CYIL Vol. 4, 2013

LUDOVICA POLI

CYIL 4 ȍ2013Ȏ

V. An ex parte Assessment of the European Consensus? Perfectly in line with its previous case law, the Court made a comparative analysis of domestic legal systems to assess whether a European consensus on the PID exists. According to the surveys completed by the Council of Europe’s Steering Committee on Bioethics and the European Commission’s Joint Research Centre, 31 PID is not permitted in Italy, Austria and Switzerland. 32 It is expressly authorized in 17 countries within the Council of Europe 33 and applied in Turkey, Slovakia and Cyprus, despite the lack of specific internal rules on the matter. The presence of a general agreement among Council of Europe Member States on certain standards and principles is commonly used by the Court to determine the extent of the States’ margin of appreciation in a specific matter, because the European consensus carries with it the weight of the legal tradition of the entire European system. It also provides a basis for evolving rights to be incorporated into the general provisions of the Convention. Finally, it provides relatively objective guidance to the interpretation of those provisions. 34 As a rule, therefore, the lack of consensus on a particular issue in Europe is the basis for the recognition of a wider margin of appreciation by the Court, which cannot be decreased where consensus is not yet present. 35 In the present case, the ECtHR did not limit the relevance of its assessment to the identification of the scope of the margin of appreciation, but rather it used the European consensus to strengthen its conclusions as to the infringement of Article 8 of the ECHR. The Court recognized a violation of the applicants’ right to private and family life, referring to the lack of proportionality of the prohibition of PID under the Italian legal system, in the light of the possible access to therapeutic abortion. Thus, its findings in no way were related to a limited scope of the respondent’s margin of appreciation on the issue: on the contrary, the margin itself appears to be reinforced in the Court’s reasoning. This notwithstanding, before moving to its conclusions, the Court felt the need to recall the comparative analyses’ results mentioned in the first part of its judgment. More precisely, it stated that the ban of PID is 31 Council of Europe, Steering Committee on Bioethics, ‘The protection of the human embryo in vitro, Report by the Working Party on the Protection of the Human Embryo and Fetus’ (19 June 2003) CDBI-CO-GT3 (2003) 13; Joint Research Centre of the European Commission, ‘Pre-implantation Genetic Diagnosis in Europe’ (December 2007) EUR 22764 EN. 32 The Swiss regulation, however, is currently under revision: Costa and Pavan v. Italy (n 4), para. 70. 33 The pre-implantation genetic diagnosis is allowed and practiced in Germany, Belgium, Denmark, Spain, Finland, France, Georgia, Greece, Norway, Netherlands, Portugal, Czech Republic, United Kingdom, Russia, Serbia, Slovenia and Sweden: Costa and Pavan v. Italy (n 4), para. 31. 34 Thomas A O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982), Human Rights Quarterly 474, 480. See also Eyal Benvenisti, ‘Margin of appreciation, consensus, and universal standards’ (1998) NYU Journal of Int. Law & Politics 843. 35 S.H. and others v . Austria (n 4), para. 94.