266 / 532
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PAVEL BUREŠ
CYIL 5 ȍ2014Ȏ
this does not mean
per se
that this legislation is not the right one. If the Court says
the opposite, this means it is not respecting national legislation (and the national
legislature). We can see that this argumentation is rather ideological and not a legal
one. The Court follows a pseudo open-minded ideology of “human” “rights”
28
which
are guaranteed for all in every situation, without accepting that special needs and
desires of individuals becoming “rights” can lead to an erosion of the society. And
if one State even wants to follow another way (perhaps for some historical, cultural,
societal or even religious reasons), thanks to the margin of appreciation doctrine, it is
prevented by the decision of the Court which is far from being convincing.
One could argue that by this decision the Court clearly shows its judicial activism.
We say that by this decision the Court is totally exceeding its jurisdiction (
iurisdictio
– to say what is right). By this decision the Court is first shifting the interpretation of
the Convention in the frames where the majority of States of the Council of Europe
does not want it to be, and, second, the Court is not accepting its role, which surely
is to promote and to contribute to the development of society.
Healthy child – healthy society?
In this symbolic idiom we could summarize another decision of the ECtHR.
It is clear that it may be seen from two different viewpoints. First, feasible – methods
and measures which lead to improving the health of the members of society should be
promoted. Second, more questionable – methods and measures which lead to reducing
number of unhealthy members of society. As in the previous case, the issue looks very
problematic as it relates broadly to ethical issues. The Court in Strasbourg has to bear in
mind that, although its decisions are binding to the case and parties at stake, its case law
plays an important role not only in the argumentation of other cases brought before it
but before national courts deciding on human rights violations as well.
29
The “right to have a healthy child” was considered in the case Costa and Pavan
v. Italy.
30
The case concerns a couple, both healthy carriers of cystic fibrosis. They
complained “
that they had no access to preimplantation genetic diagnosis (PGD) for the
purposes of selecting an embryo unaffected by the disease and alleged that the technique
was available to categories of persons to which they did not belong. They relied on Articles
8 and 14 of the Convention
.“
31
The Court held that Italian legislation is inconsistent in
the way it allows PGD in the case of assisted reproduction technology
32
and does not
allow assisted reproduction technology for the applicants. According to the Court
28
This ideology is reflected as well in the words of the Court in § 137 of the judgment:
“In short, the
domestic courts and the Government relied on the protection of the traditional family, based on the tacit
assumption that only a family with parents of different sex could adequately provide for a child’s needs
.
”
29
That is why the European Court of Human Rights is named the “conscience of Europe”.
30
Costa and Pavan v. Italy, no. 54270/10, 28 August 2012.
31
Ibid.
, § 3.
32
Assisted reproduction technology is allowed in Italy for infertile couples and, since 2008 (the Decree of
the Ministry of Health), for couples in which the man suffers from a sexually transmissible viral disease
( e.g. HIV, hepatics B or C).