N.B. v. Slovakia, No. 29518/10, ECtHR (Former Fourth Section), 12 June 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. Removing one of the important capacities of a patient and making her formally agree to such a serious medical procedure as sterilization is, while she is in labour and her cognitive abilities are affected by medication, and then wrongfully indicating that the procedure was indispensable for preserving her life, violates the applicant’s physical integrity and is grossly disrespectful of her human dignity and freedom, in breach of Article 3 of the Convention.

2. 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. If this happens, there is no breach of the obligation to carry out an effective investigation on facts that violated Article 3 and, thus, no procedural breach of Article 3 itself.
(In the case, the applicant filed a criminal complaint and a prosecutor from the General Prosecutor’s Office who reviewed her case finally admitted that the operation had not been consented to by the applicant’s representative, contrary to the relevant law, but this did not mean that the doctors had committed an offence, since they had acted in good faith.)

3. 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.)

4. 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.

(A Roma woman was sterilised in a public hospital in the occasion of a caesarean birth. She was minor at the time and her mother and representative was not present at the delivery nor has been informed or asked consent for the sterilization. The procedure was not an imminent necessity from a medical point of view. The applicant was asked to give her consent in writing, after receiving a premedication in view of the envisaged caesarean section which  included a benzodiazepine derivative used for its sedative, anxiety-relieving and muscle-relaxing effects. The relevant entry in the medical record that she was asked to sign was typed and indicated that she had requested a sterilisation procedure to 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. On another page of the medical record it was stated that, during the caesarean section, complications had arisen which would have endangered the life of the woman and the foetus in the event of a further pregnancy, so it was decided to proceed with sterilisation.
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 and who had taken her hand to help her sign the papers. She was in labour, felt as if she were intoxicated under the influence of the medication and had neither the strength nor the will to ask what the documents contained. She remembered a doctor who was present saying that she would die unless she signed the papers, reason why she did not object.)

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.