V.C. v. Slovakia, No. 18968/07, ECtHR (Former Fourth Section), 8 November 2011

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. Medical procedures, of which sterilisation is one, may be carried out only with the prior informed consent of the involved person and the only exception concerns emergency situations in which medical treatment cannot be delayed and the appropriate consent cannot be obtained. Sterilisation is not generally considered as life-saving surgery: therefore, unless there is an emergency involving imminent risk of irreparable damage to the person’s life or health, if the patient is a mentally competent adult one, her informed consent is a prerequisite to the sterilisation procedure, even when this is a “necessity” from a medical point of view.

2. An approach in which, in the absence of an immediate threat to health, the patient is not fully informed about her health status, the proposed procedure and the alternatives to it and is asked to consent to sterilisation while she is in labour and shortly before performing a caesarean section, clearly cannot permit her to take a decision of her own free will, after consideration of all the relevant issues and after having reflected on the implications and discussed the matter with her partner. Thus, 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 and, also considering the serious consequences on the patient’s physical and psychological integrity, breaches Article 3 of the Convention.

3. In the context of alleged medical malpractice, where the infringement of the right to life or to personal integrity is not caused intentionally, the obligation to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case, but may also be satisfied with a civil remedy (either alone or in conjunction with a remedy in the criminal courts), enabling any liability of the doctors concerned and appropriate civil redress. Moreover, when there is no evidence of a bad faith and intention of ill-treating, there is no obligation for the domestic authorities to start a criminal investigation of their own initiative once the matter has come to their attention. In these cases, Article 3 is not breached under a procedural point of view
(In the case, the applicant did not initiate any individual criminal proceedings, but a criminal investigation into the allegedly unlawful sterilisation of several different Roma women had been conducted after the publication, by the Centre for Reproductive Rights and the Centre for Civil and Human Rights, of the report “Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia”, and ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of Roma ethnic origin.)

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.

(In the case in question, a Roma woman was sterilised in a public hospital in the occasion of a caesarean birth. The procedure was not an imminent necessity from a medical point of view. 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 that she was asked to sign was typed and merely indicated “Patient requests sterilisation”. She was prompted to sign this document after being told by medical staff that she or her baby would die in the event of a further pregnancy.)

1. Specific measures aimed at the elimination of the shortcomings in the legislation on sterilisation and ensuring compliance with the related international standards were introduced with the enactment of the Health Care Act 2004, which became operative on the 1st of January 2005 (after the facts of the case in question).
2. Dissenting opinion of Judge Mijovic, who disagreed with the Court’s decision that no separate examination of the complaint under Article 14 of the Convention was called for. On the contrary, recalling the principles on the issue already enshrined by the Court (nos. 57325/00; 15766/03), the dissenting Judge considered, on the contrary, that such complaint was the very essence of the case and should have been dealt with on its merits, with a finding of a violation of Article 14.
3. 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.