Applicant name Bruggemann and Scheuten
Applicant type Natural person
Country Germany
Decision no. 6959/75
Date 19/05/1976
Institution Commission
Type Decision
Outcome Art. 8 Admissible
Type of privacy Bodily privacy
Keywords Positive freedom; abortion; in abstracto; chilling effect
Facts of the case Due to a law and a supreme court decision, restrictions have been placed on the right to abortion. The applicants are neither pregnant nor want abortion, but still claim that this legal restriction interferes with the right to private life.
Analysis Four points are of interest in this case:

1. Does the matter fall under the scope of Article 8 ECHR ratione materiae? Yes, the Commission holds, referring to its X. v Iceland decision a month earlier, where it held that the right to privacy also contains a positive element. This also includes, the Commission now finds, the right to engage in sexual relationships. Interestingly, the Commission ads that pregnancy and its interruption does not only fall under the right to private life, but may, under circumstances, also fall under the material scope of the protection of family life. Why and under which circumstances it does not say.
2. Does the matter fall under the Convention ratione personae? This is perhaps an even more complicated questions, because the applicants do not seem to be a victim of the legal limitations. The government reiterates that the Commission may not judge on in abstracto claims. Why the Commission finds the claim admissible nevertheless is not claim, but presumably because of the chilling effect the law has on their private lives. If applicants do not want to give birth, they either have to abstain from sex or use contraceptives. The Commission merely holds ‘that legal regulation of abortion is an intervention in private life which may or may not be justified under Article 8(2).’
3. The Commission does not analyse whether such is justified or not, but declares the case admissible. It does not explain why the complaint cannot be declared inadmissble on the ground that the regulation of abortion is necessary in a democratic society and aims at protecting the health and morals (or potentially the rights and freedoms of others).
4. The Commission deals with the case under Article 8 ECHR, although it does not exclude that Article 12 ECHR may also be applicable. It is interesting that with some rights, a negative right is deduced, such as that the freedom of association also includes the freedom not to join an association, but that the Commission and the Court are hesitant to apply similar reasonings with respect to life and death. For example, they do not find that the right to live (Article 2 ECHR) also includes a right to die (e.g. euthanaisa), but rather treat it as a matter concerning the right to private live, just like they are hesitant to stress that the right to found a family (Article 12 ECHR), also includes a right not to found one.

Documents Decision