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V.C. v. SLOVAKIA - 18968/07 [2011] ECHR 1888 (8 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1888.html
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[2011] ECHR 1888
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FORMER
SECTION IV
CASE OF
V.C. v. SLOVAKIA
(Application
no. 18968/07)
JUDGMENT
STRASBOURG
8 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It
may be subject to editorial revision.
In the case of V.C. v. Slovakia,
The
European Court of Human Rights (Former Section IV), sitting as
a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 22 March 2011, 6 June 2011, 24 August 2011
and on 17 October 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 18968/07) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovak national, Ms V.C. (“the
applicant”), on 23 April 2007. The President of the
Chamber acceded to the applicant’s request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Ms B. Bukovská and
Ms V. Durbáková, lawyers acting in
co-operation with the Centre for Civil and Human Rights in Košice.
The Government of the Slovak Republic (“the Government”)
were represented by their Agent, Ms M. Pirošíková.
The
applicant alleged a breach of Articles 3, 8, 12, 13 and 14 of the
Convention on account of her sterilisation in a public hospital.
By
a decision of 16 June 2009 the Court declared the application
admissible.
The
applicant and the Government each filed further written observations
on the merits (Rule 59 § 1). In addition, third-party comments
were received from the International Federation of Gynaecology and
Obstetrics (FIGO), which had been given leave by the President to
intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 3).
A
hearing was scheduled for 7 September 2010. It was adjourned on 24
August 2010 at the request of the Government, who indicated that they
wished to explore the possibility of reaching a friendly settlement
in the case. The parties did not reach a friendly-settlement
agreement.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 22 March 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms M. Pirošíková,
Agent,
Ms K. Čahojová, Co-Agent,
Mr M. Buzga,
Mr V. Cupaník,
Mr J. Palkovič, Advisers;
(b) for the applicant
Ms B. Bukovská,
Counsel,
Ms V. Durbáková, Counsel.
The
Court heard addresses by Ms Bukovská, Ms Durbáková,
Ms Pirošíková, Mr Buzga and Mr Cupaník.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, who is of Roma ethnic origin, was born in 1980 and lives
in Jarovnice. She finished compulsory education in the sixth grade
and is unemployed. Her mother tongue is the Roma language, which she
uses in daily communication, together with a local dialect.
A. The applicant’s sterilisation in Prešov
Hospital
On
23 August 2000 the applicant was sterilised while hospitalised at the
Hospital and Health Care Centre in Prešov (now known as the
University Teaching Hospital and J.A. Reiman Health Care Centre in
Prešov –“Prešov Hospital”), under the
management of the Ministry of Health.
The
procedure was carried out during the delivery of the applicant’s
second child via Caesarean section. The applicant’s first
delivery had also been via Caesarean section. The sterilisation of
the applicant entailed tubal ligation by the Pomeroy method, which
consists of severing and sealing the Fallopian tubes in order to
prevent fertilisation.
During
her pregnancy the applicant did not have any regular check ups.
She visited her general practitioner only once.
The applicant was admitted to the gynaecology and
obstetrics department of Prešov Hospital on 23 August 2000
shortly before 8 a.m. She came to the hospital in pain resulting from
the progress of labour. On arrival the applicant was informed that
the delivery would be via Caesarean section.
The delivery is documented in a written record
indicating details of the labour and birth at regular intervals. The
first entry in the record was at 7.52 a.m. The applicant was
subsequently monitored by CTG (cardiotocography); the last CTG entry
was at 10.35 a.m.
According to the delivery record, after 10.30 a.m.,
when labour was well established, the applicant requested
sterilisation. That request is entered directly in the delivery
record with the typed words “Patient requests sterilisation”.
Below this is the shaky signature of the applicant. The signature was
in an unsteady hand and the applicant’s maiden name, which she
then used, is split into two words.
The applicant submitted that, after she had been in
labour for several hours and was in pain, the medical personnel of
Prešov Hospital had asked her whether she wanted to have more
children. The applicant responded in the affirmative but was told by
the medical personnel that if she had one more child, either she or
the baby would die. The applicant started to cry and as she was
convinced that her next pregnancy would be fatal, she told the
medical personnel “Do what you want to do”. She was then
asked to sign the delivery record under the note indicating that she
had requested sterilisation. The applicant did not understand the
term sterilisation and she signed the form out of fear that there
would otherwise be fatal consequences. As she was in the last
stage of labour, her recognition and cognitive abilities were
influenced by labour and pain.
At 11.30 a.m. the applicant was put under anaesthesia,
after which the delivery was completed via Caesarean section. In view
of the state of the applicant’s reproductive organs the two
doctors involved asked the head physician for an opinion as to
whether they should perform a hysterectomy or a sterilisation. They
subsequently performed tubal ligation on the applicant. The procedure
ended at 12.10 p.m. and the applicant came round from the anaesthetic
ten minutes later.
The words “Patient is of Roma origin”
appear in the record of the applicant’s pregnancy and delivery
(section “Medical history”, sub-section “Social and
working conditions, especially during the pregnancy” of the
pre-printed form designed for that purpose).
During
her hospitalisation on the gynaecology and obstetrics ward of Prešov
Hospital the applicant was accommodated in a room in which there were
exclusively women of Roma ethnic origin. She was prevented from using
the same bathrooms and toilets as women who were not of Roma origin.
The applicant has suffered serious medical and
psychological after-effects from the sterilisation procedure. Hence,
at the end of 2007 and the beginning of 2008 the applicant
displayed the symptoms of a false pregnancy. She believed that she
was pregnant and exhibited all the signs of pregnancy. However,
the ultrasound examination revealed that she was not pregnant.
Subsequently, in July 2008, she was treated by a psychiatrist
in Sabinov. According to the latter’s statement, the
applicant continues to suffer as the result of her infertility.
The applicant has also been ostracised by the Roma
community. Her husband, the father of her children, left her several
times owing to her infertility. In 2009 the applicant and her husband
divorced. The applicant maintained that her infertility was one of
the reasons for their separation.
B. Position of Prešov
Hospital
21. A written
statement by the Director of Prešov
Hospital dated 3 July 2008 indicates that the applicant’s
first delivery in 1998 ended with a Caesarean section as the
size of the applicant’s pelvis excluded a normal delivery.
Prior to the delivery the applicant had attended a pre-natal care
centre only twice, at the beginning of her pregnancy. After the
delivery she was placed in a post-delivery room with sanitary
equipment where she received medical care. On the third day she left
the hospital without doctors’ consent and returned 24 hours
later with sepsis caused by inflammation of the uterus. After nine
days’ hospitalisation during which she received intensive
treatment with antibiotics the applicant and her child were
discharged from the hospital. The applicant was advised to visit
a gynaecologist regularly but failed to do so.
During
her second pregnancy, the applicant visited the pre-natal care centre
only once, in the initial stages. At the time of the second delivery,
due to pain which the applicant experienced in the lower part of her
uterus (where she had been operated on during her first delivery) and
in view of the size of her pelvis, doctors indicated that a Caesarean
section would be needed. They were of the view that there was a risk
of rupture of the uterus. After they had explained to her the
situation and the risks inherent in a possible third pregnancy,
the applicant, being fully aware of what was happening, signed the
sterilisation request.
In
a different statement dated 27 July 2009 the Director of Prešov
Hospital denied deliberate and organised segregation of Roma
women and the existence of so called “Gypsy rooms”. In
practice, Roma women were frequently accommodated together at their
own request.
C. Criminal proceedings
On
23 January 2003, in response to the publication by the Centre for
Reproductive Rights and the Centre for Civil and Human Rights of
“Body and Soul: Forced and Coercive Sterilisation and Other
Assaults on Roma Reproductive Freedom in Slovakia” (“the
Body and Soul Report”), the Section for Human Rights and
Minorities of the Government Office initiated a criminal
investigation into the allegedly unlawful sterilisation of several
different Roma women.
The
criminal investigation was conducted within the Regional Directorate
of the Police Corps in Zilina by the
Office of the Judicial and Criminal Police. Several decisions
were issued by the investigator, public prosecutors at several levels
and the Constitutional Court. The proceedings were ultimately
discontinued on the ground that no offence had been committed in the
context of the sterilisation of women of Roma ethnic origin (further
details are set out in I.G., M.K. and R.H. v. Slovakia (dec.),
no. 15966/04, 22 September 2009).
The
applicant did not initiate any individual criminal proceedings.
D. Civil proceedings
In
January 2003, after the release of the Body and Soul Report, the
applicant learned that a tubal ligation was not life-saving surgery
as alleged by the medical personnel of Prešov Hospital and
that the patient’s full and informed consent to such a
procedure was required. For this reason, she unsuccessfully tried to
review her medical records. She was allowed access to her medical
file with her lawyer in May 2004 following a judicial order to
that effect.
On
9 September 2004 the applicant lodged a claim with the Prešov
District Court under Articles 11 et seq. of the Civil Code, seeking
protection of her personal rights. She submitted that the
sterilisation performed on her had been carried out in violation of
Slovakian legislation and international human rights standards
including Articles 3, 8, 12 and 14 of the Convention. The applicant
argued that she had not been duly informed about the procedure as
such, its consequences and alternative solutions. She requested an
apology for the procedure and claimed compensation for non-pecuniary
damage.
In
the course of the proceedings the District Court considered
documentary evidence and obtained a number of statements from the
applicant as well as from the medical personnel of Prešov
Hospital.
In
particular, the applicant described the circumstances in which she
had given birth in Prešov Hospital and how she had been asked
to sign the relevant entry in the record. She also stated that the
father of her children had left her for two years owing to her
infertility and that they had experienced problems in their
relationship for that reason. She outlined the health problems which
she was experiencing.
Doctor
Č. of Prešov Hospital, who had performed the procedure on
the applicant, stated that he did not specifically remember the
applicant or the circumstances of her hospitalisation. His statement
was based on the information in the applicant’s medical file.
He alleged that the applicant had been fully informed about her
medical condition and the progress of the labour approximately ninety
minutes prior to the delivery. The information about the need for
sterilisation had been conveyed to her by the head doctor of the
gynaecology and obstetrics ward, as well as the second doctor who had
participated in the surgery, and also by the anaesthetist. The
sterilisation had been carried out at the applicant’s request
as a medical necessity. Any possible third pregnancy could have been
risky for the applicant unless she was monitored regularly during the
pregnancy. Doctor Č. stated that the sterilisation of the
applicant had not been life-saving surgery.
Doctor
K., head doctor of the gynaecology and obstetrics ward of Prešov
Hospital, stated that he fully agreed with the testimony of Doctor Č.
Doctor K. did not specifically recall the case of the applicant
either. He assumed that her case was the same as other similar cases.
He had not been present during the delivery and the sterilisation of
the applicant but had been told about her case by other doctors. He
described the sterilisation procedure as governed by the relevant
law. In the case of the applicant, there had been no time to convene
any committee as she had come to the hospital a very short time
before delivery.
Doctor
K. further stated that, after he had designated his colleagues Š. and
Č. to perform the surgery, he had also asked them to find out
whether the patient would agree to sterilisation, and to have her
consent confirmed by a signature. Even if a patient refused to give
written consent to sterilisation, it could be carried out under
section 2 of the 1972 Sterilisation Regulation, which permitted such
a move in the case of danger to a person’s life.
In
the civil proceedings, the applicant also submitted a psychologist’s
assessment of her mental capacity dated 17 February 2006. It
indicated that her intellectual capacity was very low, on the verge
of mental retardation, but that her thinking was well developed in
relation to practical issues. The psychologist concluded that
communication with the applicant needed to be adapted to her mental
and language skills. No mental illness was detected that would
prevent the applicant from making decisions concerning her life and
assuming responsibility for matters related to her life.
On
28 February 2006 the Prešov District Court dismissed the
action. It held that the procedure had been performed only after the
medical personnel had obtained the applicant’s signature. It
admitted that the signature of the applicant on the delivery record
had been obtained shortly before the Caesarean section was performed,
when the applicant had been in “a supine position”. The
procedure had been performed on medical grounds. It had been
necessary owing to the applicant’s
poor medical condition. The medical personnel had proceeded in
accordance with the law.
The
fact that the procedure had not been approved earlier by
a sterilisation committee amounted only to a failure to meet the
formal requirements; it could not have interfered with the
applicant’s personal integrity as protected by Articles 11 et
seq. of the Civil Code. No violation of the applicant’s rights
under the Convention had been established.
Finally,
the District Court held that the applicant’s situation was not
irreversible as there was a possibility of in vitro fertilisation.
On
12 May 2006 the applicant appealed. She maintained that she had been
sterilised without her full and informed consent in a situation where
she had not been able to understand fully the nature and consequences
of the procedure. There were gaps and inconsistencies in the
statements of the medical personnel and the medical file contained no
record of her having been duly informed about the procedure, its
irreversible character and the alternative methods. In violation of
the legislation in force the sterilisation had not been approved by a
sterilisation committee. A tubal ligation could not be considered as
life-saving surgery. The applicant relied on documents issued by
international medical organisations.
On
25 October 2006 the Prešov Regional Court upheld the
first instance judgment. It concluded that the sterilisation of
the applicant had been performed in accordance with the legislation
in force and that it had been required by the applicant’s
medical condition.
The
appellate court referred to the statements by the physicians involved
and held that there had been a risk of rupture of the applicant’s
uterus. The applicant had requested sterilisation after she had been
duly informed of her state of health. The procedure had complied with
the relevant provisions of the 1972 Sterilisation Regulation. The
decision as to whether or not sterilisation was required lay in such
circumstances with the head physician. Prior approval by a
sterilisation committee was required only where sterilisation was to
be carried out on healthy reproductive organs. However, this had not
been the case with the applicant.
E. Constitutional proceedings
On
17 January 2007 the applicant lodged a complaint with the
Constitutional Court. With reference to her sterilisation and the
ordinary courts’ conclusions in the above-mentioned civil
proceedings, she submitted that she had been subjected to
sterilisation in Prešov Hospital
without her informed consent and that she had been unable to obtain
redress as a result of the conduct and decision of the Prešov
Regional Court. She alleged that the latter had thereby breached her
constitutional rights and freedoms prohibiting discrimination and
cruel, inhuman or degrading treatment or punishment, her right to
protection from unjustified interference with her private and family
life and her right to protection of her family, as well as her rights
under Articles 3, 8, 12, 13 and 14 of the European Convention on
Human Rights and Article 5 of the Convention on Human Rights and
Biomedicine. The applicant requested that the Constitutional Court
quash the Regional Court’s judgment.
On
14 February 2008 the Constitutional Court dismissed the complaint as
being manifestly ill-founded (for further details see the decision on
the admissibility of the present application of 16 June 2009).
F. Accounts of sterilisation practices in Slovakia
1. Information submitted by the applicant
The
applicant referred to a number of publications pointing to a history
of forced sterilisation of Roma women which had originated under the
communist regime in Czechoslovakia in the early 1970s and which she
believed had influenced her own sterilisation.
In
particular, the applicant submitted that the Ministry of Health’s
1972 Sterilisation Regulation had been used to encourage the
sterilisation of Roma women. According to a 1979 document by Charter
77, a Czechoslovakian dissident group, a programme had been
launched in Czechoslovakia offering financial incentives for Roma
women to be sterilised because of earlier unsuccessful government
efforts “to control the highly unhealthy Roma population
through family planning and contraception.”
The
applicant further maintained that in Prešov district 60% of
the sterilisation operations performed from 1986 to 1987 had been on
Roma women, who represented only 7% of the population of the
district. Another study found that in 1983, approximately 26% of
sterilised women in eastern Slovakia (the region where the applicant
resides) were Roma; by 1987, this figure had risen to 36.6%.
In
1992 a report by Human Rights Watch noted that many Roma women were
not fully aware of the irreversible nature of the procedure and were
forced into it because of their poor economic situation or pressure
from the authorities.
According
to other reports, in 1999 nurses working in Finnish refugee reception
centres informed researchers from Amnesty International that they had
noticed unusually high rates of gynaecological procedures such as
sterilisation and removal of ovaries among female Roma asylum seekers
from eastern Slovakia. All the reports cited identified Prešov
Hospital as one of the hospitals where such sterilisation practices
were applied.
2. Information submitted by the respondent Government
The
Government submitted that health care in Slovakia was provided to all
women equally. Statistical data based on the ethnic origin of
patients were generally not gathered as it was considered to be
contrary to persons’ human rights.
Following
the publication of the Body and Soul Report the Ministry of Health
established a group of experts with a view to investigating allegedly
unlawful sterilisations and segregation of Roma women.
The
Ministry’s report of 28 May 2003 submitted to the parliamentary
committee on human rights, nationalities and the status of women
indicated that the medical records of 3,500 women who had been
sterilised and those of 18,000 women who had given birth by means of
Caesarean section during the preceding ten years had been reviewed.
The
rate of sterilisation of women in Slovakia amounted to only 0.1% of
women of reproductive age. In European countries that rate was
between 20 and 40%. The low rate of sterilisations in Slovakia was
mainly due to the fact that the procedure was not widely used as a
method of contraception.
In
the absence of official statistical data concerning the ethnic origin
of inhabitants the expert group was able to assess the position
regarding women of Roma ethnic origin only indirectly. In those
regions where it was possible to indirectly assess the proportion of
women of Roma ethnic origin, the frequency of sterilisation and
Caesarean section in the Roma population was significantly lower than
among the rest of the population. The frequency of sterilisations was
statistically insignificantly higher in the Prešov and Košice
regions than in other regions of Slovakia.
The
group concluded that in the hospitals investigated by its members no
genocide or segregation of the Roma population had occurred. All
cases of sterilisation had been based on medical indications. Certain
shortcomings in health care and non-compliance with the regulations
on sterilisation (such as failure to observe the administrative
procedure) had been established in several cases. However, they
affected the whole population equally regardless of patients’
ethnic origin. Hospitals in which administrative errors had been
discovered had adopted measures with a view to eliminating them.
In
none of the hospitals visited by the expert group did there exist
separate rooms for Roma women; all patients received treatment within
the same hospital facilities. Due to the situation existing
during the preceding decades, medical personnel and individuals were
not on an equal footing regarding responsibility for maintaining and
improving individuals’ state of health. This was reflected, in
particular, in limited individual rights and responsibilities in
matters of health care. Measures had been recommended to ensure that
individuals received the necessary information to enable them to give
informed consent to their treatment or refuse it. Individual requests
for medical intervention were to be made in a legally valid manner
permitting the persons concerned to express their own free will after
receiving the appropriate information.
The
measures recommended in the report consisted in the amendment of the
legal rules on sterilisation with a view to ensuring compliance with,
inter alia, the Convention on Human Rights and Biomedicine,
which Slovakia had ratified. The report also contained a set of
recommendations in the field of education of medical staff focusing
on “cultural differences in regions with an increased
concentration of Roma communities”. In order to educate the
Roma population in the area of health care, the Slovak Health
University in Bratislava was to establish, in cooperation with the
Ministry of Health, a network of health care assistants who would
receive special training and operate in Roma settlements.
At
the hearing the Government indicated that it was open to women
allegedly affected by malpractice in the context of sterilisation to
claim compensation before the civil courts. According to the
information available to the Government, there were five sets of
proceedings of that kind pending before the Slovakian courts. Six
other sets of proceedings had ended in a final decision. In
three of them the claimants had been successful.
II. RELEVANT DOMESTIC LAW
A. The Civil Code
Under
Article 11, natural persons have the right to protection of their
personal rights (personal integrity), in particular their life and
health, civil and human dignity, privacy, name and personal
characteristics.
Under
Article 13 § 1, natural persons have the right to request that
unjustified infringements of their personal rights be ended and that
the consequences of such infringements be erased. They also have the
right to appropriate just satisfaction.
Article
13 § 2 provides that, in cases where the satisfaction obtained
under Article 13 § 1 is insufficient, in particular because the
injured party’s dignity or social standing has been
significantly diminished, he or she is also entitled to financial
compensation for non-pecuniary damage.
B. The 1972 Sterilisation Regulation
Regulation
No. Z-4 582/1972-B/1 of the Ministry of Health of the Slovak
Socialist Republic, published in Official Journal of the Ministry of
Health No. 8-9/1972 (“the 1972 Sterilisation Regulation”)
and applicable at the relevant time, contained guidelines governing
sterilisation in medical practice.
Section
2 permitted sterilisation in a medical institution, either at the
request of the person concerned or with that person’s consent
where, inter alia, the procedure was necessary according to
the rules of medical science for the treatment of a person’s
reproductive organs which were affected by disease (section 2(a)), or
where the pregnancy or birth would seriously threaten the life or
health of a woman whose reproductive organs were not affected by
disease (section 2(b)).
Section
5(1)(a) authorised the head physician of the hospital department in
which the person concerned was treated to decide whether or not that
person’s sterilisation was required within the meaning of
section 2(a) of the 1972 Sterilisation Regulation. Sterilisation on
any other ground required prior approval by a medical committee
(“sterilisation committee”).
Point
XIV of the Annex to the 1972 Sterilisation Regulation indicated the
following as obstetric or gynaecological reasons justifying a woman’s
sterilisation:
(a)
during and after a repeated Caesarean section, where this method of
delivery was necessary for reasons which were most likely to persist
during a further pregnancy and when the woman concerned did not wish
to deliver again via Caesarean section;
(b)
in the event of repeated complications during pregnancy, in the
course of delivery and in the subsequent six-week period, where a
further pregnancy would seriously threaten the woman’s life or
health;
(c) where
a woman had several children (four children for women under the age
of 35 and three children for women over that age).
The
Regulation was repealed by the Health Care Act 2004 with effect from
1 January 2005 (see below).
C. The Health Care Act 1994
At
the relevant time the following provisions of Law no. 277/1994 on
Health Care (Zákon o zdravotnej
starostlivosti – “the
Health Care Act 1994”) were in force.
Section
13(1) made medical treatment subject to the patient’s consent.
A patient’s consent to medical procedures of a
particularly serious character or which substantially affected a
person’s future life had to be given in writing or in another
provable manner (section 13(2)).
Under
section 15(1) the doctor was obliged to advise the patient, in an
appropriate and provable way, about the nature of his or her illness
and the necessary medical procedures, so that the doctor and the
patient could actively cooperate in the patient’s treatment.
The amount of information which it was appropriate to provide to the
patient was to be determined by the doctor in the light of the
particular circumstances of the case. Such information had to be
given in a manner which respected the patient ethically and was not
allowed to affect the patient’s treatment.
D. The Health Care Act 2004
The
Health Care, Health Care Services and Amendment Act 576/2004 (Zákon
o zdravotnej starostlivosti, sluZbách súvisiacich
s poskytovaním zdravotnej starostlivosti a o zmene
a doplnení niektorých zákonov
– “the Health Care Act 2004”) came into
force on 1 November 2004 and became operative on 1 January 2005.
Section
6 governs the provision of information to and giving of informed
consent by patients. Pursuant to sub-section 1, medical practitioners
are obliged, unless the law provides otherwise, to inform the persons
listed below about the aim, nature, consequences and risks of
treatment, the possibility of choice as to the proposed procedures
and the risks connected with refusal to accept treatment. This
obligation to inform extends, inter alia, to the person to be
treated or another person chosen by the former, or to the statutory
representative or guardian where health care is to be provided to a
minor, a person deprived of legal capacity or a person with
limited legal capacity and, in an appropriate manner, also to persons
incapable of giving informed consent.
Section
6(2) obliges medical practitioners to provide information
comprehensibly, considerately and without pressure, allowing the
patient the possibility and sufficient time to freely give or
withhold his or her informed consent, and in a manner appropriate to
the maturity of intellect and will and the state of health of the
person concerned.
Section
6(3) provides that any person entitled to such information also has
the right to refuse it. Such refusal has to be recorded in writing.
Pursuant
to section 6(4), informed consent is provable consent to treatment
preceded by information as stipulated by the Health Care Act 2004. A
written form of informed consent is required, inter alia, in
the case of sterilisation. Everyone with the right to give informed
consent also has the right to freely withdraw that consent at any
time.
Section
40 reads as follows:
“Sterilisation
(1) Sterilisation for the purposes of this law shall
be the prevention of fertility without the removal or impairment of a
person’s reproductive organs.
(2) Sterilisation can only be performed on the basis of
a written request and written informed consent following the
provision of information to a person with full legal capacity or to
the statutory representative of a person not capable of giving
informed consent, or on the basis of a court decision issued on an
application by the statutory representative.
(3) The information preceding a person’s informed
consent must be provided as specified by section 6(2) and must
contain information about:
(a) alternative methods of contraception and planned
parenthood;
(b) possible changes in the life circumstances which led
to the request for sterilisation;
(c) the medical consequences of sterilisation as a
method aimed at the irreversible prevention of fertility;
(d) the possible failure of sterilisation.
(4) The request for sterilisation is to be submitted to
a provider [of health care] who carries out sterilisations. Requests
for female sterilisation shall be examined and sterilisation carried
out by a physician specialising in the field of gynaecology and
obstetrics; requests for male sterilisation shall be examined and the
sterilisation carried out by a physician specialising in the field of
urology.
(5) Sterilisation may not be carried out earlier than
thirty days after informed consent has been given. ”
Section
50 repeals the 1972 Sterilisation Regulation.
Article
IV of the Health Care Act 2004 introduces the offence of “unlawful
sterilisation”, which is included in the Criminal Code as
Article 246b. Sub-paragraph 1 of Article 246b provides that
anybody who sterilises a person contrary to the law is to be punished
by a prison term of between three and eight years, by a prohibition
on carrying out his or her activity or by a pecuniary penalty. The
prison term may be between five and twelve years when the offence was
committed in aggravating circumstances (sub paragraph 2).
III. INTERNATIONAL MATERIALS
A. Council of Europe documents
1. The Convention on Human Rights and Biomedicine
The
Convention for the Protection of Human Rights and Dignity of the
Human Being with Regard to the Application of Biology and Medicine
(Council of Europe Treaty Series No. 164) was ratified by Slovakia on
15 January 1998 and entered into force in respect of Slovakia on
1 December 1999. The corresponding notification, together with
the text of the Convention, were published in the Collection of Laws
under number 40/2000 on 10 February 2000. The relevant provisions
read as follows:
“Article 1 – Purpose and object
Parties to this Convention shall protect the dignity and
identity of all human beings and guarantee everyone, without
discrimination, respect for their integrity and other rights and
fundamental freedoms with regard to the application of biology and
medicine.
Each Party shall take in its internal law the necessary
measures to give effect to the provisions of this Convention.
...
Article 4 – Professional standards
Any intervention in the health field, including
research, must be carried out in accordance with relevant
professional obligations and standards.
Chapter II – Consent
Article 5 – General rule
An intervention in the health field may only be carried
out after the person concerned has given free and informed consent to
it.
This person shall beforehand be given appropriate
information as to the purpose and nature of the intervention as well
as on its consequences and risks.
The person concerned may freely withdraw consent at any
time.
...
Article 8 – Emergency situation
When because of an emergency situation the appropriate
consent cannot be obtained, any medically necessary intervention may
be carried out immediately for the benefit of the health of the
individual concerned.”
The
relevant parts of the Explanatory Report to the Convention on Human
Rights and Biomedicine provide:
“Article 4 – Professional standards
...
33. Further, a particular course of action must be
judged in the light of the specific health problem raised by a given
patient. In particular, an intervention must meet criteria of
relevance and proportionality between the aim pursued and the means
employed. Another important factor in the success of medical
treatment is the patient’s confidence in his or her doctor.
This confidence also determines the duties of the doctor towards the
patient. An important element of these duties is the respect of the
rights of the patient. The latter creates and increases mutual trust.
The therapeutic alliance will be strengthened if the rights of the
patient are fully respected.
...
Article 5 – General rule
34. This article deals with consent and affirms at the
international level an already well-established rule, that is that no
one may in principle be forced to undergo an intervention without his
or her consent. Human beings must therefore be able freely to give or
refuse their consent to any intervention involving their person. This
rule makes clear patients’ autonomy in their relationship with
health care professionals and restrains the paternalist approaches
which might ignore the wish of the patient. ...
35. The patient’s consent is considered to be free
and informed if it is given on the basis of objective information
from the responsible health care professional as to the nature and
the potential consequences of the planned intervention or of its
alternatives, in the absence of any pressure from anyone. Article 5,
paragraph 2, mentions the most important aspects of the information
which should precede the intervention but it is not an exhaustive
list: informed consent may imply, according to the circumstances,
additional elements. In order for their consent to be valid the
persons in question must have been informed about the relevant facts
regarding the intervention being contemplated. This information must
include the purpose, nature and consequences of the intervention and
the risks involved. Information on the risks involved in the
intervention or in alternative courses of action must cover not only
the risks inherent in the type of intervention contemplated, but also
any risks related to the individual characteristics of each patient,
such as age or the existence of other pathologies. Requests for
additional information made by patients must be adequately answered.
36. Moreover, this information must be sufficiently
clear and suitably worded for the person who is to undergo the
intervention. The patient must be put in a position, through the use
of terms he or she can understand, to weigh up the necessity or
usefulness of the aim and methods of the intervention against its
risks and the discomfort or pain it will cause.
...
Article 8 – Emergency situations
56. In emergencies, doctors may be faced with a conflict
of duties between their obligations to provide care and seek the
patient’s consent. This article allows the practitioner to act
immediately in such situations without waiting until the consent of
the patient or the authorisation of the legal representative where
appropriate can be given. As it departs from the general rule laid
down in Articles 5 and 6, it is accompanied by conditions.
57. First, this possibility is restricted to emergencies
which prevent the practitioner from obtaining the appropriate
consent... An example that might be put forward is that of a patient
in a coma who is thus unable to give his consent (see also paragraph
43 above), or that of a doctor who is unable to contact an
incapacitated person’s legal representative who would normally
have to authorise an urgent intervention. Even in emergency
situations, however, health care professionals must make every
reasonable effort to determine what the patient would want.
58. Next, the possibility is limited solely to medically
necessary interventions which can not be delayed. Interventions for
which a delay is acceptable are excluded. However, this possibility
is not reserved for life-saving interventions.
59. Lastly, the article specifies that the intervention
must be carried out for the immediate benefit of the individual
concerned.”
2. Council of Europe Commissioner for Human Rights
In
his recommendation following fact-finding missions to Slovakia the
Commissioner for Human Rights of the Council of Europe indicated,
inter alia:
“35. The issue of sterilizations does not appear
to concern exclusively one ethnic group of the Slovak population, nor
does the question of their improper performance. It is likely that
vulnerable individuals from various ethnic origins have, at some
stage, been exposed to the risk of sterilization without proper
consent. However, for a number of factors, which are developed
throughout this report, the Commissioner is convinced that the Roma
population of eastern Slovakia has been at particular risk.
36. The initiative of the authorities to investigate
into the sterilization practices in the country is welcomed. The
Slovak Government engaged in an open and constructive dialogue with
the Commissioner concerning this difficult issue. It is also
encouraging to note that the Government is considering ways of
improving the country’s health care system in general,
including reproductive health care, and access to it for vulnerable
persons, including Roma women in particular.
37. The Commissioner is concerned about what appears to
be a widespread negative attitude towards the relatively high birth
rate among the Roma as compared with other parts of the population.
These concerns are often explained with worries of an increased
proportion of the population living on social benefits. Such
statements, particularly when pronounced by persons of authority,
have the potential of further encouraging negative perceptions of the
Roma among the non-Roma population. It cannot be excluded that these
types of statements may have encouraged improper sterilization
practices of Roma women.
...
50. In view of the difficulties encountered
during the investigations, and limitations surrounding them,
initiated by the Government, it is unlikely that they will shed full
light on the sterilizations practices.
51. However, on the basis of the information
contained in the reports referred to above, and that obtained during
the visit, it can reasonably be assumed that sterilizations have
taken place, particularly in eastern Slovakia, without informed
consent.
52. The information available to the
Commissioner does not suggest that an active or organized Government
policy of improper sterilizations has existed (at least since the end
of the communist regime). However, the Slovak Government has, in the
view of the Commissioner, an objective responsibility in the matter
for failing to put in place adequate legislation and for failing to
exercise appropriate supervision of sterilization practices although
allegations of improper sterilizations have been made throughout the
1990’s and early 2000. ”
79. The
relevant part of the Commissioner’s follow-up report on the
Slovak Republic of 29 March 2006 (CommDH(2006)5) reads as follows:
“4. The involuntary sterilisation of Roma women
...
Development of the situation and measures taken
33. The allegations of forced and coerced sterilizations
of Roma women in Slovakia were considered as a possible grave
violation of human rights and therefore taken very seriously by the
Slovak Government. A considerable effort was devoted to their
thorough examination. In addition to a criminal investigation, a
professional medical inspection of healthcare establishments was
organised and an expert opinion of the Faculty of Medicine of the
Comenius University in Bratislava requested. It was not confirmed
that the Slovak Government would have supported an organized
discriminatory sterilizations’ policy. Legislative and
practical measures were taken by the Government in order to eliminate
the administrative shortcomings identified in the course of inquires
and to prevent similar situations from occurring in the future.
34. The Public Health Act, which came into effect on 1
January 2005, sought to deal with these issues by including sections
on sterilisation, informed consent and access to medical records. The
law was elaborated in accordance with the Council of Europe
Convention on Human Rights and Biomedicine, and among other things,
eliminates the deficiencies in legislation found in the course of the
investigations. The law, inter alia, guarantees informed
consent and requires health care professionals to provide information
to patients before, for example, undergoing sterilisation. It also
requires a thirty day waiting period after informed consent is
given. In addition, the new law addresses the problem many
individuals face in accessing their medical records. The law
explicitly allows authorisation by the patient to another person,
through a power of attorney, to view and photocopy their files.
35. Women allegedly harmed by sterilisation have the
right to turn to the Slovak courts with a request for compensation
and it is the view of the Slovakian authorities that the existing
legal framework offers them sufficient possibilities to seek
compensation. Some of the cases have been concluded by rejecting the
complaint or by halting proceedings. In other cases, court
proceedings are still underway.
Conclusions
36. The Commissioner welcomes the coming into force of
the Public Health Act, and its provisions on informed consent and
access to medical records. These were crucial issues which the
Commissioner had addressed in his Recommendation to the Slovak
authorities, and he is pleased to see that the new law has explicitly
addressed these problem areas.
37. The Commissioner notes with regret that the Slovak
authorities have not yet established an independent commission to
provide compensation or an apology to the victims. While victims may
seek redress through the court system, in these types of cases,
litigation has its practical shortcomings. These include the
difficult and costly nature of obtaining legal counsel, particularly,
for Roma women living in marginalised communities, and the extremely
high evidential standards.
38. The Commissioner again encourages the authorities to
consider creating an independent commission that might, on the
examination of each case, provide effective and rapid non-judicial
redress. Such redress would be given to individual applicants, who
could show that appropriate procedures were not followed, without
there necessarily having been intent or criminal negligence on the
part of individual medical staff, but because of systemic
shortcomings in the procedures permitted, and that in their
particular case, sterilisation was without informed consent. Such
a Commission might allow for alleged cases to be examined
thoroughly, but with fewer formalities and less cost for applicants,
than judicial proceedings.”
3. ECRI reports on Slovakia
The
European Commission against Racism and Intolerance (ECRI) published
its third report on Slovakia on 27 January 2004. Its relevant parts
read as follows:
“...The Roma minority remains severely
disadvantaged in most areas of life, particularly in the fields of
housing, employment and education. Various strategies and measures to
address these problems have not led to real, widespread and
sustainable improvements, and the stated political, priority given to
this issue has not been translated into adequate resources or a
concerted interest and commitment on the part of all the
administrative sectors involved. Public opinion towards the Roma
minority remains generally negative.
...
Allegations of sterilisations of Roma women without
their full and informed consent
...
93. ECRI is very concerned by reports which came to
national and international attention at the beginning of 2003
claiming that Roma women have, in recent years and on an on-going
basis, been subject to sterilisations in some hospitals in Eastern
Slovakia without their full and informed consent. ...
...
Recommendations:
96. ECRI is of the opinion that the possibility of
sterilisations of Roma women without their full and informed consent
necessitates immediate, extensive and thorough investigation. It
seems clear to ECRI that in such investigations, attention should be
focused not on whether a signed form can be produced, but on whether
the women involved were fully informed of what they were signing and
the actual implications of sterilisation. ...
...
98. ECRI also recommends that, prior to and
notwithstanding the outcome of the investigation, more adequate
safeguards should be put in place to forestall any further problems
or lack of certainty in this area. In fact, the authorities have
acknowledged there remains at present, at the legal level, some
anomalies between the law in force and specific regulations issued
previously. Clear, detailed and coherent regulations and instructions
should thus be issued immediately to ensure that all sterilisations
are being carried out in accordance with best medical knowledge,
practice and procedures, including the provision of full and
comprehensible information to patients about the interventions
proposed to them.”
In
its next periodic report (fourth monitoring cycle) on Slovakia,
published on 26 May 2009, ECRI concluded as follows:
“111. ECRI notes with concern that the problems as
regards investigations into allegations of sterilisations of Roma
women without their full and informed consent noted in its third
report remained. The authorities continued to investigate these
allegations under the crime of genocide rather than, for example,
under the crimes of assault or of inflicting grievous bodily harm.
The angle under which these allegations were investigated thus
rendered proof of a crime having been committed virtually impossible
and the possibility for redress through the courts almost null. The
investigations also reportedly continued to focus on the issue of
consent forms being signed rather than on whether full prior
information was provided. Due to these flaws, in most cases, the
courts decided that the allegations were unproven. ECRI wishes to
stress that at the very least, the authorities should secure legal
aid to victims so that they can seek compensation through civil law.
112. Some legislative measures have been taken to
provide better legal safeguards against the practice. The Criminal
Code has been amended to include the crime of “illegal
sterilisation” and it provides for a thirty-day waiting period
from the time the patient has given her consent before the
sterilisation is carried out. Section 40 of Law No. 576/2004 Coll. on
Healthcare which entered into force on 1 January 2005 provides that
sterilisation can only be performed following a written request and
informed written consent from a person who has been previously
informed and is fully legally responsible for him/herself, or from a
person who legally represents them and can provide their informed
consent, or on the basis of a court decision based on a request
by a legal representative. The patient information session preceding
consent must be carried out according to the law and must include
information on alternative methods of contraception and family
planning, possible changes in life circumstances which led to the
request for sterilisation, the medical consequences of sterilisation
and the possibility that the sterilisation may fail.
113. While welcoming these legislative developments,
ECRI regrets that due to the above-mentioned problems in the
investigations of allegations of sterilisations of Roma women without
their full and informed consent, no redress has been possible for the
majority of women involved.
114. ECRI recommends that the Slovak authorities monitor
all facilities which perform sterilisations to ensure that the
legislative safeguards concerning this procedure are respected. It
also urges the authorities to take steps to ensure that complaints
filed by Roma women alleging sterilisations without their full and
informed consent are duly investigated and that the victims receive
proper redress.”
B. Documents adopted within the United Nations system
1. UN Convention on the Elimination of All Forms of
Discrimination against Women
The
UN Convention on the Elimination of All Forms of Discrimination
against Women was ratified by the former Czechoslovakia. Following
the latter’s dissolution, Slovakia declared itself bound by it
as from 1 January 1993. In its relevant Articles it provides:
“Article 1
For the purposes of the present Convention, the term
‘discrimination against women’ shall mean any
distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural,
civil or any other field.
...
Article 12
1. States Parties shall take all appropriate measures to
eliminate discrimination against women in the field of health care in
order to ensure, on a basis of equality of men and women, access to
health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph 1 of this
article, States Parties shall ensure to women appropriate services in
connection with pregnancy, confinement and the post-natal period,
granting free services where necessary, as well as adequate nutrition
during pregnancy and lactation.
...
Article 16
1. States Parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure, on a
basis of equality of men and women:
(e) The same rights to decide freely and responsibly on
the number and spacing of their children and to have access to the
information, education and means to enable them to exercise these
rights;
...”
General
Recommendation No. 24 adopted by the Committee on the Elimination of
Discrimination against Women (CEDAW) in 1999 includes, inter alia,
the following opinion and recommendations for action by the States
parties to the Convention on the Elimination of All Forms of
Discrimination against Women:
“20. Women have the right to be fully informed, by
properly trained personnel, of their options in agreeing to treatment
or research, including likely benefits and potential adverse effects
of proposed procedures and available alternatives.
21. States parties should report on measures taken to
eliminate barriers that women face in access to health-care services
and what measures they have taken to ensure women timely and
affordable access to such services. ...
22. States parties should also report on measures taken
to ensure access to quality health-care services, for example, by
making them acceptable to women. Acceptable services are those which
are delivered in a way that ensures that a woman gives her fully
informed consent, respects her dignity, guarantees her
confidentiality and is sensitive to her needs and perspectives.
States parties should not permit forms of coercion, such as
non-consensual sterilization, ... that violate women’s rights
to informed consent and dignity.
...
31. States parties should also, in particular:
...
(e) Require all health services to be consistent with
the human rights of women, including the rights to autonomy, privacy,
confidentiality, informed consent and choice;
(f) Ensure that the training curricula of health workers
includes comprehensive, mandatory, gender-sensitive courses on
women’s health and human rights, in particular gender-based
violence.”
At
its 41st session (30 June to 18 July 2008) CEDAW considered the
combined second, third and fourth periodic report on Slovakia. The
concluding observations contain, inter alia, the following
text (CEDAW/C/SVK/CO/4):
“44. While acknowledging the explanations given by
the delegation on the alleged coerced sterilization of Roma women,
and noting the recently adopted legislation on sterilization, the
Committee remains concerned at information received in respect of
Roma women who report having been sterilized without prior and
informed consent.
45. Recalling its views in respect of communication No.
4/2004 (Szijjarto v. Hungary), the Committee recommends
that the State party monitor public and private health centres,
including hospitals and clinics, that perform sterilization
procedures so as to ensure that patients are able to provide fully
informed consent before any sterilization procedure is carried out,
with appropriate sanctions being available and implemented in the
event of a breach. It calls upon the State party to take further
measures to ensure that the relevant provisions of the Convention and
the pertinent paragraphs of the Committee’s general
recommendations Nos. 19 and 24 in relation to women’s
reproductive health and rights are known and adhered to by all
relevant personnel in public and private health centres, including
hospitals and clinics. The Committee recommends that the State party
take all necessary measures to ensure that the complaints filed by
Roma women on grounds of coerced sterilization are duly acknowledged
and that victims of such practices are granted effective remedies.”
2. WHO Declaration on the Promotion of Patients’
Rights in Europe
The
World Health Organisation (WHO) European consultation meeting on the
rights of patients, held in Amsterdam in March 1994, endorsed a
document entitled Principles of the rights of patients in Europe
as a set of principles for the promotion and implementation of
patients’ rights in the European Member States of the WHO. Its
relevant parts read as follows:
“2. INFORMATION
2.2 Patients have the right to be fully informed about
their health status, including the medical facts about their
condition; about the proposed medical procedures, together with the
potential risks and benefits of each procedure; about alternatives to
the proposed procedures, including the effect of non-treatment; and
about the diagnosis, prognosis and progress of treatment.
...
2.4 Information must be communicated to the patient in a
way appropriate to the latter’s capacity for understanding,
minimizing the use of unfamiliar technical terminology. ...
...
3. CONSENT
3.1 The informed consent of the patient is a
prerequisite for any medical intervention.
3.2 A patient has the right to refuse or to halt a
medical intervention. The implications of refusing or halting such an
intervention must be carefully explained to the patient.”
3. Universal Declaration on Bioethics and Human Rights
The
Universal Declaration on Bioethics and Human Rights was adopted by
UNESCO’s General Conference on 19 October 2005. Its relevant
provisions read as follows:
“Article 5 – Autonomy and individual
responsibility
The autonomy of persons to make decisions, while taking
responsibility for those decisions and respecting the autonomy of
others, is to be respected. For persons who are not capable of
exercising autonomy, special measures are to be taken to protect
their rights and interests.
Article 6 – Consent
1. Any preventive, diagnostic and therapeutic medical
intervention is only to be carried out with the prior, free and
informed consent of the person concerned, based on adequate
information.
The consent should, where appropriate, be express and
may be withdrawn by the person concerned at any time and for any
reason without disadvantage or prejudice.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that she had been subjected to inhuman and
degrading treatment on account of her sterilisation and that the
authorities had failed to carry out a thorough, fair and effective
investigation into the circumstances surrounding it. She relied on
Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment of the applicant
1. The parties’ submissions
(a) The applicant
The
applicant contended that she had not given her free, full and
informed consent to her sterilisation as required by international
standards. Nor had her sterilisation been in compliance with the 1972
Sterilisation Regulation in force at the relevant time. Her signature
on the sterilisation form had been obtained during advanced labour, a
short time before the delivery itself. Her sterilisation had been
forced in the circumstances.
The
sterilisation had not been a life-saving procedure in her case and it
had been carried out without consideration for alternative ways of
protecting her from the alleged risks linked to a possible future
pregnancy, such as the various methods of contraception available to
her and her husband, which would not have left her permanently
infertile.
The
procedure was to be seen in the context of the widespread practice of
sterilising Roma women which had its origins in the communist regime
and in the enduringly hostile attitudes towards persons of Roma
ethnic origin.
The
nature of the procedure as such and the circumstances in which it had
been carried out amounted to inhuman and degrading treatment contrary
to Article 3 of the Convention.
(b) The Government
The
Government denied the existence of a policy or practice aimed at the
sterilisation of women of Roma ethnic origin. They referred, in
particular, to the documents issued by the Council of Europe
Commissioner for Human Rights as well as the criminal proceedings
initiated by the Government Office and the investigation by a group
of domestic experts.
The
applicant’s sterilisation was to be considered in the broader
context, namely with due regard to her health status and her failure
to seek the appropriate pre-natal medical care. The applicant’s
second delivery via Caesarean section had been medically indicated.
The doctors on duty had diagnosed a risk of rupture of the uterus in
the event of a further pregnancy, which would present a real threat
to the applicant’s life and/or that of her child. After
consultation with the head physician, sterilisation had been
considered appropriate with a view to protecting the applicant’s
health.
The
applicant had been informed orally of the situation and the medical
indications for the procedure, in terms which were comprehensible to
her. She had confirmed with her signature that she requested
sterilisation. At that time she had not been under the influence of
any medication.
With
reference to the conclusions reached by the civil courts, the
Government further argued that the sterilisation procedure had been
performed in accordance with the law then in force and that it had
not amounted to medical malpractice. The applicant had therefore not
been subjected to treatment contrary to Article 3 of the Convention.
(c) FIGO
The
aim of FIGO is to promote the health and well-being of women
worldwide and to improve the practice of gynaecology and obstetrics.
Its membership is made up of societies or federations of
obstetricians and gynaecologists in 124 countries and territories.
In
its third-party comments, submitted through H. Rushwan, Chief
Executive, FIGO stated that it endorsed, in line with the relevant
international instruments, informed and freely given consent of
patients intellectually capable of reproductive self-determination,
given prior to their treatment, as being essential to their treatment
in accordance with the ethical requirements. The implications of the
proposed treatment should be made clear to patients’
satisfaction in advance of its performance, particularly when the
proposed treatment had permanent effects on future child-bearing and
the founding of a family.
The
process of informed choice had to precede informed consent to
surgical sterilisation. Recognised available alternatives, especially
reversible forms of family planning which might be equally effective,
had to be given due consideration. The physician performing the
sterilisation had the responsibility of ensuring that the person had
been properly advised about the risks and benefits of the procedure
and of the alternatives.
Efforts
should be made to preserve every patient’s fertility. The
performance of a Caesarean section, when necessary, should not in
itself constitute a ground for concluding that sterilisation was
indicated so as to prevent the patient from opting for a future
pregnancy. Any such proposal should afford the patient ample time for
informed deliberation and not be made as an adjunct to a Caesarean
procedure that the patient was about to undergo.
2. The Court’s assessment
(a) General principles
The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s
behaviour (see Labita v. Italy, no. 26772/95, § 119,
ECHR 2000-IV).
Ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum is relative; it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim. Although the purpose
of such treatment is a factor to be taken into account, in
particular the question of whether it was intended to humiliate or
debase the victim, the absence of any such purpose does not
inevitably lead to a finding that there has been no violation of
Article 3 (see Peers v. Greece, no. 28524/95, §§ 68
and 74, ECHR 2001-III, and Grori v. Albania, no. 25336/04, §
125, with further references).
Treatment
of a person by State agents has been considered to raise an issue
under Article 3 when it resulted in bodily harm of a certain degree
of severity, such as an injury to a person’s leg which caused
necrosis and subsequently led to the leg having to be amputated, a
gunshot wound to a person’s knee, a double fracture of the
jaw and facial contusions or an injury to a person’s face which
required stitches, with three of the person’s teeth being
knocked out (see Sambor v. Poland, no. 15579/05,
§ 36, 1 February 2011; Necdet Bulut v.
Turkey, no. 77092/01, § 24, 20 November 2007; Rehbock v.
Slovenia, no. 29462/95, §§ 76-77, ECHR 2000 XII;
and Mrozowski v. Poland, no. 9258/04, § 28, 12 May
2009). The Court has further considered the treatment of a
person to be capable of raising an issue under Article 3 when, inter
alia, it was such as to drive the victim to act against his or
her will or conscience (see, for example, Keenan v. the United
Kingdom, no. 27229/95, § 110, ECHR 2001-III).
In
several cases the Court has examined complaints about alleged
ill-treatment in the context of medical interventions to which
detained persons were subjected against their will. It has held,
inter alia, that a measure which is of therapeutic
necessity from the point of view of established principles of
medicine cannot in principle be regarded as inhuman and degrading.
The Court has nevertheless taken the view that it must satisfy itself
that a medical necessity has been convincingly shown to exist and
that procedural guarantees for the decision exist and are complied
with (for a recapitulation of the relevant case-law see Jalloh
v. Germany [GC], no. 54810/00, § 69, ECHR 2006 IX,
with further references).
In
order for treatment to be “inhuman” or “degrading”,
the suffering or humiliation involved must in any event go beyond the
inevitable element of suffering or humiliation connected with a given
form of legitimate treatment (see Labita, cited above, §
120).
Finally,
the Court reiterates that the very essence of the Convention is
respect for human dignity and human freedom. It has held that in the
sphere of medical assistance, even where the refusal to accept a
particular treatment might lead to a fatal outcome, the imposition of
medical treatment without the consent of a mentally competent adult
patient would interfere with his or her right to physical integrity
(see Pretty v. the United Kingdom, no. 2346/02, §§
63 and 65, ECHR 2002 III; Glass v. the United Kingdom,
no. 61827/00, §§ 82-83, ECHR 2004 II; and Jehovah’s
Witnesses of Moscow v. Russia, no. 302/02, § 135, ECHR
2010 ...).
(b) Assessment of the facts of the case
The
Court notes that sterilisation constitutes a major interference with
a person’s reproductive health status. As it concerns one of
the essential bodily functions of human beings, it bears on manifold
aspects of the individual’s personal integrity including his or
her physical and mental well-being and emotional, spiritual and
family life. It may be legitimately performed at the request of the
person concerned, for example as a method of contraception, or for
therapeutic purposes where the medical necessity has been
convincingly established.
However,
in line with the Court’s case-law referred to above, the
position is different in the case of imposition of such medical
treatment without the consent of a mentally competent adult patient.
Such way of proceeding is to be interpreted as incompatible with the
requirement of respect for human freedom and dignity, that is one of
the fundamental principles on which the Convention is based.
Similarly,
it is clear from generally recognised standards such as the
Convention on Human Rights and Biomedicine, which was in force in
respect of Slovakia at the relevant time, the WHO Declaration on the
Promotion of Patients’ Rights in Europe or CEDAW’s
General Recommendation No. 24 (see paragraphs 76-77, 83 and 85 above)
that medical procedures, of which sterilisation is one, may be
carried out only subject to the prior informed consent of the person
concerned. The same approach has been endorsed by FIGO (see
paragraphs 97-98 above). The only exception concerns emergency
situations when a medical treatment cannot be delayed and the
appropriate consent cannot be obtained.
In
the present case the applicant was sterilised in a public hospital
immediately after she had given birth to her second child via
Caesarean section. The doctors considered the procedure necessary as
a possible third pregnancy entailed serious risks to her life and
that of her child, in particular a risk of rupture of the uterus.
It
is not the Court’s role to review the assessment by medical
doctors of the state of health of the applicant’s reproductive
organs. However, it is relevant to note that sterilisation is not
generally considered as life-saving surgery. There is no indication
that the situation was different in the present case; this was
confirmed by one of the doctors involved in the domestic proceedings
(see paragraph 31 above). As there was no emergency involving
imminent risk of irreparable damage to the applicant’s life or
health, and since the applicant was a mentally competent adult
patient, her informed consent was a prerequisite to the procedure,
even assuming that it was a “necessity” from a medical
point of view.
The
documents available indicate that the applicant was asked to give her
consent in writing two and a half hours after she had been brought to
hospital, when she was in the process of established labour and in
a supine position. The relevant entry in the delivery record was
typed and merely indicated “Patient requests sterilisation”.
In
the Court’s view, such an approach is not compatible with the
principles of respect for human dignity and human freedom embodied in
the Convention and the requirement of informed consent laid down in
the international documents to which reference is made above. In
particular, it does not appear from the documents submitted that the
applicant was fully informed about her health status, the proposed
procedure and the alternatives to it. Furthermore, asking the
applicant to consent to such an intervention while she was in labour
and shortly before performing a Caesarean section clearly did
not permit her to take a decision of her own free will, after
consideration of all the relevant issues and, as she may have wished,
after having reflected on the implications and discussed the matter
with her partner.
In
this context no decisive weight can be attached to the Government’s
arguments concerning the history of the applicant’s pregnancies
and her failure to undergo regular check-ups. According to the
Government, the applicant’s sterilisation was aimed at
preventing a possibly life-threatening deterioration of her health.
Such a threat was not imminent as it was likely to materialise only
in the event of a future pregnancy. It could also have been prevented
by means of alternative, less intrusive methods. In those
circumstances, the applicant’s informed consent could not be
dispensed with on the basis of an assumption on the part of the
hospital staff that she would act in an irresponsible manner with
regard to her health in the future.
The
way in which the hospital staff acted was paternalistic, since, in
practice, the applicant was not offered any option but to agree to
the procedure which the doctors considered appropriate in view of her
situation. However, in similar situations informed consent was
required, promoting autonomy of moral choice for patients.
The
principle of patients’ autonomy in their relationship with
health care professionals is explored in the Explanatory Report to
the Convention on Human Rights and Biomedicine. A requirement of
respect for, inter alia, women’s right to autonomy and
choice in the context of health care is set out in point 31(e) of
General Recommendation No. 24 adopted by CEDAW in 1999. The Universal
Declaration on Bioethics and Human Rights, albeit subsequent to the
facts of the present case, confirms the above considerations. In
particular, Article 5 calls for respect for the autonomy of persons
to make decisions while taking responsibility for those
decisions. Shortcomings in the domestic law and practice in this
regard were acknowledged in the expert report of the Ministry of
Health of 28 May 2003, which stated that medical personnel
and individuals were not on an equal footing and that individuals’
rights and responsibilities in matters of health care had been
limited. In this context, the applicant’s sterilisation should
be considered also in the light of the requirement to respect a
person’s dignity and integrity embodied in Article 1 of the
Convention on Human Rights and Biomedicine, which was ratified by
Slovakia with effect from 1 December 1999 and which was published in
the Collection of Laws on 10 February 2000.
The
Court notes that the sterilisation procedure grossly interfered with
the applicant’s physical integrity as she was thereby deprived
of her reproductive function. At the time of her sterilisation the
applicant was twenty years old and therefore at an early stage in her
reproductive life.
The
procedure was not an imminent necessity from a medical point of view.
The applicant did not give her informed consent to it. Instead, she
was asked to sign the typed words “Patient requests
sterilisation” while she was in a supine position and in pain
resulting from several hours’ labour. She was prompted to sign
the document after being told by medical staff that she or her baby
would die in the event of a further pregnancy.
Thus,
the sterilisation procedure, including the manner in which the
applicant was requested to agree to it, was liable to arouse in her
feelings of fear, anguish and inferiority and to entail lasting
suffering. As to the last mentioned point in particular, owing to her
infertility, the applicant experienced difficulties in her
relationship with her partner and, later, husband. She indicated her
infertility as one of the reasons for her divorce in 2009. The
applicant suffered serious medical and psychological after-effects
from the sterilisation procedure, which included the symptoms of a
false pregnancy and required treatment by a psychiatrist. Owing to
her inability to have more children the applicant has been ostracised
by the Roma community.
Although
there is no indication that the medical staff acted with the
intention of ill-treating the applicant, they nevertheless acted with
gross disregard to her right to autonomy and choice as a patient. For
the Court the treatment to which she was subjected as described above
attained the threshold of severity required to bring it within the
scope of Article 3.
There
has therefore been a violation of Article 3 of the Convention on
account of the applicant’s sterilisation.
B. Alleged failure to conduct an effective
investigation
1. The parties’ submissions
(a) The applicant
The
applicant maintained that the respondent State had failed to comply
with its obligation under the procedural limb of Article 3 to carry
out an effective investigation into her sterilisation. A criminal
investigation into the case should have been started at the
initiative of the authorities after they had been informed about the
interference. The general investigation into the sterilisation of
Roma women which the Government had initiated could not be considered
as effective in respect of the applicant’s own case. Similarly,
the civil proceedings which the applicant had initiated had not
complied with the requirements of Article 3. In particular, the
applicant had been placed in a difficult position as the courts had
been bound to examine the case only in the light of the parties’
submissions, and the burden of proof had lain on the latter. Those
proceedings had not led to the identification and punishment of those
responsible.
(b) The Government
The
Government disagreed with the applicant’s arguments. In their
view, there had been no breach of Article 3 under its procedural
limb, given that the alleged practice of forced sterilisation of Roma
women had been thoroughly examined in the context of the criminal
proceedings initiated by the Government Office and a group of experts
established by the Ministry of Health. Any specific obligations
incumbent on the State in respect of the applicant’s case had
been complied with in the context of the civil proceedings initiated
by her.
2. The Court’s assessment
(a) General principles
Articles
1 and 3 of the Convention impose positive obligations on the
Contracting Parties, designed to prevent and provide redress for
various forms of ill-treatment. In particular, in a similar manner to
cases raising an issue under Article 2 of the Convention, there is a
requirement to conduct an effective official investigation (see, for
example, Assenov and Others v. Bulgaria, 28 October 1998,
§ 102, Reports of Judgments and Decisions 1998 VIII,
and Biçici v. Turkey, no. 30357/05, § 39, 27
May 2010, with further references).
The
investigation in such cases must be thorough and expeditious.
However, the failure of any given investigation to produce
conclusions does not, by itself, mean that it was ineffective: an
obligation to investigate “is not an obligation of result, but
of means” (see Mikheyev v. Russia, no. 77617/01, §§
107-109, 26 January 2006, with further references).
In
cases raising issues under Article 2 of the Convention in the context
of alleged medical malpractice the Court has held that where the
infringement of the right to life or to personal integrity is not
caused intentionally, the positive obligation imposed by Article 2 to
set up an effective judicial system does not necessarily require the
provision of a criminal-law remedy in every case. In the
specific sphere of medical negligence the obligation may for instance
also be satisfied if the legal system affords victims a remedy in the
civil courts, either alone or in conjunction with a remedy in the
criminal courts, enabling any liability of the doctors concerned to
be established and any appropriate civil redress, such as an order
for damages and for the publication of the decision, to be obtained
(see Calvelli and Ciglio v. Italy [GC], no. 32967/96, §
51, ECHR 2002 I; Vo v. France [GC], no. 53924/00, §§
90, ECHR 2004 VIII; and Byrzykowski v. Poland, no.
11562/05, § 105, 27 June 2006).
(b) Assessment of the facts of the present
case
The
Court has found above that the way in which the hospital staff acted
was open to criticism, given that the applicant had not given her
informed consent to the sterilisation. However, the information
available does not indicate that the doctors acted in bad faith, with
the intention of ill treating the applicant (see also paragraph
119 above). In this respect the present case differs from other cases
in which the Court held that the domestic authorities should start a
criminal investigation of their own initiative once the matter had
come to their attention (see, for example, Muradova v. Azerbaijan,
no. 22684/05, § 123, 2 April 2009).
The
applicant had the possibility of requesting a criminal investigation
into her case but did not avail herself of it. She sought redress by
means of an action under Articles 11 et seq. of the Civil Code for
protection of her personal integrity. In the context of the civil
proceedings she was entitled to submit her arguments with the
assistance of a lawyer, indicate evidence which she considered
relevant and appropriate and have an adversarial hearing on the
merits of her case. The civil proceedings lasted for two years
and one month over two levels of jurisdiction, and the Constitutional
Court subsequently decided on the applicant’s complaint
concerning her relevant rights under the Convention within thirteen
months. Hence, the applicant had an opportunity to have the
actions of the hospital staff which she considered unlawful examined
by the domestic authorities. The domestic courts dealt with her case
within a period of time which is not open to particular criticism.
In
view of the foregoing, the applicant’s argument that the
respondent State failed to carry out an effective investigation into
her sterilisation, contrary to its obligations under Article 3,
cannot be accepted.
There
has therefore been no procedural violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that her right to respect for her private and
family life had been violated as a result of her sterilisation
without her full and informed consent. She relied on Article 8 of the
Convention which, in its relevant parts, provides:
“1. Everyone has the right to respect
for his private and family life, ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties’ submissions
1. The applicant
The
applicant submitted that the interference had not satisfied the
requirements of paragraph 2 of Article 8 and that the Slovakian
authorities had failed to comply with their positive obligation under
Article 8 as they had not provided her with information about ways of
protecting her reproductive health, including information on the
characteristics and consequences of sterilisation and alternative
methods of contraception.
The
provisions of the 1972 Sterilisation Regulation had not been complied
with as there had been no genuine declaration signed by the applicant
and the procedure had not been pre-approved by a sterilisation
committee. Furthermore, that Regulation did not provide an
appropriate framework for ensuring that patients could give free and
informed consent in similar circumstances, as required by the
relevant international instruments.
Sterilisation
via tubal ligation was not life-saving surgery. Had that been the
case, there would have been no need to obtain the applicant’s
signature on the delivery record. The circumstances under which she
had signed the relevant document excluded the possibility of her
giving full and informed consent to the procedure, which had grossly
affected her private and family life.
The
applicant considered her infertility to be irreversible, as a future
in vitro fertilisation was not accessible to her for both
religious and financial reasons. Her sterilisation had resulted in
the deterioration of her relationship with the father of her
children, impaired her standing in the Roma community of which she
was a member, and was one of the reasons for her divorce in 2009.
2. The Government
The
Government maintained that there had been gynaecological and
obstetric indications for the applicant’s sterilisation as
there was a serious risk of damage to both her health and life
and those of her child in the event of a further pregnancy. The
sterilisation had been performed at the applicant’s request. As
it had been performed on unhealthy reproductive organs, in accordance
with section 2(a) of the 1972 Sterilisation Regulation, the head
physician of the hospital department had been authorised to decide
whether indications for sterilisation existed.
The
applicant had requested sterilisation some two and a half hours after
she had been admitted to the hospital and she had been placed under
anaesthesia approximately one hour later. Until that moment no
substances had been administered to her capable of affecting her
cognitive functions. The Government maintained that the applicant had
herself requested the procedure after she had been advised, in an
appropriate manner, about the risks resulting from a possible third
pregnancy and the consequences of sterilisation. As established
by the domestic courts, the interference had been in accordance with
the relevant law and necessary for protecting the applicant’s
own life and health. The Government left it to the Court to
assess to what extent the procedure had complied with the relevant
international standards.
It
was still possible for the applicant to become pregnant, for example
by means of in vitro fertilisation. At the hearing the
Government indicated that they were prepared to cover the costs of
such a procedure. However, due to the serious risks inherent in a
further pregnancy, the applicant would have to agree to undergo
frequent medical check-ups throughout its duration.
B. The Court’s assessment
1. General principles
“Private
life” is a broad term, encompassing, inter alia, aspects
of an individual’s physical, psychological and social identity
such as the right to personal autonomy and personal development, the
right to establish and develop relationships with other human beings
and the right to respect for both the decisions to have and not to
have a child (see Evans v. the United Kingdom [GC], no.
6339/05, § 71, ECHR 2007 IV; or E.B. v. France [GC],
no. 43546/02, § 43, 22 January 2008).
The
essential object of Article 8 is to protect the individual against
arbitrary interference by public authorities. Any interference under
the first paragraph of Article 8 must be justified in terms of the
second paragraph, namely as being “in accordance with the law”
and “necessary in a democratic society” for one or
more of the legitimate aims listed therein. The notion of necessity
implies that the interference corresponds to a pressing social
need and, in particular, that it is proportionate to one of the
legitimate aims pursued by the authorities (see, for example, A, B
and C v. Ireland [GC], no. 25579/05, §§
218-241, 16 December 2010).
In
addition, the Contracting States are also under a positive obligation
to secure to persons within their jurisdiction their right to
effective respect for their rights under Article 8. For the
assessment of such positive obligations it must be borne in mind that
the rule of law,
one
of the fundamental
principles
of a democratic
society,
is inherent in all the Articles of the Convention. Compliance with
requirements imposed by the rule of law presupposes that the rules of
domestic law must provide a measure of legal protection against
arbitrary interferences by public authorities with the rights
safeguarded by the Convention.
Whilst
Article 8 contains no explicit procedural requirements, it is
important for the effective enjoyment of the rights guaranteed by
this provision that the relevant decision making process is fair
and such as to afford due respect to the interests safeguarded by it.
What has to be determined is whether, having regard to the particular
circumstances of the case and notably the nature of the decisions to
be taken, an individual has been involved in the decision-making
process, seen as a whole, to a degree sufficient to ensure the
requisite protection of his or her interests (for recapitulation of
the relevant principles see, in particular, Airey v. Ireland,
9 October 1979, § 32, Series A no. 32; Tysiąc v.
Poland, no. 5410/03, §§ 107-113, ECHR 2007 IV;
or A, B and C v. Ireland [GC] cited above, §§ 247-249).
The
principles set out above are relevant also as regards a person’s
right to respect for his or her family life. That notion under
Article 8 of the Convention presupposes the existence of a family,
but it is not confined to marriage-based relationships and may
encompass other de facto “family” ties where the
parties are living together outside marriage (see, for example, E.B.,
cited above, § 41; Anayo v. Germany, no.
20578/07, §§ 55, 58 and 63, 21 December
2010; Keegan v. Ireland, 26 May 1994, §§
49-55, Series A no. 290; and Nolan and
K. v. Russia, no. 2512/04, §§ 84-88,
12 February 2009, all with further
references).
2. Compliance with Article 8
The
applicant’s sterilisation affected her reproductive health
status and had repercussions on various aspects of her private and
family life. It therefore amounted to interference with her rights
under Article 8. This was not disputed between the parties.
Insofar
as the applicant complains that her sterilisation without her full
and informed consent violated her right to respect for her private
and family life, in the light of its finding that the sterilisation
was in breach of the applicant’s right under Article 3 of the
Convention, the Court does not find it necessary to examine this
complaint separately under Article 8 of the Convention.
The
Court nevertheless considers it important to examine whether the
respondent State complied with its positive obligation under Article
8 to secure through its legal system the rights guaranteed by that
Article, by putting in place effective legal safeguards to protect
the reproductive health of, in particular, women of Roma origin.
The
Court notes that the documents before it indicate that the issue of
sterilisations and its improper use affected vulnerable individuals
belonging to various ethnic groups. However, the Council of Europe
Commissioner for Human Rights was convinced that the Roma population
of eastern Slovakia had been at particular risk. This was due, inter
alia, to the widespread negative attitudes towards the relatively
high birth rate among the Roma compared to other parts of the
population, often expressed as worries of an increased proportion of
the population living on social benefits. In the Commissioner’s
view, the Slovakian Government had an objective responsibility in the
matter because of systemic shortcomings in the procedures permitted
and, in particular, for failing to put in place adequate legislation
and exercise appropriate supervision of sterilisation practices (see
paragraph 78 above).
Similarly,
in its third report on Slovakia, ECRI stated that public opinion
towards the Roma minority in Slovakia remained generally negative.
That minority remained severely disadvantaged in most areas of life.
The view was expressed that more adequate safeguards should be put in
place (see paragraph 80 above).
In
the concluding observations of its 2008 periodic report on Slovakia,
CEDAW expressed its concern at information received in respect of
Roma women who reported having been sterilised without their prior
and informed consent. It recommended that the Government take steps
to ensure that patients were able to provide fully informed consent
before any sterilisation procedure (see paragraph 84 above).
In
its report of 28 May 2003 a group of experts set up by the Ministry
of Health concluded that certain shortcomings that had been
established in terms of health care and non-compliance with the
regulations on sterilisation affected the whole population equally,
regardless of patients’ ethnic origin. The report nevertheless
contained a set of recommendations in the field of education of
medical staff focusing on “cultural differences in regions with
an increased concentration of Roma communities” (see paragraphs
54-55 above).
The
Court has noted in this regard that the entry in the “Medical
history” part of the record of the applicant’s pregnancy
and delivery stated in sub-section “Social and working
conditions, especially during the pregnancy” only that the
“Patient is of Roma origin”. Moreover, in the proceedings
before the Slovakian civil courts one of the doctors at Prešov
Hospital considered that the situation of the applicant was “the
same as in other similar cases” (see paragraph 32 above).
The
Government explained that the reference to the applicant’s Roma
origin had been necessary as Roma patients frequently neglected
social and health care and therefore required special attention. Even
accepting this to have been the reason for the entry, the reference
in the record to the applicant’s ethnic origin, without more,
indicates, in the view of the Court, a certain mindset on the part of
the medical staff as to the manner in which the medical situation of
a Roma woman should be managed. Certainly, it does not suggest that
special care was to be, or was in fact, exercised to ensure that the
full and informed consent of such a patient was obtained before any
sterilisation was contemplated or that the patient was involved in
the decision-making process to a degree permitting her interests to
be effectively protected.
152. Both
the 1972 Sterilisation Regulation and the Health Care Act 1994
required patients’ consent prior to medical intervention.
However, those provisions, in view also of their interpretation and
implementation in the applicant’s case, did not provide
appropriate safeguards. In particular, they allowed the occurrence of
a situation where an intervention of a particularly serious
nature was carried out without the applicant’s informed consent
as defined in the Convention on Human Rights and Biomedicine by which
Slovakia was bound at the relevant time.
Specific
measures aimed at the elimination of such shortcomings and ensuring
compliance with the international standards were introduced with the
enactment of the Health Care Act 2004, which became operative on 1
January 2005. In contrast to the 1972 Sterilisation Regulation and
the Health Care Act 1994, the new legislation governs in detail the
provision of information to patients and their informed consent. In
particular, section 40 spells out the prerequisites for a person’s
sterilisation. These include a written request and written
consent, following prior information about, inter alia,
alternative methods of contraception, planned parenthood and the
medical consequences. Sterilisation may not be carried out earlier
than thirty days after informed consent has been given. The
Court welcomes such developments but notes that they cannot affect
the applicant’s situation as they are subsequent to the
relevant facts of the present case.
Accordingly,
the absence at the relevant time of safeguards giving special
consideration to the reproductive health of the applicant as a Roma
woman resulted in a failure by the respondent State to comply with
its positive obligation to secure to her a sufficient measure of
protection enabling her to effectively enjoy her right to respect for
her private and family life.
There
has therefore been a breach of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
The
applicant complained that the facts of the case amounted to a breach
of Article 12 of the Convention, which provides:
“Men and women of marriageable age have the right
to marry and to found a family, according to the national laws
governing the exercise of this right.”
The
applicant contended that her right to found a family had been
breached on account of her sterilisation without her full and
informed consent, and that the Government had failed to establish
appropriate safeguards preventing such situations from occurring.
The
Government maintained that the applicant’s inability to become
pregnant in a natural way was the consequence of her sterilisation,
which she had undergone of her own free will. Furthermore, the
evidence submitted before the domestic courts indicated that existing
methods made it possible for the applicant to become pregnant if she
so decided despite the risk incurred.
The
Court reiterates that Article 12 of the Convention secures the
fundamental right of a man and woman to marry and to found a family.
Its exercise is subject to the national laws of the Contracting
States but the limitations thereby introduced must not restrict or
reduce the right in such a way or to such an extent that the
very essence of the right is impaired (see Muñoz Díaz
v. Spain, no. 49151/07, § 78, 8 December 2009, with further
references). The exercise of the right to marry and found a family
gives rise to personal, social and legal consequences as a result of
which there is a close affinity between the rights under
Articles 8 and 12 of the Convention (see Frasik v. Poland, no.
22933/02, § 90, ECHR 2010 ... (extracts)).
In
the present case, the sterilisation performed on the applicant had
serious repercussions on her private and family life, and the Court
has found above that it was in breach of Article 8 of the Convention.
That finding absolves the Court from the task of examining whether
the facts of the case also give rise to a breach of the applicant’s
right to marry and to found a family.
It
is therefore not necessary to examine separately the applicant’s
complaint under Article 12 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that she had had no effective remedy at her
disposal in respect of her complaints about the infringement of her
rights guaranteed by Articles 3, 8 and 12 of the Convention. She
relied on Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
applicant argued, in particular, that the domestic authorities had an
obligation to carry out an effective investigation into her
sterilisation. However, no such action had been taken at the
initiative of the authorities and the examination of her case in the
civil proceedings which the applicant had initiated had not been
effective.
The
Government disagreed and maintained that the applicant had had
effective remedies at her disposal, namely an action under Articles
11 et seq. of the Civil Code for protection of her personal rights
and, ultimately, a complaint to the Constitutional Court.
The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms. Its effect is to
require the provision of a domestic remedy capable of dealing with
the substance of an “arguable complaint” under the
Convention and of granting appropriate relief (see, amongst other
authorities, Aksoy v. Turkey, 25 September 1996, § 95,
Reports 1996-VI). The word “remedy” within the
meaning of Article 13 does not, however, mean a remedy which is bound
to succeed, but simply an accessible remedy before an authority
competent to examine the merits of a complaint (see, mutatis
mutandis, Bensaid v. the United Kingdom, no. 44599/98,
§ 56, ECHR 2001-I).
In
the present case the applicant was able to have her case reviewed by
the civil courts at two levels of jurisdiction, albeit
unsuccessfully. She thus had an effective remedy in respect of her
complaint about her sterilisation without informed consent. It is
true that the Constitutional Court subsequently rejected the
applicant’s complaint for reasons which the Court, in the
admissibility decision, characterised as excessively formalistic when
examining compliance with the requirement under Article 35 § 1.
This does not, however, affect the position under Article 13, given
the remedy which was available to the applicant before the civil
courts. In addition, it was open to the applicant to request a
criminal investigation into her case.
The
Court has found a breach of Article 8 on account of the respondent
State’s failure to incorporate in domestic law appropriate
safeguards (see paragraph 152). To the extent that the applicant
alleges a breach of Article 13 on the ground that such
deficiencies in domestic law were at the origin of her sterilisation
and the subsequent dismissal of her action, the Court reiterates that
Article 13 cannot be interpreted as requiring a remedy against the
state of domestic law (see Iordachi and Others v. Moldova,
no. 25198/02, § 56, 10 February 2009).
In
these circumstances, the Court finds no breach of Article 13 of the
Convention taken together with Articles 3, 8 and 12.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant complained that in the context of her sterilisation she had
been discriminated against, on the grounds of her race and sex, in
the enjoyment of her rights under Articles 3, 8 and 12 of the
Convention. She alleged a violation of Article 14 of the Convention,
which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status.”
A. The parties’ submissions
1. The applicant
The
applicant considered that her ethnic origin had played a decisive
role in the decision by the medical personnel of Prešov
Hospital to sterilise her. Her complaint about discriminatory
treatment was to be examined in the light of the sterilisation
policies and practice existing under the communist regime and also in
the context of the widespread intolerance towards the Roma in
Slovakia. That climate had influenced the attitudes of the
medical personnel. The indication in her
medical record that she was of Roma ethnic origin and her treatment
as a patient in Prešov Hospital
demonstrated the climate in that hospital with regard to Roma
patients and the overall context in which her sterilisation had taken
place. After the hearing the applicant specified that she did not
wish to complain separately about the segregation of Roma patients in
Prešov Hospital.
In
addition to having been subjected to racial discrimination, the
applicant alleged that she had been subjected to discrimination on
the ground of her sex as she had been subjected to a difference in
treatment in connection with her pregnancy. Referring to documents
from CEDAW, the applicant argued that a failure by health services to
accommodate the fundamental biological differences between men and
women in reproduction was in breach of the prohibition on
discrimination on the ground of sex. The sterilisation performed on
her without her full and informed consent amounted to a form of
violence against women. As such it was contrary to Article 14.
2. The Government
The
Government denied any practice of targeted discrimination of Roma
patients in medical institutions in Slovakia, including Prešov
Hospital, and disputed the applicant’s allegations in
that regard.
The
applicant’s sterilisation had been indicated for medical
reasons and had been performed at her request. In other similar cases
doctors had proceeded in the same way regardless of patients’
race or skin colour.
While
it was true that the medical documents included an entry indicating
that the applicant was of Roma origin, that entry had been made in
the delivery record, in the part describing the applicant’s
medical history. The medical staff of Prešov
Hospital specifically mentioned the Roma origin of patients in
documents, as those patients’ social and health care had been
frequently neglected and they therefore required special attention.
3. FIGO
FIGO considered it unethical for a physician to perform
a sterilisation procedure as an adjunct to a Caesarean section
because he or she considered it desirable in the patient’s
interest, unless the physician had fully discussed the matter with
the patient before delivery and received her voluntary consent. Given
the irreversible nature of many sterilisation procedures, physicians
should not allow any language, cultural or other differences between
themselves and their patients to leave the latter unaware of the
nature of the sterilisation procedures being proposed to them and for
which they were requested to provide prior consent.
B. The Court’s assessment
The
applicant alleged a breach of Article 14 read in conjunction with
Articles 3, 8 and 12 of the Convention. In the circumstances of the
case, the Court considers it most natural to entertain the
discrimination complaint in conjunction with Article 8 as the
interference in issue affected one of her essential bodily functions
and entailed numerous adverse consequences for, in particular, her
private and family life.
The
materials before the Court indicate that the practice of
sterilisation of women without their prior informed consent affected
vulnerable individuals from various ethnic groups. The Court has held
that the information available is not sufficient to demonstrate in a
convincing manner that the doctors acted in bad faith, with the
intention of ill-treating the applicant (see paragraph 119).
Similarly, and notwithstanding the fact that the applicant’s
sterilisation without her informed consent calls for serious
criticism, the objective evidence is not sufficiently strong in
itself to convince the Court that it was part of an organised policy
or that the hospital staff’s conduct was intentionally racially
motivated (see, mutatis mutandis, MiZigárová
v. Slovakia, no. 74832/01, §§ 117
and 122, 14 December 2010).
178. Nevertheless,
it is relevant from the viewpoint of Article 14 that in their
materials both the Human Rights Commissioner and ECRI identified
serious shortcomings in the legislation and practice relating to
sterilisations. They expressed the view that those shortcomings were
liable to particularly affect members of the Roma community, who were
severely disadvantaged in most areas of life. The same was implicitly
admitted by the group of experts established by the Ministry of
Health, who recommended special measures in respect of the Roma
population.
In
that connection the Court has found that the respondent State failed
to comply with its positive obligation under Article 8 of the
Convention to secure to the applicant a sufficient measure of
protection enabling her, as a member of the vulnerable Roma
community, to effectively enjoy her right to respect for her private
and family life in the context of her sterilisation.
In
these circumstances, the Court does not find it necessary to
separately determine whether the facts of the case also gave rise to
a breach of Article 14 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant argued that the interference with her rights had been of a
particularly serious nature and had had lasting repercussions. She
claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
The
Government considered that claim overstated. They argued that the
applicant had given her consent to the sterilisation procedure and
that she could undergo in vitro fertilisation if she wished to
have more children. The Government pointed out that, at the hearing
before the Court, they had offered to cover the costs of such a
procedure.
Having
regard to the breaches of the Convention established and their
factual background, the Court awards the applicant EUR 31,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant claimed EUR 38,930.43. That sum comprised EUR 34,621.59
in respect of the legal costs related to the applicant’s
representation both in the domestic proceedings and before the Court.
It further comprised EUR 4,308.84 in respect of costs and expensed
related to the preparation and photocopying of documents,
communication and postage, and expenses related to the participation
of the applicant’s representatives at the hearing on 22 March
2011, as well as irrecoverable costs incurred in connection with the
hearing which had been scheduled for 7 September 2010 (see paragraph
6 above).
The
Government submitted that the claim was unreasonably high and that
the Court should grant the applicant compensation only in respect of
those costs and expenses which she had reasonably incurred.
According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually and necessarily incurred and were reasonable as to
quantum (see Sanoma Uitgevers B.V. v. the Netherlands,
no. 38224/03, § 109, ECHR 2010 ...., with further
references).
In
the present case, the Court considers that the sum claimed is
excessive, in particular as regards the fees of the applicant’s
representatives. Regard being had to the information in its
possession and the above-mentioned criteria, the Court considers it
reasonable to award the global sum of EUR 12,000 in respect of costs
and expenses, plus any tax that may be chargeable to the applicant on
that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds unanimously that there has been a
substantive violation of Article 3 of the Convention;
Holds unanimously that there has been no
procedural violation of Article 3 of the Convention;
Holds unanimously that there has been a
violation of Article 8 of the Convention;
Holds unanimously that it is not necessary to
examine separately the complaint under Article 12 of the
Convention;
Holds unanimously that there has been no
violation of Article 13 of the Convention;
Holds by six votes to one that a separate
examination of the complaint under Article 14 of the Convention is
not called for;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
31,000 (thirty-one thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses by six votes to one the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı
Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Mijović
is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE MIJOVIC
While
I have no difficulty in sharing the majority’s view that there
have been violations of both Articles 3 and 8 of the Convention, to
my regret, my opinion on the Article 14 complaint differs
significantly from the conclusion reached by the majority. The
Chamber decided that no separate examination of the complaint under
Article 14 of the Convention was called for. To me, that complaint
was the very essence of this case and should have been dealt with on
its merits, with a finding of a violation of Article 14.
In
its case-law the Court has established that discrimination means
treating differently, without an objective and reasonable
justification, persons in relevantly similar situations. Against the
background of the principles of the Court’s case-law as
confirmed in D.H. and Others v. the Czech Republic ([GC], no.
57325/00, §§ 175-181, ECHR 2007) and Oršuš
and Others v. Croatia (no. 15766/03, §§ 147-153, 17
July 2008), I am compelled to disagree totally with the Chamber’s
finding and regret that the discrimination to which the applicant was
clearly subjected is given scant attention in the judgment.
The
facts of the case confirm that the applicant had a medical record and
that under the “Medical history” sub-section, the words
“Patient is of Roma origin” appeared. The Government
explained that that entry in the delivery record indicating the
applicant’s ethnic origin had been necessary as Roma patients’
social and health care had frequently been neglected and they
therefore required “special attention”.
I
find this argument totally unacceptable since the “special
attention” was in fact the applicant’s sterilisation,
which has been found to be in breach of both Articles 3 and 8 of the
Convention. Finding violations of Articles 3 and 8 alone in my
opinion reduces this case to the individual level, whereas it is
obvious that there was a general State policy of sterilisation of
Roma women under the communist regime (governed by the 1972
Sterilisation Regulation), the effects of which continued to be felt
up to the time of the facts giving rise to the present case.
Additionally, and in order to illustrate that not many things have
changed regarding State policy towards the Roma population, in its
third report on Slovakia ECRI stated that public opinion towards the
Roma minority remained generally negative. Furthermore, ECRI
expressed particular concern about reports indicating that Roma women
had been, on an ongoing basis, subjected to sterilisation in some
hospitals without their full and informed consent. The fact that
there are other cases of this kind pending before the Court
reinforces my personal conviction that the sterilisations performed
on Roma women were not of an accidental nature, but relics of a
long-standing attitude towards the Roma minority in Slovakia. To my
mind, the applicant was “marked out” and observed as a
patient who had to be sterilised just because of her origin, since it
was obvious that there were no medically relevant reasons for
sterilising her. In my view, that represents the strongest form of
discrimination and should have led to a finding of a violation of
Article 14 in connection with the violations found of Articles 3 and
8 of the Convention.
For
the above reasons I also voted against the Chamber’s finding
that the remainder of the applicant’s claim for just
satisfaction should be dismissed, since I am of the opinion that a
violation of Article 14, if found, would have led to the acceptance
of these claims.
