Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
a surprising fact that of the many thousands of applications which are lodged every year
with the European Court of Human Rights, very few touch on the subject of bioethics. In
fact, the cases before the Court, with one possible exception, do not touch on what many
would see as being the core of the bioethical problems envisaged in the Oviedo Convention
and its accompanying Protocols, namely the use and misuse of scientific developments in
biology and medecine and, in particular, human genetic testing, cloning, organ and tissue
transplantation and biomedical research including research on foetuses and embryos. Nor
has the Court ever been requested to give an advisory opinion on the Article 29 of the landmark
Oviedo Convention on Human Rights and Biomedecine which itself dates back more
than ten years, and this despite the close kinship with the Human Rights Convention from
which it borrowed several key concepts and terms with the aim of preserving the coherence
of the European legal system.
Lastly, as regards personal privacy, the Court applied the new concept of personal autonomy
in the K.A. & A.D. v. Belgium judgment of 17 February 2005 concerning sadomasochistic
practices. The right to engage in sexual relations derived from the right of autonomy
over one’s own body, an integral part of the notion of personal autonomy, which could be
construed in the sense of the right to make choices about one’s own body. It followed that
the criminal law could not in principle be applied in the case of consensual sexual practices,
which were a matter of individual free will. Accordingly, there had to be “particularly serious
reasons” for an interference by the public authorities in matters of sexuality to be justified
for the purposes of Article 8 § 2 of the Convention 75 . Nonetheless, in the present case,
the Court considered that on account of the nature of the acts in question, the applicants’
conviction did not appear to have constituted disproportionate interference with their
right to respect for their private life. Although individuals could claim the right to engage
in sexual practices as freely as possible, the need to respect the wishes of the “victims” of
such practices – whose own right to free choice in expressing their sexuality likewise had
to be safeguarded – placed a limit on that freedom. However, no such respect had been
shown in the present case 76 .
As far as family life is concerned, the particular disputes continue to be the same: prisoners
and their family life in prison; children’s placement measures in cases of divorce
and separation or of intervention by social services; the entry, residence and expulsion of
foreigners 77 .
75 ECtHR, K.A. & A.D. v. Belgium, judgment of 17 February 2005, § 84.
76 Ibid., § 85.
77 See Fr. Tulkens, “Migrants and their right to a family and private life under Article 8 of the European Convention on Human Rights”,
Athens Bar Journal, Special issue on the occasion of the 50 th anniversary of the European Court of Human Rights, forthcoming.
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