2. Reproductive rights

ducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of undermining victims’ trust in the justice system (J.L. v. Italy, §§ 139-141). 113. In cases of domestic violence, the Court also holds States responsible for protecting victims, particularly when the risks of violence are known by State officers and when officers fail to enforce measures designed to protect victims of violence (Levchuk v. Ukraine; Bevacqua and S. v. Bulgaria; A v. Croatia; Hajduová v. Slovakia; Kalucza v. Hungary; B. v. Moldova). The State also has a positive responsibility to protect children from witnessing domestic violence in their homes (Eremia v. the Republic of Moldova). The Court will also apply its child custody and care jurisprudence (see below), with particular deference to removal decisions based on patterns of domestic violence in the home (Y.C. v. the United Kingdom). In Buturugă v. Romania, the Court emphasised the need to comprehensively address the phenomenon of domestic violence in all its forms. In examining the applicant’s’ allegations of cyberbullying and her request to have the family computer searched, it found that the national authorities had been overly formalistic in dismissing any connection with the domestic violence which she had already reported to them. The applicant had been obliged to submit a new complaint alleging a breach of the confidentiality of her correspondence. In dealing with it separately, the authorities had failed to take into consideration the various forms that domestic violence could take.

114. States should also provide adequate protection for dangerous situations, such as for a woman attacked in her home or for a woman who had acid thrown on her face (Sandra Janković v. Croatia; Ebcin v. Turkey). This is particularly true when the State should have known of a particular danger. For example, the Court found a violation when a woman was attacked by stray dogs in an area where such animals were a common problem (Georgel and Georgeta Stoicescu v. Romania, § 62). 115. However, the Court does require a connection between the State and the injury suffered. If there is no clear link between State action (or inaction) and the alleged harm, such as fighting between school children, then the Court may declare the case inadmissible (Đurđević v. Croatia). 116. Conditions of detention may give rise to an Article 8 violation, in particular where the conditions do not attain the level of severity necessary for a violation of Article 3 (Raninen v. Finland, § 63 ; Szafrański v. Poland, § 39). Also, the requirement to undergo a strip search will generally constitute an interference under Article 8 (Milka v. Poland, § 45).

2. Reproductive rights18

117. The Court has found that the prohibition of abortion when sought for reasons of health and/or wellbeing falls within the scope of the right to respect for one’s private life and accordingly within Article 8 (A, B and C v. Ireland [GC], §§ 214 and 245). In particular, the Court held in this context that the State’s obligations include both the provision of a regulatory framework of adjudication and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures (ibid., § 245; Tysiąc v. Poland, § 110; R.R. v. Poland, § 184). Indeed, once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, the legal framework derived for this purpose should be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in

18 See also Medically assisted procreation/right to become genetic parents under Family life.

accordance with the obligations deriving from the Convention (A, B and C v. Ireland [GC], § 249; R. R. v. Poland, § 187; P. and S. v. Poland, § 99; Tysiąc v. Poland, § 116). 118. In P. and S. v. Poland, the Court reiterated that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent (see also Evans v. the United Kingdom [GC], § 71; R.R. v. Poland, § 180; Dickson v. the United Kingdom [GC], § 66; Paradiso and Campanelli v. Italy [GC], §§ 163 and 215). In fact, the concept of “private life” does not exclude the emotional bonds created and developed between an adult and a child in situations other than the classic situations of kinship. This type of bond also pertains to individuals’ life and social identity. In certain cases involving a relationship between adults and a child where there are no biological or legal ties the facts may nonetheless fall within the scope of “private life” (Paradiso and Campanelli v. Italy [GC], § 161). 119. The circumstances of giving birth incontestably form part of one’s private life for the purposes of Article 8 (Ternovszky v. Hungary, § 22). The Court found in that case that the applicant was in effect not free to choose to give birth at home because of the permanent threat of prosecution faced by health professionals and the absence of specific and comprehensive legislation on the subject. However, national authorities have considerable room for manoeuvre in cases which involve complex matters of healthcare policy and allocation of resources. Given that there is currently no consensus among Member States of the Council of Europe in favour of allowing home births, a State’s policy to make it impossible in practice for mothers to be assisted by a midwife during their home births did not lead to a violation of Article 8 (Dubská and Krejzová v. the Czech Republic [GC]). 120. The right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is protected by Article 8, as such a choice is a form of expression of private and family life (S.H. and Others v. Austria [GC], § 82; Knecht v. Romania, § 54). The same applies for preimplantation diagnosis when artificial procreation and termination of pregnancy on medical grounds are allowed (Costa and Pavan v. Italy). The latter case concerned an Italian couple who were healthy carriers of cystic fibrosis and wanted, with the help of medically-assisted procreation and genetic screening, to avoid transmitting the disease to their offspring. In finding a violation of Article 8, the Court noted the inconsistency in Italian law that denied the couple access to embryo screening but authorised medically assisted termination of pregnancy if the foetus showed symptoms of the same disease. The Court concluded that the interference with the applicants’ right to respect for their private life and family life had been disproportionate. With regard to prenatal medical tests, the Court found a violation of Article 8 in its procedural aspect where the domestic courts failed to investigate fully the applicant’s claim that she had been denied adequate and timely medical care in the form of an antenatal screening test which would have indicated the risk of her foetus having a genetic disorder and would have allowed her to choose whether to continue the pregnancy (A.K. v. Latvia, §§ 93-94). 121. Where applicants who, acting outside any standard adoption procedure, had brought to Italy from abroad a child who had no biological tie with either parent, and who had been conceived –according to the domestic courts – through assisted reproduction techniques that were unlawful under Italian law, the Court found that there was no family life between the applicants and the child. It considered, however, that the impugned measures pertained to the applicants’ private life, but found no violation of Article 8 since the public interest at stake weighed heavily in the balance, while comparatively less weight was to be attached to the applicants’ interest in their personal develop-