FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62079/09 by M.V. against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 23 November 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 20 October 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms M.V., is a Slovak national of Romani ethnic origin. She was born in 1975 and lives in Ruskov . She was represented before the Court by Ms V. Durbáková and Ms B. Bukovská , attorneys, who act in co ‑ operation with Porad ňa pre občianske a ľudské práva, a non ‑ governmental organisation with its registered office in KoÅ¡ice.

A. The circumstances of the case

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

On 25 March 1999, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the University Hospital of L. Pasteur in Ko Å¡ice, a public hospital under the administration of the Ministry of Health.

Prior to her sterilisation the applicant had not given her informed consent to the intervention and it had not been approved by a sterilisation commission.

As a result of the intervention the applicant has suffered serious medical and psychological consequences, including medical side effects and problems with her husband.

On 9 May 2005 the applicant lodged an action for protection of her personal rights with the Ko Å¡ice II District Court. Her claim was rejected on 9 April 2008. On 4 March 2009 the Ko Å¡ ice Regional Court upheld the first instance judgment. The courts found that the applicant had been sterilised following her request. No shortcomings in the procedure had been established.

On 5 June 2009 the applicant lodged a constitutional complaint. She relied, inter alia , on Articles 3, 6 § 1, 8, 13 and 14 of the Convention.

On 3 June 2010 the Constitutional Court found that the Regional Court had breached the applicant ’ s rights under Article 6 § 1 of the Convention, in conjunction with Articles 3 and 8. It quashed the Regional Court ’ s judgment and instructed that court to re-examine the case. The Constitutional Court further awarded 1,500 euros (EUR) to the applicant as just satisfaction and ordered the Regional Court to reimburse the applicant ’ s costs. The Constitutional Court dismissed the remainder of the applicant ’ s complaint.

The judgment stated that the Regional Court had failed to consider in an appropriate manner the facts of the case in the light of the applicant ’ s arguments including those under the Convention and other international instruments. The Constitutional Court instructed the Regional Court to take further evidence with a view to establishing whether, and if so, when and in which circumstances the applicant (i) had requested sterilisation, (ii) had been informed about the consequences of such intervention, and (iii) had given informed consent to it. It expressly instructed the Regional Court to examine the applicant ’ s arguments from the viewpoint of her rights under Articles 3 and 8 of the Convention.

As to the alleged discrimination of the applicant, the Constitutional Court held that it did not consider it necessary to examine the applicant ’ s complaint under, inter alia , Article 14 of the Convention as it considered primordial the alleged breach of Article 6 § 1. Following its above decision the Regional Court was obliged to take a position as to the alleged breach of the applicant ’ s rights under international instruments. Finally, the Constitutional Court expressed the view that Article 14 of the Convention implied Contracting States ’ positive obligation to incorporate anti ‑ discrimination principles and measures in their law. As such, it was not directly applicable by public authorities in individual cases.

B. Relevant domestic law and international materials

The relevant domestic law, practice and international materials are set out in V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009, and I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009.

COMPLAINTS

1. Under Article 3 of the Convention the applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation without her full and informed consent, and that the authorities had failed to carry out a thorough, fair and effective investigation into the circumstances surrounding her sterilisation.

2. Under Article 8 of the Convention the applicant complained that her right to respect for her private and family life had been violated as a result of her sterilisation.

3. Under Article 12 of the Convention the applicant complained that her right to found a family had been breached on account of her sterilisation.

4. Finally, the applicant alleged a violation of Article 14 of the Convention in that she had been discriminated against on the grounds of her race/ethnic origin and sex in the enjoyment of her rights under Articles 3, 8 and 12 of the Convention.

THE LAW

The applicant complained under Articles 3, 8, 12 and 14 of the Convention of her sterilisation and shortcomings in the ensuing proceedings relating to it.

The Court reiterates the fundamentally subsidiary role of the Convention (see, for, example, Maurice v. France [GC], no. 11810/03, § 117 , ECHR 2005 ‑ IX , with further references) . Under Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted.

In the present case the Constitutional Court, on 3 June 2010, quashed the Regional Court ’ s judgment and instructed that court, in express terms, to establish all relevant facts and examine all the applicant ’ s arguments, including the alleged breach of her rights guaranteed by the provisions of the Convention on which she relied in the present application. The proceedings are pending.

In these circumstances, and without prejudice to the applicant ’ s right to lodge a fresh application under Article 34 of the Convention if she is unable to obtain appropriate redress in domestic proceedings, the Court concludes that the application is premature.

It follows that the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President