Works in progress: New technologies and the European Court of Human Rights

Human Rights Law Review

Volumn 10, Issue 4, 2010, Pages 601-638

  Murphy, Thérèse ^a   Cuinn, Gearóid Ó ^b  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

^b UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 78649647872     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngq038     Document Type: Article

References (210)

1. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5.
2. Human Fertilisation and Embryology Act 1990 (UK) (as amended), available at: http://www.opsi.gov.uk/cts/acts1990/ukpga_19900037_en_1 [last accessed 23 August 2010].
3. S and Marper v United Kingdom 48 EHRR 50 at para. 112. Recently in R(C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193, faced with conflicting authorities from the Court and the House of Lords (now the Supreme Court) on the issue of indefinite retention, the Divisional Court held that it was bound to follow the House of Lords. Leave to appeal was granted, so the Supreme Court will have the opportunity to re-examine the issue.
4. Peck v United Kingdom 2003-I
5. 36 EHRR 41 at para. 57.
6. 45 EHRR 37. Monitoring of telephone usage was also in issue.
7. See, respectively, Kennedy v United Kingdom Application No. 26839/05, 18 May 2010; and Liberty and Others v United Kingdom Application No. 58243/00, 1 July 2008.
8. A82(1984);7EHRR14
9. Soobramoney v Ministry of Health, Kwazulu-Natal 1998 (1) SALR 765 (CC)
10. Government of the Republic of South Africa v Grootbroom 2001 (1) SALR 46 (CC)
11. Minister of Health v Treatment Action Campaign 2002 (5) SALR 721 (CC)
12. 2007-IV; 46 EHRR 34
13. Available at: http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Hudoc/Hudoc+database/ [last accessed 23 August 2010]. The cut-off date for the search was 1 June 2010.
14. Judgments are in English and French or, where the cases are less important, English or French. Our keywords were in English which meant that cases from the latter group reported in French fell outside the search. We made one exception to this rule: Tafltar v Romania, infra n. 81, where the judgment, following from an admissibility decision in English, is available only in French.
15. Restivo, Science, Technology, and Society: An Encyclopedia (New York: Oxford University Press, 2005)
16. And Smith and Tolfree, Roadmapping Emergent Technologies (Leicester: Troubador Publishing, 2009)
17. Brownsword, Rights, Regulation, and the Technological Revolution (Oxford: Oxford University Press, 2008)
18. Brownsword and Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Oxford: Hart Publishing, 2008)
19. Francioni (ed), Biotechnologies and International Human Rights (Oxford: Hart Publishing, 2007)
20. Murphy (ed), New Technologies and Human Rights (Collected Courses of the Academy of European Law), Vol. XVII/2 (Oxford: Oxford University Press, 2009).
21. For a set of proposals on how to regulate emerging technologies, see Mandel, 'Regulating Emerging Technologies', (2009) 1 Law, Innovation and Technology 75
22. Article 15(3), International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR)
23. See the examples cited in Rose and Novas, 'Biological Citizenship', in Ong and Collier (eds), Global Assemblages (Oxford: Blackwell Publishing, 2005) 439
24. See, for example, Petryna, Life Exposed: Biological Citizens after Chernobyl (Princeton NJ: Princeton University Press, 2002)
25. Also Antenna; Artificial limb; Atomic; Biotechnology; Biobank; CCTV; Clone; Cytogenetics; Digital; Database+personal; Electronic archive; Electronic mail; Electronic tag; Enzyme; Genetic+modified/test; Genomic; GPS; Hard disk; Human tissue; Implant; Forensic+fibre/DNA; Internet; Laboratory; Laser; Medical equipment; Microchip; Machine+privacy; Mast; Monitor; Nanotechnology; Nuclear; Neuronal; Pace-maker; Plasmid; Radar; Scanner; Surveillance+systems; Tazer; Transplant; and Ultrasound
26. Also Micro-; Macro-; Cyber-; Auto-; Techno-; and E- (as, for example, in e-commerce)
27. Also Artificial intelligence; Automated; Biometric; Bioterrorism; Biological+terrorism; Calibrate; Computerised; Cloning; Distance Learning; Energy+alternative/clean/green/thermal/wind; Experiment/ation; Hybrid; Intubation; Inventor; Graft; Optical; Environmentally Friendly; Electronic; Magnetic-resonance imaging (MRI); Mechanised; Patent/ee; Technology; Technologies; Technological; Recombinant; Reconnaissance; Respirator; Scientific Progress; ScientificUncertainty; Surgical; Solar; Sustainable;Ventilator; and Xenotransplantation
28. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine 1997, ETS 164 (the 'Oviedo Convention'). Four Additional Protocols have been adopted: on the prohibition of cloning human beings 1998, ETS 168; on transplantation 2002, ETS 186; on biomedical research 2004, ETS 195; and on genetic testing for health purposes 2008, ETS 203. The other Council of Europe instruments used as keywords were: Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981, ETS 108 (Data Protection Convention), and its Additional Protocol regarding Supervisory Authorities and Transborder Flow 2001, ETS 181; Convention on Cybercrime 2001, ETS 185, and its Additional Protocol 2003, ETS 189; European Agreement on the Exchange of Therapeutic Substances of Human Origin 1958, ETS 26, and its Additional Protocol 1984, ETS 109; the European Convention for the Protection of the Audiovisual Heritage 2001, ETS 183; the European Agreement on the Protection of Television Broadcasts 1960, ETS 34 and Protocols 1965, ETS 54 and 1983, ETS 113; and the European Convention on Transfrontier Television 1989, ETS 132. The other (non-Council of Europe) instruments are listed infra nn. 33, 51, 52, 53, 54, 58 and 102.
29. Also: the precautionary principle; informed consent; non-discrimination; freedom of scientific research; public participation; protection of the moral and material interests resulting from one's scientific productions; benefit sharing; the common heritage of humankind; the self-determination of peoples; best interests; respect for human life; integrity of the person; freedom of expression; privacy; confidentiality; access to information; access to justice; and data protection
30. But, as examples of early interventions, seeWeeramantry, JusticeWithout Frontiers: Protecting Human Rights in the Age of Technology:Vols I and II (The Hague: Kluwer, 1997-98)
31. And Expert Group on Human Rights and Biotechnology Convened by the UN High Commissioner for Human Rights: Conclusions on Human Reproductive Cloning, Geneva, 24-25 January 2002
32. For discussion of these tensions, see, respectively, Wüger and Cottier (eds), Genetic Engineering and the World Trade System - World Trade Forum (Cambridge: Cambridge University Press, 2008)
33. Beutz Land, 'Protecting Rights Online', (2009) 34 Yale Journal of International Law 1
34. Article 53(a), European Patent Convention 1973, 1065 UNTS 199
35. See, for example, its 'Science and Society Action Portfolio', available at: http://ec.europa.eu/research/science-society [last accessed 23 August 2010].
36. See in particular European Commission, Communication from the Commission on the Precautionary Principle, COM (2000) 1 final, 2 February 2000, at para. 3.
37. EC-Measures Affecting the Approval and Marketing of Biotech Products, Panel Reports WT/DS291/R, WT/DS292/R, WTDS293/R, 29 September 2006
38. Details available at: http://ec.europa.eu/european_group_ethics/index_en.htm [last accessed 23 August 2010].
39. This is a goal of 'The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizen' (Brussels: European Commission, 2009)
40. See, for example, Directive 98/44/EC on the Legal Protection of Biotechnological Innovations, [1998] OJ L 213/13
41. Convention on the Rights of Persons with Disabilities 2006, 189 UNTS 137 (CRPD)
42. For an analysis of the role played by the EU, see de Bú rca, 'The EU in the Negotiation of the UN Disability Convention', (2010) 35 European Law Review 174
43. Note too that Article 275, para. 2 of the Treaty on the Functioning of the European Union ('the Lisbon Treaty') provides for the accession of the EU to the ECHR.
44. European Union Agency for Fundamental Rights (FRA), Data Protection in the European Union: The Role of National Data Protection Authorities (Belgium: EU Publications, 2010) at 6
45. See, for example, Harris et al., Harris, O'Boyle andWarbrick: Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2009).
46. Specialist texts include: Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge: Cambridge University Press, 2006)
47. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006)
48. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004)
49. On this practice, see Mowbray, 'A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights', (2010) 10 Human Rights Law Review 289
50. Loizidou v TurkeyA 310 (1995)
51. 20 EHRR 99 at para. 93.
52. Krisch, 'The Open Architecture of European Human Rights Law', (2008) 71 Modern Law Review 183
53. Letsas, 'Two Concepts of the Margin of Appreciation', (2006) 26 Oxford Journal of Legal Studies 705
54. In a number of cases, including Airey v Ireland A 32 (1979)
55. 2 EHRR 305 at para. 26, the Court has emphasised that 'there is no water-tight division' separating socio-economic rights from the rights covered in the Convention.
56. See however N v UK 47 EHRR 39 at para. 44: 'Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights'.
57. Section 2(1), Human Rights Act 1998
58. See Lisbon European Council Presidency Conclusions, 23-24 March, available at: http://www.europarl.europa.eu/summits/lis1_en.htm#a [last accessed 23 August 2010].
59. Franklin, Embodied Progress: A Cultural Account of Assisted Conception (London: Routledge, 1997)
60. On the use of technology by state and non-state actors, see Whitty, Mechlam, Pelsinger and Bergsmo, Bekou and Jones, in this issue of the Human Rights Law Review
61. International instruments on environmental mattersçin particular, the Cartagena Protocol to the Convention on Biological Diversity 2000, 2226 UNTS 208, and the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998, 2161 UNTS 447 (Aarhus Convention)çare also of potential interest
62. Available at: http://portal.unesco.org/en/ev.php-URL_ID=12025&URL_D=DO_TOPIC&URL_SECTION=471.html [last accessed 23 August 2010]
63. See, in addition, the Universal Declaration on the Responsibilities of the Present Generations Towards Future Generations 1997
64. See UNESCO Universal Declaration on Cultural Diversity 2001 and related instruments, notably the Convention for the Safeguarding of the Intangible Cultural Heritage 2003 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005, available at the UNESCO portal
65. See also the UN Declaration on the Rights of Indigenous Peoples 2007, adopted by GA Res. 61/295, 13 September 2007, A/RES/61/295.
66. GA Res. 59/280, 23 March 2005, A/RES/59/280 at para. (b), wherein 'Member States are called upon to prohibit all forms of human cloning inasmuch as they are incompatible with human dignity and the protection of human life'.
67. See Human Rights and the Human Genome, Preliminary report submitted by Special Rapporteur Iulia-Antonella Motoc, 10 July 2003, E/CN.4/Sub.2/2003/36.
68. 23 July 2004, E/CN.4/Sub.2/2004/38.
69. 14 July 2005, E/CN.4/Sub.2/2005/38.
70. Human Rights Council Res. 10\26, 9 November 2009, A/HRC/10/9.
71. See para. 1, Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications 2009, available at: http://shr.aaas.org/article15/Reference_Materials/VeniceStatement_July2009.pdf [last accessed 23 August 2010].
72. See further Müller, in this issue of the Human Rights Law Review
73. See, for example, Article 15(1)(b), ICESCR
74. Helfer, 'The New Innovation Frontier: Intellectual Property and the European Court of Human Rights', (2008) 49 Harvard International Law Journal 1 at 6
75. Taking European Knowledge Society Seriously: Report of the Expert Group on Science and Governance (Luxembourg: European Commission, 2007) at 52
76. See, for example, Soering v United Kingdom A 161 (1989)
77. 11 EHRR 439
78. See Juhnke v Turkey 49 EHRR 24 at para. 56; Glass v United Kingdom 2004-II.
79. 39 EHRR 341 at para. 58.
80. IG, MK and RH v Slovakia Application No. 15966/04, 22 September 2009.
81. MAK and RK v United Kingdom Application Nos. 45901/05 and 40146/06, 23 March 2010, at para. 35.
82. SH and Others v Austria Application No. 57813/00, 1 April 2010, at para. 38.
83. Vo v France 2004-VIII
84. 40 EHRR 12 at para. 37.
85. The UDBHR 2005: see main text infras nn. 70 and 71.
86. Balmer-Schafroth and Others v Switzerland 1997-IV
87. 25 EHRR 598 (dissenting opinion of Judge Pettiti)
88. For discussion of negotiations towards an international legally-binding regime on access and benefit sharing, see Nijar, 'Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects', (2010) 21 European Journal of International Law 460
89. In Leander v Sweden A 116 (1987)
90. 9 EHRR 433 at para. 74, the Court emphasised that Article 10's freedom to receive information 'basically prohibits a government from restricting a person from receiving information that others may wish or may be willing to impart to him.' If the guarantee is limited to receiving and imparting, then clearly it provides neither a right of access to information nor an obligation to provide it.
91. See main text infra n. 157.
92. Wilkinson v United Kingdom Application No. 14659/02, 28 February 2006.
93. 'Professional ethics' has featured in case law reviewing decisions made by professional disciplinary bodies: see, for example, Frankowicz v Poland Application No. 53025/99, 16 December 2008.
94. Stambuk v Germany 37 EHRR 42
95. Hertel v Switzerland 1998-VI
96. 28 EHRR 534
97. See, for example, Neulinger and Shuruk v Switzerland Application No. 41615/07, 8 January 2009.
98. X v Denmark 32 DR 282 (1983). On the question of using a medical procedure, without a suspect's consent, in order to obtain evidence of a crime and whether such evidence can be used at trial.
99. See Jalloh v Germany 2006-IX
100. 44 EHRR 667
101. See relatedly Saunders v United Kingdom1996-VI
102. 23 EHRR 313 at para. 69, where the Court said that the Article 6 guarantee of freedom from self-incrimination does not extend to 'the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia,... breath, blood and urine samples and bodily tissue for the purpose of DNA testing.'
103. 2002-III
104. 35 EHRR 1 at para. 65.
105. 2001-IV
106. 35 EHRR 30
107. (Partly dissenting opinion of Judge Marcus-Helmons)
108. See, for example, Stokes, 'The EC Courts' Contribution to Refining the Parameters of Precaution', (2008) 11 Journal of Risk Research 491
109. On the use of the principle in relation to red biotechnologies, see, for example, Brownsword, 'Happy Families, Consenting Couples, and Children with Dignity: Sex Selection and Saviour Siblings', (2005) 17 Child and Family Quarterly 435
110. Tafltar and Tafltar v Romania Application No. 67021/01, 5 July 2007 (and the subsequent French-language judgment, Tafltar v Romania Application No. 67021/01, 27 January 2009); Asselbourg and Others v Luxembourg 1999-VI (inadmissible).
111. Fretté v France 2002-I
112. 38 EHRR 438 (concurring opinion of Judge Costa)
113. And Dolhamre v Sweden Application No. 67/04, 8 June 2009 (dissenting opinion of Judge Zupančič).
114. 47 EHRR 509
115. Stone, 'Margin of Appreciation Gone Awry', (2003) 3 Connecticut Public International Law Journal 271 at 223
116. ETS 58, adopted by the Committee of Ministers of the Council of Europe, 7 May 2008 (revised)
117. See the cases cited infra n. 157.
118. See, in particular, Taşki{dotless}n and Others v Turkey 2004-X
119. 42 EHRR 1127, discussed infra main text at n. 162 ff.
120. See Council of Europe Steering Committee for Human Rights (CDDH), Final Activity Report: Human Rights and the Environment, 29 November 2005, CDDH (2005)016 Addendum II (rev) at 10, presenting this as one of the general principles characterising the Court's case law in the environmental field
121. At para. 69: 'l' évolution du principe d'une conception philosophique vers une norme juridique' (our translation).
122. where the Court said that it was not evident 'that the conditions of operation imposed by the Luxembourg authorities and in particular the norms dealing with the discharge of air-polluting wastes were so inadequate as to constitute a serious violation of the principle of precaution.'
123. CESCR, General Comment No. 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Art.15(1)), 21 November 2005, E/C.12/GC/17.
124. 13 IHRR 613 (2006)
125. So, for example, there were no hits for 'material safeguard for the freedom of scientific research' or 'preventing misappropriation of another's investment'
126. Anheuser-Busch Inc v Portugal 45 EHRR 830 at paras 72 and 78, agreeing with the Commission in Smith Kline and French Laboratories Ltd v The Netherlands (1990) 66 DR 70
127. Melnychuk v Ukraine Application No. 28743/03, 5 July 2005.
128. Paeffgen GmBH v Germany Application Nos 25379/04, 21688/05, 21722/05 and 21770/05, 18 September 2007
129. Heinz v The Contracting Parties also parties to the European Patent Convention (1994) 76-A DR 125 (emphasis added)
130. Bosphorus HavaYollari TurizmVe Ticaret Anonim Şirketi v Ireland 2005-VI
131. 42 EHRR 1 at para. 155.
132. Rambus Inc v Germany Application No. 40382/04, 16 June 2009.
133. KU v Finland Application No. 2872/02, 2 December 2008 at para. 22.
134. Kruslin v France A 176 (1990)
135. 12 EHRR 547 at para. 33.
136. See also Kopp v Switzerland 1998-II
137. 27 EHRR 91 at para. 72.
138. See relatedly Timurtas v Turkey 2000-VI
139. 33 EHRR 121 at para. 66, wherein the Court accepted that a 'photocopied document should be subjected to close scrutiny before it can be accepted as a true copy of an original, the more so as it is undeniably true that modern technological devices can be employed to forge, or to tamper with, documents'.
140. In Times Newspapers Ltd v United Kingdom Application Nos 3002/03 and 23676/03, 10 March 2009, at para. 27, the Court recognised that the 'Internet plays an important role in enhancing the public's access to news and facilitating the dissemination of information generally'.
141. See, for example, Klass and Others v GermanyA 28 (1978)
142. 2 EHRR 214 at para.48.
143. For examples of its application, see Weber and Saravia v Germany 2006-XI
144. 46 EHRR SE5
145. Infra main text at nn. 208-210.
146. For the argument that an 'emerging crime society' requires us to rethink legal protection and embed 'organised distrust' throughout the criminal justice system, see Koops, 'Technology and the Crime Society: Rethinking Legal Protection', (2009) 1 Law, Innovation and Technology 93
147. Application No. 25181/94, 27 November 1996.
148. On the standard, low-level review, see, for example, Markt Intern Verlag GmBH and Klaus Beerman v Germany 12 EHRR 161
149. But see too the dissenting opinion of Judge Pettiti
150. 48 EHRR 11
151. The Court noted (at para. 34) that 'just as the applicant has a legitimate right to have at least the opportunity to deny paternity of a child who, according to scientific evidence, was not his own, [that child] has also an interest in knowing the identity of her biological father.'
152. Previously the Court had held that allowing a legal presumption to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned, is not compatible with the state's obligation to secure 'respect' for private and family life: Kroon and Others v The Netherlands A 297-C (1994)
153. 19 EHRR 263 at para. 40.
154. See SH and Others vAustria Application No. 57813/00, 15 November 2007, where the Court rejected the claims of the applicants, two married couples, that limitations on access to ARTs violated their Article 12 right to found a family. The case did proceed under Article 8, in conjunction with Article 14. The question arose too in Dickson v United Kingdom 46 EHRR 927 at para. 86, where the husband was a prisoner and he and his wife were seeking access to artificial insemination in order to try for a child, but the Grand Chamber decided the case under Article 8 and, because it saw no separate issues arising under Article 12, it made no examination of the applicants' complaint under the latter Article. Article 12 does however mean that the state cannot interfere with married couples having children without assistance: a state programme of compulsory sterilisation or abortion would be a blatant violation of the ECHR.
155. There was dispute as to whether the ex-fiance{currency sign}'s action was to be characterised as a refusal of consent, or a withdrawal of it. The distinction had no impact on the Convention issues.
156. See, respectively, Evans v Amicus Healthcare Ltd [2003] EWHC (Fam) 2161
157. Evans v Amicus Healthcare Ltd [2004] EWCA (Civ) 727
158. Bar in a joint dissenting opinion by Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele in the Grand Chamber. The majority in the Grand Chamber, echoing both the Chamber and the majority in the EWCA, noted that the reasons for finding that Article 8 had not been violated also formed a basis for holding that there had been no violation of Article 14.
159. For discussion see, for example, Thornton, 'European Court of Human Rights; Consent to IVF Treatment', (2008) 6 ICON 317
160. See the joint dissenting opinion of Judges Traja and Mijović in the Chamber, proposing a 'case-specific' test to balance the rights of gamete providers, including a requirement that the party who wishes to use the embryos 'does not intend to have recourse to a surrogate mother'
161. Boyle, 'Human Rights or Environmental Rights: A Reassessment', (2007) 18 Fordham Environmental Law Review 471 at 471
162. In the case of the right of access to information, Protocol No. 1 is also relevant. As regards Article 2.
163. See LCB v Turkey 1998-III
164. 27 EHRR 212
165. Öneryildiz v Turkey 2004-XIII
166. 41 EHRR 20. As regards Article 8.
167. See in particular López Ostra v Spain A 303-C (1994)
168. 20 EHRR 277
169. Guerra v Italy 1998-I
170. 26 EHRR 357
171. 29 EHRR 245 at para.115, it was held that an obligation to take preventive measures applies, subject to certain conditions, when an individual's life is at risk 'from the criminal acts of another individual'. Note that in medical negligence cases it is the procedural obligation to investigate that applies, not the Osman obligation.
172. Francioni, 'International Human Rights in an Environmental Horizon', (2010) 50 European Journal of International Law 41 at 50
173. 'Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose.'
174. X and Y v The Netherlands A 91 (1985)
175. 2004-VI
176. 43 EHRR 1. Note however that the Court accepts that 'the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States' margin of appreciation.'
177. See Odie'vre v France 2003-III
178. 38 EHRR 871 at para. 46.
179. See, for example, Reklos and Davourlis v Greece Application No. 1234/05, 15 January 2009, at para. 39, in which the Court said that it encompasses 'the right to identity...and the right to personal development, whether in terms of personality...or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees'.
180. Dickson v United Kingdom 46 EHRR 927 Article 8 cannot be used to compel the state to provide assisted reproductive technologies
181. Mikulić v Croatia Application No. 53176/99, 7 February 2002 at para.53.
182. Brownsword, 'Friends, Romans, Countrymen: Is there a Universal Right to Identity?', (2009) 1 Law, Innovation and Technology 223, looks at the question whether there is a universal right to identity
183. The Court's decided that there had been no violation of the Convention in that the state's rules achieved a fair balance between the private and public interests involved.
184. For criticism of the decision. See Callus, 'Tempered Hope? A Qualified Right to Know One's Genetic Origin', (2004) 67 Modern Law Review 658
185. A case where the offending images had not been published, which meant that the Court had to examine the right to the protection of one's image. The Court held (at para. 40) that '[a]s a person's image is one of the characteristics attached to his or her personality, its effective protection presupposes... obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image.'
186. See, respectively, Z v Finland 1997-I
187. 25 EHRR 371 at para. 71.
188. Endorsing a view expressed by Baroness Hale in the UK House of Lords (now the Supreme Court)
189. Amann v Switzerland 2000-II
190. 30 EHRR 843 at para. 69.
191. Rotaru v Romania 2000-Vat para. 46.
192. See, in particular, Van derVelden v The Netherlands Application No. 29514/05, 7 December 2005.
193. (1993) 74 DR 120
194. See also X, Yand Z v United Kingdom 1997-II (law on donor anonymity in a transitional phase; hence, state had a wide margin of appreciation)
195. See, for example, Halford v United Kingdom 1997-III
196. 24 EHRR 523
197. See, for example, Hatton v United Kingdom 2003-VIII
198. 37 EHRR 611 at para. 96.
199. Note also Niemietz v Germany A 251-B (1992)
200. 16 EHRR 97, wherein a computer hard-disk was held to constitute 'correspondence'.
201. 25, noting that '[w]hile the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders.'
202. Compare the domestic courts who asked whether there had been an interference by the state with Evans' right to respect for her private life
203. Tyrer v United Kingdom 2 EHRR1at para.31.
204. Paladi v Moldova 47 EHRR 15. We were intrigued too by the Council of Europe's Facebook page dealing with the ECHR, and by the Court's launch of a short Youtube animation on Convention rights as part of the 60th anniversary celebrations for the ECHR.
205. Perhaps the best conclusion as regards Article 12 might be that, on the evidence of Goodwin (Christine) v United Kingdom 2002-VI
206. 35 EHRR 447, its rather moribund status could yet be reversed.
207. On its potential as regards a 'right to procreate'. See Eijkholt, 'The Right to Found a Family as a Stillborn Right to Procreate', (2010) 18 Medical Law Review 127
208. But see the cautionary note struck by De Schutter and Ringelheim, 'Ethnic Profiling: A Rising Challenge for European Human Rights Law', (2008) 71 Modern Law Review 358
209. See Mantavoulou, 'N v UK: No Duty to Rescue the Nearby Needy?', (2009) 72 Modern Law Review 815
210. Draft Memorandum to Recommendation Rec(2003)10 of the Committee of Ministers to Member States on Xenotransplantation - Explanatory Memorandum, 5 June 2003, CM(2002) 132 Addendum, at Appendix, available at: http://wcd.coe.int/ViewDoc.jsp?id=45827 [last accessed 14 September 2010].