ECtHR / Application no. 53924/00 / Judgment

Vo v. France
Policy area
Justice, freedom and security
Deciding body type
European Court of Human Rights
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
08/07/2004
ECLI (European case law identifier)
ECLI:CE:ECHR:2004:0708JUD005392400
  • ECtHR / Application no. 53924/00 / Judgment

    Key facts of the case:

    1) The case originated in an application (no. 53924/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mrs Thi-Nho Vo (“the applicant”), on 20 December 1999.

    ...

    3) The applicant alleged, in particular, a violation of Article 2 of the Convention on the ground that the conduct of a doctor who was responsible for the death of her child in utero was not classified as unintentional homicide.

    ...

    10) On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese origin, attended Lyons General Hospital for a medical examination scheduled during the sixth month of pregnancy.

    11) On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a contraceptive coil removed at the same hospital. When Dr G., who was to remove the coil, called out the name “Mrs Vo” in the waiting-room, it was the applicant who answered.

    After a brief interview, the doctor noted that the applicant had difficulty in understanding French. Having consulted the medical file, he sought to remove the coil without examining her beforehand. In so doing, he pierced the amniotic sac causing the loss of a substantial amount of amniotic fluid.

    After finding on clinical examination that the uterus was enlarged, the doctor ordered a scan. He then discovered that one had just been performed and realised that there had been a case of mistaken identity. The applicant was immediately admitted to hospital.

    Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was unsuccessful and so prescribed an operation under general anaesthetic for the following morning. A further error was then made when the applicant was taken to the operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist.

    12) The applicant left the hospital on 29 November 1991. She returned on 4 December 1991 for further tests. The doctors found that the amniotic fluid had not been replaced and that the pregnancy could not continue further. The pregnancy was terminated on health grounds on 5 December 1991.

    13) On 11 December 1991 the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child. Three expert reports were subsequently filed.

    ...

    17) On 25 January 1993, and also following supplemental submissions by the prosecution on 26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27 November 1991 by:

    (i)  through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant’s live and viable foetus was developing, thereby unintentionally causing the child’s death (a criminal offence under Article 319 of the former Criminal Code – which was applicable at the material time – now Article 221-6 of the Criminal Code);

    (ii)  through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months (a criminal offence under Article R. 40, sub-paragraph 4, of the former Criminal Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-4 of the Criminal Code).

    18) By an order of 31 August 1995, Dr G. was committed to stand trial in the Lyons Criminal Court on counts of unintentional homicide and unintentionally causing injuries.

    19) By a judgment of 3 June 1996, the Criminal Court found that the accused was entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of less than three months. (...)

    20) On 10 June 1996 the applicant appealed against that judgment. She argued that Dr G. had been guilty of personal negligence severable from the functioning of the public service and sought 1,000,000 French francs (FRF) in damages, comprising FRF 900,000 for the death of the child and FRF 100,000 for the injury she had sustained. The public prosecutor’s office, as second appellant, submitted that the acquittal should be overturned. It observed: “By failing to carry out a clinical examination, the accused was guilty of negligence that caused the death of the foetus, which at the time of the offence was between 20 and 24 weeks old and following, normally and inexorably, the path of life on which it had embarked, there being no medical doubt over its future.”

    21) In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries time-barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide. It imposed a six-month suspended prison sentence and a fine of FRF 10,000.

     

    Outcome of the case:

    For these reasons, the Court 

    1. Joins to the merits unanimously the Government’s preliminary objections of the application’s incompatibility ratione materiae with the provisions of the Convention and of failure to exhaust domestic remedies, and dismisses them;
    2. Declares unanimously the application admissible;
    3. Holds by fourteen votes to three that there has been no violation of Article 2 of the Convention.
  • Paragraphs referring to EU Charter

    Paragraphs referring to the EU Charter in the dissenting opinion of Judge Ress (translation): 

    5) It is obvious that the premise of the debate on genetic safeguards in a number of recent conventions and the prohibition on the reproductive cloning of “human beings” in the Charter of Fundamental Rights of the European Union (Article 3 § 2, final sub-paragraph) is that the protection of life extends to the initial phase of human life. The Convention, which was conceived as a living instrument to be interpreted in the light of present-day conditions in society, must take such a development into account in order to confirm the “ordinary meaning”, in accordance with Article 32 of the Vienna Convention.

    Even if it is assumed that the ordinary meaning of “human life” in Article 2 of the Convention is not entirely clear and can be interpreted in different ways, the obligation to protect human life requires more extensive protection, particularly in view of the techniques available for genetic manipulation and the unlimited production of embryos for various purposes. The manner in which Article 2 is interpreted must evolve in accordance with these developments and constraints and confront the real dangers now facing human life. Any restriction on such a dynamic interpretation must take into account the relationship between the life of a person who has been born and the unborn life, which means that protecting the foetus to the mother’s detriment would be unacceptable.

    ...

    9) Since I consider that Article 2 applies to human beings even before they are born, an interpretation which seems to me to be consistent with the approach of the Charter of Fundamental Rights of the European Union, and since France does not afford sufficient protection to the foetus against the negligent acts of third parties, I find that there has been a violation of Article 2 of the Convention. As regards the specific measures necessary to discharge that positive obligation, that is a matter for the respondent State, which should either take strict disciplinary measures or afford the protection of the criminal law (against unintentional homicide).