Report 6959/75

Applicant name Bruggemann and Scheuten
Applicant type Natural person
Country Germany
Decision no.6959/75
G . Sperduti
C .A . NOrgaard
E . Busuttil
L . Kellberg
B . Daver
T . Opsahl
J . Custers
J .A . Frowein
R .J . Dupuy
G . Tenekides
S . Trechsel
B .J . Kiernan
N . Klecker
Institution Commission
Type Report
Outcome Art. 8 No violation
Reason No interference
Type of privacy Bodily privacy
Keywords Positive freedom; abortion; in abstracto; chilling effect
Facts of the case See Decision
Analysis While the Commission in its admissibility decision declared admissible all claims by the applicants, such as with reference to Article 8, 9, 11, 12 and 14 ECHR, in its report, it adopts a quite different tone, stressing at the outset: ‘The Commission now finds unaniLiously that the legal provisions complained of do not in any way .interfere with any of the other Corivention rights invoked by the applicants and that, consequently, the only issue arising under the Convention in the present .case is the question whether or .not the rules on abortion existing under German law since .the judgment of the Federal Constitutional Court of 25 February 1975 violate the applicants’ right under Art .. 8 of the Convention to respect for their private life.’

Rather remarkable, it stresses right away that pregnancy is not only a private matter. ‘Thus, in its decision on the admissibility of Application No . 6825/75, X . against Iceland, the Commission held that the concept of private life in Art . 8 was broader than the definition given by numerous Anglo-Saxon and French authors, namely the “right to live as far as one wishes, protected from publicity”, in that it âlso comprises,” to .a certain degree , (1) the right to establish and to develop relationships with other human beings, especially in the emotional field for the development acid fulfilment of one’s own personality”. But it denied “that the protection afforded by Art .’8 of the Convention extends to relationships of the individual with his entire immediate surroundings” . It thus found that the right to keep a dog did not pertain to the sphere of private life of the owner because “thè keeping ôf dogs is by the very nature of that animal necessarily associated with certain’ intërféréncès with thé lifè of others and even with public life .” (Decisions and Reports Vol . 5, p . 86 at p . 87) . In two further cases the Coamnission has taken account of the element of public life in connection with Art . 8 of the Convention. It held that subsequent communication of statements made in the course of public proceedings (Application No . 3868/68, X. âgainst the United Kingdom ; Collection of Decision 34, p . 10 at p . 18) or the taking of-photographs of a,person participating in a public incident .(Application No . 5877/72, X . against the United Kingdom, Collection of Decisions 45, p . 90 at p . 93) did not âmount to interference with private life. The termination of an unwarited prègnancy . is not comparable with the situation in any of the above cases . However, pregnancy cannot be said to pertain uniquely to the sphere of private life .’ Whenever a woman is pregnant her private life becomes closely connected with the,developing foetus.’

It continues by holding: ‘The Commissioin does notfind it necessary to decide, in this context, whether the unborn child is to be considered as “life” in the sense of Art. 2 of theConvention, or whether it could be regarded as an entity which under Art .8(2) .côuld justifÿ an interference “for the protection of others” . There can be no doubt that certaia interests relating to prégnancy are legally protected, e .g . asshown by a survey of the legal ôrder in13 High Contracting Parties (1) . This survey reveals that, without .exception; certain rights are attributed to .the conceived but unborn child, in particular the right to inherit. The Commission aiso notes that Art . 6(5) of the United Nations Covenant on Civil and Political Rights prohibits the execution of death sentences on pregnant women. The Commission.therefore finds that not every regulation of the termination of unwanted pregnancies constitutes an interference with the right to respect for the private life of the mother . Art . 8(1) cannot be interpreted as meaning that pregnancy and its termination are,as a principle, solely a matter of the private life of the mother . In this respect the Commission notes that there is not one Member State of the Convention which does not, in one way or another, set up legal rules in this matter. The applicants complain abôut the fact that the Constitutiônal Côurt declared null and void the Fifth Criminal Law Reform Act, but even this Act was not based on the assumption that abortion is entirely a matter .of the private life of the pregnant woman. It only provided that an abortion performed by a physician with the pregnant woman’s consent should’ not be punishable if no more than twelve weeks had elapsed after conception.’

Subsequently, the Commission points out that the German law leaves the possibility for abortion open in a number of circumstances. Hence, the Commission finds that there is no interference. It is a bit difficult to determine the exact reasoning of the Commission: (1) It seems that the Commission finds that the matter invoked does fall under Article 8 ECHR ratione materiae, but then again, it also seems to imply that abortion is not a matter that is merely an aspect of private life. By referring to the decision of X. v. Iceland, in which the question of ratione materiae was at issue, it sometimes seems like the Commission is determining the material scope of Article 8 ECHR. (2) An other possibility could be that the Commission finds that the matter is covered by Article 8 ECHR, but that there is not inference. This reasoning would be is difficult to follow, because obviously, the law sets limits to the posibility for abortion when the special circumstances mentioned in the law do not apply. (3) Perhaps then, a third interpretation is that the Commission finds that the matter falls under the scope ratione materiae of Article 8 ECHR and that there is an interference, but that this interference is not substantial. This would amount to a de minimis principle, later incorporated explicitly in Article 35 para 3 sub b ECHR.

Finally, it is valuable to discuss the closing statement by the Commission. ‘Furthermore, the Commission has had regard to the fact that, when the European Convention of Human Rights entered into force, the law on abortion in all Member States was at least as restrictive as the one now complained of by the applicants. In many European countries,the problem of abortion is or has been the subject of heated debates .on legal reform since. There is no evidence that it was the intention of the Partiesto the Convention to bind themselves in favour of any particular solùtion under discussion – e .g. a solution of the kind set out in .the Fifth Criminal Law Reform Act (“FristenlSsung” -,time limitation) which was not yet under public discussion at the time the Convention was drafted and adopted.’ This is a remarkable point the Commission makes, for a number of reasons. (1) Most often, the Commission and the Court adopt a ‘living instrument’ approach, not feeling bound directly by what the authors of the Convention wanted or intended to do. (2) It is unclear where the Commission bases its conclusion on that the authors of the Convention did not intend to restrict the prevailing limits on abortion. From the fact that such is not explicly mentioned in the traveaux preparatoires? This would hold true for most aspects being put before the Commission and the Court and would lead to a very conservative interpretation of the Convention. (3) The Commission’s argument, which is also evidence by a last remark “The Commission finally nôtes that, since 21 June 1974, the relevant legal situation has gradually become more favourable to the applicants” seems to be that the the possibilities for abortion have been widened since the ECHR entered into force, which hardly proves that there is no interfence, but rather that if there was an interference with applicant’s rights in the first place, that interference is now less intrusive.

Documents Report