Forced Sterilisation of Roma Women: ECHR Violations and Criminal Implications
This Focus provides an overview of the so-called ‘forced sterilisations’ of women of Roma origin. The practices of forced sterilisation have been at the centre of international cases concerning some Eastern European countries, particularly Slovakia, and of the investigation by several NGOs, such as the Center for Reproductive Rights and the Poradňa pre občianske a ľudské práva’s report Body and Soul. This Focus illustrates a number of cases decided by the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights, along with other relevant interpretive international documents condemning forced sterilisation as a form of gender-based violence and inhuman and degrading treatment. At the end of the discussion, an essential bibliography offers insights into the topic by proposing different readings of academic, institutional and activist nature.
Forced sterilisation is a phenomenon of criminal relevance, as well as a severe violation of women’s rights and reproductive freedoms. It materialises in a form of ethnic and gender-based discrimination because it systematically affects women of Roma origin. The ECtHR dealt with this practice in three cases, similar to each other, between 2011-2012, where victims complained about multiple violations of the European Convention of Human Rights (ECHR) by Slovakia. These are V.C. v. Slovakia, N.B. v. Slovakia and I.G. and others v. Slovakia.
The three cases happened in analogous contexts. Indeed, healthcare providers sterilised women during cesarean delivery while they were hospitalised in public hospitals, without their free, full, informed and prior consent, and without any medical urgency of immediate intervention. The modus operandi was identical. Victims had been advised of complications arising during the delivery and of the serious risks they would have run in case of future pregnancies. The women received this information when they were in labour, being in the supine position with intense pain or having received an anxiolytic and sedative premedication. Later, the medical staff induced them to sign a typewritten document, without any possibility to read the content carefully. In one case, a doctor grabbed a minor’s hand to help her sign the document, while the girl’s mother had not been informed of any supposed necessity of sterilisation. In all three cases, the document contained the women’s request for sterilisation on the basis of the (alleged) information received about the irreversibility of the procedure. Instead, in one of the ECtHR’s cases, three women had been sterilised during delivery without their knowledge, being induced to sign retroactively a document whose content was unknown to them. They found out only later that that document concerned the sterilisation to which they had been subjected.
Before the Strasbourg Court, the applicants complained about the violation of the prohibition of inhuman and degrading treatment (Article 3 ECHR), the right to respect for private and family life (Article 8 ECHR), the right to marriage (Article 12 ECHR) and the prohibition of discrimination (Article 14 ECHR). The Court, however, found that only Article 3 and Article 8 had been violated. First, according to the Court, sterilisation within the context of a cesarean section reaches such a level of severity that it can be qualified as ‘degrading’ within the meaning of Article 3. The Court evaluated the concrete nature and circumstances of the intervention, and the feeling of humiliation and debasement of the victim, considered a vulnerable individual belonging to an ethnic minority. Secondly, the Court identified in the absence of safeguards for a Roma woman’s reproductive health Slovakia's failure to fulfil its obligation to protect the right to respect for private and family life under Article 8. The ECtHR, therefore, did not consider it necessary to examine separately whether the facts determined also a violation of the right to marry and have a family under Article 12. Instead, with regard to the alleged violation of the prohibition of discrimination, which will be discussed below, the Court found that there was no evidence of the systematicity of the practice in question. Sterilisation was to be considered, according to the ECtHR, individually under Article 8 alone, without bringing it within the scope of Article 14. In this sense, the decision relied on the absence of evidence that the doctors had acted in bad faith with the intention of mistreating the women and, consequently, on the impossibility to recognise a structurally discriminatory policy motivated by racial or ethnic prejudices.
The practice of forced sterilisation has undoubted criminal relevance. At the time of the facts, indeed, forced sterilisation was condemned as a form of violence against women by various international interpretative sources, among which General Recommendation no. 24 of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) of 1999. In 2011, moreover, the prohibition of sterilisation was included within the Istanbul Convention, which imposed its criminalisation under Article 39. Slovakia, however, has signed but not ratified the Convention. Nevertheless, the country is a Party to the 1998 Rome Statute of the International Criminal Court, which expressly includes forced sterilisation among the acts that may constitute crimes against humanity and war crimes (Articles 7 and 8). Furthermore, the practice of forced sterilisation can be regarded, by means of interpretation, as an act of genocide within the scope of Article 6, mirroring the definition of genocide contained in the 1948 Genocide Convention (Article 2).
It should be also noted that the obligation to criminalise forced sterilisation established by the Istanbul Convention is to be understood as a generic obligation of criminal prosecution. In fact, the provision does not require the introduction of an ad hoc crime in those legal systems where the practice can be covered by other criminal offences, such as, for example, injuries. However, the usefulness of a specific offence may be remarkable in those legal systems where the phenomenon is more widespread, also for the purpose of cultural orientation towards the protection of reproductive freedom. Otherwise, the absence of specific legislation is likely to deprive the reproductive rights of those women subjected to forced sterilisation of criminal protection, with only the violation of physical integrity being sanctioned. In addition, in terms of judicial protection, repressing the practice of sterilisation through the application of an offence such as an injury has considerable implications for the determination of intent.
Two of the three cases brought before the ECtHR are a clear examples of such implications. In the two cases, the victims filed a complaint about being forcibly sterilised, but the domestic criminal proceedings were dismissed. Although the domestic prosecutors recognised that the women had not given their consent to the practice, they excluded the existence of a criminal offence, considering that the doctors had acted in good faith. Other Slovak judges relied on similar reasoning to dismiss a criminal investigation on the sterilisation of several Roma women, which had been initiated following the publication of the above-mentioned Body and Soul report. Slovakia adopted specific measures only after the cases in question. The Health Care Act of 2004, which entered into force on 1 January 2005, aims to eliminate legislative loopholes in the field of forced sterilisation, ensuring the state’s compliance with international human rights standards. A partially different fate had, mutatis mutandis, the case I.V. v. Bolivia of the Inter-American Court of Human Rights, concerning a Peruvian woman who had undergone forced sterilisation in Bolivia. In this case, the doctor responsible for the sterilisation was convicted of negligent injury in the first instance, but the trial continued until the offence became time-barred.
As the above analysis shows, the domestic dimension of criminal law and international obligations on violence against women are two sides of a coin, that is the promotion, respect and protection of human rights. The remainder of this Focus sheds light on some of the crucial elements making forced sterilisation a human rights violation. It is well established in international sources of human rights that gender-based violence is a form of discrimination against women. In particular, violence perpetrated through forced sterilisation targets a specific subject by virtue of not only their gender, but also their ethnicity, i.e. the Roma woman. Gender and ethnicity as social markers merge and blend as grounds for an act of multiple discrimination. The intersectional examination of the concerned practice reveals that the violent and discriminatory conduct targets the interaction of different factors - gender and ethnicity - which, given their intimate relation, can hardly be separated for the purposes of determining the motivation underlying the conduct.
However, this is not the approach embraced by the ECtHR, which deals with the above-discussed cases neither from an intersectional nor a discriminatory perspective, as criticised by Judge Mijovic in his dissenting opinion in V.C. v. Slovakia. The path taken by the Strasbourg Court is different from Article 14 (prohibition of discrimination). In fact, besides Article 3 (prohibition of inhuman and degrading treatment), the ECtHR relies on the right to respect for private and family life under Article 8 in the three decisions V.C. v. Slovakia, N.B. v. Slovakia and I.G. and others v. Slovakia. The Court identifies the state’s failure to ensure sufficient and effective remedies to protect the right to reproductive health, particularly of Roma women. Although the applicability of Article 8 is beyond doubt, several elements could have suggested to the ECtHR to scrutinise the circumstances also in the light of the prohibition of discrimination enshrined in Article 14. These elements are, for instance, the systematic character of the dismissal of criminal proceedings and legislative loopholes in the Slovak legal system. Finally, a very last point further substantiates the viability of judicial reasoning based on Article 14. The Court gives less weight to the harmful effects that forced sterilisation produced on women compared to the health care personnel’s good faith. In this sense, the Court turns away from its precedent D.H. and Others v. Czech Republic, where it did not consider intent as a distinctive feature of discrimination (see paragraphs 175-181).
Overall, forced sterilisation, and particularly forced sterilisation against Roma women, constitutes a breach of human rights. Although an intersectional and discrimination-focused approach could have contributed to capture additional meaningful aspects of the violation, the ECtHR’s judgments condemning forced sterilisation perpetrated against and upon Roma women remain landmark rulings on the protection of reproductive rights and the prohibition of inhuman and degrading treatments.
(Focus by Giovanna Gilleri and Giordana Pepè)
Related case law
A.S. v. Hungary, Communication No. 4/2004, Committee on the Elimination of Discrimination against Women, 29 August 2006
D.H. and Others v. Czech Republic, No. 57325/00, ECtHR (Grand Chamber), 13 November 2007
I.G. and Others v. Slovakia, No. 15966/04, ECtHR (Former Fourth Section), 13 November 2012
I.V. v. Bolivia, Series C No. 329, Inter-American Court of Human Rights, 30 November 2016
N.B. v. Slovakia, No. 29518/10, ECtHR (Former Fourth Section), 12 June 2012
V.C. v. Slovakia, No. 18968/07, ECtHR (Former Fourth Section), 8 November 2011
Dissenting opinion of Judge Mijovic in the case of V.C. v. Slovakia, No. 18968/07, ECtHR (Former Fourth Section), 8 November 2011
Related international instruments and documents
African Commission on Human and Peoples’ Rights, ‘General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5)’ (4 March 2017)
Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation No. 19: Violence against Women’ (1992) HRI/GEN/1/Rev.9 (Vol. II)
Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation no. 24: Article 12 of the Convention (women and health)’ (1999) HRI/GEN/1/Rev.9 (Vol. II)
Council of Europe, Council of Europe Convention on preventing and combating violence against women and domestic violence (11 May 2011), Article 39
Council of Europe, ‘Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to the Czech Republic from 17 to 19 November 2010’ (2011) CommDH(2011) 3
Rome Statute of the International Criminal Court (17 July 1998), Articles 6, 8
OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF, WHO, ‘Eliminating Forced, Coercive and Otherwise Involuntary Sterilization: An Interagency Statement’ (WHO 2014)
United Nations General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
United Nations General Assembly, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez’ (2013) A/HRC/22/53
United Nations Human Rights Council, ‘Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment’ (2016) UN Doc A/HRC/31/57
G. Albert, M. Szilvasi, 'Intersectional Discrimination of Romani Women Forcibly Sterilized in the Former Czechoslovakia and Czech Republic' (2017) Health and Human Rights Journal 23-24
C. Cahn, ‘Groundbreaking Report by Czech Ombudsman Recognises “Problem” of Coercive Sterilisation and Calls for Far-Reaching Changes to Law, Policy and Society’ 1 (2006) Roma Rights Quarterly 69-76
C. Cahn, Human Rights, State Sovereignty, and Medical Ethics: Examining Struggles around Coercive Sterilisation of Romani Women (Brill Nijhoff 2015)
R.J. Cook, B.M. Dickens, ‘Voluntary and involuntary sterilization: denials and abuses of rights’ (2000) 68/1 International Journal of Gynecology and Obstetrics 61-67
A. Edwards, Violence against Women under International Human Rights Law (Cambridge University Press 2011)
European Roma Rights Centre, 'Coercive and Cruel: Sterilisation and its Consequences for Romani Women in the Czech Republic (1966-2016)’ (2016)
S. Gilmore, L. Moffett, ‘Redressing forced sterilisation: the role of the medical profession’ 127(8) (2020) International Journal of Obstetrics & Gynaecology 923-26
International Federation of Gynaecology and Obstetrics, 'Guidelines for Female Contraceptive Sterilisation' (2011)
M. Kopalová, ‘Coercive Sterilisation in Czech Republic: Civil and Criminal Law Aspects’ 4 (2006) Roma Rights Quarterly 27-30
Open Society Foundations, ‘Against her will: forced and coerced sterilization of women worldwide‘ (2011)
R. Sifris, Reproductive Freedom: Challenging the Masculinisation of Torture (Routledge 2014)
E.K. Tomasovic, ‘Robbed of Reproductive Justice: The Necessity of a Global Initiative to Provide Redress to Roma Women Coercively Sterilized in Eastern Europe’ 41 (2009) Columbia Human Rights Law Review 765-823
D. Uberoi, M. de Bruyn, and B. Galli, ‘Using human rights to address consequences of criminal laws on sexuality and reproductive autonomy’ 16(7) (2012) The International Journal of Human Rights 1023-1039
C. Zampas, S. Barot, B. Bukovska, I. Zoon (Centre for Reproductive Rights, Centre for Civil and Human Rights), ‘Body and Soul: Forced Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia’ (2003)
C. Zampas, A. Lamačková, ‘Forced and Coerced Sterilization of Women in Europe‘ 114/2 (2011) International Journal of Gynecology & Obstetrics 163-166