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FORMER
SECTION IV
CASE OF N.B. v. SLOVAKIA
(Application
no. 29518/10)
JUDGMENT
STRASBOURG
12 June
2012
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 N.B. v. Slovakia,
The
European Court of Human Rights (Former Section IV), sitting as
a Chamber composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29518/10) 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 N.B. (“the
applicant”), on 20 May 2010. The President 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 V. Durbáková and
Ms B. Bukovská, lawyers acting in co operation
with the Centre for Civil and Human Rights, a non governmental
organisation with its registered office 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 and
her subsequent failure to obtain appropriate redress from the
Slovakian authorities.
- On
9 November 2010 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is of Roma ethnic origin. She was born in 1983 and lives in
Nálepkovo.
A. Sterilisation of the applicant at the Gelnica
Hospital
- On
25 April 2001, during the delivery of her second child, the applicant
was sterilised by means of tubal ligation at the gynaecology and
obstetrics department of the hospital in Gelnica (“the Gelnica
Hospital”). The Gelnica Hospital was a public hospital
administered by the Ministry of Health at that time and until the end
of 2002.
- During
her pregnancy the applicant visited her doctor regularly. She was
informed that the delivery would be via caesarean section.
- According
to the applicant’s medical records, the applicant was brought
to the hospital in labour by an ambulance at 7.50 a.m. on
25 April 2001. At 9 a.m. on the same day, when her
contractions were occurring at five minute intervals, the applicant
was administered premedication in view of the envisaged caesarean
section. It included a benzodiazepine derivative which is used
for its sedative, anxiety-relieving and muscle-relaxing effects.
- Following
a handwritten entry on the administration of the premedication, the
medical record contains a typed entry on the next page, according to
which the applicant had requested that a sterilisation procedure
be carried out on her reproductive organs during the delivery, and
that she had been informed about the irreversible nature of such an
operation and of her being unable to conceive a child in the future.
The entry is signed by a doctor and it also bears the signature
of the applicant.
- The
applicant later declared that, after the administration of the
premedication, she had been approached by a member of the medical
staff who was carrying three A4 size pieces of paper. The staff
member had taken her hand to help her sign the papers. The applicant
had been in labour and had felt as if she were intoxicated under the
influence of the medication. She had neither had the strength nor the
will to ask what the documents contained. She remembers a doctor who
was present saying that she would die unless she signed the papers.
She had therefore not objected to signing the papers with the
assistance of the staff member.
- The
applicant’s child was born at 9.35 a.m.
- Another
section of the medical records, dated 11 May 2001, indicates that the
child was delivered by caesarean section.
- According
to a surgical report in the applicant’s medical file, in the
course of the operation the doctors discovered a large fissure
running the length of the scar from a previous caesarean section on
the applicant. After the child’s delivery, the doctors
discovered a rupture of the applicant’s uterus. It had probably
been the result of the secondary healing of a suture which had become
loose during the course of the applicant’s second pregnancy. As
a result, the applicant’s life had been at risk. The
doctors had therefore considered a hysterectomy as a radical
solution to the problem. However, in view of the patient’s age,
they had preferred to carry out reconstructive surgery despite the
risk of complications. Since the applicant’s uterus was
severely damaged, it had been considered certain that a similar
situation would occur in any future pregnancy and would pose a grave
risk to the life of the applicant and her foetus. After the
reconstructive surgery, the doctors had therefore decided to
sterilise the applicant in accordance with the request she had made
prior to the operation. The report indicates that no complications
occurred in the course of the surgery.
- The
applicant was released from the Gelnica Hospital on 11 May 2001.
- The
medical records also contain a copy of a decision of the
sterilisation commission established at the Gelnica Hospital. The
decision is dated 15 May 2001 and indicates that the commission
approved, ex post facto, the applicant’s sterilisation, which
had been carried out at her request. According to the document, a
sterilisation procedure had been justified within the meaning of the
Sterilisation Regulation 1972 in view of the applicant’s
health.
- At
the time of the delivery and sterilisation procedure the applicant
was underage. She reached the age of majority ten days later. Her
mother, who was the applicant’s representative while she was
under the age of majority, was not present during the delivery and
she had not been asked to give her consent to the sterilisation.
- The
applicant learned about the operation and its nature in
December 2002, when her lawyer reviewed her medical file in the
Gelnica Hospital.
- According
to the applicant, as a result of the operation, she has suffered from
serious physical and mental health problems. The applicant’s
psychological problems were recognised by a psychologist in a
statement dated 7 September 2007. She maintained that she had
been ostracised by her husband and the Roma community because of her
infertility.
- With
a view to describing the overall situation and context in which she
had been sterilised, the applicant submitted that she had experienced
inferior treatment during her stay at the Gelnica Hospital. In
particular, the applicant indicated that patients in the
gynaecological and obstetrics ward had been segregated according to
their ethnic origin. The applicant had been accommodated in a “Gypsy
room” separated from women who were not of Roma ethnic origin.
The applicant considered that her ethnic origin had played a decisive
role in the decision of the medical staff to sterilise her. Citing
a number of international reports,
the applicant submitted that discrimination against Roma in Slovakia
extended to all facets of their lives.
- The
Government were in disagreement with the applicant’s
allegations.
B. Civil proceedings
- On
8 December 2004 the applicant sued the Gelnica Hospital for damages
before the Spišská Nová Ves
District Court. Apart from the relevant provisions of the
Slovakian Civil Code, she also relied on Articles 3, 8 and 12 of the
Convention. The applicant argued that she had been sterilised
contrary to the relevant provisions of Slovak law, as her mother had
not given consent to the operation. It had also run counter to
relevant international human rights standards. The applicant claimed
the equivalent of 17,310 euros (EUR) in damages and also claimed
reimbursement of her costs.
- Following
the privatisation of the Gelnica Hospital, the District Court
substituted the Gelnica Municipality as the defendant in the
proceedings on 25 May 2005.
- On
10 February 2006 the District Court dismissed the applicant’s
action. With reference to the evidence available, it concluded that
the operation had been necessary with a view to saving the
applicant’s life. As such, it could have been performed without
her prior consent.
- On
28 March 2006 the applicant appealed. She maintained, inter alia,
that her ethnic origin had motivated the doctors to sterilise her.
- On
28 February 2007 the Košice Regional
Court quashed the first instance judgment. It expressed the view
that the sterilisation operation on the applicant could not be
considered as life-saving surgery and ordered the first-instance
court to re-examine the case in light of that opinion.
- An
expert opinion submitted to the District Court indicated that during
the caesarean section the doctors had discovered an extensive injury
to the applicant’ uterus. A hysterectomy, which they had
originally considered carrying out, would have been, in the expert’s
view, acceptable medical practice in the circumstances. The expert
considered the alternative solution which the doctors had chosen,
namely reconstructive surgery of the uterus, as an intervention which
had saved the applicant’s life in the circumstances. However,
the subsequent sterilisation of the applicant had not been
indispensable with a view to preventing an imminent danger to her
life.
- On
7 September 2007 a psychology centre conducted an examination of the
applicant and issued a report at the request of the applicant’s
representative. It was noted that during the examination the
applicant had indicated that there was conflict in her marriage, as
her husband frequently reproached her for her inability to have more
children. The applicant had further indicated that she suffered from
stomach pains, loss of appetite and breathing problems. The
psychologist concluded that the depressive and pessimistic moods from
which the applicant suffered were possibly related to her inability
to conceive.
- In
her submissions to the District Court the applicant also relied on
views expressed by several experts on sociology and Roma culture
indicating that the inability to have children strongly diminished
the position of a woman and her family in the Roma community.
- On
14 May 2008 the District Court ordered the defendant to pay the
equivalent of EUR 1,593 to the applicant. It further held that none
of the parties were entitled to have the costs of the proceedings
reimbursed.
- The
District Court established that the medical staff had failed to
obtain informed consent to the applicant’s sterilisation prior
to the operation. At the relevant time, the applicant had been
underage and her legal representative had not signed the request. It
determined the amount of compensation with reference to Regulation
32/1965. The court did not consider it necessary to avail itself of
its right to increase the award of compensation above the rates
indicated in the regulation. It noted that the applicant had married
the father of her children since bringing the action and had not
shown that her position in the Roma community had deteriorated.
- By
an additional judgment of 11 June 2008 the District Court formally
rejected the remainder of the applicant’s claims and ordered
the defendant to reimburse the State’s costs incurred in the
proceedings.
- On
23 June 2008 the applicant appealed. She argued that the compensation
awarded to her was insufficient in view of the scope and consequences
of the damage which she had suffered, and complained that the
District Court had dismissed her request for reimbursement of her
legal costs.
- On
27 October 2009 the Regional Court upheld the first-instance judgment
on the merits to the extent that it was challenged by the applicant.
The Regional Court referred to the opinion of an expert indicating
that a third pregnancy would be highly risky for both the
applicant and the foetus. If the applicant had not agreed to her
sterilisation, she would have been required to confirm in writing
that she had been advised that any future pregnancy would threaten
her life. Albeit that it could not be established with absolute
certainty that such a situation would occur, the existence of such a
risk nevertheless justified the conclusion that an increase in
compensation under sections 6(2) and 7(3) of Regulation 32/1965 was
not justified in the circumstances.
- The
Regional Court further quashed the first-instance decision as to the
costs of the proceedings and ordered the District Court to re-examine
the issue.
C. Criminal complaint
- On
26 August 2008 the applicant filed a criminal complaint with the
District Prosecutor’s Office in Spišská
Nová Ves. She alleged that the sterilisation operation
had been unlawful and had caused her serious bodily harm. The
applicant also relied on her rights under the Convention.
- On
20 October 2008 the District Directorate of the Office of the
Judicial and Criminal Police in Spišská
Nová Ves dismissed the applicant’s complaint. It
concluded that no offence had been committed, as the medical staff
involved had acted with a view to protecting the applicant’s
life and health. Furthermore, it was still possible for the applicant
to conceive by means of in vitro fertilisation.
- On
14 November 2008 the Spišská Nová
Ves District Prosecutor’s Office dismissed the
applicant’s complaint against that decision.
- On
14 January 2009 the Košice Regional
Prosecutor’s Office quashed the lower prosecutor’s
decision as being premature.
- Subsequently,
the police started a criminal investigation. They took statements
from the applicant, her mother and a doctor from the Gelnica
Hospital. The doctor stated that complications had occurred in the
course of the delivery, as a result of which the applicant’s
life had been at risk. It had therefore been decided to perform a
sterilisation, with the applicant’s approval, as a life-saving
procedure. In contrast, an expert provided an opinion to the effect
that it had not been necessary to sterilise the applicant during the
delivery with a view to saving her life. Both the doctor and the
expert concurred that the operation had not prevented the applicant
from becoming pregnant by means of assisted reproduction.
- On
31 July 2009 the police closed the investigation, concluding that no
criminal offence had been committed.
- On
16 September 2009 the Spišská Nová
Ves District Prosecutor’s Office dismissed the
applicant’s complaint against that decision. It held, with
reference to an expert opinion, that the operation had become
necessary as, in the course of the delivery, extensive bleeding had
occurred due to a rupture of the applicant’s uterus. In that
situation, the doctors had had to take a decision immediately. After
consultation with the head physician, they had decided not to carry
out a hysterectomy, which was normally indicated in similar
situations, but had elected to reconstruct the uterus with a view to
preserving it. The surgical team had then carried out a sterilisation
by means of tubal ligation so that the applicant could lead a normal
life. The applicant had not suffered irreversible damage to her
health and she had given her consent to the procedure. She had
reached the age of majority only ten days thereafter. Prior to the
delivery she had lived with her partner and had taken care of one
child.
- On
18 November 2009 the Košice Regional
Prosecutor’s Office, in response to a complaint by the
applicant, upheld the findings reached by the police and the District
Prosecutor’s Office. The letter informing the applicant of this
decision further stated that the above-mentioned findings of the
civil courts in relation to the case did not bind the prosecuting
authorities.
- At
the applicant’s request, a prosecutor from the General
Prosecutor’s Office reviewed the case. In a letter of 8 March
2010 the prosecutor admitted that the operation had not been
consented to by the applicant’s representative, contrary to the
relevant law. That did not mean, however, that the doctors had
committed an offence. In particular, they had acted in good faith
with a view to protecting the applicant, as they had considered the
operation necessary in view of the applicant’s health.
- The
public prosecutor noted that the applicant had signed the request
while experiencing labour pains and that her sterilisation had not
been a life saving intervention. The provisions of the
Sterilisation Regulation 1972 had been interpreted and applied for
many years in such a manner that, where it was medically indicated
and where the prior agreement of the woman concerned was obtained,
sterilisation was carried out immediately after delivery by means of
caesarean section.
D. Constitutional proceedings
- On
18 January 2010 the applicant lodged a complaint with the
Constitutional Court. She alleged a breach, in the above civil and
criminal proceedings, of her rights under Articles 3, 8, 13 and 14 of
the Convention, of several provisions of the International Convention
on the Elimination of All Forms of Racial Discrimination, of the
Convention on the Elimination of All Forms of Discrimination against
Women, and a number of constitutional provisions. As regards the
civil proceedings, she also alleged a breach of Article 6 of the
Convention.
- The
Constitutional Court dismissed the complaint on 5 May 2010. It held
that the prosecuting authorities involved could not be held liable
for the alleged breach of the applicant’s substantive rights
which had primarily resulted from her sterilisation in the Gelnica
Hospital. As to the civil proceedings, the Constitutional Court found
that the Košice Regional Court had
given sufficient and relevant reasons for its judgment of
27 October 2009, which had therefore not been arbitrary.
There was no appearance of a breach of Article 6 § 1 of the
Convention in the proceedings leading to that judgment. The
Constitutional Court further found no causal link between the
Regional Court’s judgment and the other rights on which the
applicant had relied.
II. RELEVANT DOMESTIC LAW, PRACTICE AND RELEVANT
INTERNATIONAL MATERIALS
- The
relevant domestic law, practice and international materials are set
out in the judgment of V.C. v. Slovakia, no. 18968/07,
§§ 57-86, 8 November 2011.
48. In
addition, the following information is relevant to the present case.
- 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, was published in the Collection of Laws
under number 40/2000 on 10 February 2000. Article 6 § 2 reads as
follows:
“Where, according to law, a minor does not have
the capacity to consent to an intervention, the intervention may only
be carried out with the authorisation of his or her representative or
an authority or a person or body provided for by law.
The opinion of the minor shall be taken into
consideration as an increasingly determining factor in proportion to
his or her age and degree of maturity.”
- Section
13(1) of the Health Care Act 1994 (“the 1994 Act”), in
force at the relevant time, 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)).
- Pursuant
to section 13(5) of the 1994 Act, in the case of patients under the
age of majority consent to medical procedures of a particularly
serious character within the meaning of section 13(2) was to be given
by their representative upon the recommendation of a group of at
least three experts. Patients over the age of sixteen who were deemed
to be intellectually capable of assessing the envisaged procedure had
to give their consent to such a procedure as well. The only exception
to the foregoing concerned indispensable medical procedures which
could not be delayed (section 13(6)).
- Regulation
32/1965 (“the Regulation”) governed compensation for pain
and impediments to a person’s integration in society which
resulted from an injury, occupational disease or other damage to
one’s health. It was repealed with effect from 1 January 2009.
- Section
2(1) of the Regulation provided for compensation for pain resulting
from damage to a person’s health, and for subsequent medical
treatment and the elimination of the effects of such damage. The
amount of the compensation for pain was to be determined in
accordance with the principles and rates attached to the Regulation.
It was to correspond to the scope of the damage to one’s health
and the course of its treatment.
- Section
4(1) of the Regulation governed compensation for damage to one’s
health which demonstrably entailed negative consequences for the
everyday life of the person concerned, for satisfying his or her
living and social needs or for fulfilling his or her role in society.
The compensation granted was to correspond to the nature of such
negative consequences and their expected prognosis, and should
reflect the extent to which a person’s life and integration in
society were affected.
- Pursuant
to section 6(1) of the Regulation, compensation under section 4(1) of
the Regulation was to be determined pursuant to the number of points
which a medical expert attributed to a particular case on the basis
of the rates attached to the Regulation. Paragraph 2 of section 6
allowed for the number of points assigned to be increased by up to
one hundred per cent, depending on: (i) the prospects which the
injured person had at the moment when his or her health was damaged;
(ii) the injured person’s family life; or (iii) the injured
person’s involvement in politics, culture or sport, their
profession and/or their level of education.
- Section
7 of the Regulation governed the amount of compensation. Its
paragraph 2 limited the overall compensation to the equivalent of
approximately EUR 8,000. Finally, paragraph 3 of section 7 entitled
the courts to increase the award over and above the sums foreseen by
the Regulation where it was justified by particular circumstances.
THE LAW
I. THE GOVERNMENT’S OBJECTION AS TO THE STATUS OF
THE APPLICANT AS A VICTIM
- The
Government argued that the applicant had lost her status as a victim
because the domestic courts had acknowledged, in substance, a breach
of her rights and had granted compensation to her in that respect. In
the domestic proceedings the applicant had not shown that the impact
of the sterilisation justified a higher compensation award.
- The
applicant maintained that the domestic authorities had neither
acknowledged a breach of her rights, nor had they granted appropriate
compensation to her.
- The
Court reiterates that a decision or measure favourable to an
applicant is not in principle sufficient to deprive him or her of
victim status under Article 34 of the Convention unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see Amuur
v. France, 25 June 1996, § 36, Reports of Judgments and
Decisions 1996-III; or Dalban v. Romania [GC], no. 28114/95,
§ 44, ECHR 1999-VI).
- In
the present case, the applicant relied on her rights under Articles
3, 8 and 12 of the Convention in the civil proceedings. The civil
courts acknowledged that her sterilisation had been unlawful due to
the fact that her mother had not signed the request. However, they
did not accept the applicant’s arguments about the particularly
serious character of the breach of her rights (see paragraphs 30 and
33 above). It does not appear from their reasoning that the civil
courts considered the circumstances of the case from the perspective
of the international standards on which the applicant had relied
(compare and contrast R.R. v. Poland, no. 27617/04,
§§ 101-102, 26 May 2011).
- In
the context of the criminal proceedings, the prosecuting authorities
concluded that the applicant had not suffered irreversible damage to
her health and that the doctors involved had not committed an
offence.
- Subsequently,
the Constitutional Court did not deal with the substance of the
applicant’s complaints under the Convention. It addressed only
the procedural aspects of the case (see paragraph 46 above). The
Court reiterates that it qualified a similar approach, in a different
case which also concerned the sterilisation of a Roma woman, as
amounting to excessive formalism (see V.C. v. Slovakia (dec.),
no. 18968/07, 16 June 2009).
- Even
assuming that by their judgments the civil courts acknowledged to an
acceptable extent the breach of the rights which the applicant
alleges, the Court notes that they awarded her the equivalent of EUR
1,593. In the judgment of V.C. v. Slovakia (cited above, §§
120, 155 and 184), which also concerned sterilisation of a Roma woman
in a public hospital, the Court found a breach of Articles 3 and 8 of
the Convention and awarded the applicant EUR 31,000 as just
satisfaction. The Court is therefore of the view that, having regard
to the circumstances of the case, the award at the domestic level
cannot be regarded as financial redress commensurate with the nature
of the damage alleged by the present applicant.
- The
Government’s objection that the applicant ceased to be a victim
within the meaning of Article 34 of the Convention must accordingly
be dismissed.
II. 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 without her and
her representative’s full and informed consent, and that the
authorities had failed to carry out a thorough, fair and effective
investigation into the circumstances surrounding her sterilisation.
She relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment of the applicant
(a) The parties’ submissions
(i) The applicant
- The
applicant, with reference to the arguments which she had raised in
the domestic proceedings, maintained that her sterilisation had not
been a life-saving intervention and that it had had a lasting
impact on her physical and psychological health, her relationship
with her husband, and on her family and had affected her position
within the Roma community. It had amounted to treatment contrary to
Article 3 of the Convention.
(ii) The Government
- The
Government argued that the applicant’s medical records included
a sterilisation request signed by her and that the sterilisation
committee had approved the procedure. It had been established in the
course of the delivery that the applicant’s uterus was
seriously damaged to an extent which had justified, from the medical
point of view, a hysterectomy. Despite a risk of complications, the
doctors had decided to carry out reconstructive surgery instead, in
view of the applicant’s age and also for the sake of
maintaining the applicant’s menstrual cycle. Subsequently, they
had carried out the sterilisation in accordance with the wish which
the applicant had earlier expressed and confirmed in writing.
- The
Government maintained that the applicant had not been subjected to
treatment contrary to Article 3 of the Convention, as the doctors had
acted with the intention of protecting her life and health, as well
as the life of her child. Had the doctors deliberately wished to
deprive the applicant of her reproductive capacity, they would have
carried out a hysterectomy which, as an expert had confirmed,
would have been considered as a life-saving intervention given the
state of the applicant’s reproductive organs. While it was true
that the applicant’s mother had not formally agreed to the
procedure, it was to be noted that the applicant had previously given
birth to a child and that she had reached the age of majority only
ten days after her sterilisation.
(b) The Court’s assessment
(i) Recapitulation of the relevant
principles
- The
relevant principles established in the Court’s case-law are set
out, for example, in V.C. v. Slovakia, judgment cited above,
§§ 100-105, with further references.
- That
case concerned the sterilisation of a Roma woman without her informed
consent. The procedure had been carried out immediately after she had
delivered a child via a caesarean section on the basis of a consent
which she had been asked to give while in labour.
- In
V.C. v. Slovakia (see §§ 106-120) the Court held
that sterilisation as such was not, in accordance with generally
recognised standards, a life saving medical intervention.
Where sterilisation was carried out without the informed consent of a
mentally competent adult, it was incompatible with the requirement of
respect for human freedom and dignity. In that case the Court
concluded that, although there was no indication that the medical
staff had acted with the intention of ill-treating the applicant,
they had nevertheless acted with gross disregard for her right to
autonomy and choice as a patient. Such treatment had been in breach
of Article 3 of the Convention.
(ii) Assessment of the facts of the case
- It
has not been disputed between the parties that the present
applicant’s sterilisation was not a life-saving medical
intervention and that it was carried out without the informed consent
of the applicant and/or her representative. Similarly as in the case
of V.C., the procedure was therefore incompatible with the
requirement of respect for the applicant’s human freedom and
dignity. The fact that the doctors had considered the procedure
necessary because the applicant’s life and health would be
seriously threatened in the event of her further pregnancy cannot
affect the position (see also V.C. v. Slovakia, cited above,
§§ 76-77 and 105, with further references).
- It
therefore remains to be determined whether the procedure and its
repercussions attained a level of severity justifying its
qualification as treatment contrary to Article 3.
- The
applicant submitted, and it was not contradicted by the medical
records or contested by the Government, that she had been asked to
sign a typed text indicating that she requested sterilisation
after tranquilising premedication had been administered in
preparation for the envisaged caesarean section. Thus the applicant
was in labour and was under the influence of medication. A member of
the medical staff asked her to sign the sterilisation request, and
she was prompted by one of the doctors present to do so with an
explanation that she would otherwise die. The applicant therefore did
not object to signing the paper with the assistance of a hospital
staff member.
- For
the Court, such a way of proceeding, by removing one of the important
capacities of the applicant and making her formally agree to such a
serious medical procedure while she was in labour, when her cognitive
abilities were affected by medication, and then wrongfully indicating
that the procedure was indispensable for preserving her life,
violated the applicant’s physical integrity and was grossly
disrespectful of her human dignity.
- Similarly
as in V.C. v. Slovakia (cited above, § 119), the
information available does not indicate that the medical staff acted
with the intention of ill-treating the applicant. They nevertheless
acted with gross disregard for her human freedom, including the right
to freely decide, together with her representative and after having
had the possibility of discussing the matter with her partner,
whether she consented to the procedure.
- The
Court notes that at the time of the procedure the applicant was
seventeen years old, still legally underage, and at an early stage of
her reproductive life. The sterilisation grossly interfered with her
physical integrity, as she was thereby deprived of her reproductive
capacity.
- Given
its serious nature and consequences, the sterilisation procedure,
including the manner in which the applicant was asked 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, a
psychologist admitted that the applicant’s depressive and
pessimistic moods could be linked to her inability to conceive. In
view of the documents which the applicant produced in the domestic
proceedings (see paragraph 28 above), the Court finds no reason to
doubt that her inability to have children strongly diminished her
position as a woman living within a Roma community and entailed
mental suffering. The treatment to which the applicant was
subjected as described above attained the threshold of severity
required to bring it within the scope of Article 3.
- There
has accordingly been a violation of Article 3 of the Convention on
account of the applicant’s sterilisation.
2. Alleged failure to conduct an effective
investigation
- The
applicant maintained that the investigation into her case had not
been effective as required by Article 3.
- The
Government argued that the relevant aspects of the case had been
examined in detail by prosecuting authorities at three levels in the
context of the criminal proceedings instituted by the applicant, as
well as in the context of the civil proceedings which had led to the
finding that the sterilisation had been contrary to the relevant law.
- The
Court reiterates that Articles 1 and 3 of the Convention impose
procedural obligations on the Contracting Parties to conduct an
effective official investigation which 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. Furthermore, in the specific sphere of medical
negligence the obligation to carry out an effective investigation
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 (for recapitulation of
the relevant principles see V.C. v. Slovakia, cited above, §§
123-125, with further references).
- In
the present case, the civil courts acknowledged that the applicant’s
sterilisation had been in disregard of the statutory requirements and
awarded compensation to her. In addition, the applicant’s
criminal complaint was examined by prosecuting authorities at three
levels. The General Prosecutor’s Office acknowledged that the
applicant had been sterilised contrary to the relevant law as her
representative had not consented to the procedure. That action did
not, however, constitute a criminal offence in the particular
circumstances.
- Thus
the applicant had the opportunity to have the actions of the hospital
staff which she considered unlawful examined by the domestic
authorities and the liability of those involved established. While it
is true that the civil proceedings lasted four years and nine months,
the Court notes that during that period courts at two levels of
jurisdiction examined the case twice, and that the proceedings
concerning the applicant’s criminal complaint, which lasted
eighteen months, were conducted expeditiously.
- In
view of the foregoing, the applicant’s complaint 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.
III. 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, which
had been carried out contrary to the requirements of the relevant law
and without her and her mother’s 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. Admissibility
- The
Government admitted that a medical intervention without the informed
consent of the person concerned amounted to an interference with that
person’s private life.
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
- The
applicant maintained that her private and family life had been
severely affected as a result of the sterilisation procedure.
- The
Government pointed to the fact that the domestic courts had
acknowledged that the requirements of domestic law had not been
complied with in the applicant’s case. They further argued that
the medical staff had considered the procedure necessary with a view
to protecting the applicant’s life and health.
- The
relevant case-law is recapitulated in V.C. v. Slovakia, cited
above, §§ 138-142.
- 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. It was carried out contrary to the
requirements of domestic law, as the applicant’s mother had not
given her consent to the procedure. This was not disputed between the
parties.
- In
addition, the Court has previously held, with reference to both
international and domestic documents, that at the relevant time an
issue arose in Slovakia as regards sterilisations and their improper
use, including disregard for informed consent – required by the
international standards by which Slovakia was bound. Such practice
was found to affect vulnerable individuals belonging to various
ethnic groups. However, Roma women had been at particular risk due to
a number of shortcomings in domestic law and practice at the relevant
time (see V.C. v. Slovakia, cited above, §§ 146-149
and 152-153).
- For
reasons which are set out in detail in that judgment and which are
relevant as regards the circumstances of the present case (see also
paragraph 44 above), the Court finds that the respondent State failed
to comply 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.
- Accordingly,
the failure to respect the statutory provisions combined with 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.
IV. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
- The
applicant further complained that her right to found a family had
been breached on account of her sterilisation. She relied on 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 maintained, in particular, that her marital life continued
to be problematic to due her inability to conceive and that the
domestic courts had disregarded her arguments in that respect.
- The
Government argued that the applicant herself had agreed to her
sterilisation. That procedure was not irreversible. If the applicant
wished to have more children, it was open to her to undergo a
sterilisation reversal operation or conceive from in-vitro
fertilisation. The Government expressed their readiness to bear the
costs of such an operation. They cautioned, however, that a fresh
pregnancy would represent a serious danger to the applicant and her
child given the applicant’s health status.
- The
Court notes that this complaint is linked to the ones examined above
and must therefore likewise be declared admissible.
- The
sterilisation performed on the applicant had serious repercussions on
her private and family life, and the Court found above that it was in
breach of Article 8 of the Convention. In view of that finding, and
also in regard of the fact that the applicant married and has lived
with the father of her children after the sterilisation procedure,
the Court considers that a further examination of whether the facts
of the case also give rise to a breach of her right to marry and
to found a family is not called for.
- It
is therefore not necessary to examine separately the applicant’s
complaint under Article 12 of the Convention.
V. 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
Government contested that argument.
- 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
civil courts at two levels of jurisdiction which acknowledged that
she had been sterilised contrary to the relevant law and made
a compensation award under Regulation 32/1965. Furthermore, the
relevant facts of the case were assessed from the perspective of the
criminal law by prosecuting authorities at three levels. Shortcomings
in the sterilisation procedure were confirmed in that context (see
paragraphs 43 and 44 above). The applicant thus had effective
remedies within the meaning of Article 13 in respect of her complaint
about her sterilisation. The fact that no person was convicted of a
criminal offence and that the Constitutional Court subsequently
refused to address the substance of the applicant’s complaints
under Articles 3, 8 and 14 of the Convention does not affect the
position (see also V.C. v. Slovakia, cited above, §
166).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly,
the applicant complained that she had been discriminated against on
the grounds of her race/ethnic origin 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. Admissibility
- The
Government argued that the applicant had not exhausted domestic
remedies, as she had failed to submit relevant arguments in the
domestic proceedings concerning her case. It had been also open to
the applicant to seek redress in respect of her alleged
discriminatory treatment by means of an action for protection of her
personal rights under Articles 11 et seq. of the Civil Code. In any
event, the complaint was manifestly ill founded, as the
applicant had failed to show that the hospital staff had
discriminated against her in the context of the sterilisation
procedure.
- The
applicant maintained that at the relevant time no anti discrimination
laws had been enacted in Slovakia and that the Government’s
objection relating to exhaustion of domestic remedies should be
dismissed. The applicant further argued that she had unsuccessfully
sought redress as regards her allegation that sterilisation had been
performed on her due to her ethnic origin in both criminal and civil
proceedings and, ultimately, before the Constitutional Court.
- The
Court notes that in the context of the civil proceedings the
applicant argued that her ethnic origin had motivated the doctors to
sterilise her. Subsequently, she alleged a breach of her rights,
including those under Article 14 of the Convention, before the
Constitutional Court, which is the supreme judicial authority in
Slovakia charged with the protection of individuals’
fundamental rights and freedoms guaranteed by the Constitution and
also by the Convention.
- Thus
the applicant afforded the domestic authorities the opportunity to
redress by their own means the violation of her Convention right in
issue. As regards the argument that the applicant should have sought
redress by means of an action for protection of her personal rights,
the Court recalls that an applicant who has used a remedy which is
apparently effective and sufficient cannot be required to have tried
others that were also available but probably no more likely to be
successful (see Adamski v. Poland (dec.), no. 6973/04,
27 January 2009, with further references). It is also relevant
in this respect that the Constitutional Court did not indicate in its
decision that the applicant should have used the other civil remedy
cited by the Government prior to lodging her constitutional
complaint.
- In
the above circumstances, the Government’s objection relating to
the applicant’s failure to exhaust domestic remedies cannot be
upheld.
- The
Court further considers, in the light of the parties’
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. The Court concludes therefore that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. No other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
B. Merits
- The
applicant reiterated that her race/ethnic origin had played
a determining role in her sterilisation and that she had also
been discriminated against on the grounds of her sex in that respect.
- The
Government were in disagreement with the applicant.
- 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 important bodily capacities
and entailed numerous adverse consequences for, in particular, her
private and family life.
- The Court has previously found that the practice of
sterilisation of women without their prior informed consent affected
vulnerable individuals from various ethnic groups. In view of the
documents available, it cannot be established that the doctors
involved acted in bad faith, that the applicant’s sterilisation
was a part of an organised policy, or that the hospital staff’s
conduct was intentionally racially motivated. At the same time, the
Court finds no reason for departing from its earlier finding that
shortcomings in legislation and practice relating to sterilisations
were liable to particularly affect members of the Roma community (see
V.C. v. Slovakia, cited above, §§ 177-178;
and also paragraphs 96-97 above).
- 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 (see paragraphs
98-99 above).
- 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.
VII. 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 claimed 50,000 euros (EUR) in respect of non pecuniary
damage. She submitted that she had been sterilised at an early stage
of her reproductive life and that the procedure had had lasting
consequences for her.
- The
Government considered the sum claimed excessive. In case of a finding
of a breach of the applicant’s rights, they submitted that any
award should be proportionate to the circumstances of the case.
- The
Court notes that the applicant obtained partial redress at the
domestic level (see paragraph 29 above). Having regard to the
circumstances of the case seen as a whole and deciding on equitable
basis, the Court awards the applicant EUR 25,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 10,436.07 for costs and expenses incurred
in both the domestic proceedings and before the Court. That sum
included EUR 9,848.07 in respect of the costs of her legal
representation and EUR 588 in respect of administrative expenses.
- The
Government objected that the sum claimed for the legal costs was
excessively high and that any reimbursement of administrative costs
and expenses should correspond to sums demonstrably incurred.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 UNANIMOUSLY
- Dismisses the Government’s objection
relating to the applicant’s status as a victim;
- Declares the complaints under Articles 3, 8, 12
and 14 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention;
- Holds that there has been no procedural
violation of Article 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 12 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
- Holds
(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
25,000 (twenty-five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
5,000 (five 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 the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
