AS TO THE ADMISSIBILITY OF
Application No. 17004/90
by R.H.
against Norway
The European Commission of Human Rights sitting in private on 19
May 1992, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 September 1986
by R.H. against Norway and registered on 9 August 1990 under file No.
17004/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Norwegian citizen, born in 1962. He resides
at Bærum, Norway. Before the Commission he is represented by Mr. Gustav
Høgtun, a lawyer practising in Oslo.
A. The particular facts of the case as submitted by the applicant
In 1986 the applicant lived together with a young Norwegian
woman. They were not married. In June 1986 she became pregnant, the
applicant being the father. In early August they went to Israel and
planted three trees as a symbol of their wish to have the child. The
mother, however, changed her mind and together with the applicant she
consulted a clinic in order to obtain information about a possible
abortion, the applicant however being opposed to such a step.
As the mother was determined to go through with the abortion and
as the foetus was now more than 12 weeks old she was called to appear
before a board of two doctors on 1 September 1986 and state her
reasons. It does not appear that any medical reasons were submitted in
support of an abortion but rather social indications seem to have been
the reasons for the request. The request was granted on the same day
and the abortion was carried out on 5 September 1986, when the foetus
was 14 weeks and 1 day old. The actual abortion followed a routine
procedure according to which the mother received medicine whereby
"birth" was provoked. The foetus would in such circumstances
"suffocate" and appear in the same manner as during normal birth. The
applicant was not entitled to participate in the above proceedings and
was not consulted or heard before the abortion was carried out.
Subsequently the applicant requested the hospital to hand over to him
the remains of the foetus in order to inter them in accordance with his
Jewish faith. However, his request remained unanswered.
Prior to these events, on 31 August 1986, the applicant had
applied for an injunction (begjæring om midlertidig forføyning) in
order to prevent the mother from terminating the pregnancy. The
application was rejected by the City Court on 6 September, by the High
Court on 17 September and by the Appeals Committee of the Supreme Court
on 23 October 1986.
On 10 March 1987 the applicant instituted proceedings in the City
Court of Oslo (Oslo Byrett) against the State represented by the
Ministry of Social Affairs claiming vindication and damages inter alia
on the ground that the abortion allegedly had been carried out contrary
to Articles 2, 3, 8 and 9 of the Convention in respect of himself and
the foetus. By judgment of 14 June 1988, which was rendered following
hearings held from 26 to 31 May 1988, the City Court dismissed some of
the applicant's claims and for the remainder found in favour of the
State. The Court did not find that any Convention rights had been
violated.
The applicant appealed against the judgment to the High Court of
Eidsivating (Eidsivating Lagmannsrett). The Court was composed of three
professional and four lay judges, one of whom was Director of Finances
(økonomichef) at the hospital where the abortion had been carried out.
Hearings were held from 30 October to 3 November 1989. The Court heard
five experts, three witnesses and the representatives of the parties.
Before the High Court the applicant claimed inter alia as follows:
1) that he was entitled to receive information concerning the
foetus,
2) that he was entitled to receive information as to whether a
danger to the mother's life or health was invoked as a reason for the
abortion,
3) that he was entitled to be heard on the question whether or not
to terminate the pregnancy,
4) that the abortion was illegal as being inhuman treatment in
respect of the foetus,
5) that he was entitled to receive the remains of the foetus after
the abortion in order to inter them in accordance with his religion,
6) that he was entitled to have the foetus interred after the
abortion,
7) that it was illegal to put the foetus to death, and
8) that the State was not entitled to allow the abortion since the
mother did not fulfil the requirements under Norwegian law for
terminating the pregnancy after 14 weeks and 1 day.
By judgment of 17 November 1989 the High Court rejected the
applicant's claims. In respect of the Convention the High Court stated
inter alia:
(translation)
"The question arises whether the Norwegian Act on Termination of
Pregnancy violates Article 2 of the Convention when it allows
board approved abortion on social indications in the 15th week
of the pregnancy. The High Court refers as a starting point to
the Supreme Court judgment in the Børre Knutsen case ... . The
Supreme Court left the question open whether Article 2 of the
Convention protects the unborn life at all and stated in this
connection:
'In any case the provision must be regarded as not imposing
any far-reaching restrictions on the legislator's right to
set the conditions for abortion. The Norwegian Act, under
which the woman herself makes the final decision whether or
not to terminate her pregnancy, provided the operation can
be made before the end of the twelfth week of pregnancy, is
similar to the legislation of a number of other countries
belonging to the same culture and which also have acceded
to the European Human Rights Convention. This is hardly
immaterial to the consideration of a matter of
international law.'
This view on the protection of the foetus under the Convention
was expressed by the Supreme Court after considering the
Commission's decisions in the case of X v. the United Kingdom
(No. 8416/79, Dec. 13.5.80, D.R. 19 p. 244) and the case of
Brüggemann & Scheuten v. Germany (Comm. Report 12.7.77).
Thus the High Court finds that a possible protection of the
foetus under Article 2 must be decided on the basis of a balance
of interests to the extent that the protection is adapted to the
degree of biological maturity of the foetus at every stage of its
development on the one hand and the considerations which likewise
speak in favour of allowing the woman to terminate a pregnancy
on the other. The Supreme Court found that an abortion based
solely on the woman's choice within the first 12 weeks of
pregnancy was not in violation of Article 2. Having regard
thereto the High Court does not find that a system, which
protects a foetus in requiring a board to establish that the
pregnancy, birth or care for the child might place the woman in
a difficult situation of life, would be in violation of Article
2 either.
(The applicant) has submitted that the rights of the foetus were
particularly strongly protected under Article 8 of the Convention
due to the agreement he had with the mother not to terminate the
pregnancy.
...
This provision protects the individual's right to family life and
according to the Commission's reasoning in the Brüggemann &
Scheuten case this provision goes far in protecting the woman's
right to abortion. The High Court therefore finds that the
provision does not protect the family as such where this runs
counter to the rights guaranteed to a spouse.
(The applicant) has furthermore invoked Article 3 of the
Convention.
...
The arguments in this respect are based on the assumption that
a 14 week and 1 day old foetus can feel pain. The High Court
finds that this cannot be decisive and recalls that it would not
be contrary to Article 2 to terminate the pregnancy.
Nevertheless, the High Court will not exclude that the foetus may
be protected under Article 3, but this could be so only in
situations which are alien to Norwegian reality. Torture requires
that the evil is intended.
The abortion in this case was carried out with the use of
medicine in that the mother received such medicine as provoked
an abortion by strong contraction of the uterus so that the
foetus dies due to lack of oxygen as the blood supply stops. The
foetus will then come out in the same way as during a birth.
The method is used since it minimises the risk of complications
for the mother. The process takes such a long time that it is not
justifiable from a medical point of view to keep the woman under
anaesthesia. Instead she receives painkillers comparable to
morphine. The experts have stated that it was not possible to
anaesthetise the foetus separately. The possible pain the foetus
may suffer was thus based on medical grounds out of consideration
for the woman. It is furthermore very doubtful whether the foetus
can feel pain at all when it is 14 weeks and 1 day old. The High
Court does not need to consider this since its probability is so
small that Article 3 would not in any event require the
legislator to have regard thereto when considering the woman's
interests which are based on medical reasons. It would be a kind
of pain which is experienced outside the centre of conscience
known to the human brain.
(The applicant) has submitted that Article 8 has been violated
since he was not considered a party during the proceedings before
the board and could not have its decision tried in the courts.
The High Court recalls that the Commission in the case of X v.
the United Kingdom concluded that Article 8 did not protect the
potential father's procedural rights.
...
The Commission found that, when considering what rights a father
had under Article 8, one should take into account the rights of
the woman being the person concerned with the pregnancy and whose
interests should be protected first of all. The Commission
furthermore concluded that the father's right to respect for his
family life did not go as far as giving him such procedural
rights.
...
Finally, (the applicant) has submitted that Article 9 has been
violated since he was not given the remains of the foetus in
order to inter them in accordance with his religious convictions.
...
The right to manifest one's religion is not unlimited when it
violates the rights of others. Having regard to the woman's
rights under Article 8, as interpreted by the Commission in the
case of X v. the United Kingdom, the High Court finds that (the
applicant's) right to manifest his religion was not violated. To
give the foetus to him in order to inter it could be extremely
degrading to the woman who has decided to terminate a pregnancy.
Such a step must accordingly depend on the woman's acceptance.
Therefore the High Court concludes that the European
Convention on Human Rights was not violated."
The applicant asked for leave to appeal against the judgment to
the Supreme Court (Høyesterett). In addition to the issues considered
by the High Court the applicant also complained of the fact that the
Director of Finances at the hospital where the abortion was carried out
had participated as a lay judge. On 22 May 1990 the Appeals Committee
of the Supreme Court refused leave to appeal.
B. Relevant domestic law
(translation)
Act no. 50 of 13 June 1975 on Termination of Pregnancy as amended
on 16 June 1978
"Section 2. If a pregnancy leads to serious complications for a woman
she shall be offered information and advice about the assistance
society may offer her. The woman has a right to advice in order to
enable her to take the final decision.
If the woman considers, after having been offered information
etc. as mentioned and advice in accordance with Section 5, subsection
2, that she nevertheless cannot go through with the pregnancy, she
takes the final decision as regards the termination of the pregnancy
if this can be done before the end of the 12th week of pregnancy and
serious medical reasons do not speak against it.
After the 12th week of pregnancy termination of pregancy may take
place if
a) the pregnancy, birth or care for the child may involve an
unreasonable burden on the woman's physical and mental health. Regard
must be paid to whether she has a predisposition for malady;
b) the pregnancy, birth or care for the child may place the woman
in a difficult situation of life;
c) there is a great danger that the child may contract serious
illnesses as a result of hereditary predisposition, illness or
injurious influence during pregnancy;
d) ...
e) ...
When considering the request for termination based on the
conditions mentioned above under a)-c) regard must be paid to the
woman's entire situation, including her ability to provide care for the
child in a satisfactory way. Particular importance shall be attached
to the woman's own opinion on the situation.
The requirements for accepting termination of pregnancy must
increase with the progress of pregnancy.
After the 18th week a pregnancy cannot be terminated, except if
there are particularly serious reasons for such a step. If there is
reason to presume that the foetus is viable, a termination of pregnancy
cannot be authorised.
...
Section 4. A request for termination of pregnancy shall be made by the
woman herself. ...
Section 5. A request for termination of pregnancy shall be submitted
to a doctor. A request after the 12th week of pregnancy may also be
submitted to a board.
A woman who has requested termination of pregnancy shall be
informed by the doctor (or the board) about the nature of the
intervention and its medical effects. If she so wishes, she shall also
receive the information and advice which is mentioned in Section 2,
subsection 1.
...
Section 7. If the medical intervention cannot be carried out before
the end of the 12th week of pregnancy the doctor shall, after the woman
has received the information etc. as mentioned in Section 5, subsection
2, immediately forward the request together with a written report of
the grounds advanced by the woman and of his own observations, to the
board mentioned in subsection 2. If the request has been sent directly
to the board it shall deliberate and decide as soon as the case is
ready. ...
Decisions on termination of pregnancy are taken, after
consultation with the woman, by a board composed of two doctors.
Section 8. The board's decision to allow or refuse termination of
pregnancy shall be accompanied by reasons. The woman, or her
representative, shall be informed of the reasons for the decision...
...
Section 10. If the pregnancy involves an imminent risk to the life or
health of the woman, it may be terminated regardless of the
requirements set out in this Act."
COMPLAINTS
Under Article 2 of the Convention the applicant complains that
the termination of the pregnancy involving a 14 week old foetus was
unnecessary in order to protect the mother's life or health.
Furthermore, he had entered into an agreement with the mother not to
deprive the unborn child of its life and he had expressly undertaken
to care for the child after its birth. He had vigorously protested
against the abortion from the time it was contemplated by the mother.
Under the circumstances which existed in this case, the applicant
maintains that the lack of protection of the unborn child under
Norwegian law is unsatisfactory and constitutes a violation of Article
2 of the Convention.
The applicant also complains that no measures were taken to avoid
the risk that the 14 week old foetus would feel pain during the
abortion procedure. He submits that this constitutes inhuman treatment
or torture. Furthermore, his request to receive the remains of the
foetus in order that they might be buried in keeping with his religious
beliefs was rejected. This, in his opinion, constitutes degrading
treatment. The applicant invokes Article 3 of the Convention.
The applicant further submits that he had an agreement with the
mother to the effect that an abortion would not be carried out and he
had made clear his willingness to assume sole responsibility for the
child after its birth. Under these circumstances, he complains that
Article 6 has been violated as he had no right to 1) object to the
proposed abortion; 2) apply to the court in order to prevent or
postpone the abortion; 3) be consulted about the proposed abortion; 4)
be informed about the abortion; 5) demand that the abortion board
consist of impartial individuals and 6) request possession of the
unborn child's remains.
Under this provision the applicant also complains that one of the
lay judges in the High Court was an employee at the hospital where the
abortion was carried out, and that therefore his case was not heard by
an impartial tribunal.
Under Article 8 of the Convention the applicant submits that he
and the mother were living together as a family although they were not
married and that he had insisted, and the mother had agreed, that no
abortion would take place. Under these circumstances, so the applicant
alleges, Article 8 of the Convention must ensure that a father to a 14
week old foetus has a minimum of rights regarding his unborn child
where the health of the mother is not endangered. In this case, a
foetus of this age should be considered to be a part of his family.
In respect of Article 9 of the Convention the applicant submits
that the unborn child meant something particular to him and that, at
least at the beginning, the mother shared and accepted this view. The
planting of three trees in Israel, one for each of the parents and one
for the unborn child, illustrates this. The taking of the foetus's life
in the absence of a medical necessity was obviously not in accordance
with that concept nor was the denial of his request to be given the
child's remains in order to inter them.
Such a step would not have implied a lack of respect for the
wishes of the mother. There is no evidence that the mother was asked
about her wishes regarding this matter by the doctors or any other
persons employed by the hospital. Therefore, the applicant finds that
he was unnecessarily denied a manifestation of his conscience and
religion which for him was extremely important and vital to his health
and well-being.
In order to prevent the termination of the pregnancy, the
applicant sought the services of an attorney to intervene on his
behalf. However, the board would not listen to any argument from the
applicant. Furthermore, the applicant's attorney filed a complaint with
the ordinary courts but these complaints were not admitted. No other
effective remedy exists in Norway. The applicant considers this to be
a violation of Article 13 of the Convention.
Finally, the applicant submits that his actions were based on the
conviction that the life of an unborn child should be protected and it
should not be deprived of life for non-medical reasons. His
relationship with the mother rested on that condition which was also
accepted by the mother. Furthermore, the pregnancy and birth of the
child in question was planned. It was the result of an agreement
between two free, independent and equal persons, mature and under no
pressure whatsoever. In these circumstances, the applicant complains
that discrimination exists against him as he was completely excluded
from any decisions made concerning the welfare of his own child. He
refers to Article 14 of the Convention.
THE LAW
1. The applicant complains that under the circumstances which
existed in the present case the lack of protection of the life of the
unborn child under Norwegian law was contrary to Article 2 (Art. 2) of
the Convention.
The Commission accepts that the applicant, as a potential father,
in the circumstances of the present case was so closely affected by the
termination of the pregnancy that he may claim to be a "victim", within
the meaning of Article 25 (Art. 25) of the Convention, of the
legislation complained of as applied in the present case. The
Commission also accepts that he has exhausted domestic remedies as
required by Article 26 (Art. 26) of the Convention for which reason the
Commission must examine whether the case discloses any appearance of
a violation of Article 2 (Art. 2) of the Convention (cf. No. 8416/79,
Dec. 13.5.80, D.R. 19 p. 244).
Article 2 (Art. 2) of the Convention reads:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape
of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot
or insurrection."
The Commission first notes that the term "everyone" is not
defined in the Convention, nor is the term "life" but it finds that
Article 2 (Art. 2) contains two separate though interrelated basic
elements. The first sentence of paragraph 1 sets forth the general
obligation that the right to life shall be protected by law. The second
sentence of paragraph 1 contains a prohibition of intentional
deprivation of life. This prohibition is delimited by the exceptions
mentioned in the second sentence itself and in paragraph 2. The
Commission recalls that in its decision mentioned above it stated:
"All the above limitations, by their nature, concern persons
already born and cannot be applied to the foetus.
Thus both the general usage of the term 'everyone' ('toute
personne') in the Convention ... and the context in which this
term is employed in Article 2 (Art. 2) ... tend to support the
view that it does not include the unborn."
However, the Commission also recalls that the first sentence of
Article 2 (Art. 2) imposes a broader obligation on the State than that
contained in the second sentence. The concept that "everyone's life
shall be protected by law" enjoins the State not only to refrain from
taking a person's life "intentionally" but also to take appropriate
steps to safeguard life (cf. for example No. 11604/85, Dec. 10.10.86,
D.R. 50 p. 259).
The Commission finds that it does not have to decide whether the
foetus may enjoy a certain protection under Article 2 (Art. 2), first
sentence as interpreted above, but it will not exclude that in certain
circumstances this may be the case notwithstanding that there is in the
Contracting States a considerable divergence of views on whether or to
what extent Article 2 (Art. 2) protects the unborn life.
The Austrian Constitutional Court found, for example, that
Article 2 para. 1 (Art. 2-1), first sentence, interpreted in the
context of Article 2 paras. 1 and 2 (Art. 2-1, 2-2), did not cover the
unborn life (Decision of 11 October 1974, Erk. Slg. (Collection of
Decisions) No. 7400, EuGRZ 1975, p. 74) whereas the German Federal
Constitutional Court, when interpreting the provision "Everyone has a
right to life" in Article 2 (2) of the Basic Law stated that
"'everyone'... is 'every living human being', in other words: every
human individual possessing life; 'everyone' therefore includes unborn
human beings" (judgment of 25 February 1975).
When considering the Norwegian abortion legislation in the light
of Article 2 (Art. 2) of the Convention the Norwegian Supreme Court
stated:
"... abortion laws must necessarily be based on a compromise
between the respect for the unborn life and other essential and
worthy considerations. This compromise has led the legislator to
permit self-determined abortion under the circumstances defined
by the Act.
Clearly, such a reconciliation of disparate considerations give
rise to ethical problems, and clearly too, there will be some
disagreement about the system embodied in the Act. The reactions
to the Act show that many ... view it as an attack on central
ethical principles. But it is equally relevant that others - also
from an ethical point of view - regard the Act as having done
away with an unacceptable legal situation.
It is not a matter for the courts to decide whether the solution
to a difficult legislative problem which the legislator chose
when adopting the Act on Termination of Pregnancy of 1978, is the
best one. On this point, different opinions will be held among
judges as among other members of our society. The reconciliation
of conflicting interests which abortion laws require is the
legislator's task and the legislator's responsibility. The
legislative power is exercised by the People through the
Storting. The Storting majority which adopted the Act on
Termination of Pregnancy in 1978 had its mandate from the People
after an election campaign in which the abortion question was
again a central issue, decided moreover not to take the
initiative towards any statutory amendment. Clearly, the courts
must respect the solution chosen by the legislator" (cf. No.
11045/84, Dec. 8.3.85, D.R. 42 p. 247 at p. 253).
Having regard to this it is clear that national laws on abortion
differ considerably. In these circumstances, and assuming that the
Convention may be considered to have some bearing in this field, the
Commission finds that in such a delicate area the Contracting States
must have a certain discretion.
As regards the circumstances of the present case the Commission
recalls that the Norwegian Abortion Act itself allows self-determined
abortion within the first 12 weeks of pregnancy. From the 12th week
until the 18th week of pregnancy a termination may be authorised by a
board of two doctors if certain conditions have been fulfilled. After
the 18th week a pregnancy cannot be terminated, unless there are
particularly serious reasons for such a step. However, if there is
reason to presume that the foetus is viable, a termination of pregnancy
cannot be authorised.
Furthermore the Commission recalls that the mother, after having
received information and advice about the assistance society may offer
her, wanted to terminate a pregnancy of 14 weeks and she appeared
before a board of two doctors who decided, as appears from the High
Court judgment of 17 November 1989, to authorise the abortion, having
concluded that the pregnancy, birth or care for the child might place
her in a difficult situation of life as set out in Section 2,
subsection 3 b of the Act.
As the present case shows there are different opinions as to
whether such an authorisation strikes a fair balance between the
legitimate need to protect the foetus and the legitimate interests of
the woman in question. However, having regard to what is stated above
concerning Norwegian legislation, its requirements for the termination
of pregnancy as well as the specific circumstances of the present case,
the Commission does not find that the respondent State has gone beyond
its discretion which the Commission considers it has in this sensitive
area of abortion. Accordingly, it finds that the applicant's complaint
under Article 2 (Art. 2) of the Convention is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that no measures were taken to avoid
the risk that the 14 week old foetus would feel pain during the
abortion procedure. He submits that this constitutes inhuman treatment
or torture and invokes Article 3 (Art. 3) of the Convention which
reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission has not been presented with any material which
could substantiate the applicant's allegations of pain inflicted upon
the foetus other than what appears from the courts' judgments mentioned
above. Having regard to the abortion procedure as described therein the
Commission does not find that the case discloses any appearance of a
violation of Article 3 (Art. 3) of the Convention. The Commission has
reached the same conclusion in respect of the applicant's complaint
under this provision that his request to receive the remains of the
foetus was rejected. It follows that this part of the application is
also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant submits that he had an agreement with the mother
to the effect that an abortion would not be carried out and he had made
clear his willingness to assume sole responsibility for the child after
its birth. Under these circumstances, he complains that Article 6
(Art. 6) has been violated as he had no right to 1) object to the
proposed abortion; 2) apply to the court in order to prevent or
postpone abortion; 3) be consulted about the proposed abortion; 4) be
informed about the abortion; 5) demand that the abortion board consist
of impartial individuals and 6) request possession of the unborn
child's remains.
Under this provision the applicant also complains that one of the
lay judges in the High Court was an employee at the hospital where the
abortion was carried out, and that therefore his case was not heard by
an impartial tribunal.
In so far as relevant Article 6 para. 1 (Art. 6-1) of the
Convention reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing ... by an ... impartial
tribunal ..."
The Commission recalls that in order for Article 6 (Art. 6) to
apply to the proceedings in question it must first ascertain whether
there was a dispute over a "right" which can be said, at least on
arguable grounds, to be recognised under domestic law (cf. for example
Eur. Court H.R., Skärby judgment of 28 June 1990, Series A, no 180-B,
p. 36, para. 27). It is undisputed that under Norwegian law the
applicant had no right at all to participate in the proceedings
concerning the termination of the pregnancy. Thus he cannot claim on
any arguable ground that he had a right under domestic law. It follows
that this part of the application is incompatible ratione materiae with
the provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
4. Under Article 8 (Art. 8) of the Convention the applicant submits
that he and the mother were living together as a family although they
were not married and that he had insisted, and the mother had agreed,
that no abortion would take place. Under these circumstances, so the
applicant alleges, Article 8 (Art. 8) of the Convention must grant a
father to a 14 week old foetus a minimum of rights regarding his unborn
child, where the health of the mother is not endangered. In this case,
a foetus of this age should be considered to be a part of his family.
In respect of Article 9 (Art. 9) of the Convention the applicant
submits that the unborn child meant something particular to him from
a religious point of view. He complains that the taking of the foetus's
life in the absence of a medical necessity and the denial of his
request to be given the foetus's remains in order to inter them denied
him the right to manifest his conscience and religion.
It is true that Articles 8 and 9 (Art. 8, 9) of the Convention
guarantee the right to respect for private and family life and freedom
to manifest one's religion. However, the Commission finds that any
interpretation of the potential father's right under these provisions
in connection with an abortion which the mother intends to have
performed on her, must first of all take into account her rights, she
being the person primarily concerned by the pregnancy and its
continuation or termination. The Commission therefore finds that any
possible interference which might be assumed in the circumstances of
the present case was justified as being necessary for the protection
of the rights of another person.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant furthermore complains about discrimination as he
was completely excluded from any decisions made concerning the welfare
of his own child. He refers to Article 14 (Art. 14) of the Convention.
The Commission recalls that Article 14 (Art. 14) of the
Convention has no independent existence since it has effect solely in
relation to the enjoyment of the rights and freedoms safeguarded by the
other substantive provisions of the Convention and its Protocols.
Furthermore, it safeguards individuals against discriminatory
differences only if they are placed in analogous situations (cf. for
example Eur. Court H.R., Rasmussen judgment of 28 November 1984, Series
A no. 87, pp. 12 and 13, paras. 29 and 35).
In relation to the termination of a pregnancy and the proceedings
and decisions concerning this the Commission does not find that the
applicant was placed in an analogous situation with the mother.
Accordingly, there has been no discriminatory treatment within the
meaning of Article 14 (Art. 14) of the Convention for which reason this
part of the application must also be rejected as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant finally complains, under Article 13 (Art. 13) of
the Convention, that he had no effective remedy in Norway in respect
of his opposition to the termination of the pregnancy.
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (cf. for example Eur. Court H.R.,
Boyle and Rice judgment of 21 June 1988, Series A no. 131, p. 23, para.
52). However, having regard to its above conclusions in respect of the
Convention complaints submitted the Commission finds that the applicant
does not have any arguable claims. Furthermore, the Commission recalls
that the Norwegian High Court considered all complaints which the
applicant has submitted to the Commission. In these circumstances the
Commission finds no appearance of a violation of Article 13 (Art. 13)
of the Convention. It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)
Full & Egal Universal Law Academy