G.H. v. HUNGARY
Inadmissible
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
1. The applicant, Ms G.H., is a Hungarian national. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr R. Kushen, acting on behalf of the European Roma Rights Centre. 2. 3. On 8 February 2008, the applicant, at the time 34, a mother of seven and 22-weeks pregnant with twins, was admitted to Miskolc Hospital for an emergency delivery. The doctors found that a Caesarean section was necessary because of heavy bleeding. 4. The applicant mentioned to her doctors that she thought it was reasonable to tie her Fallopian tubes in order to sterilise her. The doctors repeatedly asked her if that was indeed her desire and explained that this intervention could not be subsequently undone. The applicant answered in the affirmative, confirming that she wanted no more children. These statements were made to three doctors and a midwife. 5. Subsequently the operation was carried out, without the applicant’s consent to the sterilisation being written down. 6. Later on, the applicant sued the hospital for damages, alleging that the absence of procedurally proper consent amounted to a breach of her rights to self-determination, to conceiving children, to privacy and to equal treatment. 7. On 12 November 2012 the Miskolc High Court partly upheld the claim, holding that the absence of written consent was a procedural irregularity giving rise to compensation in the amount of 100,000 Hungarian forints (HUF) plus interest. In addition to the medical staff involved, the court also heard the applicant’s husband, a Roma man, who stated that he and the applicant had agreed on the applicant’s future sterilisation and that once back from the hospital the applicant had told him that she had requested sterilisation from the doctors. 8. On appeal, on 18 April 2013 the Debrecen Court of Appeal reversed the High Court’s judgment, upheld the applicant’s claims and awarded her HUF 2,000,000 plus accrued interest. It also ordered the hospital to apologise. The Court of Appeal held that, while the applicant’s claim of racial discrimination – on account of her Roma husband – was wholly unsubstantiated, the remainder of her claims were well-founded. It was of the view that the absence of written consent was a material violation of the applicant’s rights, even if the fact that she had indeed requested the sterilisation could be not successfully challenged in the face of the multiple witness testimonies. 9. In review proceedings, on 4 December 2013 the Kúria reversed this judgment and reduced the amount of compensation to HUF 1,000,000 (approximately 3,300 euros). The Kúria was satisfied that the lower courts’ assessment of the testimonies supporting that the applicant had orally consented to the sterilisation was not unreasonable or arbitrary. It held that although the applicant’s consent was formally deficient, it could not be said that the sterilisation had been carried out against her will. Considering all circumstances, the Kúria reduced the award, while emphasising that the applicant had not furnished any evidence showing that she was a victim of racial discrimination either in terms of the sterilisation itself or in terms of the material conditions of her hospital stay. 10. On 7 April 2014 the hospital paid the compensation to the applicant and sent her a letter apologising for the breach of her rights to selfdetermination, privacy and the liberty to conceive children.