Brüggemann and Scheuten v. Federal Republic of Germany
Germany, European Commission of Human Rights

Brüggemann and Scheuten v. Federal Republic of Germany

DATE 12-07-1997DOWNLOAD LEGAL DECISION

Judges:

Sperduti

Sperduti

Norgaard

Norgaard

Busuttil

Busuttil

Kellberg

Kellberg

Daver

Daver

Opsahl

Opsahl

Custers

Custers

Frowein

Frowein

Dupuy

Dupuy

Tenekides

Tenekides

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Topics:

AbortionIntersectional Discrimination

Related standards:

European Convention on Human Rights Article 8

RELATED STANDARDS

European Convention on Human Rights Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

WHY IT MATTERS:

The case has questionable precedential value as it is a dated decision issued by the Commission.
The European Commission of Human Rights found that law reforms criminalizing abortion in Germany did not constitute an interference with the right to respect for one's private life as guaranteed by Article 8 of the European Convention on Human Rights.
Applicants challenged law reforms imposing criminal sanctions for performing abortions in Germany. Upon review of the law, the German Constitutional Court held that the life of the fetus had priority over the woman's right to self-determination. The Court found that abortion could be obtained after consultation when the woman's life or health were endangered. Applicants claimed that the law interfered with the right to respect for their private life in violation of Article 8 of the European Convention on Human Rights.
Article 8
Declining to decide whether the right to life as guaranteed by Article 2 applies to the unborn, the Commission limited its holding to Article 8. It found that the criminalization of abortion did not constitute an interference in the right to respect for one's private life. It stated, "Article 8 (1) cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother." The Commission further noted that the law in question took into account questions of privacy in that it "recognized the medical, eugenic and ethical indications."

In a convoluted discussion concerning the distinction between public and private life, the Commission stated, "the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests." By way of explanation, it made analogies, such as the keeping of a dog and the utterance of statements or photographs taken in public.

Finally, the Commission noted that the question of abortion had been and continued to be one of public discussion, and despite evolving standards, when the Convention entered into force, abortion was restricted in every member-state. It thus reasoned that there was no evidence that the Convention reflected an intention by member-states toward adopting one particular solution to the issue.

Dissent
Mr. J.E.S. Fawcett dissented, finding the commencement and termination of pregnancy to be covered by Article 8 (1). He wrote, "it would be hard to envisage more essentially private elements in life." Distinguishing between intervention and interference, he found the regulation of abortion to be a per se intervention as it influences personal decision-making. He disagreed with the majority, finding that such an interference would have to be justified under Article 8 (2), and no such grounds were articulated in the majority opinion.

Concurrence
Mr. T. Opsahl, Mr. C. Norgaard and Mr. L. Kellberg concurred with the majority, finding the most contemporary definition of the right to respect for private life to be based on the concept of self-determination, but that such a definition could not be read into the terms of Article 8. The wrote, "[w]e are aware that the reality behind these traditional views is that the scope of protection of private life has depended on the outlook which has been formed mainly by men, although it may have been shared by women as well."

The Commission found no violation of Article 8.
European Court of Human Rights.
European Court of Human Rights.
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