Legality of a Contractual Waiver of Human Rights in the European context

Abstract: An indication of the problematic consent in a private relationship was given by judge Pettiti in his concurring opinion in Laskey, Jaggard and Brown v. The United Kingdom. The applicants were accused and convicted for sado-masochistic acts on themselves and on other, consenting people in private. One of the applicants' claim was that those acts were conducted by willing adult participants. The Court solved the case by answering positively to the question whether the measure in the criminal law was necessary in a democratic society for the protection of health in the meaning of Article 8 paragraph 2.3 In his concurring opinion, judge Pettiti brought out:"The case could have been looked at differently, both in domestic law and subsequently under the Convention. Can one consider that adolescents taking part in sado-masochistic activities have given their free and informed consent where their elders have used various means of incitement, including financial reward?" The European Court of Human Rights has developed a standard of legality of a waiver of a human right. However this standard is applied only in cases a waiver has been conducted by a person in public law relationship. If someone wishes to give up the right he is entitled to, he is not absolutely free to do so. Why should the law protect one from oneself? This thesis talks about the protection of human rights when the subject of the right wants to abandon the right. It educes the reasons why it would be important identify a human rights waiver and why it would be legitimate to address human rights waivers, whether conducted in private relationship or public law relationship, the same way.