francesco Seatzu*
Several papers have been written on the contribution of domestic courts to the interpretation of
the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human
Being with regard to the Application of Biology and Medicine (Convention on Human Rights and
Biomedicine, also known as the Oviedo Convention) and its Additional Protocols (the ‘Oviedo Con-
vention system’) or to the development of new rules of international bio law. Nevertheless very
few papers have thus far focused on the contribution of the European Court of Human Rights
(‘ECtHR’) to the enforcement of the Oviedo Convention’s provisions. This is notwithstanding the
very close relationship of the European Convention on Human Rights (ECHR) with the Oviedo
Convention and its Additional Protocols, namely the fact that the Oviedo Convention: “elaborates
some of the principles enshrined in the ECHR” as elucidated by the Explanatory Report of the
European Convention on Human Rights and Biomedicine (the ‘Explanatory Report’). The purpose of
this paper is to ll this major gap and to focus on the use of the Oviedo Convention when a specic
biomedical issue is submitted to the ECtHR. The paper will briey address, through some relevant
examples, the ECtHR’s main contributions to implementation of the bio-law rights encompassed in
the Oviedo Convention’s system. It also charts the evolution from the ECtHR’s original position,
which tended to apply the Oviedo Convention directly, to its later less radical position, adopted
in some of its most recent judgments, in which the Oviedo Convention is implemented exclusively:
a) when the content of its provisions coincide with rights explicitly protected in the ECHR and
b) when it helps to elucidate or understand better the ECHR.
A correction article relating to the authorship of this publication can be found here: DOI:
http://dx.doi.org/10.5334/ujiel.dk
Keywords: ECtHR; Biomedicine; Oviedo Convention
«We will never praise enough the considerable achievement that the Oviedo Convention
represents»
J.P. Costa, President of the European Court of Human Rights
I. Introduction
The starting point of this work is the idea that the European Convention on Human Rights and Biomedicine1
of 1997 (the Oviedo Convention)2 represents a milestone in the protection of human rights in the bioethical
and biomedical field on a regional scale,3 and “the most elaborate and systematic attempt ever undertaken
* Professor of International and European Union Law, University of Cagliari (Italy).
1 For the definition of the term “biomedicine”, we follow the definition by Roberto Andorno, namely “it is used here with a broad
meaning, which encompasses all applications of biological and medical knowledge and technologies to human beings”, Roberto
Andorno, Principles ofInternational Biolaw: Seeking Common Ground at the Intersection of Bioethics and Human Rights (Bruylant
2013) 15; See Brigitte Feuillet-Le Mintier, ‘La Biomedicine, une Nouvelle Branche de Droit?’ in Brigitte Feuillet-Le Mintier and Jean
F Mattéi (eds), Normativité et Biomédicine (Economica 2003) 1 ff.
2 Council of Europe, Convention for the Protection of Human Rights and of the Human Being with regard to the Application of Biology
and Medicine (Convention on Human Rights and Biomedicine or the Oviedo Convention) (CETS n. 164), adopted in Oviedo on
April 4, 1997 (entered into force on December 1, 1999).
3 Accordingly, see for example Giuseppe Cataldi, ‘La Convenzione sui Diritti Umani e la Biomedicina’ in Laura Pineschi (ed), La
UTRECHT JOURN
AL OF
INTERNATIONAL AND EUROPEAN LAW
This article has been corrected here: http://dx.doi.org/10.5334/ujiel.dk

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