Review of International Tribunal Decisions for the week of August 29, 2012

This week has two decisions from the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR).  They deal with a request to invalidate the indictment at the STL and the right to certain means of family planning.

International Criminal Law

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[1]

Décision Relative à la Requête de la Défense de M. Mustafa Badreddine Sollicitant l’Annulation pour Défaut de Pouvoir de l’Acte d’Accusation du 10 Juin 2011 Confirmé le 28 Juin 2011

Background

Mr. Badreddine’s defense[2] filed a motion requesting that the indictment be dismissed for failure to prosecute.[3] The defense argued that the Trial Chamber is not properly seized of the case.[4] The argument is essentially that all acts taken by the Prosecutor are null and void for failure to renew his mandate when it allegedly expired in 2010.[5] The Pre-Trial Judge denied the motion.

Reasoning

The Judge ruled that the Prosecutor had been properly appointed to his position so that he was in office when the actions being questioned by the defense took place.[6] Given this fact, there was no basis for the defense to attack the validity of the indictment and the motion was denied.[7]

International Human Rights Law

ECtHR

Costa and Pavan v. Italy[8]

Chamber Judgment

Background

Applicants want to have a child by in vitro fertilization (“IVF”), so that the embryo can be genetically screened prior to implantation (preimplantation diagnosis – “PID”). Italian law prohibits PID. It however allows IVF for sterile couples or those in which the man has a sexually transmissible disease4 such as HIV or hepatitis B and C, to avoid the risk of transmitting the infection. On 13 January 2010, for the first time, the Salerno Court authorized a non-sterile couple of healthy carriers of muscular atrophy to use PID. But that was a one-off decision. The court found a violation of Article 8 of the European Convention protecting the right to respect for private and family life.

Reasoning

The Court considered that the applicants’ desire to resort to medically-assisted procreation and PID in order to have a baby that did not suffer from cystic fibrosis was a form of expression of their private and family life that fell within the scope of Article 8. The fact that the law did not allow them to proceed in this manner therefore amounted to an interference with their right to respect for their private and family life which was “in accordance with the law” and pursued the legitimate aims of protecting morals and the rights and freedoms of others.

The Italian Government justified this interference by the need to protect the health of the mother and child and the dignity and freedom of conscience of the medical professions, and to avoid the risk of eugenic abuses. The Court observed first of all that the notions of “embryo” and “child” must not be confused. It could not see how, in the event that the fetus proved to have the disease, a medically-assisted abortion could be reconciled with the Government’s justifications, considering, among other things, the consequences of such a procedure for both the fetus and the parents, particularly the mother.

The Court observed that the inconsistency in Italian law – prohibiting the implantation of only those embryos which were healthy, but authorizing the abortion of fetuses which showed symptoms of the disease – left the applicants only one choice, which brought anxiety and suffering: starting a pregnancy by natural means and terminating it if prenatal tests showed the fetus to have the disease. The Court accordingly considered that the interference with the applicants’ right to respect for their private and family life was disproportionate, in breach of Article 8.


[1] STL-11-01/PT/PTJ, 29 August 2012.

[2] It is important to note that the trial will proceed in absentia and so none of the accused are actually personally participating in the case.

[3] Ibid. at ¶¶ 1-2.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 4.

[6] Ibid at ¶¶ 17-189.

[7] Ibid. at ¶ 20-21.

[8] Application no.54270/10, 28 August 2012. Text is taken from the press release of the court.

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