Z.K. v. SLOVAKIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra
1. The applicant, Ms Z.K. is a Slovak national. She is of Roma ethnic origin and was born in 1975. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She was represented before the Court by Ms V. Durbáková and Ms B. Bukovská, lawyers acting in cooperation with the Centre for Civil and Human Rights, a non-governmental organisation with its registered office in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 22 February 1993 the applicant gave birth to her second child in the public hospital in Prešov (“the Prešov Hospital”). The delivery was carried out by means of a caesarean section, as had also been the case when she gave birth to her first child. At the time, the applicant was underage. She was not legally married. 4. On 18 May 2005, when she accessed her medical records, the applicant became acquainted with a document indicating that she had been sterilised during the delivery of her child on 22 February 1993. 5. In particular, a surgery record appended to the applicant’s medical records indicates that the applicant underwent sterilisation by tubal ligation due to complications involving abnormally deep attachment of the placenta and imminent risk of rupture of the uterus. The document is dated 22 February 1993 and signed by Doctor S. of the Prešov Hospital. The delivery record itself contains no mention of a sterilisation operation having taken place. 6. Neither the applicant nor her legal guardians had been advised of or asked to give their consent to the applicant’s sterilisation. 7. The applicant was released from the Prešov Hospital on 1 March 1993. Her second child died of pneumonia two months later. 8. As the applicant was not aware why she was unable to conceive a child, she underwent infertility treatment in the years following the delivery of her second child. 9. Due to her inability to have more children the applicant has experienced serious physical and mental health problems. She has been ostracised by the Roma community and has experienced relationship difficulties with her husband. 10. On 1 July 2005 the applicant lodged an action for protection of her personal rights under Articles 11 et seq. of the Civil Code before the Prešov District Court. She argued that she had been sterilised contrary to the requirements of Slovak law and in breach of, inter alia, Articles 3, 8, 12 and 14 of the Convention. She sought an apology, 33,194 euros in compensation for damage and the reimbursement of her legal costs. 11. In a written statement of 31 October 2005 a representative of the defendant hospital argued that the sterilisation of the applicant had been medically indicated and that the hospital staff had acted in accordance with the law then in force. 12. The District Court heard Doctor N., who stated that he had become the applicant’s gynaecologist in March 1993, after the delivery of her second child. He had not been aware of a sterilisation operation having been performed on the applicant. Nurse M. stated that she could not remember the circumstances of the applicant’s delivery. 13. An expert appointed by the court noted, in an opinion of 8 November 2006, that, according to the applicant’s medical records, tubal ligation had been performed on her on 22 February 1993. It had not been a life-saving operation, but it had been medically indicated, as any subsequent pregnancy would have entailed a serious risk to the applicant’s life and health. The opinion further noted that the applicant had undergone a radiologic examination on 24 February 2003. It had revealed that the applicant’s fallopian tubes were not blocked and there were no signs of ligation on them. 14. The applicant submitted the opinion of a Czech expert of 6 August 2007 indicating that her sterilisation had not been necessary with a view to saving her life. The opinion was based on analysis of medical records related to the applicant’s admission to the Prešov Hospital from 22 February to 1 March 1993. 15. On 29 December 2008 the Prešov District Court dismissed the action. With reference to the result of the above-mentioned radiologic examination of 24 February 2003, it did not find it established that the applicant had been sterilised. 16. Upon the applicant’s appeal, on 2 December 2008 the Prešov Regional Court quashed the District Court’s judgment. It ordered the firstinstance court to obtain further evidence with a view to establishing all relevant facts. 17. Subsequently, the District Court heard Doctor L., who had been present during the delivery of the applicant’s second child. Albeit he did not remember its circumstances, he stated that he had completed the delivery record and that he would have mentioned the applicant’s sterilisation on its front page had such an operation been carried out. The only reference to the applicant’s sterilisation had been made in the surgery record written by Doctor S., who had died in the meantime. Doctor L. was not in a position to explain why Doctor S. had made such an entry. She might have mistaken the applicant’s file with that of one of the three other people on whom they had operated consecutively on that day. 18. The District Court further established from the hospital’s list of operations performed that Doctors S. and L. had performed four caesarean sections on 22 February 1993. The applicant was the third patient on whom they had operated. 19. The applicant’s gynaecologist highlighted that the report drawn up upon her release from the hospital did not state that the applicant had been sterilised. 20. Upon the court’s request an expert indicated, on 12 July 2010, that endoscopic examination by means of laparoscopic chromopertubation would reliably show whether or not the applicant had been sterilised. The reliability of the radiologic examination which the applicant had undergone on 24 February 2003 amounted to 90 per cent. The opinion further stated that sterilisation by tubal ligation, as recorded in the applicant’s file, failed for an unknown reason in 1.44 per cent of cases. 21. In her submissions, the applicant indicated that she was not willing to subject herself to invasive methods of examination entailing possible side effects and risks to her health for the purpose of proving that she had been sterilised. The medical records clearly showed that this had taken place. 22. On 16 November 2010 the District Court again dismissed the applicant’s claim. The court held that the evidence available did not permit it to conclude that the sole reason for which the applicant could not conceive a child was a blockage of her fallopian tubes resulting from an operation performed by the employees of the defendant hospital. The burden of proof was on the applicant to show that she had been sterilised. However, she had refused to undergo further medical tests which were necessary to establish in a reliable manner whether she had been subjected to a sterilisation operation, as claimed by her. The District Court further concluded that the applicant’s right to claim compensation for nonpecuniary damage had prescribed. 23. The applicant appealed. She argued that it was for the defendant hospital to show that its staff had erroneously indicated in her medical records that she had been sterilised. 24. On 24 March 2011 the Prešov Regional Court upheld the firstinstance judgment. It held that the District Court had established all relevant facts and had correctly applied the applicable law. In particular, as it could not be established beyond any doubt that the applicant had been sterilised by the hospital staff, she could not succeed in her action for protection of her personal rights. The reference to such an operation being performed in only one of several medical records drawn up in relation to the delivery of the applicant’s second child did not suffice to prove that the operation had actually been performed, given that a subsequent test had shown that her fallopian tubes were not blocked. The fact that the applicant had refused to undergo more reliable tests also had to be taken into account. 25. On 24 May 2011 the applicant filed a constitutional complaint. With reference to the proceedings leading to the Regional Court’s judgment of 24 March 2011, she alleged a breach, inter alia, of Articles 3, 6, 8, 13 and 14 of the Convention. The applicant argued that the ordinary courts had failed to comply with their obligation to carry out an effective investigation into the circumstances of her sterilisation. In particular, the Regional Court’s finding that it had not been clearly established that the applicant had been sterilised had been arbitrary and in disregard of the information in the applicant’s medical records. In view of the entry recording her sterilisation in her records, it was for the defendant hospital to show that the applicant had not been sterilised. Asking the applicant to submit herself to invasive medical procedures with possible side effects with a view to proving that she had been sterilised was inappropriate in the circumstances. 26. On 1 March 2012 the Constitutional Court dismissed the complaint. There was no appearance of unfairness in the proceedings leading to the Regional Court’s judgment, in which all relevant facts and arguments had been addressed and which had not been arbitrary. In those circumstances the other complaints made by the applicant were manifestly ill-founded. 27. On 23 January 2009 the applicant filed a criminal complaint with the District Prosecution Office in Prešov. She submitted that she had suffered serious bodily harm as a result of her unlawful sterilisation in the Prešov Hospital. 28. On 6 March 2009 a police investigator informed the applicant that a criminal investigation had been started on 6 February 2009. 29. In the course of the investigation the investigator heard the applicant and her legal representative, as well as two staff members from the Prešov Hospital. Doctor L. had been present during the delivery but he could not remember its circumstances, including whether the applicant had been sterilised. Similarly, Nurse M. stated that she could not remember the delivery. An expert indicated that sterilisation was not in itself a life-saving operation. It should not be performed without the consent of the woman concerned. 30. On 10 May 2010 the police investigator concluded that no criminal offence had been committed, as it had not been established with sufficient certainty that the applicant had been sterilised. 31. On 3 June 2010 the District Prosecutor’s Office in Prešov dismissed a complaint against the investigator’s decision made by the applicant. 32. On 31 August 2010 the Regional Prosecutor’s Office in Prešov informed the applicant that no reason had been found for departing from the conclusions reached by the authorities at the lower level. It was particularly relevant that the surgeon who had operated on the applicant had died, and that the period during which the alleged criminal offence could be prosecuted had expired on 22 February 2003. 33. On 17 December 2010 the General Prosecutor’s Office found no breach of law in the course of the investigation into the applicant’s criminal complaint. The reply contained the following information. 34. In the course of the investigation two possible reasons for the applicant’s infertility had been identified, namely either her unlawful sterilisation on 22 February 1993 or a medical condition affecting her reproductive organs, namely fallopian tube obstruction. 35. Only the surgery record of 22 February 1993 stated that the applicant had been sterilised. There was no mention of a sterilisation operation in the delivery record, in the other records relating to the delivery and the applicant’s subsequent treatment, in the records of the anaesthesia given to her or in the report drawn up upon the applicant’s release from the hospital. Doctor S., who had operated on the applicant, had died in the meantime. One of her colleagues had stated that Doctor S. had drawn up the patient surgery records after all of the operations scheduled for a given day had been completed. An expert had found that four caesarean sections, one of which had been accompanied by the patient’s sterilisation, had been performed in the hospital on 22 February 1993. Doctor S. had performed three of those caesarean sections. It could not be excluded that the entry recording the applicant’s sterilisation in the surgery record had been made erroneously. The expert was not in a position to confirm that the applicant had been sterilised. It was also possible that the applicant’s tubes were blocked by scar tissue. It was relevant in that respect that scars on the applicant’s organs had been noted in the course of the delivery of the applicant’s second child. According to the expert, surgery was required in order to establish why the applicant could not become pregnant. 36. The letter from the Office of the General Prosecutor further indicated that it would be inappropriate to ask the applicant to undergo such surgery. Even if it were thereby established that she had been unlawfully sterilised, no criminal law consequences would arise, as the surgeon involved had died and the period in which the alleged offence could have been prosecuted had expired. 37. On 26 October 2010 the applicant filed a complaint with the Constitutional Court. With reference to her sterilisation and the standpoints of the Prešov Regional Prosecutor’s Office and the General Prosecutor’s Office, she alleged a breach of Articles 3, 8, 13 and 14 of the Convention and also a breach of several other international instruments. 38. On 9 June 2011 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision stated that the Constitutional Court could only examine any breaches which had resulted from the unfairness or arbitrariness of the proceedings complained of. As the applicant in her complaint had neither relied on Article 6 of the Convention nor made reference to its guarantees in substance, her Convention complaints could not be dealt with in the constitutional proceedings. 39. With a view to describing the overall situation and circumstances in which she had delivered her child, the applicant submitted that she had experienced inferior treatment during her stay at the Prešov Hospital. In particular, patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room”, separate from women who were not of Roma ethnic origin. 40. The applicant referred to a number of publications pointing to a history of sterilisation of Roma women, which had originated under the communist regime in Czechoslovakia in the early 1970s and which she believed had influenced her own sterilisation. She also referred to a number of reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies, asking the Slovakian authorities to conduct an impartial and fair investigation of the allegations of forced and coerced sterilisation of Roma women in Slovakia, or criticising the absence of such an investigation (for further details see also V.C. v. Slovakia, no. 18968/07, §§ 43-47, ECHR 2011 (extracts)). 41. The applicant considered that her ethnic origin had played a decisive role in the way in which she had been treated. Citing a number of international reports, the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives. 42. Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, human dignity, privacy, name and personal characteristics. 43. Under Article 13 § 1, natural persons have the right to seek the cessation of unjustified infringements of their personal rights and to have the consequences of such infringements eliminated. They also have the right to seek appropriate redress. 44. Article 13 § 2 provides that, in cases where the redress obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, he or she is also entitled to financial compensation for non-pecuniary damage. 45. At the relevant time, the following provisions of the People’s Health Act 1966 (Law no. 20/1966 Coll.) were in force. 46. Pursuant to section 23(2) and (3), medical interventions were to be carried out with the patient’s consent. Such interventions were also permissible in cases where the patient’s state of health prevented him or her from expressing his or her will but where his or her consent could be presumed. 47. Pursuant to section 27 a sterilisation operation was permissible only with the consent of or upon the request of the person concerned and subject to the conditions set by the Ministry of Health. 48. Further information about the relevant domestic law, practice and international materials is set out in V.C. v. Slovakia, cited above, §§ 60-86; N.B. v. Slovakia, no. 29518/10, §§ 50-51, 12 June 2012; and I.G. and Others v. Slovakia, no. 15966/04, § 88, 13 November 2012.