I.G. and Others v. Slovakia, No. 15966/04, ECtHR (Former Fourth Section), 13 November 2012

Sterilisation of a Roma woman without free and informed consent, inhuman and degrading treatment. The lack of guarantees for reproductive health of vulnerable ethnic groups violates the right to respect for private and family life. Lack of evidence of a structural discrimination. Criminal investigation as a mere obligation of means.

Art. 3 ECHR
Art. 8 ECHR
Art. 12 ECHR
Art. 14 ECHR

1. A person’s treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority; to fall within the scope of Article 3 such treatment must attain a minimum level of severity and the assessment of such a minimum level is relative, depending on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. 

2. A sterilisation in the context of a delivery by Caesarean section, carried out in the absence of life-saving needs and to which neither the applicant’s nor her legal guardians’ prior informed consent had been obtained, is incompatible with the requirement of respect for her human freedom and dignity. Thus, taking into account also the nature of the intervention, its circumstances, the feeling of debasement and humiliation of the applicant, her age and also the fact that she belongs to a vulnerable population group, such a treatment attains a level of severity which justifies its qualification as degrading under Article 3 of the Convention.

3. 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. However, criminal proceedings that last too much because the prosecuting authorities fail to deal with the case correctly are not compatible with the requirement of promptness and reasonable expedition and imply a procedural violation of Article 3 of the Convention.
(The applicants had filed a criminal complaint but the proceedings were prolonged because the Constitutional Court ordered the regional prosecutor’s office to re-examine the case, due to failures in dealing with it. The prosecutors finally excluded that an offence had been committed.)

4. The absence of safeguards giving special consideration to the reproductive health of a Roma woman, as vulnerable individual belonging to an ethnic group which is particularly affected by the issue of sterilization and its improper use – especially in Slovakia, according to the Council of Europe Commissioner for Human Rights –, 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, in breach of Article 8 of the Convention. (Due to this finding the Court deemed to be absolved from examining whether the facts also gave rise to a breach of the applicant’s right to marry and to found a family, under Article 12 of the Convention.)

5. In the absence of available information and objective evidence sufficiently strong to demonstrate in a convincing manner that the doctors acted in bad faith, with the intention of ill-treating the applicant, it is not possible to conclude that the sterilization procedure is part of a structural discriminatory policy or that the hospital staff’s conduct was intentionally racially motivated (see. no. 74832/01). Therefore, the shortcomings in the legislation and practice relating to sterilisations, which particularly affect members of the Roma community, shall be better considered only under the light of Article 8 of the Convention, without being necessary to separately determine whether the facts of the case also gave rise to a breach of Article 14 of the Convention.

(Case of three Roma women – the appeal of one of them was struck out by the Court after her death and the request of her children to pursue it – who were sterilised in a public hospital during a caesarean section, without their knowledge, and then induced to sign a document not being given any information about its content. Only later did the three learn that the document concerned the sterilisation procedure they had been submitted to.)

The practice of forced sterilisation is (and already was at the time of the facts in question) condemned, as a form of violence against women, by many international documents and soft law acts (see, for instance: Committee on the Elimination of Discrimination against Women, Recommendation no. 24, 20th session, 1999) and the 2011 Istanbul Convention (not signed by Slovakia) has afterwards even imposed its criminalisation to State parties. Moreover, this practice is included, in the 1998 Rome Statute of the International Criminal Court (of which Slovakia is a party), among the acts that can constitute genocide or crimes against humanity.