FIFTH SECTION

DECISION

Application no . 26852/09 Iveta ČERVEŇÁKOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 23 October 2012 as a Chamber composed of:

Dean Spielmann , President, Mark Villiger , Karel Jungwiert , Boštjan M. Zupančič , Angelika Nußberger , André Potocki , Paul Lemmens , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 7 May 2009,

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 Iveta Červeňáková , is a Czech national, who was born in 1976 and lives in Leeds . She is rep resented before the Court by Mr R. Cholenský , a lawyer practising in Brno .

The Czech Government (“the Government”) are represented by their Agent, Mr V.A. Schorm , from the Ministry of Justice.

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

1 Background of the case

2. The applicant has two children. Her second pregnancy terminated on 7 July 1997, at the Ostrava Fifejdy Municipal Hospital, when she gave birth to her child by Caesarean section during which she was sterilised by tubal ligation.

3. According to the applicant, shortly before the delivery, and while under influence of calming drugs, she was asked to sign some papers. She signed them without knowing what kind of papers they were. She does not exclude that she signed a consent to being sterilised.

4. The applicant was informed about her sterilisation after she had woken up from anaesthesia by the medical staff but states that she did not understand the meaning of the surg ical intervention and thought a contraceptive coil had been inserted. She assumed that she could have other children. She eventually understood the meaning of sterilisation in 2004 when she visited her doctor and asked him to remove “the coil”.

5. Subsequently, the applicant underwent four times artificial insemination, but without success.

6. On 22 September 2004 the applicant complained to the Ombudsman that she had been involuntarily sterilised. On 17 January 2006 he concluded that the sterilisation was illegal, having been performed without the applicant ’ s valid consent and without the approval of the sterilisation committee.

2. Police investigation of the events

7. In 2005 the Ombudsman referred the applicant ’ s case to the police for investigation. Fourteen persons were questioned by the police and an expert opinion was requested regarding the steps taken by the doctors and to determine whether the signatures on the reverse side of the page inserted in the surgery file were those of the applicant.

8. In a decision of 27 April 2006 the Ostrava Municipal Police Directorate ( Policie ČR – Městské řediteství ) set aside the case finding that the medical staff had not committed bodily harm. The decision was based on the documents concerning the applicant, an opinion on the work of medical practitioners, documents from the court file on the proceedings for the protection of the applicant ’ s personal rights and other documents concerning sterilisation in that particular hospital and the Czech Republic in general. The investigation file consisted of 542 sheets. On 4 May 2006 the Ostrava District Prosecutor ( okresní státní zástupce ), accepting the applicant ’ s appeal, quashed this decision and sent the case back to the Municipal Police Directorate which, on 20 June 2006, decided not to proceed with the case. The applicant ’ s complaint against this finding was dismissed by the prosecutor on 31 July 2006.

9. On 16 May 2007 the Prosecutor General ( Nejvyšší státní zástupkyně ) ordered to review the case. On 5 September 2008 she found that the District Prosecutor had not proceeded in accordance with the law.

10. On 3 October 2008 the Municipal Police Directorate found that the doctors of the Ostrava Fifejdy Municipal Hospital had not committed the crime of inflicting bodily harm on the applicant when sterilising her. On 10 November 2008 the District Prosecutor dismissed the applicant ’ s complaint against this decision as unfounded.

11. On 12 January 2009 the applicant filed a constitutional appeal ( ústavní stížnost ) which was dismissed by the Constitutional Court ( Ústavní soud ) on 5 February 2009.

3. Proceedings on the applicant ’ s action for the protection of her personal rights

12. On 10 October 2005 the applicant sued the hospital before the Ostrava Regional Court ( krajský soud ), seeking the protection of her personal rights within the meaning of Articles 11 et seq. of the Civil Code. She claimed an apology from the hospital and payment of CZK 1,000,000 (EUR 40,000) to compensate the non-pecuniary damage suffered.

13. In a judgment of 12 October 2007 the Regional Court decided that the hospital was obliged to pay CZK 500,000 (EUR 20,000) to compensate the applicant for her non-pecuniary damage finding that she had not given an informed, clear and therefore valid consent to her sterilisation as provided for in Czech law.

14. In a judgment of 5 November 2008 the Olomouc High Court ( vrchní soud ) confirmed that the applicant ’ s sterilisation was illegal and that the hospital ’ s obligation was to apologise to the applicant, but found that the applicant ’ s right to compensation had become statute-barred.

15. On 24 April 2009 the applicant filed an appeal on points of law ( dovolání ).

16. On 23 June 2011 the Supreme Court ( Nejvyšší soud ) quashed the High Court ’ s judgment and sent the case back for further consideration.

17. On 16 November 2011 the applicant and the Ostrava Municipal Hospital concluded an agreement under which the applicant would be paid, by 25 November 2011, compensation of CZK 500,000 (EUR 20,340) and CZK 61,440 (EUR 2,457) for costs of legal representation, she would withdraw her action for protection of her personal rights within 10 days from signing the agreement, and the hospital would inform the High Court about their agreement. Both parties agreed that they would not disclose any information concerning the court proceedings.

18. In a decision of 13 December 2011 the High Court, upon the applicant ’ s request of 30 November 2011, quashed the Regional Court ’ s judgment of 12 October 2007 and discontinued the proceedings. The decision became final on 10 January 2012.

COMPLAINTS

19. The applicant complained that her sterilisation constitutes inhuman and degrading treatment for which the State was responsible and that the State had not carried out any fair and effective investigation of the circumstances of her sterilisation. She further complained that her involuntary sterilisation interfered with her physical integrity and private and family life. She disputed the finding of the national courts that her right to compensation had been time-barred. She relied in this respect on Articles 3 and 8 of the Convention.

The applicant also complained under Article 1 of Protocol No. 1 that at the moment of introduction of her action for the protection of her personal rights, she could reasonably expect a positive outcome of the proceedings before the national courts on the basis of the case-law of the Supreme Court at the time, which suddenly changed in 2008.

THE LAW

20. The applicant alleges a violation of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1 in connection with her involuntary sterilisation.

21. On 10 April 2012 the Government submitted complementary observations reporting that the applicant had concluded a friendly settlement with the Ostrava Fifejdy Municipal Hospital (for details of the settlement, see paragraphs 17 and 18 above). Having regard to the applicant ’ s failure to inform the Court about this new fact, they considered that the applicant abused her right of petition and suggested to declare her application inadmissible.

22. In a letter dated 15 May 2012 the applicant ’ s representative stated, inter alia :

“The Applicant confirms that she signed an out-of-court settlement with the Ostrava City Hospital and that the proceedings on personality rights were discontinued by the decision of the Olomouc High Court date 13 December 2011. The Applicant states that she has the intention to inform the Court about the development in the case but she was not sure whether she was allowed to provide the Court with a copy of the settlement agreement with the hospital. She was trying to keep the possibility to inform the Court about the development when negotiating with the Ostrava City Hospital , however, she needed to take time to analyse whether she can send the whole contract to the Court.”

23. In their further observations of 6 June 2012 the Government expressed their doubts about the applicant ’ s explanation.

24. The applicant ’ s representative reassured the Court, in his letter of 28 August 2012, that “there was no bad intention in not informing the Court promptly about the development in her case, especially about the fact that she reached an out-of-court friendly settlement with the Ostrava City Hospital ”.

26. Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Poznanski and Others v. Germany ( dec .), no. 25101/05, 3 July 2007; Hadrabová and Others v. the Czech Republic ( dec .), nos. 42165/02 and 466/03, 25 September 2007).

28. Having regard to the importance of the information at issue for the proper determination of the present cases, the Court finds that the applicant ’ s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.

29. In view of the above, it is appropriate to reject the application as a whole as an abuse of the right of application pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Stephen Phillips Dean Spielmann Deputy Registrar President