CYIL vol. 9 (2018)

PETR ŠUSTEK CYIL 9 ȍ2018Ȏ then, it has been ratified and has come into force in 29 out of 47 member states of the Council of Europe. Among the largest European countries, only France ratified the Convention, and it was done reluctantly in 2011. 4 While these facts may not make the Convention seem to be very successful at the first sight, the importance of the Convention exceeds the number of its parties as it represents an important source of inspiration for legislators and scholars all over the world. Even though the Convention can be understood as a European consensus only with reservations, it creates a very important standard, which certain states take into account when defining their policies. Instead of being a mere regional treaty, the Convention is widely acknowledged as a crucial human rights document in the area of bioethics and medical law in the global context. Even though it is a Council of Europe treaty, there were several observer states taking part in its creation, including the USA, Canada, and the Holy See 5 . When the Convention was drafted in the 1990s, its content was already in accordance with the standards of medical law in most Western European countries. That is only logical since the Convention is supposed to be a framework instrument, setting minimum standards that are common to all European countries. This approach is typical for the Council of Europe system of human rights protection and resembles the European Court of Human Right’s doctrine of margin of appreciation 6 . The idea behind it is that the content of the Convention should be acceptable for as many states as possible so it can form a common minimum standard of human rights protection with regard to biomedicine in Europe. For this reason, the principles and rights set out by the Convention are typically rather vague and open to legislative specification or interpretation. However, the compliance with the common standards of many Western European countries and the vague nature of many of its provisions do not mean that the Convention was unimportant. In the Czech Republic, the Convention came into force on 1 October 2001, after its ratification in June of the same year. As a promulgated treaty to the ratification, which the Parliament has given its consent to and by which the Czech Republic is bound, the Convention falls within the scope of Article 10 of the Constitution of the Czech Republic, which means it forms a part of Czech legal order. Furthermore, if it stipulates something else than what a statute enacts, the Convention (as a treaty under Article 10) shall take precedence. 7 Therefore, the Convention is directly applicable in the Czech Republic. 8 However, only a minority of its provisions can really have direct applicability. Most of them 4 For an up-to-date list of signatures and ratifications, see Council of Europe. Chart of signatures and ratifications of Treaty 164. accessed 3 June 2018. 5 None of which later signed the Convention. 6 See for example Handyside v. the United Kingdom, (application no. 5493/72), the European Court of Human Rights (ECtHR) judgment of 7 December 1976, § 48, Stec and Others v. the United Kingdom, (applications nos. 65731/01 and 65900/01), the ECtHR judgment of 12 April 2006, § 52, Zehentner v. Austria, (application no. 20082/02), the ECtHR judgment of 16 July 2009, § 57, or Andrle v. the Czech Republic, (application no. 6268/08), the ECtHR judgment of 17 February 2011, § 50. 7 According to the Constitutional Court of the Czech Republic, human rights treaties under Article 10 are not only a part of Czech legal order, but they form a part of Czech constitutional order, hence they belong among the most important legal documents in Czech legal system. The Constitutional Court of the Czech Republic decision of 25 June 2002, no. Pl. ÚS 36/01. 8 For the nature of the Convention, see ŠTURMA, Pavel. Úmluva Rady Evropy o lidských právech a biomedicíně. [The Council of Europe Convention on Human Rights and Biomedicine.] Právní rozhledy. (1998, Vol. 6, No. 4), příloha – Evropské právo [annex – European Law].

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