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D) Case-Law Under the European Convention
DECISIONS OF THE EUROPEAN COURT ON HUMAN RIGHTS The following is a list of cases relevant to reproductive and sexual rights that have been decided by the European Court and the former European Commission of Human Rights. This is not an exhaustive list, but only an indication of the types of cases that may be used to advance reproductive and sexual health rights in the European Human Rights System. The cases listed have been organized according to reproductive and sexual rights that are offered protection under the European Convention. Full texts of these cases, may be found on the European Court of Human Rights web page at http://www.echr.coe.int/. It is important to note that apart from taking a case directly to the court, there are other ways of submitting information to the European Court of Human Rights. Others, such as non-governmental organisations, (NGOs) who are not party to a complaint may nevertheless submit amicus curiae (friends of the court) documentation under Article 36 of Protocol No. 11 to the European Convention.: Right to be Free from Inhuman and Degrading Treatment D. v. United Kingdom (1997), Eur. Ct. H.R., Ser. A, No. , 24 E.H.R.R. 423 (Proposed removal of alien drug carrier dying of AIDS would deny the applicant vital medical treatment and shorten his life thus violating the prohibition of inhuman or degrading treatment under Art. 3). Aydin v. Turkey (1997), Eur. Ct. H.R. 25 E.H.R.R. 251, Reports 1997-VI (complainant was awarded damages after being subjected to rape and other forms of ill treatment amounting to torture under Article 3; complainant also denied right to fair hearing under Art. 6(1)). Right to Procedural Fairness Airey v. Ireland (1979), Eur. Ct. H.R., Series A No. 32 (The state was compelled to provide legal assistance to the applicant, who sought representation in order to obtain a judicial separation from her abusive husband. Failure to provide such representation resulted in the violation of her right to procedural fairness under Art. 6(1), and her right to private or family life under Art. 8). Feldbrugge v. The Netherlands (1985), Eur. Ct. H.R., Ser. A, No. 99; 8 E.H.R.R. 425 (Proceedings that barred the applicant from continuing to receive a health insurance allowance held to violate the right to a fair hearing under Art. 6(1)). X. v. France (1992), Eur. Ct. H.R., Ser. A., No. 234-C (The length of compensation proceedings brought by a haemophiliac infected with the AIDS virus following blood transfusions, violated his right to a hearing within a reasonable time under Art. 6). Stubbings & others v. U.K. (1996), Eur. Ct. H.R., Reports 1996-IV (In view of the protection afforded by the domestic law against the sexual abuse of children and the margin of appreciation allowed to States in these matters, the denial of access of applicants to a court in respect of claims for compensation for psychological injury caused by childhood sexual abuse due to the Limtation Act, did not result in a violation of Art. 8 of the Convention (right to respect for privacy) or Art. 6 (right to a fair trial). Van der Mussele v. Belgium (1983), Eur. Ct. H.R., Series A No. 70 (In the contracting state, the bar was obliged to provide legal representation of indigent persons and thus there was no violation of the applicants right not to be forced into compulsory labour under Art. 4). See also: Aydin v. Turkey under "Right to be free from Inhuman and Degrading Treatment" Schuler-Zgraggen v. Switzerland under "Right to Equality" Right to Private and Family Life M.S. v. Sweden (1997), Eur. Ct. H.R., Reports 1997-I (If the disclosure is proportionate to the legitimate aim pursued, personal and confidential medical data may be communicated by one public authority to another without a patient's consent, without being deemed a violation of the respect for private life under Art. 8). Z. v. Finland (1997), Eur. Ct. H.R., Reports 1997-I (The publication of an applicant's identity and medical condition (HIV positive) by the Finnish Court of Appeal in its judgment dealing with the conviction of her husband for rape and attempted manslaughter, did not pursue a legitimate aim, and was not found to necessary in a democratic society. Therefore the publication of this information was held to be a violation of the applicant's respect to privacy under Art. 8). Keegan v. Ireland (1994), Eur. Ct. H.R., Ser. A, No.290 (The fact that Irish law permitted the secret placement of the child for adoption without the applicant's knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with the applicant's right to respect for family life under Art. 8). Kjeldsen v. Denmark (1976), Eur. Ct. H.R., Ser. A, No. 23, 1 E.H.R.R. 711 (Information in a compulsory sex education course taught in State schools was conveyed in an objective and pluralistic manner, did not constitute indoctrination, and did not disrespect parents' religious or philosophical views, and thus was held to be consistent with the right to family life (Art. 8)). Berrehab v. Netherlands, (1988), Eur. Ct. H.R., Ser. A., No 138, 11 E.H.R.R. 322 (Refusal of the Netherlands' government to grant the applicant a new residence permit after the divorce from his wife meant that he would be unable to continue to visit his daughter, and therefore amounted to interferences with the right to private and family life (Art. 8)). Dalia v. France, (1981), Eur. Ct. H.R., Reports 1998-I (Order permananently excluding from French territory a convicted Algerian woman who had arrived in France when she was 17 or to join her mother and seven brothers and sisters lawfully resident there, and who had an under-age child of French nationality, was not found to violate Article 8 (right to private and family life)). Johnston v. Ireland (1986), Eur. Ct. H.R., Ser. A, No. 112 (Although Art. 8 does not require a state to implement divorce laws, it does require the state to place a child "legally and socially, in a position akin to that of a legitimate child ...". Therefore, a law in Ireland which prevented a child's parents from marrying due to the prohibition of divorce resulted in a failure to respect the child's right to family life under Art. 8).
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