CASE OF I.G. AND OTHERS v. SLOVAKIA
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objections dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
George Nicolaou;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicants are of Roma ethnic origin. The first applicant, Ms I.G., was born in 1983. The second applicant, Ms M.K., was born in 1981. The third applicant, Ms R.H., was born in 1972. She died on 9 October 2010. Her three children, Ms B.P., Mr D.M. and Mr R.M., expressed the wish to pursue the application in the third applicant’s stead. 7. The applicants were sterilised in the gynaecology and obstetrics department of Hospital and Health Care Centre in Krompachy (Nemocnica s poliklinikou Krompachy – “Krompachy Hospital”), a medical institution which was then under the authority of the Ministry of Health. 8. The first applicant was sterilised on 23 January 2000. 9. According to the first applicant, after her admittance and preliminary checks, the gynaecologist in the hospital ordered her to be transferred to theatre for a Caesarean section. She was asked to write down names for her future child on a piece of paper. The first applicant was subsequently transferred to theatre and a Caesarean section was performed on her. During the operation, the first applicant was sterilised by tubal ligation. This was the applicant’s second delivery, and also her second delivery by Caesarean section. 10. When she woke up from the anaesthetic, the first applicant was told that she had given birth to a girl. 11. The first applicant submitted that she had not been given any further details about the delivery, nor was she told that she had undergone tubal ligation and that she had been sterilised. 12. The next morning she was approached by the doctor treating her, who came into her room and asked her to sign a document. The first applicant was told that she had to sign the document because she had undergone a Caesarean section and all women who had Caesarean sections had to sign it. 13. On 28 January 2000 the first applicant was transferred to a hospital in Košice due to an inflammation as a post-surgery complication. On 9 February 2000 she underwent further surgery due to a serious infection and sepsis. This operation was considered life-saving. During the operation the doctors performed a hysterectomy on the first applicant. 14. The first applicant first learned that she had been sterilised during her second delivery, while reviewing her medical files with her lawyer on 16 January 2003. The medical file contained a form entitled “Request for authorisation of sterilisation”. The form had been filled in using a typewriter. It was dated 23 January 2000 and had been signed by the first applicant. 15. The second half of the pre-printed form contained the decision of the district sterilisation committee at Krompachy Hospital dated 23 January 2000. This decision approved the first applicant’s sterilisation. It indicated that the sterilisation was required for medical reasons, that the applicant had two children, that she had earlier given birth by Caesarean section, and that she had a small pelvis. The conditions laid down in the 1972 Sterilisation Regulation had been met in relation to the applicant’s sterilisation. The decision was signed by the president of the committee, the district medical specialist on the issue and the secretary to the sterilisation committee. 16. The first applicant submitted that her sterilisation had been contrary to Slovakian law, as at the relevant time she was 16 years old and her legal guardians had not consented to the operation. 17. The first applicant has been living in constant fear that her partner will leave her because she is not able to bear him any more children. 18. The second applicant was sterilised in Krompachy Hospital on 10 January 1999. The sterilisation was performed on her during her second delivery by Caesarean section. Shortly after being admitted to Krompachy Hospital, she was transferred to a ward, where she was approached by a nurse who told her that the delivery would have to be by Caesarean section. The Caesarean delivery was then performed. During the operation medical staff of Krompachy Hospital also performed a tubal ligation on the second applicant. 19. At the date of delivery the second applicant was 17 years old (that is to say, a minor) and not legally married. She submitted that neither she nor her parents had been advised of her sterilisation prior to it, and that they had never signed any document consenting to it. According to their statements in the course of civil proceedings on the second applicant’s action (for further details see below), the second applicant and her parents stated that the medical staff had informed them orally after the operation. 20. The second applicant learned only four years later, during a criminal investigation, that her medical record contained a form entitled “Request for sterilisation” with her signature dated 9 January 1999. The form lists as the reason for the sterilisation “multiple varicose veins in the pelvis minor” and indicates that the applicant had given birth to two children by Caesarean section. The same document contains a decision by the district sterilisation committee approving the request and dated 9 January 1999. 21. When the second applicant’s partner learned that she would not be able to have another child due to the sterilisation, he left her. Due to her inability to have more children, her social status in her community has fallen and, as a result, it was very difficult for the second applicant to find a new partner. 22. The second applicant currently has a partner, but she is worried about the future of this relationship because she and her partner want to have a child together and her partner is complaining about her infertility. The second applicant is also suffering serious medical side-effects from her sterilisation. 23. The third applicant was sterilised in Krompachy Hospital on 11 April 2002. The sterilisation was performed during her fourth delivery, when she delivered her fourth and fifth children (twins). It was her first delivery by Caesarean section. 24. Prior to her delivery the third applicant had regular pre-natal checkups with the chief gynaecologist in Krompachy Hospital. She was told that her pregnancy would be risky because she was expecting twins. In the eighth month of her pregnancy she was informed that she would have to deliver by Caesarean section. 25. The third applicant arrived at Krompachy Hospital in the evening of 10 April 2002 after she had begun having contractions. She was admitted to the gynaecology ward at 10.15 p.m. and spent the night there. At approximately 8 a.m. on 11 April 2002 she was taken to theatre. A nurse gave her a pre-medication injection as a precursor to the anaesthetic. The applicant felt that her head was spinning. A nurse, with the doctor standing beside her, asked the third applicant to sign a paper. Because she was feeling dizzy as a result of the injection, the third applicant was unable to read what was written on the paper. The nurse told the applicant that she had to sign it as she was going to have a Caesarean delivery. 26. The third applicant submitted that she had signed the document without understanding its contents. 27. On 18 April 2002 the third applicant was discharged from Krompachy Hospital at her own request. She stated that the hospital had asked her to sign a document prior to her discharge. She was given no time to read the document when signing it. In reply to a question from the applicant, the doctor stated that the paper confirmed that she had been sterilised. The doctor refused to give any further explanation to the applicant. 28. The discharge report indicates that the third applicant was sterilised during the Caesarean delivery. It was only later, on 14 August 2003, during questioning at a police station, that a police investigator showed the applicant the request for sterilisation, which appeared to include her signature. 29. The form had been filled in using a typewriter and was dated 10 April 2002. The second part contains the decision of the sterilisation committee dated 10 April 2002 approving the operation as compliant with the 1972 Sterilisation Regulation. The document states that there were “medical reasons” for the operation and that the applicant had already had three children. 30. With a view to describing the overall situation and context in which they had been sterilised, the applicants submitted that they had received inferior treatment during their stay in Krompachy Hospital. In their view, racial prejudice on the part of medical personnel had played a significant role in the quality of the treatment they received. 31. In particular, the applicants stated that they had been accommodated separately from nonRoma women, in what were called “Gypsy rooms”. They had been prevented from using the same bathrooms and toilets as nonRoma women, and could not enter the dining room, where there was a television set. The second applicant had also experienced verbal abuse from health care personnel during her stay in Krompachy Hospital. 32. With reference to the Body and Soul Report (see below), the applicants stated that the chief gynaecologist at Krompachy Hospital had admitted that patients were categorised and separated according to their “adaptability” and level of hygiene. That categorisation was carried out by him on an individual basis. According to the Body and Soul Report the same physician had also stated that Roma did not know the value of work, that they abused the social welfare system and that they had children simply to obtain more social welfare benefits. 33. The Government disputed the above allegations. They relied, inter alia, on a statement by a gynaecologist at Krompachy Hospital that there had been no deliberate segregation of Roma women. On the contrary, due to the similarity of their habits Roma women themselves asked to be placed in rooms together; they even moved without authorisation to other rooms for that purpose. There were also cases where Roma women with a higher social status requested isolation from other patients of Roma origin. 34. In response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of Body and Soul: Forced and Coercive Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia (“the Body and Soul Report”), the Human Rights and Minorities Section of the Office of the Government of Slovakia initiated a criminal investigation of the alleged unlawful sterilisation of several women, including the three applicants. 35. The first and third applicants joined the Office of the Government in their criminal complaint and, together with the second applicant, also acted as witnesses and injured parties in the proceedings. 36. The proceedings were formally brought by the regional criminal investigation department in Košice on 31 January 2003. 37. In a decision of 24 October 2003 the regional criminal investigation department in Žilina, to which the case had been transferred, discontinued the criminal investigation, finding that the alleged events underlying the investigation had not occurred and that nothing indicated that any offence under the Criminal Code had been committed. 38. On 31 October 2003 the applicants and two others lodged a complaint against the police investigator’s decision of 24 October 2003. On 9 March 2004 the regional prosecutor’s office in Košice dismissed it, holding that injured parties, including the applicants, were not entitled to lodge complaints against the decision of 24 October 2003. In a separate letter of 9 March 2004 the regional prosecutor addressed the arguments of the complainants and found that the police investigator’s decision had been lawful and correct. 39. On 15 April 2004 the applicants requested the General Prosecutor to submit a complaint of a breach of law to the Supreme Court. The General Prosecutor’s Office considered it a request for review of the lawfulness of the criminal proceedings. On 10 June 2004 it informed the applicants that their request had been refused, and that the General Prosecutor fully approved the proceedings and the decision to terminate the investigation. 40. On 1 June 2005 the Constitutional Court quashed the decision given by the regional prosecutor’s office in Košice on 9 March 2004, for the reasons set out below. 41. On 28 September 2005 a public prosecutor of the regional prosecutor’s office in Košice dismissed a further complaint against the police investigator’s decision of 24 October 2003. The public prosecutor found that all the available and necessary evidence had been gathered with a view to determining the issue. It had not been shown that the medical doctors concerned had taken unauthorised actions with a view to preventing the birth of children, or that they had otherwise acted in a manner contrary to the law. 42. Following the Constitutional Court’s judgment of 13 December 2006 (see below) the Košice regional prosecutor’s office, on 9 February 2007, quashed the investigator’s decision of 24 October 2003 to discontinue the criminal proceedings. 43. Subsequently, the police investigator examined and cross-examined the applicants and the medical staff. On 28 December 2007 the investigator again discontinued the proceedings, concluding that no criminal offence had been committed. 44. On 4 January 2008 the applicants lodged a complaint. They argued that the investigator had failed to deal with all relevant aspects of the case and had not remedied the shortcomings to which the Constitutional Court had pointed in the judgment of 13 December 2006. 45. On 19 February 2008 the Košice regional prosecutor’s office dismissed the applicants’ complaint, holding that the sterilisations had been carried out in accordance with the law then in force, and that the applicants had been duly advised of their sterilisation. No objective or subjective appearance of any criminal offence had been established in any of the individual cases of sterilisation. 46. On 16 March 2008 the applicants complained about that decision to the General Prosecutor’s Office. 47. On 19 May 2008 the latter replied that no reason had been found to reach a different conclusion. In particular, the prosecuting authorities had considered all relevant aspects of the case and had correctly concluded that no criminal offence had been committed. The General Prosecutor’s Office expressed the view that, contrary to what the prosecuting authorities at lower level had held, the applicants could not be considered injured parties for the purpose of the criminal proceedings, as they had suffered no harm to their health, nor any other damage, and their rights had not been infringed. 48. On 12 February and 2 June 2004 respectively the first and second applicants claimed damages from Krompachy Hospital. They relied on Articles 420 and 444 of the Civil Code and claimed that they had been unlawfully sterilised by the defendant’s employees. The third applicant brought a similar action with the Spišská Nová Ves District Court on 7 October 2004. 49. The cases were examined by courts at two levels of jurisdiction. It was established that the Krompachy municipality was to be considered the defendant once Krompachy Hospital had ceased to exist. The applicants’ claims were determined as follows. 50. On 20 January 2005 the Spišská Nová Ves District Court rejected the first applicant’s claim as statute-barred. On 23 May 2005 the Košice Regional Court quashed that decision. 51. Subsequently the District Court heard the parties and witnesses, obtained the opinion of an expert and took documentary evidence. On 12 January 2009 it dismissed the first applicant’s claim. In the judgment it admitted that the first applicant’s sterilisation had not been life-saving surgery. As the applicant had been under the age of majority, her parents’ approval should have been obtained prior to the surgery. 52. With reference to the expert opinion, the court further established that the reason for the first applicant’s permanent infertility was the hysterectomy. That operation had been carried out as a life-saving intervention several days after the delivery, for reasons which were unrelated to the sterilisation. The operation had thus had no lasting consequences for the first applicant. The court concluded that there was no causal link between the breach of the first applicant’s rights in the context of her sterilisation and its alleged effect on her health, private and family life and position in society. 53. The first applicant appealed. She argued that she had been deprived of the ability to have children by her sterilisation on 23 January 2000. The subsequent hysterectomy could not absolve the defendant from liability for her unlawful sterilisation. She contested the District Court’s argument that the sterilisation had not permanently deprived her of the ability to conceive. 54. On 26 October 2009 the Regional Court upheld the first-instance judgment. It held that the District Court had established the relevant facts and had applied the law correctly. A causal link between the unlawful sterilisation of the first applicant and the damage which she alleged she had thereby suffered had ceased to exist with the performance of the hysterectomy. The Regional Court concluded that during the short period between the sterilisation and the hysterectomy the first applicant could not have suffered any damage resulting from an impairment of her position in society, contrary to her allegation. Without further specification the judgment indicated that the first applicant might have suffered damage of a different nature, but that this was not the subject matter of the proceedings. 55. On 2 May 2005 the District Court rejected the action of the second applicant. On 6 February 2006 the Regional Court quashed that decision. 56. Subsequently the District Court heard the parties and witnesses and examined documentary evidence. It also obtained the opinion of an expert, the second applicant having previously challenged several other experts appointed by that court. 57. On 11 May 2009 the District Court dismissed the action. On the basis of the expert opinion it established that the second applicant had not suffered serious damage to her health and that the operation had not affected her life and position in society. The judgment stated that the second applicant could become pregnant, for example by means of sterilisation reversal surgery or by assisted reproduction. The applicant had been living with her second partner for four years and she had not shown that her social life had been impaired. Finally, the District Court held that, had the second applicant shown that her health had been damaged as a result of her sterilisation, she would have been entitled to 1,593 euros (EUR) in compensation under the relevant law. 58. On 27 January 2010 the Regional Court quashed that judgment as erroneous. It held that the hospital staff had acted contrary to the law in that they had not obtained the approval of the second applicant’s legal guardians prior to her sterilisation. 59. On 15 June 2010 the District Court ordered the defendant to pay EUR 1,593.3 to the second applicant. It found no reason to avail itself of its right under Regulation 32/1965 to grant a higher award. 60. On 10 November 2010 the Košice Regional Court upheld the District Court’s judgment of 15 June 2010 while holding second applicant’s argument that it was not clear whether she could become pregnant as a result of sterilisation reversal surgery or assisted reproduction, and that such methods were not accessible to her. For the appeal court, it had not been reliably established that the second applicant and her partner would have had children if she had not been sterilised. Finally, the Regional Court held that the award could not be increased on the ground of the alleged impairment of the applicant’s position as a member of a socially excluded Roma community. That issue was to be assessed from the perspective of cultural norms shared in society as a whole, under which infertile men and women were no longer subject to denigration and mockery. 61. On 24 October 2011 the District Court discontinued the proceedings in respect of the third applicant. It held that under the relevant law the right claimed had been extinguished upon her death. 62. On 24 May 2004 the applicants lodged a complaint with the Constitutional Court. They referred to the above decisions by the police investigator of the regional criminal investigation department in Žilina and the regional prosecutor’s office in Košice of 24 October 2003 and 9 March 2004 respectively, and alleged that their rights under Articles 3, 8, 12, 13 and 14 of the Convention and several constitutional provisions had been breached. 63. On 1 June 2005 the Constitutional Court found that the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 13 and 3 of the Convention, in that it had erroneously rejected their complaint against the police investigator’s decision of 24 October 2003 without addressing its merits. The Constitutional Court quashed the decision of the regional prosecutor’s office of 9 March 2004 and ordered that authority to examine the applicants’ complaint. That order, together with the finding of a violation of the applicants’’s office in Košice to reimburse the applicants’ costs and expenses in the constitutional proceedings. 64. On 30 November 2005 the applicants complained that the authorities involved in the above criminal investigation had failed to ensure that those responsible for their sterilisation were prosecuted and that the applicants were awarded compensation. The applicants alleged a violation of Articles 3, 8, 13 and 14 of the Convention. They also relied on several constitutional rights. 65. On 13 December 2006 the Constitutional Court found that by its decision of 28 September 2005 the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 3 and 8 of the Convention in their procedural aspect, 66. The Constitutional Court quashed the decision in issue and ordered the regional prosecutor’s office to re-examine the case, taking into account the applicants’ rights under Articles 3 and 8 of the Convention. The decision indicated the issues which the prosecuting authorities were required to clarify. 67. The Constitutional Court awarded the equivalent of EUR 1,430 to each of the applicants. It ordered the regional prosecutor’s office to reimburse the applicants’ costs. 68. On 24 April 2008 the applicants complained under Articles 3, 8, 13 and 14 of the Convention about the Košice regional prosecutor’s decision of 19 February 2008 and the fact that their case had not been investigated in a prompt and efficient manner. The applicants indicated that they had also complained about that decision to the General Prosecutor’s Office by way of an extraordinary remedy, and that the latter had not yet replied to them. 69. On 3 June 2008 the applicants sent the Constitutional Court a copy of the letter of the General Prosecutor’s Office of 19 May 2008 rejecting their complaint about the regional prosecutor’s decision. 70. The Constitutional Court rejected the applicants’ complaint on 29 July 2008. It held that the decision of the Košice regional prosecutor’s office of 19 February 2008 had been reviewed by the General Prosecutor’s Office at the applicants’ request. Any interference with the applicants’ rights which the Constitutional Court was entitled to examine in the context of the proceedings complained of therefore stemmed from the decision the General Prosecutor’s Office had given on 19 May 2008. Since the applicants had exclusively challenged the decision of the regional prosecutor’s office, and since the Constitutional Court was bound by the way in which they had specified the subject matter of their complaint, the court concluded that it lacked jurisdiction to deal with the complaint. 71. On 10 March 2010 the first applicant complained about the proceedings leading to the Košice Regional Court’s judgment of 26 October 2009. She alleged a breach of Articles 3, 6, 8, 12, 13 and 14 of the Convention, as well as of her rights under several other international treaties and the Constitution. 72. On 7 September 2010 the Constitutional Court declared the complaint manifestly ill-founded. It held that the Regional Court’s judgment was not arbitrary or otherwise contrary to the first applicant’s rights. 73. On 9 March 2011 the second applicant alleged a breach of, inter alia, Articles 3, 6, 8, 13 and 14 of the Convention in the context of the proceedings leading to the Regional Court’s judgment of 10 November 2010. 74. On 13 July 2011 the Constitutional Court dismissed the complaint as manifestly ill-founded. It held that the manner in which the ordinary courts had determined the amount of compensation due to the second applicant was not arbitrary or otherwise contrary to her fundamental rights and freedoms. 75. The applicants 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 they believed had influenced their own sterilisation. They also referred to the Body and Soul Report and a number of other reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies, requesting 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, 8 November 2011). 76. The Government cited a report of 28 May 2003 drawn up by a group of experts established by the Ministry of Health with a view to investigating allegations of unlawful sterilisations and segregation of Roma women (for further details see V.C. v. Slovakia, cited above, §§ 50-55). 77. In their opinion on the Body and Soul Report representatives of the Slovakian Society for Planned Parenthood and Parenthood Education admitted that the requirement of prior informed consent to sterilisation had been absent from the regulatory framework in Slovakia at the relevant time. However, in the case of Roma women it was frequently the only opportunity for medical personnel to inform them about contraception and sterilisation shortly before or during delivery. According to the opinion, the medical practitioners involved in sterilisations acted in good faith and in accordance with the law in force. 78. In a letter dated 3 February 2003 the director of Krompachy Hospital contested the allegation that Roma women had been forcibly sterilised in his hospital. The letter contained the following information. 79. In the area covered by Krompachy Hospital the post-natal mortality rate of Roma children had fallen from twenty-five per thousand in 1990 to five per thousand in 2002. The majority of deliveries in the hospital concerned Roma women; the perinatal mortality rate was around 10 per thousand, approximately the same as in other hospitals within the region. 80. The Roma settlement in R. (where the first and second applicants lived) was outside the area served by Krompachy Hospital. However, its staff did not refuse to treat inhabitants of that settlement, as it was closer than the hospital to which they administratively belonged. Between 1990 and 2003 150 women from R. settlement had given birth by vaginal delivery and eighteen Roma women (that is, 12%) had delivered by Caesarean section. The ratio was around 15% nationwide. 81. During the same period 801 Roma women had given birth in the hospital, of whom seventy-five (that is, 9.3%) had undergone a Caesarean section. There had been a further 768 deliveries by women who were not of Roma origin. Of the latter, 139 women (that is, 18%) had delivered by Caesarean section. 82. Between 1999 and February 2003 there had been twenty-eight sterilisations performed on women of Roma origin and sixty-five sterilisations of non-Roma patients. All patients had been duly advised and had signed the relevant request. 83. Furthermore, Krompachy Hospital had carried out ninety-six procedures on Roma women who were experiencing difficulty in conceiving. In several cases the patients had become pregnant thereafter. 84. The letter also mentioned the case of a Roma woman who had delivered her eighth child in 1998. As she had been brought to the hospital in a state of shock, the staff could not inform her about sterilisation prior to delivery, which was carried out by Caesarean section. No sterilisation was performed and she was subsequently advised to undergo sterilisation after the post-natal period. The patient did not follow the medical advice. One year later she was brought to the hospital with bleeding, fourteen days after the scheduled date of delivery of her ninth child. Due to severe haemorrhagic shock she could not be saved. 85. The relevant domestic law and practice, as well as pertinent international documents, are set out in detail in V.C. v. Slovakia, cited above, §§ 57-86 and N.B. v. Slovakia, no. 29518/10, §§ 49-56, 12 June 2012. 86. In addition, the following information is relevant in the present case. 87. The relevant provisions of the Civil Code read as follows: “1. Everyone shall be liable for any damage he or she causes by breach of a statutory duty. 2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity” ... “Indemnification for damage to health shall consist of a lump-sum payment for suffering and impairment of one’s position in the society.” 88. In November 2009 the UN Committee Against Torture considered its second periodic report on Slovakia, which covered the period from 1 January 2001 to 31 December 2006. In its concluding observations the Committee expressed deep concern about allegations of continued involuntary sterilisation of Roma women. It recommended that Slovakia should: “(a) Take urgent measures to investigate promptly, impartially, thoroughly and effectively all allegations of involuntary sterilization of Roma women, prosecute and punish the perpetrators and provide the victims with fair and adequate compensation; (b) Effectively enforce the Health-care Act (2004) by issuing guidelines and conducting training of public officials, including on the criminal liability of medical personnel conducting sterilizations without free, full and informed consent, and on how to obtain such consent from women undergoing sterilization.”