Preliminary objections rejected (ratione materiae, non-exhaustion of domestic remedies);No violation of Art. 2

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in FAC .

On DATE the applicant , PERSON , who is of NORP origin , attended ORG for a medical examination scheduled during DATE of pregnancy .

On DATE another woman , PERSON , was due to have a contraceptive coil removed at the same hospital . When PERSON , who was to remove the coil , called out the name “ PERSON ” in the waiting - room , it was the applicant who answered .

After a brief interview , the doctor noted that the applicant had difficulty in understanding NORP . 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 .

PERSON then attempted to remove the coil from PERSON , but was unsuccessful and so prescribed an operation under general anaesthetic for TIME . A further error was then made when the applicant was taken to the operating theatre instead of PERSON , and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist .

NORP The applicant left the hospital on DATE . She returned on DATE 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 CARDINAL DATE .

On DATE 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 DATE and unintentional homicide of her child . CARDINAL expert reports were subsequently filed .

The first , which was filed on DATE , concluded that the foetus , a baby girl , was DATE , weighed QUANTITY , was QUANTITY long , had a cranial perimeter of QUANTITY 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 DATE .

On DATE a second report was filed concerning the applicant ’s injuries :

“ ( a ) There is a period of temporary total unfitness for work from DATE to CARDINAL DATE , when the patient was admitted to ORG with an entirely unconnected pathology ( appendectomy )

( b ) the date of stabilisation can be put at DATE

( 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 NORP extraction specialising in psychiatry or psychology . ”

The third report , which was issued on DATE , referred to the malfunctioning of the hospital department concerned and to negligence on the part of the doctor :

“ CARDINAL . The manner in which appointments in the departments run by Professors [ T. ] and [ NORP ] at ORG 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 ORG unfamiliarity with or limited understanding of our language .

NORP 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 [ PERSON ] had acquainted himself with PERSON medical file , it was [ the applicant ] who came forward in response to his call .

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 DATE . He is accountable for that error , although there are mitigating circumstances . ”

On DATE , and also following supplemental submissions by the prosecution on DATE , PERSON was charged with causing unintentional injury at PERSON on DATE 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 LAW which was applicable at the material time – now LAW ) ;

( 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 DATE ( a criminal offence under LAW , sub - paragraph CARDINAL , of the former LAW – which was applicable at the material time DATE now Articles R. CARDINAL - CARDINAL and R. CARDINAL - CARDINAL of LAW ) .

By an order of CARDINAL DATE , PERSON was committed to stand trial in ORG on counts of unintentional homicide and unintentionally causing injuries .

By a judgment of DATE , ORG found that the accused was entitled as of right to an amnesty under LAW DATE in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of DATE . As to the offence of unintentional homicide of the foetus , it held :

“ The issue before the ORG 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 DATE if a CARDINAL to CARDINAL DATE foetus is a human person ( ‘ another’ within the meaning of LAW ) .

The expert evidence must be accepted . The foetus was DATE .

At what stage of maturity can an embryo be considered a human person ?

The Voluntary Termination of Pregnancy Act of DATE provides : ‘ The law guarantees respect of every human being from the beginning of life.’

The PERSON of DATE ( LAW ) 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 DATE expressly employed the terms ‘ PERSON and ‘ human PERSON for the first time . However , the term ‘ human PERSON is not defined in any of them .

When doing the preparatory work for the legislation on bioethics , a number of parliamentarians ( both members of ORG and senators ) sought to define ‘ PERSON . PERSON proposed the following definition : ‘ Every human being shall be respected from the start of life ; the human embryo is a human being.’ PERSON 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 ORG

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 DATE and on no account , on present knowledge , at DATE .

The ORG must have regard to that fact ( viability at DATE ) and can not create law on an issue which the legislators have not yet succeeded in defining .

The ORG thus notes that a foetus becomes viable at DATE ; DATE foetus is not viable and is not a ‘ human person’ or ‘ another’ within the meaning of former LAW and LAW .

The offence of unintentional homicide or of unintentionally taking the life of DATE foetus has not been made out , since the foetus was not a ‘ human person’ or ‘ another’ ...

Acquits PERSON on the charge without penalty or costs ... ”

On DATE the applicant appealed against that judgment . She argued that PERSON had been guilty of personal negligence severable from the functioning of the public service and sought MONEY ( FRF ) in damages , comprising ORG CARDINAL,CARDINAL for the death of the child and ORG CARDINAL 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 DATE and following , normally and inexorably , the path of life on which it had embarked , there being no medical doubt over its future . ”

In a judgment of DATE , ORG upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries time - barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide . It imposed a DATE suspended prison sentence and a fine of FRF CARDINAL,CARDINAL , holding :

“ ... In the instant case Dr [ PERSON ] ’s negligence is characterised in particular by the fact that the patient ’s knowledge of NORP 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 [ PERSON ] 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 PERSON 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 LAW signed in GPE on DATE , recognise a right to life protected by law for everyone , and notably children .

Under domestic law , section CARDINAL of the Voluntary Termination of Pregnancy LAW no . CARDINAL of DATE ) 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 . CARDINAL of DATE on the respect of the human body lays down in LAW : ‘ 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 can not be regarded as mere statements of intent , devoid of any legal effect , since LAW indicates that the provisions of LAW are mandatory .

For its part ORG applied these rules of international and domestic law in CARDINAL judgments it delivered on DATE , specifying that LAW of DATE only permits derogation from the rule stated in section CARDINAL 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 .

ORG added that , having regard to the conditions laid down by the legislature , the provisions of that statute and of the law of DATE on the voluntary termination of pregnancy , taken as a whole , were not incompatible with the aforementioned treaty provisions .

In a different case , moreover , ORG pointed out that on signing LAW on DATE , GPE 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 NORP legislation on the voluntary termination of pregnancy . That reservation shows , by converse implication , that that convention could concern a foetus aged DATE , the statutory maximum foetal age in GPE 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 GPE , himself acknowledged , informing the ORG that foetuses born DATE after conception could now be kept alive , a situation that was inconceivable DATE . In the opinion prepared by Professor [ T. ] and adduced in evidence by Dr PERSON , reference is made to a report by Professor PERSON 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 CARDINAL DATE before the amniotic fluid was lost DATE the [ applicant ’s ] pregnancy had been proceeding normally and the child she was carrying was alive . When the therapeutic abortion was performed on DATE , it was noted that a comparison of the child ’s measurements with published tables suggested that the foetus was DATE and possibly older , as it is not certain that the tables take into account the specific morphology of children of NORP origin . Dr [ PERSON ] , when questioned on this point at the hearing , was unable to provide any further information . The conclusion from the anatomo - pathological examination was that the foetal lung indicated an age of DATE , its measurements suggesting that an age at the lower end of that range was the most likely . In any event , as Dr PERSON said in evidence , the age of the foetus was very close to that of certain foetuses that have managed to survive in GPE . The photographs at page D CARDINAL of the trial bundle show a perfectly formed child whose life was cut short by the accused ’s negligence .

As ORG observed in its judgment of CARDINAL DATE , 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 DATE 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 ORG has no jurisdiction to hear the claim for reparation . This is because despite the serious nature of the negligent act and omission of Dr [ PERSON ] , 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 [ PERSON ] to pay to this civil party compensation in the sum of MONEY under LAW on account of costs which she has incurred , but which have not been paid by the ORG .

On DATE , on an appeal on points of law by the doctor , ORG reversed the judgment of ORG and ruled that there was no reason to remit the case for retrial :

“ Having regard to LAW :

Criminal - law provisions must be strictly construed .

In convicting [ the doctor ] of unintentional homicide , the appellate court noted that LAW recognise the existence for all persons of a right to life protected by law . The appellate court stated that LAW of DATE establishes the rule that the life of every human being must be respected from the beginning of life . That rule is now restated in LAW as worded following the amendment made by LAW DATE . 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 LAW CARDINAL - CARDINAL of LAW , ORG misinterpreted the aforementioned provisions .

The provision dealing with the unintentional taking of life at the material time and until DATE was LAW , 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 DATE and a fine of CARDINAL MONEY . ”

NORP Since DATE , the relevant provision has been Article CARDINAL of LAW ( as amended by LAW . DATE of DATE and Order no . DATE of DATE ) , which is to be found in Section II ( “ Unintentional taking of life ” ) of LAW 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 CARDINAL - CARDINAL provides :

“ It shall be an offence of unintentional homicide punishable by DATE imprisonment and a fine of QUANTITY to cause the death of another in the conditions and in accordance with the distinctions set out in LAW 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 CARDINAL years’ imprisonment and a fine of CARDINAL . ”

Article CARDINAL of LAW , 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 LAW , entitled “ Endangering the person ” , in Part II of Book II . It reads as follows :

“ It shall be an offence punishable by DATE imprisonment and a fine of MONEY to terminate a pregnancy without the mother ’s consent . ”

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 CARDINAL to CARDINAL - CARDINAL ) , including the conception of human embryos in vitro for research or experimental purposes ( Article CARDINAL ) .

At the material time the limitation period for an action in damages in the administrative courts was DATE , while the period in which a pregnancy could be voluntarily terminated lawfully was DATE following conception .

The provisions of LAW as worded since LAW ( Law no . DATE of DATE ) came into force read as follows :

“ Save where they incur liability as a result of a defect in a health product , the medical practitioners mentioned in Part IV of this LAW 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 .

“ Private medical practitioners , the hospitals , clinics , health services and organisations mentioned in LAW and any other legal entity other than the ORG 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 LAW with the exception of sub - paragraph CARDINAL thereof , subject to the provisions of Article PERSON , and sub - paragraphs CARDINAL , DATE and DATE , 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 .

“ 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 DATE from the date the condition stabilises . ”

“ As stated in LAW 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.’ ”

“ The principle referred to in Article L. CARDINAL - CARDINAL 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 ORG , aided by the local and regional authorities , shall perform these obligations and support initiatives that assist it to do so . ”

“ A pregnant woman whose condition causes her distress may ask a doctor to terminate her pregnancy . The pregnancy may only be terminated within DATE . ”

“ A pregnancy may be voluntarily terminated at any time if CARDINAL 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 .

ORG has followed its decision in the instant case ( see paragraph CARDINAL above ) on CARDINAL occasions ( in its judgments of DATE ( full court ) , Bulletin no . CARDINAL , and of DATE ORG ) , Bulletin no . CARDINAL ) , despite submissions from the advocates - general concerned to the contrary .

“ As regards the CARDINAL grounds of appeal of the public prosecutor at ORG and of PERSON which have been joined together ... :

On DATE a vehicle being driven by Mr Z collided with a vehicle being driven by PERSON , who was DATE pregnant . She was injured and as a result of the impact lost the foetus she was carrying . In the impugned judgment ( ORG , DATE ) , Mr Z was convicted of unintentionally injuring PERSON , 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 LAW , 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 , ORG 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 ORG CARDINAL , CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW and LAW .

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 CARDINAL - CARDINAL of LAW , which makes unintentional homicide an offence , to cover unborn children whose status in law is governed by special provisions concerning embryos and foetuses .

Having regard to former LAW , LAW and LAW :

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 DATE , attended the clinic in order to give birth on DATE . She was placed under observation at TIME 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 TIME showed a like anomaly and subsequently that the heart had stopped beating altogether . At TIME , X pronounced the baby dead . In TIME 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 ORG , liable for the civil consequences of that offence , ORG 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 , ORG stated : ‘ This child had reached term DATE 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 , ORG 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 .

ORG has held that a court of appeal gave valid reasons for finding a defendant guilty of the unintentional homicide of a child who died TIME after its birth on DATE of a road traffic accident in which its mother , who was CARDINAL months’ pregnant , was seriously injured , when it held that , by failing to control his vehicle , the driver had caused the child ’s death TIME after birth as a result of irreversible lesions to vital organs sustained at the moment of impact ( Court of Cassation , Criminal Division , DATE ) .

An article entitled “ Unintentional violence on pregnant women and the offence of unintentional homicide ” ( PERSON CARDINAL , p. CARDINAL ) notes that in CARDINAL out of a total of CARDINAL articles commenting on ORG judgment of DATE ( see paragraph CARDINAL above ) the authors are critical of ORG case - law ( see paragraph CARDINAL above ) .

The criticism includes : the laconic reasoning of ORG 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 TIME 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 .

On DATE ORG adopted on its second reading a bill to adapt the criminal justice system to changes in criminality . The bill included the ORG amendment , so named after the member of parliament who introduced it , which created an offence of involuntary termination of pregnancy ( ORG ) .

The adoption of this amendment gave rise to fierce controversy and , after DATE of consultations , the Minister of Justice , PERSON , declared on DATE that the member ’s proposal “ caused more problems than it solved ” and that he was in favour of abandoning it . On DATE the ORG unanimously deleted the amendment . This was the second time the senators had rejected such a proposal , as they had already opposed it in DATE when examining ORG , passed on DATE .

On DATE ORG adopted on its second reading a bill on bioethics with a view to reforming the DATE 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 ORG ) 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 ) .

The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to ORG , also known as ORG , which was opened for signature on DATE in GPE , came into force on DATE . In this convention , the member ORG , GPE and ORG 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 :

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 ORG shall take in its internal law the necessary measures to give effect to the provisions of this Convention .

The interests and welfare of the human being shall prevail over the sole interest of society or science .

Where the law allows research on embryos in vitro , it shall ensure adequate protection of the embryo .

NORP The creation of human embryos for research purposes is prohibited .

ORG 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 ORG , after having informed the other Parties ;

– the ORG set up by Article CARDINAL , with membership restricted to ORG , by a decision adopted by a CARDINAL majority of votes cast .

The commentary on LAW ( see paragraphs CARDINAL of the explanatory report on the convention ) states :

“ CARDINAL . This LAW scope and purpose .

The aim of the ORG 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 .

The Convention does not define the term ‘ ORG ( in NORP ‘ toute personne’ ) . These CARDINAL terms are equivalent and found in the LANGUAGE and LANGUAGE versions of ORG , which however does not define them . In the absence of a unanimous agreement on the definition of these terms among member ORG , it was decided to allow domestic law to define them for the purposes of the application of the present ORG .

The Convention also uses the expression ‘ human ORG 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 CARDINAL of the LAW provides :

“ CARDINAL . Any intervention seeking to create a human being genetically identical to another human being , whether living or dead , is prohibited .

For the purpose of this LAW , the term human being ‘ genetically identical’ to another human being means a human being sharing with another the same nuclear gene set . ”

The draft LAW was approved by ORG on DATE . It was submitted for approval to ORG , which sought a consultative opinion from ORG . On DATE the ORG issued an opinion ( no . CARDINAL ( DATE ) ) in which it declared itself in favour of the draft LAW . On DATE ORG adopted the text .

“ Parties to this LAW 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 . ”

“ CARDINAL . This LAW covers the full range of research activities in the health field involving interventions on human beings .

This LAW does not apply to research on embryos in vitro . It does apply to research on foetuses and embryos in vivo .

“ The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science . ”

“ CARDINAL . 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 .

ORG on ORG and Foetus set up by ORG reached the following conclusion in a report drawn up in DATE :

“ This report aimed at giving an overview of current positions found in LOC 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 can not 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 . ”

The ORG has issued , inter alia , the following opinion on the ethical aspects of research involving the use of human embryos in the context of the CARDINALth Framework Programme ( DATE ) :

Legal background

Controversies on the concept of beginning of life and ‘ personhood’

Existing legislation in the Member GPE 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 .

CARDINAL 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 ) NORP human embryos are not considered as human beings and consequently have a relative worth of protection ;

( ii ) NORP 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 NORP countries , when discussing and signing ORG , 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 CARDINAL of the Convention stipulates ‘ where the law allows research on embryos in vitro , it shall ensure adequate protection of the PERSON .

Different approaches regarding the definition of the human embryo

In most Member GPE there is presently no legal definition of the human embryo ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . Among those Member GPE which define the embryo in their legislation , the existing definitions vary considerably from CARDINAL country to another ( GPE , GPE , GPE and GPE ) ...

Different scope of national legislation

Among the Member GPE 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 ( GPE , GPE ) . There are Member GPE where embryo research is exceptionally allowed ( GPE , GPE ) , or allowed under strict conditions ( GPE , GPE , GPE , GPE ) .

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 NORP culture . CARDINAL 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 , can not , 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 NORP 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 DATE . 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 CARDINAL exclusive moral code .

The respect for different philosophical , moral or legal approaches and for diverse national culture is essential to the building of LOC .

From an ethical point of view , the multicultural character of NORP society requires mutual tolerance to be shown by the citizens and political figures of ORG 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 LAW ( ex LAW ) which recognises fundamental rights at Union level notably based on ‘ constitutional traditions common to the Member PERSON . It also declares that ‘ the Union shall respect the national identity of its Member PERSON .

It results from the aforementioned principles , that , in the scope of NORP 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 GPE , but equally taking into consideration diverse philosophical and ethical conceptions , expressed through the practices and the national regulations in force in this field .

In the majority of the member ORG , the offence of unintentional homicide does not apply to the foetus . However , CARDINAL countries have chosen to create specific offences . In GPE a person who negligently causes a pregnancy to terminate is liable to a prison sentence of DATE under LAW of LAW of DATE . In GPE LAW makes it a criminal offence to cause damage to the foetus and LAW an offence to cause an abortion through gross negligence . In GPE Article CARDINAL of LAW lays down that a person who causes damage to another shall be liable to a prison sentence of DATE ; if the victim is a pregnant woman and the damage results in premature birth , LAW prescribes a sentence of DATE imprisonment .


Violation of Art. 6-1;No separate issue under Art. 6-2;Not necessary to examine Art. 6-3-b and 6-3-c;Costs and expenses partial award - Convention proceedings

Both applicants are admitted heroin addicts . Prior to their being convicted and sentenced for drug offences they lived at CARDINAL ORG , a large block of council flats in GPE . Adjacent to their flat , at no . CARDINAL , lived a Mr PERSON . Mr PERSON was also charged with the same offences as the applicants , namely being concerned with the supply of heroin and possession of heroin with intent to supply , but was acquitted .

The prosecution case was that the applicants would prepare wraps ( individual sachets ) of heroin for sale and pass them to Mr PERSON when he knocked on the back window of their flat whenever he had a purchaser . The prosecution alleged that wraps would be handed from the balcony at flat DATE to someone leaning out of the back window of flat CARDINAL . Mr PERSON would then sell the wraps to visitors to his flat .

The applicants and Mr PERSON were observed from CARDINAL to DATE by police and recorded on video from DATE . The applicants were seen to pass various items to Mr PERSON including a plastic bottle for smoking crack cocaine and silver foil for smoking heroin . The prosecution stated that on DATE a man was seen at the back window of flat CARDINAL handing an object which looked like a cigarette packet to the second applicant who was on her balcony . She went into her flat , then re - emerged and returned the packet to the man .

The applicants were arrested at TIME on DATE . In the flat were found CARDINAL wraps of heroin weighing CARDINAL and a further quantity of heroin weighing QUANTITY The prosecution also alleged that a polythene sheet in the flat had been used to make wraps .

At TIME on DATE the applicants ' solicitor , Mr PERSON , noted that the first applicant , who seemed to be in the early stages of withdrawal , was unfit to be interviewed . However , after a CARDINAL- to CARDINAL-minute examination , ORG , PERSON , stated that the applicant was fit for interview . The doctor 's report notes that the first applicant was an opiates addict with symptoms and signs of withdrawal but that he was thinking clearly and able to answer questions . The second applicant was also seen to have withdrawal symptoms but again was stated by ORG to be thinking clearly and able to answer questions .

The transcript of the interviews with the first applicant reveals that Mr PERSON was concerned that his clients were unfit to be interviewed and in some distress . In particular , he had found it difficult to get the second applicant to concentrate on what he was saying to her .

The applicants were interviewed separately in the presence of their solicitor . Both applicants were told by the police :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”

The applicants stated that they understood the warning . They were advised by the police that if during the interview they felt unwell they should say so and the interview would be stopped . At no stage during interview did either of the applicants request this , even though at CARDINAL point the first applicant 's solicitor specifically suggested that this might happen . However , the first applicant expressly stated that he did not want the interview to stop .

The applicants were asked to explain their actions in apparently passing to , and being passed items from , flat CARDINAL . Both simply responded to these questions with the words “ no comment ” .

From DATE to CARDINAL DATE the applicants were tried before a jury at ORG . Both applicants were legally aided and represented by counsel . In a pre - trial hearing counsel for the applicants argued that the interviews should not be put before the jury as they had been carried out whilst the applicants were suffering from drug withdrawal symptoms . Their solicitor , Mr PERSON , testified that he had been of the firm view that neither should embark upon what might prove to be a very lengthy interview given their condition . However , the judge noted that the doctor had considered them fit to be interviewed , that they were thinking clearly and able to answer questions , and that both applicants had stated in response to direct questions that they understood the charges against them and the possible repercussions of failing to answer questions . He therefore considered that Mr PERSON had been wrong in his analysis that the applicants had been unfit to be questioned and allowed their interviews to stand as evidence . The judge further observed that the interviews had been short and were not conducted in an oppressive manner . He noted that in any event the application to exclude the evidence was premature since the defendants had not given evidence , so that it was not clear what facts were going to be relied on in their defence which might reasonably have been expected to have been mentioned . Moreover , it was a matter for the jury , properly directed , to determine the issues .

Both applicants gave evidence at the trial and said that the heroin found in the flat had been for their own personal use and had been purchased in bulk by the first applicant the TIME before their arrest . They stated that the polythene sheet had been planted there by the police after they had been brought to the police station . When asked about the incident recorded on DATE in which the second applicant was seen receiving and then returning a packet to the occupant of flat DATE , the applicants gave explanations which they had not mentioned to the police in their interviews . The first applicant stated that no drugs had ever passed between the flats and that the packet contained either cigarettes or money ; whilst the second applicant stated that it was simply an exchange of a packet of cigarettes . Other items had been passed this way since it was easier than having to go along the walkway of the front of each flat .

The applicants ' co - accused , Mr PERSON , testified at the trial that the applicants had never given him heroin . He confirmed the applicants ' account of their friendship with him and his frequent borrowing , with communication being by the balcony . When he was arrested he was told that he would not get bail which made him angry and “ bloody - minded ” so he decided not to help the police by answering their questions .

When asked why they had made no comment to police questions during interview , both applicants stated that their solicitor 's advice that they were not in a condition to do so , given their withdrawal from heroin , had been conclusive .

In his summing - up the judge made reference to the jury 's ability to draw inferences from the applicants ' silence :

“ I turn to a new topic in our law ... It is the law that these defendants did not mention certain facts when questioned about them in interview by the police . In the past that would not have been evidence that could in any way be held against them but now it is possible that it can be though it is for you to judge whether in fact you do hold it against them .

[ The first applicant ] has relied in evidence on an explanation as to the passing of that cigarette packet , which is the subject of count CARDINAL . ... Firstly , it could have been cigarettes or it could have been money . He also said in evidence to you , ' There were no drugs ever passed through our hands to PERSON ' . He admits that he did not mention that when questioned under caution before being charged ...

I turn now to [ the second applicant ] because she has relied in her own evidence on the fact that she had asked for cigarettes and was passed a packet , took a couple , and handed the packet back . She admits that she did not mention that when she was questioned under caution before being charged . ... Also in [ the second applicant 's ] interview she was asked about another matter , and I deal with this because in her evidence she relied on the fact that on DATE at TIME , a little before the incident with the cigarette packet , she handed PERSON some ' sticky chewing gum ' ... so the chewing gum is again not mentioned . ... She also in the course of her evidence relies on her telling you that there were only innocent , neighbourly exchanges of commonplace items from her balcony and she admits that she never mentioned those matters to the police ...

The prosecution case , members of the jury , is that ( and it is for you to judge whether this assists you in your judgment to reach a verdict ) in the circumstances when each of these defendants were questioned on these topics , he or she could reasonably be expected to have mentioned what they said in court . The defendants explained that their ' no comment ' answers , speaking generally because of course they put it in more detail , the [ applicants ] said they were suffering from withdrawal symptoms and relied on PERSON , their solicitor 's advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the ORG , which means ORG and is in fact a doctor , who comes along to police stations to deal with problems of this sort ...

The law is ... that you may draw such inferences as appear proper from a defendant 's failure to mention the points I have referred to in their respective interviews . In each case it is relevant only to the case against the defendant concerned . You do not have to hold it against him or her . It is for you to decide whether it is proper to do so . Failure to mention the points in interview can not on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty . You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention . Members of the jury that is all I have to say at this stage about the law . ”

The applicants were each convicted by a majority of CARDINAL of being concerned in supplying heroin and possessing heroin with intent to supply . The first applicant was sentenced to a total of DATE imprisonment . The second applicant was sentenced to a total of DATE imprisonment . PERSON , the co - accused , was acquitted on both charges .

The applicants appealed to ORG on CARDINAL primary grounds : the inclusion of the police interviews and the contents of the judge 's direction .

The applicants ' counsel contended before ORG that the trial judge should have excluded the “ no comment ” interviews as they were a direct result of following their solicitor 's honest advice . ORG pointed to problems with that argument in situations where solicitors advised their clients tactically or dishonestly to refuse to answer questions ; the key question was the subjective reason why the applicants had not answered the questions . ORG went on to find that the judge , as the fact - finding tribunal in the voir dire ( submissions on a point of law in the absence of the jury ) , had been correct in his decision to include the notes of interviews in evidence .

ORG rejected the submission that the trial judge had been wrong to allow the jury to draw adverse inferences from the applicants ' failure to answer questions at the interview . Lord Justice Stuart - Smith stated on this point :

“ ... both [ applicants ] knew that ORG certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor . Both were clearly advised by their solicitor that if they failed to mention material facts at the proposed interview , they could be criticised if the matter came to trial . That advice was understood ; he also made it plain that this was entirely their choice . At the beginning of the interview both were given the caution in its current form . ... Both indicated that they understood that caution . Both were told that if they felt unwell during the interview , they could let the interviewer know and it could be stopped . In these circumstances the fact - finding tribunal might well consider that if the [ applicants ] had an innocent explanation of the incriminating evidence about which they were specifically questioned , they would have mentioned it . ”

ORG then considered the applicants ' criticism of the trial judge 's summing - up in so far as he omitted to remind the jury that “ they could only draw an adverse inference if , in spite of any evidence relied upon to explain the failure to mention the relevant matters ( or indeed in the absence of such evidence ) they ORG ] that such failure [ could ] only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently ” . ORG , with reference to the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] Queen 's Bench Reports CARDINAL ) ( see paragraph CARDINAL below ) considered that it would have been desirable if the trial judge had directed the jury along the following lines :

“ If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant 's having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

NORP However , ORG did not find that this lacuna in the summing - up meant that the convictions were unsafe , having regard to the weight of the other evidence . Lord Justice PERSON explained in this connection :

“ We have already referred to the substantial , almost overwhelming evidence of drug supply from what was found in the [ applicants ' ] house . Although there were no scales , all of the other paraphernalia of supply was present . All but CARDINAL of the jury must have rejected the [ applicants ' ] explanation of the police observations , much of which was recorded on video , the presence of the matching wraps in PERSON ' flat and the elaborate security arrangements at the applicants ' own flat . The acquittal of PERSON shows that the jury regarded the evidence of the interviews as insignificant . PERSON also failed to answer questions in interview . ”

ORG dismissed the applicants ' appeal in its judgment delivered on DATE .

Section CARDINAL of ORG LAW DATE provides that :

“ ( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused –

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ) adds that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . The relevance of these dicta to directions under section CARDINAL of the same Act was confirmed by ORG in the instant case .

The Judicial Studies Board guideline direction at the time of ORG consideration of the applicant 's appeal provided that :

“ If he failed to mention ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention .

The law is that you may draw such inferences as appear proper from his failure to mention it at that time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such a fact at that time can not , on its own , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take it into account as some additional support for the prosecution 's case . It is for you to decide whether it is fair to do so . ”

The dicta of Lord PERSON are as follows :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant 's silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant 's having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

The current specimen direction for section DATE , updated in DATE in the light of the judgments of ORG in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) and in the instant case , provides :

“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .

The defendant as part of his defence has relied upon [ ... ] ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .

The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .

If you are sure that he did fail to mention [ ... ] when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

Failure to mention [ ... ] can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution 's case . You are not bound to do so . It is for you to decide whether it is fair to do so .

[ There is evidence before you on the basis of which the defendant 's advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is [ ... ] . If you think this amounts to a reason why you should not hold the defendant 's failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”

In NORP v. ORG confirmed that legal advice is CARDINAL circumstance to be taken into account by the jury . ORG explained CARDINAL conditions that had to be met before section CARDINAL of the CARDINAL Act could allow inferences to be drawn . As regards the sixth condition , Lord ORG stated :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ' in the circumstances ' restrictively : matters such as DATE , the defendant 's age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

In NORP v. FAC ( [ DATE ] Criminal Law Reports CARDINAL ) ORG stressed the defendant 's right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury ( by way of oral evidence from the defendant himself and/or the solicitor who gave the advice ) about the contents of the advice , that is the reason why he was so advised .

The approach in NORP v. PERSON was confirmed in the later cases of NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) and PERSON judgment of DATE , unreported ) .

In NORP v. PERSON ( [ DATE ] ORG CARDINAL ) ORG held that where a trial judge decides , as a matter of law , that no jury could properly conclude that the requirements of section CARDINAL of the CARDINAL Act have been satisfied and , therefore , it is not open to the jury to draw an adverse inference under section GPE ) , he must specifically direct the jury not to draw any inference . In NORP v. PERSON ( judgment of DATE , The ORG , DATE ) ORG ( per Lord Justice Auld ) stated :

“ Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt . Something more may be required , which may be provided by an adverse inference from silence if they think it proper to draw CARDINAL . What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of section CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”

In the ORG 's submission the case of NORP v. PERSON is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under LAW of LAW .

In NORP v. PERSON ( [ DATE ] Criminal Law Reports ) Lord PERSON stated , with reference to section CARDINAL of the DATE Act :

“ Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant 's failure to give oral evidence at his trial until they have concluded that the ORG 's case against him is sufficiently compelling to call for an answer by him . ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ... ”

NORP In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial .

Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG

“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” .

In NORP v. NORP and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG recognised that the omission of the word “ unsatisfactory ” which had been contained in the former section CARDINAL of LAW had changed the law . A conviction will not be liable to be quashed on account only of procedural irregularity , or abuse of process or a failure of justice to be seen to be done . However in NORP v. PERSON


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , ORG at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant arrived at the PERSON airport in GPE with the intention to travel to GPE . The customs found on her QUANTITY and MONEY in cash which she had not reported in her customs declaration . The applicant was charged with smuggling of foreign currency , a criminal offence under LAW .

On DATE the Golovinskiy District Court of GPE found the applicant guilty as charged and imposed a suspended sentence of CARDINAL months’ imprisonment conditional on CARDINAL months’ probation . It also ordered that the applicant ’s money be reverted to the ORG .

Counsel for the applicant submitted a statement of appeal , in which he argued , in particular , that the money had been reverted to the ORG unlawfully since it had not been instrument of any offence .

On DATE ORG upheld the conviction on appeal . As regards the money , it noted as follows :

“ According to a clarification issued by ORG of GPE , objects of smuggling include foreign currency . ”

ORG did not indicate the legal provision , on which the confiscation measure was based .

Counsel filed an application for supervisory review , claiming in particular that the courts had decided on the destiny of physical evidence in breach of the relevant provisions of LAW .

On DATE ORG rejected his application in the following terms :

“ The argument that the court[s ] had breached the requirements of LAW of LAW in making the decision on the destiny of physical evidence – which the currency seized from PERSON was recognised to be – is unsubstantiated because the physical evidence had been reverted to the State in accordance with LAW ( CARDINAL ) of LAW . ”

On DATE ORG of GPE refused institution of supervisory - review proceedings in the case .

On DATE a deputy President of ORG set aside ORG decision of CARDINAL DATE and referred the counsel ’s complaint for examination to ORG of ORG .

On DATE the ORG of ORG reviewed the complaints which had been submitted by the applicant ’s counsel and by the first deputy to the GPE prosecutor , and held that the conviction and confiscation order had been lawful and justified .

On DATE , following a new application for supervisory review introduced by the deputy Prosecutor General , a judge of ORG decided to institute supervisory - review proceedings before ORG .

On DATE ORG upheld the applicant ’s conviction of smuggling under LAW but quashed the confiscation order on the ground that the applicant ’s money had not been criminally acquired or illegally obtained . The amount confiscated was to be repaid to the applicant .

On DATE the ORG requested the ORG to indicate whether the money had been repaid to the applicant .

By letter of CARDINAL DATE , the ORG submitted a payment document , according to which the amount of MONEY had been credited to the applicant ’s account on DATE .

By letters of DATE and DATE , the applicant confirmed that the money had been repaid to her .

LAW of the Russian Federation provides that smuggling , that is movement of large amounts of goods or other objects across the customs border of GPE , committed by concealing such goods from the customs or combined with non - declaration or inaccurate declaration of such goods , carries a penal sanction of up to DATE imprisonment ( LAW ) .


Violation of Art. 8;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant , born in DATE , was a NORP national at the time of the events complained of ; he subsequently obtained NORP nationality .

The applicant is the father of the child PERSON , born out of wedlock on DATE . In a document dated DATE , he acknowledged paternity of the unborn child , and , in a further document dated DATE , he acknowledged paternity and undertook to pay maintenance .

The applicant met the child ’s mother , PERSON , in DATE and in DATE he moved into her flat where they lived together until DATE or , as stated by the applicant , until DATE . In any event , the applicant still visited the child and her mother until DATE , and DATE and DATE he regularly fetched GPE for visits . As from DATE Ms D. prohibited any contacts between the applicant and the child .

On DATE the applicant applied to ORG for a decision granting him a right of access to his daughter on DATE from TIME until TIME as well as on the second DATE and at GPE .

On DATE ORG dismissed the applicant ’s request .

The court , referring to section CARDINAL of LAW ( Bürgerliches Gesetzbuch ) , observed that the mother , in the exercise of her right to custody , determined the child ’s relations with third persons , and that the father could only be granted a right of access by court order , if this was in the interest of the child .

According to the court ’s findings , these conditions were not met in the applicant ’s case . The court noted that ORG and the parties had been heard and that several witnesses had been questioned at a hearing in DATE . The court considered that the applicant ’s wish to see his daughter resulted from his sincere bonds and true affection . Nevertheless , the court reached the conclusion that access was not in the child ’s interest as PERSON had taken such a strong dislike to the applicant and opposed any contacts so firmly that the child would be put into a situation of antipathy and tensions which would probably considerably affect her well - being .

The court saw no special circumstances which , nevertheless , could render such contacts beneficial for the child . The relations which had developed between the applicant and his child during the period of cohabitation could not possibly be of such importance as to take the risk that the child be irritated on account of the mother ’s feelings of dislike . The witnesses , nurses in the day - nursery frequented by the child , had stated that , following the separation and the disruption of contacts with the applicant , the child ’s behaviour had been without any or at least without any significant or lasting peculiarities and that ORG was a well - balanced , happy and open - minded child . The applicant ’s assertion that she missed him and , after the disruption of contacts , had repeatedly inquired after him , had therefore not been proven .

On DATE the applicant appealed to ORG .

On DATE ORG ordered a psychological expert opinion on the question whether contacts with the applicant were in ORG ’s interest . On DATE , following a first conversation with the expert , the applicant challenged her for bias . He also requested that another expert be appointed on the ground that the expert ’s scientific approach did not reflect the latest state of research . On DATE ORG dismissed the applicant ’s request , finding that , taking into account the expert ’s explanations of CARDINAL DATE , there were no reasons to doubt her impartiality or her capabilities .

On DATE the applicant requested ORG to progress with the proceedings . He further applied for a provisional order granting him the right to have access to ORG during TIME DATE and prohibiting her mother from obstructing such contacts .

On DATE ORG dismissed the applicant ’s request for a provisional order of access . ORG found that there was no urgency and that the applicant could be requested to await the outcome of the main proceedings . Furthermore , such an order would anticipate the possible terms of a final decision . The disadvantages for the child , should a provisional order be issued and the request be eventually dismissed in the main proceedings , were more serious than those for the applicant in continuing with the prevailing situation .

In her opinion dated DATE , the expert noted that she had visited the applicant ’s family in DATE and again heard the applicant , the child ’s mother and the child on several occasions DATE and DATE . She reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the interest of the child ’s well - being .

By letter of DATE , ORG , noting that ORG had omitted to hear the child , inquired with the expert about whether hearing the child in court on her relationship with her father would be a psychological strain for her . In her reply of DATE , the expert indicated that she had not directly asked the child about her father . The risk inherent in questioning her about whether she wished to see her father was that , in this conflict between the parents , the child might have the impression that her statements were decisive .

At a court hearing on DATE , the applicant and the child ’s mother entered into an agreement . Under the terms of this agreement , the applicant declared not to have resort to any court proceedings , to refrain from any inquiries in the mother ’s personal environment and not to exercise the right of custody obtained under NORP law on the condition that they would undertake a parental therapy . The proceedings were suspended until termination of this therapy .

On DATE the applicant requested that the proceedings be resumed as the child ’s mother had not approved of the CARDINAL institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal .

On DATE ORG dismissed the applicant ’s appeal .

ORG considered that personal contacts with his child born out of wedlock were supposed to enable the father to verify the development and the well - being of his child and to maintain existing natural bonds . Section CARDINAL and section CARDINAL of the Civil Code thus pursued the same purpose , however , the conditions were different . While , pursuant to section CARDINAL of LAW , the parent not having custody and care had the right to personal contact with the child born in wedlock , section DATE did not grant such a right to the father of a child born out of wedlock . Rather , the person having custody , as a rule the mother , determined if and to what extent the father was entitled to have contacts with his child . Only if contacts were in the interest of the child could the competent court grant a right of access . This weaker legal position resulted from the different social position of the father of a child born out of wedlock . Referring to case - law of ORG of DATE and DATE , ORG found no reason to doubt the constitutionality of section DATE of LAW . The court added that while , for considerations of legal policy , there was an urgent need for a reform of the law on children born out of wedlock , it was bound by the law in force .

ORG considered that such contacts could be ordered only if this was advantageous and beneficial for the child ’s well - being . It could be assumed that , as a rule , such contacts were ordered as regular contacts between a father and his child offered the possibility of a normal development and facilitated the forming of the child ’s own personality . In applying these principles in the applicant ’s case , the court found that the applicant applied for access on the ground of true love for his daughter . However , such responsible motives could not result in granting a right of access which would have to be enforced . The child would suffer from the existing tensions between the parents on the occasion of every contact and her further development would be disturbed . There were no particular circumstances to conclude that contacts would nevertheless be favourable to the child . In this respect , the court found that there had already been tensions between her parents during the period of cohabitation . Furthermore , the expert had established that the child had repressed her memories concerning the applicant and did not talk about this subject in order to protect herself . She did not suffer from the situation .

ORG further considered that the expert opinion was reliable and could not be objected to . The finding that the parents had to start a therapy with a view to overcome their conflicts before the child could have contacts with both of them was independent of the question of responsibility for the said situation . The court finally found that it had not been required to hear the child on her relations to her father as this would have amounted to a psychological strain .

On DATE the applicant filed a constitutional complaint with ORG , complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination , as well as about the alleged unfairness of the taking of expert evidence . ORG acknowledged receipt on DATE .

By letter of DATE the applicant inquired with ORG about the state of proceedings and urged a speedy decision . On DATE the ORG informed him that in a similar case which had been registered at an earlier date a decision was envisaged for DATE .

On DATE the applicant addressed a letter to the President of ORG complaining that the examination of his constitutional complaint had been postponed until DATE . In her reply of CARDINAL DATE the Judge dealing with the applicant ’s case informed the applicant that , due to the heavy workload of ORG in DATE no decision could be taken . A decision was envisaged for DATE . Having regard to the importance of the subject matter , such a decision required careful preparation .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicant ’s constitutional complaint .

The statutory provisions on custody and access are to be found in the NORP Civil Code . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Section CARDINAL § CARDINAL reads as follows ( the ORG ’s translation ) :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to section CARDINAL a § CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be endangered . The family courts may order that the right of access exercised in the presence of a third party , such as a ORG authority or an association .

Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL § CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child ’s interests . The guardianship court shall rule on any dispute over the right to information .

Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Section CARDINAL

“ CARDINAL . The person having custody of the child shall determine the father ’s right of access to the child . Section CARDINAL § CARDINAL , second sentence , applies by analogy .

If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in LAW § CARDINAL .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former section DATE LAW were governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL § CARDINAL ( k ) ) .

As regards the hearing of parents in custody proceedings , section LAW stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child ’s assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .