THIRD SECTION

DECISION

Application no . 13606/11 Z.K. against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 1 April 2014 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Ján Šikuta, Dragoljub Popović, Luis López Guerra, Valeriu Griţco, Iulia Antoanella Motoc, judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 28 February 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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. Bukovsk á , 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, M s M. Pirošíková.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Facts relating to the delivery of the applicant ’ s second child

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 b y means of a caesarean section, as had also been the case when she gave birth to her first child . At th e time , the applicant was underage. She was not legally married.

4. On 18 May 2005, when she accessed her medical record s, 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 a ppend ed to the applicant ’ s medical records indicates that the applicant underwent sterilisation by tubal ligation due to complicatio ns involving abnormally deep attachment of the placenta and imminent risk of rupture of the u terus. The document is dated 22 February 1993 and signed by D octor 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 o f 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.

2. Proceedings concerning the applicant ’ s civil claim

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 D octor 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 operati on, but it had been medically indicated , as any subsequent pregnancy would have entai led a serious risk to the applicant ’ s life and health. The opinion further not ed 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 sign s 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. U pon the applicant ’ s appeal , o n 2 December 2008 the PreÅ¡ov Regional Court quashed the District Court ’ s judgment. It ordered the first ‑ instance court to obtain further evidence with a view to establishing all relevant facts.

17. Subsequently , the District Court heard D octor 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 D octor S. , who had died in the meantime. Doctor L. was not in a position to explain why D octor S. had made such an entry. She might have mistaken the applicant ’ s file with that of one of the three other pe ople on whom they had operated consecutively on that day.

18. The District Court further established from the hospital ’ s list of operations performed that D octors 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 highligh ted that the report drawn up upon her release from the hospital did not st ate 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 record ed 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 record s 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 righ t to claim compensation for non ‑ pecuniary damage had prescrib ed.

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 PreÅ¡ov Regional Court upheld the first ‑ instance 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 record s 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. Ask ing 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.

3. Proceedings concerning the applicant ’ s criminal complaint

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, N urse M. stated that she could not remember the delivery. An expert indicated that sterilisation was not in itself a life- s a ving operation . It sh ould 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 expir ed on 22 February 2003.

33. On 17 December 2010 the General Prosecutor ’ s Office found no breach of law in the co urse 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 sta ted 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 recor ds o f 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 draw n 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 not ed 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 as k 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 expir ed.

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.

4. Other complaints made by the applicant

39. With a view to describing the overall situation and c ircumstances 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, ask ing 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.

B. Relevant domestic law, practice and relevant international materials

1. The Civil Code

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.

2. The People ’ s Health Act 1966

45. At the relevant time , the following provisions of the People ’ s Health Act 196 6 (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 patien t ’ 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.

3. Other relevant domestic law, practice and international materials

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.

COMPLAINTS

49. The applicant complain ed under Article 3 of the Convention that : (i) she was the victim of forced and unlawful sterilisation in a public hospital ; and (ii) the Slovakian author ities had failed to undertake a thorough, effective and prompt investigation into the circumstances of her sterilisation.

50. Under Article 8 of the Co nvention the applicant complained that her st erilisation had been unlawful and had seriously interfered with her private and family life.

51. The applicant alleged a violation of Article 12 of the Convention in that she ha d been denied her right to found a family as a result of her sterilisation.

52. The applicant also alleged that her sterilisation had been based on grounds of sex, race, colour, and/or membership of a national mi nority and ethnicity. She relied on Article 14 of the Convention in conjunction with Articles 3, 8 and 12.

THE LAW

A. Complaint under Article 3 of the Convention

53. The applicant complained that she was the victim of forced and unlawful sterilisation and that the Slovakian authorities had failed to undertake a thorough, effective and prompt investigation into its circumstances. She alleged a breach of Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

54. The Government referred to the findings made by the national authorities and argued that it had not been shown that the applicant had actually been sterilised. She could not, therefore, claim to have been subjected to treatment contrary to Article 3 in that respect. The Government further argued that the domestic authorities had dealt in detail with the applicant ’ s allegations in both civil and criminal proceedings. Any obligation to carry out an effective investigation which may have been incumbent on them under Article 3 had thereby been complied with.

55. The applicant argued that the file concerning her case had contained sufficient prima facie evidence proving that she had been sterilised against her will and that the Government had failed to prove the opposite. In particular, she referred to (i) the entry in the surgery record (see paragraph 5 above, (ii) the admission that the operation had taken place made by the representative of the Pre Å¡ov Hospital at the initial stage of the proceedings concerning her civil claim (see paragraph 11 above), and (iii) the expert opinions of 8 November 2006 and 7 August 2007 (see paragraphs 13 and 14 above). The radiologic examination carried out in 2003 had not proven that she had not been sterilised, and she could not be reasonably expected to undergo invasive surgery in order to settle the issue.

The applicant further maintained that the criminal proceedings regarding the matter had not met the standards of an effective investigation stemming from Article 3.

56. The Court has previously found that sterilisation in public hospitals in Slovakia of three Roma women without their informed consent amounted to treatment contrary to Article 3 of the Convention (for further details see the three judgments cited in paragraphs 40 and 48 above). It noted that several international bodies have expressed their concern as regards the legal framework surrounding and the practice of sterilisation in Slovakia at the material time (see, for example, V.C. , cited above, §§ 78, 80-81 and 84).

57. In view of the above, the indication of a sterilisation operation having taken place in one of the medical records concerning the delivery of the applicant ’ s second child, coupled with the fact that she has not been able to conceive children thereafter, was capable of giving rise to a fear that the applicant was sterilised without her consent. However, the Court considers that fact alone not to be susceptible of raising an issue under Article 3 of the Convention.

58. Unlike in the three cases cited above which concerned sterilisation of Roma women, in the present case the domestic courts authorities found that the evidence available did not allow concluding that the applicant had been actually sterilised. That point has been disputed between the parties.

59. The Court has considered allegations of ill-treatment to be susceptible of raising an issue under Article 3, subject to their being supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121 , ECHR 2000 ‑ IV ).

60. The applicant ’ s argument was based on the surgery record drawn up in relation to the delivery of her second child which indicates that she underwent a sterilisation operation on 22 February 1993, as well as on the fact that the representatives of the Pre šov Hospital did not contest the correctness of that entry at the initial stage of the civil proceedings. She further relied on expert opinions which were based on the medical records drawn up during her stay in the hospital.

61. The Court considers it relevant that in finding that the applicant had not shown that she was sterilised in a public hospital, the domestic authorities relied on the fact that: (i) apart from the entry in the surgery record, no reference was made to the applicant ’ s sterilisation in the other documents related to the delivery of her second child and her subsequent treatment; (ii) the examination s carried out by the medical practitioners and other experts did not allow for the conclusion that that entry was correct or to reliably establish that t he applicant had been sterilised; and (iii) a test carried out in 2003 had shown that the applicant ’ s fallopian tubes were not blocked.

62. Furthermore, medical experts held that an operation would be required in order to establish whether or not the applicant had been sterilised. The applicant preferred not to undergo such a procedure, as she feared that it might jeopardise her health.

63. Thus during the domestic proceedings it was impossible to determine with certainty whether the applicant had been subjected to sterilisation. The Court considers that the domestic authorities took appropriate steps with a view to establishing the relevant facts with due regard to the arguments put forward by the applicant. The documents available contain no information which would justify departing from the findings which the national authorities made in that respect.

64. Having regard to the above considerations, the Court finds (i) that the applicant has failed to lay the basis of a prima facie case of treatment incompatible with Article 3 of the Convention on the part of hospital staff of the respondent State, and (ii) no indication that when dealing with the case the domestic authorities disrespected any procedural obligation which may have arisen in their respect in the circumstances (see also, mutatis mutandis , ( Igars v. Latvia (dec.), no. 11682/03 , § 7 2 , 5 February 2013 ; Svoboda v. the Czech Republic (dec.), no. 43442/11, § 60, 4 February 2014 and, as regards the procedural obligations of Contracting Parties in the specific sphere of medical negligence, V.C. , cited above, §§ 123-125, with further references ).

65. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 8 of the Convention

66. T he applicant complained that her sterilisation had been unlawful and had seriously interfered with her private and family life. She relied on Article 8 of the Convention which in its relevant part provides:

“1. Everyone has the right to respect for his private and family life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

67. The Government maintained that there had been no interference with the applicant ’ s rights under Article 8, as her sterilisation had not been proven.

68. The applicant disagreed, making reference to the submissions made in respect of her complaint under Article 3 (see paragraph 55 above).

69. The Court has found that the factual basis of the case does not allow for acceptance of the applicant ’ s claim that she was sterilised in a public hospital (see paragraph 64 above). For similar reasons it cannot accept, on the same factual basis, that there has been an interference with her rights under Article 8 of the Convention.

70. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other complaints made by the applicant

71. The applicant further alleged a breach of Articles 12 and 14 of the Convention, with reference to her alleged sterilisation at the Pre Å¡ov Hospital.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President