and of course forced abortion is a crime against the woman, in ordinary circumstances, just as any assault is a crime against the person in ordinary circumstances.
The European Convention on Human Rights, article 2:
http://www.hri.org/docs/ECHR50.html#C.Art2ARTICLE 2
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 escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.The UK's Human Rights Act, for instance, expressly incorporates this provision into UK law, and makes it quasi-constitutional.
The decision can be accessed here:
http://hudoc.echr.coe.int/hudoc/default.asp?Language=en&Cmd=Query&Tname=Hejud&appno=all&RelatedMode=1http://hudoc.echr.coe.int/hudoc/ViewHtml.asp?Item=11&Action=Html&X=709140903&Notice=0&Noticemode=&RelatedMode=1&X=709140936French law allows for individuals to be joined as "civil parties" in a criminal prosecution, which allows the court to award them damages for harm caused by the criminal act.
Apparently French law gave the doctor amnesty on the charge of "causing unintentional injury":
On 25 January 1993, following supplemental submissions by the prosecution on 26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27 November 1991 by:
(i) through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant’s live and viable foetus was developing, thereby unintentionally causing the child’s death (a criminal offence under Article 319 of the former Criminal Code – which was applicable at the material time – now Article 221-6 of the Criminal Code);
(ii) through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months (a criminal offence under Article R. 40, subparagraph 4, of the former Criminal Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-4 of the Criminal Code).
Without doing a bunch more research, I assume that this "amnesty" is a law that protects public servants from criminal prosecutions for things done in the course of their duties, and that it does not cover homicide.
I would guess that this was a major reason why the homicide charge was brought. The complainant also argued that the doctor's negligence that resulted in the injury to herself was not committed in the course of the performance of his duties.
The Government of France argued:
52. Nor could the “right to life” referred to in the same Article be construed as applying to the foetus; it concerned only the life of persons who had already been born alive, since it would be neither consistent nor justified to detach that right from the entity in which it was vested, namely the person. Whereas, by contrast, Article 4 § 1 of the 1969 American Convention on Human Rights provided: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception”, the signatories to the Convention would not have envisaged such an extension of Article 2 of the Convention since by 1950 virtually all the Contracting Parties had already authorised abortion in certain circumstances. To acknowledge that the foetus had the right to life within the meaning of Article 2 would place the mother’s life and that of the foetus on an equal footing. Furthermore, prioritising the protection of the foetus’s life or restricting it solely in the event of a severe, immediate and insurmountable risk to the mother’s life would constitute a step backwards historically and socially and would call into question the legislation in force in many States Parties to the Convention.
53. The Government pointed out that the Commission had considered whether it was appropriate to recognise the foetus as having the right to life subject to certain restrictions relating to the protection of the mother’s life and health (see X. v. the United Kingdom, cited above). They submitted that such a limitation would not allow recourse to abortion for therapeutic, moral or social reasons, which at the time when the text of the Convention was being negotiated had nonetheless already been authorised by the legislation of a number of countries. It would amount to penalising States that had opted for the right to abortion as an expression and application of a woman’s autonomy over her own body and her right to control her maternity. The States Parties had not intended to confer on the expression “right to life” a meaning that extended to the foetus and was manifestly contrary to their domestic legislation.
(Some of these points are specific to the nature of the Convention and the Court, i.e. the nature of the European Union and the role of individual States' legislative authority and acts and the latitude they are allowed.)
56. In the alternative, the Government pointed out that in French law the foetus was protected indirectly through the pregnant woman’s body, of which it was an extension. That was the case where abortion was carried out intentionally but not in one of the cases exhaustively listed in the relevant legislation (Article 223-10 of the Criminal Code – see paragraph 25 above) or in the event of an accident. In the latter case, the ordinary remedies for establishing civil liability could be used, and the mother could be awarded compensation for personal, pecuniary and non-pecuniary damage, her pregnant state being necessarily taken into account. Furthermore, under the criminal law, anyone who through inadvertence caused a pregnancy to be terminated could be prosecuted for causing unintentional injury, the destruction of the foetus being regarded as damage to the woman’s organs.
The intervener Centre for Reproductive Rights cited Canadian and USAmerican judicial decisions:
64. Lastly, with regard to non-European States, the CRR noted that the Supreme Courts of Canada and the United States had declined to treat unborn foetuses as persons under the law (in the cases of Winnipeg Child Family Services v. G. (1997) and Roe v. Wade (1973)). The United States Supreme Court had reaffirmed that position in a recent case in 2000 (Stenberg v. Carhart), in which it had declared unconstitutional a State law prohibiting certain methods of abortion and providing no protection for women’s health. Similarly, in South Africa, ruling on a constitutional challenge to the recently enacted Choice on Termination of Pregnancy Act, which permitted abortion without restriction during the first trimester and on broad grounds at later stages of pregnancy, the High Court had considered that the foetus was not a legal person (case of Christian Lawyers Association of South Africa and Others v. Minister of Health and Others, 1998).
... 65. (ii) In the CRR’s submission, recognition of the foetus’s rights interfered, in particular, with women’s fundamental right to a private life. In the case of Brüggemann and Scheuten v. the Federal Republic of Germany, no. 6959/75, Commission’s report of 12 July 1977, DR 10, p. 100), the Commission had implicitly accepted that an absolute prohibition on abortion would be an impermissible interference with privacy rights under Article 8 of the Convention. Subsequently, while rejecting the suggestion that Article 2 protected the right to life of foetuses, the Convention institutions had further recognised that the right to respect for the private life of the pregnant woman, as the person primarily concerned by the pregnancy and its continuation or termination, prevailed over the father’s rights (see paragraph 61 above). In addition to respect for private life, the preservation of the pregnant woman’s life and health took precedence. In holding that restrictions on the exchange of information on abortion created a risk to the health of women whose pregnancies posed a threat to their lives, the Court had ruled that the injunction in question had been “disproportionate to the aims pursued” and that, consequently, a woman’s health interest prevailed over a State’s declared moral interest in protecting the rights of a foetus (see Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246-A).
66. (iii) In the CRR’s submission, declining to recognise the foetus as a person under Article 2 did not preclude a remedy for injuries such as the one that had given rise to the instant case. The loss of a wanted foetus was an injury suffered by the expectant mother. Consequently, the rights that were entitled to protection in the instant case were those of the applicant and not those of the foetus she had lost. It was within the power of the legislature of every Council of Europe member State to recognise both civil and criminal offences committed by individuals who injured a woman by causing the termination of a wanted pregnancy.
In actual fact, the Court's ruling is not as unequivocal as news reports make it sound.The issue in the Court is whether the complainant had an effective remedy in his/her own national courts. If so, the Court will not overturn the national courts' decisions.
94. In conclusion, the Court considers that in the circumstances of the case, an action for damages in the administrative courts could be regarded as an effective remedy that was available to the applicant. Such an action, which she failed to use, would have enabled her to prove the medical negligence she alleged and to obtain full redress for the damage resulting from the doctor’s negligence, and there was therefore no need to institute criminal proceedings in the instant case.
95. The Court accordingly concludes that, even assuming that Article 2 was applicable in the instant case (see paragraph 85 above), there has been no violation of Article 2 of the Convention.
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