CASE OF N.B. v. SLOVAKIA
Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No 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);Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant is of Roma ethnic origin. She was born in 1983 and lives in Nálepkovo. 6. On 25 April 2001, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the gynaecology and obstetrics department of the hospital in Gelnica (“the Gelnica Hospital”). The Gelnica Hospital was a public hospital administered by the Ministry of Health at that time and until the end of 2002. 7. During her pregnancy the applicant visited her doctor regularly. She was informed that the delivery would be via caesarean section. 8. According to the applicant’s medical records, the applicant was brought to the hospital in labour by an ambulance at 7.50 a.m. on 25 April 2001. At 9 a.m. on the same day, when her contractions were occurring at five minute intervals, the applicant was administered premedication in view of the envisaged caesarean section. It included a benzodiazepine derivative which is used for its sedative, anxiety-relieving and muscle-relaxing effects. 9. Following a handwritten entry on the administration of the premedication, the medical record contains a typed entry on the next page, according to which the applicant had requested that a sterilisation procedure 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. The entry is signed by a doctor and it also bears the signature of the applicant. 10. 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. The staff member had taken her hand to help her sign the papers. The applicant had been in labour and had felt as if she were intoxicated under the influence of the medication. She had neither had the strength nor the will to ask what the documents contained. She remembers a doctor who was present saying that she would die unless she signed the papers. She had therefore not objected to signing the papers with the assistance of the staff member. 11. The applicant’s child was born at 9.35 a.m. 12. Another section of the medical records, dated 11 May 2001, indicates that the child was delivered by caesarean section. 13. According to a surgical report in the applicant’s medical file, in the course of the operation the doctors discovered a large fissure running the length of the scar from a previous caesarean section on the applicant. After the child’s delivery, the doctors discovered a rupture of the applicant’s uterus. It had probably been the result of the secondary healing of a suture which had become loose during the course of the applicant’s second pregnancy. As a result, the applicant’s life had been at risk. The doctors had therefore considered a hysterectomy as a radical solution to the problem. However, in view of the patient’s age, they had preferred to carry out reconstructive surgery despite the risk of complications. Since the applicant’s uterus was severely damaged, it had been considered certain that a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus. After the reconstructive surgery, the doctors had therefore decided to sterilise the applicant in accordance with the request she had made prior to the operation. The report indicates that no complications occurred in the course of the surgery. 14. The applicant was released from the Gelnica Hospital on 11 May 2001. 15. The medical records also contain a copy of a decision of the sterilisation commission established at the Gelnica Hospital. The decision is dated 15 May 2001 and indicates that the commission approved, ex post facto, the applicant’s sterilisation, which had been carried out at her request. According to the document, a sterilisation procedure had been justified within the meaning of the Sterilisation Regulation 1972 in view of the applicant’s health. 16. At the time of the delivery and sterilisation procedure the applicant was underage. She reached the age of majority ten days later. Her mother, who was the applicant’s representative while she was under the age of majority, was not present during the delivery and she had not been asked to give her consent to the sterilisation. 17. The applicant learned about the operation and its nature in December 2002, when her lawyer reviewed her medical file in the Gelnica Hospital. 18. According to the applicant, as a result of the operation, she has suffered from serious physical and mental health problems. The applicant’s psychological problems were recognised by a psychologist in a statement dated 7 September 2007. She maintained that she had been ostracised by her husband and the Roma community because of her infertility. 19. With a view to describing the overall situation and context in which she had been sterilised, the applicant submitted that she had experienced inferior treatment during her stay at the Gelnica Hospital. In particular, the applicant indicated that patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room” separated from women who were not of Roma ethnic origin. The applicant considered that her ethnic origin had played a decisive role in the decision of the medical staff to sterilise her. Citing a number of international reports, the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives. 20. The Government were in disagreement with the applicant’s allegations. 21. On 8 December 2004 the applicant sued the Gelnica Hospital for damages before the Spišská Nová Ves District Court. Apart from the relevant provisions of the Slovakian Civil Code, she also relied on Articles 3, 8 and 12 of the Convention. The applicant argued that she had been sterilised contrary to the relevant provisions of Slovak law, as her mother had not given consent to the operation. It had also run counter to relevant international human rights standards. The applicant claimed the equivalent of 17,310 euros (EUR) in damages and also claimed reimbursement of her costs. 22. Following the privatisation of the Gelnica Hospital, the District Court substituted the Gelnica Municipality as the defendant in the proceedings on 25 May 2005. 23. On 10 February 2006 the District Court dismissed the applicant’s action. With reference to the evidence available, it concluded that the operation had been necessary with a view to saving the applicant’s life. As such, it could have been performed without her prior consent. 24. On 28 March 2006 the applicant appealed. She maintained, inter alia, that her ethnic origin had motivated the doctors to sterilise her. 25. On 28 February 2007 the Košice Regional Court quashed the firstinstance judgment. It expressed the view that the sterilisation operation on the applicant could not be considered as life-saving surgery and ordered the first-instance court to re-examine the case in light of that opinion. 26. An expert opinion submitted to the District Court indicated that during the caesarean section the doctors had discovered an extensive injury to the applicant’ uterus. A hysterectomy, which they had originally considered carrying out, would have been, in the expert’s view, acceptable medical practice in the circumstances. The expert considered the alternative solution which the doctors had chosen, namely reconstructive surgery of the uterus, as an intervention which had saved the applicant’s life in the circumstances. However, the subsequent sterilisation of the applicant had not been indispensable with a view to preventing an imminent danger to her life. 27. On 7 September 2007 a psychology centre conducted an examination of the applicant and issued a report at the request of the applicant’s representative. It was noted that during the examination the applicant had indicated that there was conflict in her marriage, as her husband frequently reproached her for her inability to have more children. The applicant had further indicated that she suffered from stomach pains, loss of appetite and breathing problems. The psychologist concluded that the depressive and pessimistic moods from which the applicant suffered were possibly related to her inability to conceive. 28. In her submissions to the District Court the applicant also relied on views expressed by several experts on sociology and Roma culture indicating that the inability to have children strongly diminished the position of a woman and her family in the Roma community. 29. On 14 May 2008 the District Court ordered the defendant to pay the equivalent of EUR 1,593 to the applicant. It further held that none of the parties were entitled to have the costs of the proceedings reimbursed. 30. The District Court established that the medical staff had failed to obtain informed consent to the applicant’s sterilisation prior to the operation. At the relevant time, the applicant had been underage and her legal representative had not signed the request. It determined the amount of compensation with reference to Regulation 32/1965. The court did not consider it necessary to avail itself of its right to increase the award of compensation above the rates indicated in the regulation. It noted that the applicant had married the father of her children since bringing the action and had not shown that her position in the Roma community had deteriorated. 31. By an additional judgment of 11 June 2008 the District Court formally rejected the remainder of the applicant’s claims and ordered the defendant to reimburse the State’s costs incurred in the proceedings. 32. On 23 June 2008 the applicant appealed. She argued that the compensation awarded to her was insufficient in view of the scope and consequences of the damage which she had suffered, and complained that the District Court had dismissed her request for reimbursement of her legal costs. 33. On 27 October 2009 the Regional Court upheld the first-instance judgment on the merits to the extent that it was challenged by the applicant. The Regional Court referred to the opinion of an expert indicating that a third pregnancy would be highly risky for both the applicant and the foetus. If the applicant had not agreed to her sterilisation, she would have been required to confirm in writing that she had been advised that any future pregnancy would threaten her life. Albeit that it could not be established with absolute certainty that such a situation would occur, the existence of such a risk nevertheless justified the conclusion that an increase in compensation under sections 6(2) and 7(3) of Regulation 32/1965 was not justified in the circumstances. 34. The Regional Court further quashed the first-instance decision as to the costs of the proceedings and ordered the District Court to re-examine the issue. 35. On 26 August 2008 the applicant filed a criminal complaint with the District Prosecutor’s Office in Spišská Nová Ves. She alleged that the sterilisation operation had been unlawful and had caused her serious bodily harm. The applicant also relied on her rights under the Convention. 36. On 20 October 2008 the District Directorate of the Office of the Judicial and Criminal Police in Spišská Nová Ves dismissed the applicant’s complaint. It concluded that no offence had been committed, as the medical staff involved had acted with a view to protecting the applicant’s life and health. Furthermore, it was still possible for the applicant to conceive by means of in vitro fertilisation. 37. On 14 November 2008 the Spišská Nová Ves District Prosecutor’s Office dismissed the applicant’s complaint against that decision. 38. On 14 January 2009 the Košice Regional Prosecutor’s Office quashed the lower prosecutor’s decision as being premature. 39. Subsequently, the police started a criminal investigation. They took statements from the applicant, her mother and a doctor from the Gelnica Hospital. The doctor stated that complications had occurred in the course of the delivery, as a result of which the applicant’s life had been at risk. It had therefore been decided to perform a sterilisation, with the applicant’s approval, as a life-saving procedure. In contrast, an expert provided an opinion to the effect that it had not been necessary to sterilise the applicant during the delivery with a view to saving her life. Both the doctor and the expert concurred that the operation had not prevented the applicant from becoming pregnant by means of assisted reproduction. 40. On 31 July 2009 the police closed the investigation, concluding that no criminal offence had been committed. 41. On 16 September 2009 the Spišská Nová Ves District Prosecutor’s Office dismissed the applicant’s complaint against that decision. It held, with reference to an expert opinion, that the operation had become necessary as, in the course of the delivery, extensive bleeding had occurred due to a rupture of the applicant’s uterus. In that situation, the doctors had had to take a decision immediately. After consultation with the head physician, they had decided not to carry out a hysterectomy, which was normally indicated in similar situations, but had elected to reconstruct the uterus with a view to preserving it. The surgical team had then carried out a sterilisation by means of tubal ligation so that the applicant could lead a normal life. The applicant had not suffered irreversible damage to her health and she had given her consent to the procedure. She had reached the age of majority only ten days thereafter. Prior to the delivery she had lived with her partner and had taken care of one child. 42. On 18 November 2009 the Košice Regional Prosecutor’s Office, in response to a complaint by the applicant, upheld the findings reached by the police and the District Prosecutor’s Office. The letter informing the applicant of this decision further stated that the above-mentioned findings of the civil courts in relation to the case did not bind the prosecuting authorities. 43. At the applicant’s request, a prosecutor from the General Prosecutor’s Office reviewed the case. In a letter of 8 March 2010 the prosecutor admitted that the operation had not been consented to by the applicant’s representative, contrary to the relevant law. That did not mean, however, that the doctors had committed an offence. In particular, they had acted in good faith with a view to protecting the applicant, as they had considered the operation necessary in view of the applicant’s health. 44. The public prosecutor noted that the applicant had signed the request while experiencing labour pains and that her sterilisation had not been a lifesaving intervention. The provisions of the Sterilisation Regulation 1972 had been interpreted and applied for many years in such a manner that, where it was medically indicated and where the prior agreement of the woman concerned was obtained, sterilisation was carried out immediately after delivery by means of caesarean section. 45. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. She alleged a breach, in the above civil and criminal proceedings, of her rights under Articles 3, 8, 13 and 14 of the Convention, of several provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, of the Convention on the Elimination of All Forms of Discrimination against Women, and a number of constitutional provisions. As regards the civil proceedings, she also alleged a breach of Article 6 of the Convention. 46. The Constitutional Court dismissed the complaint on 5 May 2010. It held that the prosecuting authorities involved could not be held liable for the alleged breach of the applicant’s substantive rights which had primarily resulted from her sterilisation in the Gelnica Hospital. As to the civil proceedings, the Constitutional Court found that the Košice Regional Court had given sufficient and relevant reasons for its judgment of 27 October 2009, which had therefore not been arbitrary. There was no appearance of a breach of Article 6 § 1 of the Convention in the proceedings leading to that judgment. The Constitutional Court further found no causal link between the Regional Court’s judgment and the other rights on which the applicant had relied. 47. The relevant domestic law, practice and international materials are set out in the judgment of V.C. v. Slovakia, no. 18968/07, §§ 57-86, 8 November 2011. 48. In addition, the following information is relevant to the present case. 49. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, was published in the Collection of Laws under number 40/2000 on 10 February 2000. Article 6 § 2 reads as follows: “Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.” 50. Section 13(1) of the Health Care Act 1994 (“the 1994 Act”), in force at the relevant time, made medical treatment subject to the patient’s consent. A patient’s consent to medical procedures of a particularly serious character or which substantially affected a person’s future life had to be given in writing or in another provable manner (section 13(2)). 51. Pursuant to section 13(5) of the 1994 Act, in the case of patients under the age of majority consent to medical procedures of a particularly serious character within the meaning of section 13(2) was to be given by their representative upon the recommendation of a group of at least three experts. Patients over the age of sixteen who were deemed to be intellectually capable of assessing the envisaged procedure had to give their consent to such a procedure as well. The only exception to the foregoing concerned indispensable medical procedures which could not be delayed (section 13(6)). 52. Regulation 32/1965 (“the Regulation”) governed compensation for pain and impediments to a person’s integration in society which resulted from an injury, occupational disease or other damage to one’s health. It was repealed with effect from 1 January 2009. 53. Section 2(1) of the Regulation provided for compensation for pain resulting from damage to a person’s health, and for subsequent medical treatment and the elimination of the effects of such damage. The amount of the compensation for pain was to be determined in accordance with the principles and rates attached to the Regulation. It was to correspond to the scope of the damage to one’s health and the course of its treatment. 54. Section 4(1) of the Regulation governed compensation for damage to one’s health which demonstrably entailed negative consequences for the everyday life of the person concerned, for satisfying his or her living and social needs or for fulfilling his or her role in society. The compensation granted was to correspond to the nature of such negative consequences and their expected prognosis, and should reflect the extent to which a person’s life and integration in society were affected. 55. Pursuant to section 6(1) of the Regulation, compensation under section 4(1) of the Regulation was to be determined pursuant to the number of points which a medical expert attributed to a particular case on the basis of the rates attached to the Regulation. Paragraph 2 of section 6 allowed for the number of points assigned to be increased by up to one hundred per cent, depending on: (i) the prospects which the injured person had at the moment when his or her health was damaged; (ii) the injured person’s family life; or (iii) the injured person’s involvement in politics, culture or sport, their profession and/or their level of education. 56. Section 7 of the Regulation governed the amount of compensation. Its paragraph 2 limited the overall compensation to the equivalent of approximately EUR 8,000. Finally, paragraph 3 of section 7 entitled the courts to increase the award over and above the sums foreseen by the Regulation where it was justified by particular circumstances.