Aug 4 2017

The Council of Europe Parliamentary Assembly and Conscientious Objection: A Political Trap Ahead for the European Court of Human Rights?

*By Stephen Harsley

Despite its undoubted importance for the Swedish workforce, it is rare for the labour court system of Sweden to attract a great deal of international attention. However, in April 2017, a court ruling in the case of Grimmark v. Jönköping County Council brought interest and intervention from lawyers and religious activists from as far afield as the United States. The issue at stake was abortion, or rather the extent to which medical professionals (and specifically midwives) can be required to participate in patient care in this area.

Midwives in Sweden are required to assist in providing abortion related care, and the refusal of the claimant in the case to do so, meant she was unable to find a job in this field. However, the Swedish courts rejected a claim of discrimination based on religion, and the claimant (Elinor Grimmark) has already expressed an intention to appeal to the European Court of Human Rights. The case will be based on Article 9 ECHR (freedom of religion and belief), but more controversially, her lawyers and supporters have relied partly on a Council of Europe Parliamentary Assembly resolution on conscientious objection by medical professionals. The possible consideration of the resolution sets a dangerous political trap for the Court, should the case be deemed admissible.

Resolution 1763 on the Right to Conscientious Objection in Lawful Medical Care states that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion”. The European Court of Human Rights has previously made clear that Parliamentary Assembly resolutions can be used for the purpose of interpretation (see Demir and Baykara v. Turkey, §74) but has also confirmed that they are non-binding. The potential value of such resolutions comes from their ability to provide an overview of general European political consensus, something that can be highly useful when determining how wide the margin of appreciation should be for states. This is due to the fact that the Assembly consists of a representative sample of national parliamentarians, drawn proportionally from across the political spectrum. Where there is a lack of consensus amongst Member States, they can be granted a wider margin.

Taken at face value, this would seemingly make Resolution 1763 highly useful, particularly in a case where the extent of Sweden’s discretion to limit Convention rights to protect the legal rights of others will be at issue. However, here lies the political trap for the Court. The resolution was passed with 56 votes in favour, 51 against, and 4 abstentions. This means that only one in five members voted in favour, and the majority were not actually present. Those who were came from Conservative parties, despite a progressive majority in the chamber’s overall composition at the time. The Parliamentary Assembly has a quorum rule requiring one third of members to be present in order for votes to be valid. The problem with this is that the value of PACE resolutions is in their status as a representative sample. There is no requirement for the quorum to reflect the political balance of the chamber, meaning that resolutions can be passed that are not at all reflective of European political consensus.

Political independence is an area where the Court has walked a careful line on the issue of abortion in the past, with decidedly cautious rulings. A failure to distinguish between Parliamentary Assembly resolutions based on the composition of the chamber at the time of the vote could well throw away a precious form of independence. In addition, if the Court accords great value to a politically divided resolution, this may well encourage attempts to, in effect, legislate in the area of European human rights law by the Parliamentary Assembly, damaging the reputation of a vital institution, at a dangerous time.

Providing interpretive guidance and being legal binding are two very different things. When a document is legally binding, of course its contents should be abided by. However, for sources that provide interpretive guidance, such as a PACE resolution, their authority comes from the ability of the source to provide evidence of consensus. In this case, it is very hard to see how a document written by a minority of PACE members, largely from one end of the political spectrum can be seen as representative of Europe. Affording legal value to resolution 1763, or indeed any other resolution voted for in a similar manner, could well end up turning the Parliamentary Assembly into a de facto ECHR legislative body. This would be a real blow to the independence of the ECtHR and to the impartial application of European human rights law.

*Stephen Harsley is an advocacy intern with the International Planned Parenthood Federation. He holds an LL.M. in human rights from Maastricht University (Netherlands). 

Sources

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010

Council of Europe: Parliamentary Assembly, Rules of Procedure of the Assembly, June 2016, Rule 42-Quorum.

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010, Assembly Voting Results, accessed 22/05/17

http://assembly.coe.int/nw/xml/Votes/DB-VotesResults-EN.asp?VoteID=2212&DocID=13164

ECtHR, Demir and Baykara v. Turkey, Appl. no. 34503/97, Judgment of 12 November 2008

ECtHR, Dickson v. United Kingdom, Appl. no. 44362/04, Judgment of 4 December 2007, §78

Sveriges Radio, Anti-Abortion Midwife Supported by American Lobby, accessed 22/05/17

http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=6614458

Council of Europe, Parliamentary Assembly Working Structure, accessed 22/05/17

http://website-pace.net/en_GB/web/apce/parliamentary-representation

Scandinavian Human Rights Lawyers, Our Cases: The Case of Elinor Grimmark, accessed 29/05/17

http://humanrightslawyers.eu/human-rights/our-cases/the-case-of-ellinor-grimmark/

 

 

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