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Improving Participatory Rights: the ECHR Case Law

di - 29 Novembre 2010
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In the case the applicant was a pregnant woman who suffered from severe myopia. As she was worried about the possible impact of the delivery on her health, she decided to contact a state hospital after several medical exams, with a view to obtaining the termination of her pregnancy, according to the Polish law. She was examined by the doctors visually and for a period of less than five minutes in the hospital, without the possibility to express her point of view about a risk of blindness because of her pregnancy. The applicant’s pregnancy was not terminated. As a result, after the delivery, she had a deterioration of her eyesight and the national disability panel declared her to be significantly disabled. In the domestic judicial review, the District Court in a final decision, not subject to further appeal, considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant’s vision.
In application to the European Court of Human Rights, the woman complained a breach of art. 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and by the absence of a comprehensive legal framework to guarantee her rights as far as the State’s positive obligation is concerned.
The European Court previously held that private life includes a person’s physical and psychological integrity. While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – «be also assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be»[19].
According to the Court, the general concepts of lawfulness and rule of law in a democratic society request that proceedings involving the rights safeguarded by art. 8 ECHR guarantee a pregnant woman at least a possibility to be heard in person and to have her views considered by the public authority. The competent body should also issue written grounds for its decision.
The Court therefore concluded that in the case there was a breach of art. 8 ECHR because the Polish authorities failed to comply with their positive obligations to grant the applicant the effective respect for her private life through an adequate procedural instrument.
The individuals need, as the Strasbourg Court has pointed out in the Tysiac case, a procedural instrument by which they can vindicate their right to respect for their private and family life.
Thus the Court underlines the relevance of the individual participation in the administrative proceedings with a view of safeguarding the substantive right enshrined in art. 8 ECHR.
In other judgments the Strasbourg Court goes further and considers the relevance of public participation in a ‘rule-making’ procedures as a key-element of the protection of the right to respect for private and family life. In this view the participation of individuals and private parties in administrative proceedings does not only fulfil the aim of defence, but also the function of co-decision in the administrative action finally taken by the public authority[20].
In the case Hatton and others v. United Kingdom, concerning the right to respect for private life (art. 8 ECHR) and the disturbance from night-time aircraft noise at Heathrow, the European Court stressed the importance of considering «all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available»[21].
In the well known case of the Great Chamber Evans v. United Kingdom, the question arose under art. 8 was whether f the Contracting State is vested with the obligation to ensure that a woman who subjected herself to a medical treatment with the purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner, the male gamete provider[22].
The solution adopted in domestic law by the Human Fertilisation and Embryology Act 1990 was to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent.
The Court excluded that the consent provisions of the 1990 Act were found in breach of art. 8 ECHR. The Great Chamber, in accordance with the previous judgment of the Fourth Section[23], held that it was relevant that the 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate.
As the result of a fair balance between the competing interests involved in the case, and because of their nature of clear provisions brought to the attention of the applicant, the domestic rules do not violate art. 8 rights.


19.  See in particular § 107 of the above mentioned judgment.

20.  For a deep analysis of the meaning of “participation” in administrative proceedings see F. Satta, Contraddittorio e partecipazione nel procedimento amministrativo, in, who underlines that the primary aim of the participation is «contribuire alla formazione delle decisioni dell’autorità amministrativa affinché meglio si conoscano gli interessi coinvolti e se ne tenga conto. Il punto cruciale per comprendere il significato profondo della partecipazione è che tali interessi non necessariamente si contrappongono all’assetto verso cui si orienta l’amministrazione. Possono benissimo cospirare con esso, e sollecitare una miglior definizione del provvedimento». On this regard see also S. Cassese, La partecipazione dei privati alle decisioni pubbliche. Saggio di diritto comparato, Riv. Trim. Dir. Pubbl, 2007, 13.

21.  Judgment of 8 July 2003, Hatton and others v. United Kingdom, in, § 104. In the case in question it was relevant that the authorities had consistently monitored the situation and that the 1993 Scheme for regulating night flights at Heathrow had been preceded by a series of investigations and studies carried out over a long period of time. The Strasbourg Court also underlined that the new measures introduced by the 1993 scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. This paper was published and sent to the bodies representing the aviation industry and the people living near airports. The applicants and persons in a similar situation thus had access, according to the Court, to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate In these circumstances the Court did not find a violation of Article 8 ECHR because there had not been fundamental procedural flaws in the preparation of the 1993 regulation on limitations for night flights. As the Court pointed out in the case, the authorities were successful in striking a fair balance between the right of the individuals affected by this regulation to respect their private life and home and the conflicting interests of others and of the community as whole. The Hatton case is followed in the European case law by the judgments 27 January 2009, Tatar v. Romania; and 13 September 2006, Öçkan and others v. Turkey, both in

22.  Judgment of 10 April 2007, Evans v. United Kingdom, in

23.  Judgment of 7 March 2006, Evans v. United Kingdom, in

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