I.G. gave birth to her second child via cesarean section at the age of 16 when she was sterilized without her or her parents full and informed consent. After the operation she had not been given any details about the delivery, except the gender of the baby, nor was she told that she had been sterilised. The following morning the doctor treating her came
into her room and asked her to sign a document. I.G. was
told that she had to sign it because she had undergone a caesarean section and all women who had this kind of operation have to sign
it. Later she was transferred to another hospital due to post-surgery complications, a serious infection and sepsis. As a consequence the doctors had to perform a life-saving operation on her during which her uterus was removed. 3 years later, while reviewing her medical files with her lawyer, I.G. learned that she had been sterilised during her second delivery. The medical file contained a document entitled “Request for authorisation of sterilisation”, filled in using a typewriter and signed by her, and the approval of the district sterilisation committee at the hospital. I.G. has been living in constant fear that her partner will
leave her because she is not able to bear him any more children.
M.K. gave birth to her second child via cesarean section at the age of 17
when she was sterilized without her or her parents full and informed
consent. She learned only four years later, during a criminal
investigation, that her medical record contained a form entitled
“Request for sterilisation” with her signature and the approval of the district sterilisation committee at the hospital. Her partner left her whe he learned that she would not be able to have another child due to
the sterilisation. Her social status in her community has fallen as well due to her sterility. M.K. was worried about the future of her current relationship
because she and her partner wanted to have a child together and her
partner is complaining about her infertility. She was also suffering serious medical side-effects from the operation.
R.H. gave birth to her fourth and fifth child (twins) via cesarean section when she was sterilized without her full and informed
consent. Prior to the operation nurse gave her a
pre-medication injection as a precursor to the anaesthetic after which R.H. felt dizzy. Then a nurse, with the doctor standing beside her, asked her to sign a paper which she did without understanding its contents: because she was feeling dizzy
as a result of the injection, R.H. 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.Upon leaing the hospital at her own request, she was asked to sign a document. She
was given no time to read the document. In reply to a
question from the applicant,adoctor stated that the paper confirmed that she had been
sterilised.
In their application the applicants alleged the violation of Articles 3, 8, 12 and 14 in relation with their sterilization. During the procedure, R.H. died and against the request from the applicant's children, the Court decided to strike the application out of its list of cases in so far as it has been brought by the third applicant, Ms R.H.
Violation of Article 3 (Il-treatment)
The ECtHR reiterated the relevant principles established in the Court’s case-law are set out in V.C. v. Slovakia and N.B. v. Slovakia.
As for the first applicant, the Court noted that her case differed from those of V.C. and N.B.
in that she learned about her sterilisation only some three years later and that, due to a post-surgery complication, the doctors had to carry out a hysterectomy on her, with a view to saving her life, several days after the delivery. When deciding on her civil claim the domestic courts concluded that a causal link between the first applicant’s sterilisation and the damage which could attract compensation under the provisions of the Civil Code on which she had relied had ceased to exist once the hysterectomy had been performed. In their view, during the short period between the sterilisation and the hysterectomy the first applicant had suffered no damage which required compensation under the relevant law.
The Court must must have therefore determined whether the sterilization of I.G. can be qualified as incompatible with Article 3. In this respect it recalled that a person’s treatment
is considered to be “degrading” when it humiliates or debases an
individual, showing a lack of respect for, or diminishing, his or her
human dignity, or arouses feelings of fear, anguish or inferiority; it may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others. To fall within the scope of Article 3 such treatment must attain a minimum level of severity. The assessment of such a minimum level is
relative; it depends on all the circumstances of the case, such as the
duration of the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim.
I.G.'s sterilisation was not a life-saving intervention, and neither the her nor her legal guardians’ informed consent had been obtained prior to it. The intervention was therefore incompatible with the requirement of respect for her human freedom and dignity, similarly to the cases of V.C., and N.B. The Court further accepted that she had been susceptible to feeling debased and humiliated when she learned about the operation. Therefore, taking into account the nature of the intervention, its circumstances, the age of the applicant and also the fact that she belongs to a vulnerable population group ,
the ECtHR considered that the sterilization attained a level
of severity which justifies its qualification as degrading within the
meaning of Article 3. There has accordingly been a substantive violation of Article 3 of the Convention on account of the sterilisation of the first applicant.
As for the second applicant, the reasons set out above were also equally relevant in M.K.'s case. The Court concluded that hersterilisation was also incompatible with the requirement of respect for her human freedom and dignity, and attained a level of severity bringing such treatment within the scope of Article 3. Accordingly, there has been a substantive violation of Article 3 of the Convention on account of the sterilisation of the second applicant.
Violation of Article 3 (investigation)
The Court examined the circumstances of the case in relation with the State's obligation to carry out an
effective official investigation, which must be thorough and expeditious. It noted that Slovakian civil courts examined the circumstances surrounding the first and second applicants’ sterilisation, and acknowledged that in both cases that it had been carried out in disregard of the statutory requirements. They awarded compensation to the second applicant but concluded that the first applicant was not entitled to compensation. Their case was also examined by three levels of prosecuting authorities and by the Constitutional Court.
In repsect of the requirement of "expeditious" investigation, the ECtHR noted that the civil proceedings in connection with I.G. lasted five years and eight months, in the case of M.K. they lasted for six years and five months. The appeal court twice quashed
the first-instance court judgment as erroneous. The criminal
proceedings lasted more than five years and three months. The Court accepted that the investigation was complex, in view of the subject matter and the number of people and authorities involved, however, the investigation was prolonged significantly. The procedure was not therefore in accordance with the requirements derived of Article 3. Accordingly, there has been a procedural violation of Article 3 of the Convention.
Violation of Article 8
The Court reiterated the relevant principles as conculded in V.C. v. Slovakia. In both applicants' case the sterilization was carried out contrary to the requirements of domestic law, as the national courts acknowledged. The ECtHR
previously held, with reference to both international and domestic documents, that at the relevant time an issue had arisen in Slovakia as regards sterilisations and their improper use, including disregard for the informed consent required by the international standards by which Slovakia was bound. Such practice was found to affect vulnerable individuals belonging to various ethnic groups. However, Roma women had been at particular risk due to a number of shortcomings in domestic law and practice at the relevant time
For these reasons, the Court found that the respondent State failed
to comply with its positive obligation under Article 8 to secure
through its legal system the rights guaranteed by that Article, by
putting in place effective legal safeguards to protect the reproductive
health of, in particular, women of Roma origin. Accordingly,
the failure to respect the statutory provisions combined with the
absence at the relevant time of safeguards giving special consideration
to the reproductive health of the first and second applicants as Roma women resulted in a failure by the respondent State to comply with its positive obligation to secure to them a sufficient measure of protection enabling them to effectively enjoy their right to respect for their private and family life. There has therefore been a breach of Article 8 of the Convention in respect of both the first and second applicants.
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