THIRD SECTION

Application no. 13606/11 Z.K. against Slovakia lodged on 28 February 2011

STATEMENT OF FACTS

1. The applicant, Ms Z.K. is a Slovak national of Roma ethnic origin. She 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 is represented before the Court by Ms V. Durbáková and Ms B. Bukovská , lawyers acting in cooperation with the Centr e for Civil and Human Rights, a non ‑ governmental organisation with its registered office in KoÅ¡ice .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, 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 be means of a caesarean section, similarly as the first one. At that time the applicant was underage. She was not legally married.

4. On 18 May 2005, when she acceded to her medical files, the applicant discovered that she had been sterilised during the delivery intervention on 22 February 1993.

5. In particular, the surgery record annexed to the applicant ’ s medical file indicates that the applicant underwent a sterilisation intervention via tubal ligation due to a complication involving abnormally deep attachment of the placenta and imminent risk of rupture of the uterus. The document is dated 22 February 1993 and signed by doctor S. of the Prešov Hospital . The delivery record contains no entry about a sterilisation intervention.

6. Neither the applicant nor her legal guardians were advised of and asked to give their consent to a sterilisation intervention.

7. The applicant was released from the Prešov Hospital on 1 March 1993. Her second child died two months later on pneumonia.

8. As the applicant was not aware w hy 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 problems. She has been ostracised by the Roma community and has had problems with her husband.

2. Proceedings on the applicant ’ s civil claim

10. On 1 July 2005 the applicant claimed 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 claimed an apology, 33,194 euros (EUR) in compensation for damage and the reimbursement of her legal costs.

11. The District Court heard doctor N. who stated that he had become the applicant ’ s treating gynaecologist in March 1993, after her second delivery. He was not aware of any sterilisation intervention on the applicant. Nurse M. stated that she did not remember the circumstances of the applicant ’ s delivery.

12. An expert appointed by the court confirmed that, according to the medical records, tubal ligation had been performed on the applicant on 22 February 1993. It had not been a life-saving intervention, but it had been medically indicated as the next pregnancy would entail a serious risk for the applicant ’ s health and life. The opinion further indicated that the applicant had undergone a radiologic test on 24 February 2003. It revealed that the applicant ’ s fallopian tubes were not blocked and there were no traces of ligation on them.

13. The applicant submitted the opinion of a Czech expert indicating that her sterilisation had not been necessary with a view to saving her life.

14. The 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.

15. On 29 December 2008 the Prešov District Court dismissed the action. With reference to the result of the above radiologic test of 24 February 2003 it did not find it established that the applicant had been sterilised.

16. On 2 December 2008 the Prešov Regional Court quashed the District Court ’ s judgment upon the applicant ’ s appeal. It ordered the first-instance court to obtain further evidence with a view to establishing all relevant facts.

17. Subsequently the District Court heard doctor L. who had been present during the applicant ’ s delivery. 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 intervention been carried out. The only reference to the applicant ’ s sterilisation was made in the surgery record written by doctor S. who had died in the meantime. Doctor L. was not in a position to explain why doctor S. had made such entry. She might have mistaken the applicant ’ s file with that of one of the three other persons on whom they had operated consecutively on that day.

18. The District Court further established from the hospital ’ s surgery book that doctors 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 indicated that the report established upon her release from the hospital did not indicate that the applicant had been sterilised.

20. Upon the court ’ s request an expert indicated that endoscopic examination by means of laparoscopic chromopertubation would reliably show whether or not the applicant had been sterilised. The reliability of the radiologic test which the applicant had undergone on 24 February 2003 amounted to 90 per cent. The opinion further stated that sterilisation through tubal ligation as indicated in the applicant ’ s file failed for unknown reason in 1.44 per cent of cases.

21. In her comment the applicant indicated that she was not willing to subject herself to invasive methods of examination entailing possible side effects and risks for her health for the purpose of proving that she had been sterilised. The medical record clearly indicated that such had been the case.

22. On 16 November 2010 the District Court again dismissed the applicant ’ s claim. The evidence available did not permit to conclude that the sole reason for which the applicant cou ld not conceive a child was a blockage of her fallopian tubes resulting from an intervention by the employees of the defendant hospital. The burden of proof was on the applicant to show that she had been sterilised. However, she refused to undergo further medical tests which were necessary for establishing in a reliable manner whether she had been subjected to sterilisation intervention as claimed by her. The District Court further concluded that the applicant ’ s right to claim compensation for non-pecuniary damage had lapsed.

23. The applicant appealed. She argued that it was for the defendant hospital to show that its staff had erroneously indicated in the medical file that she had been sterilised.

24. On 24 March 2011 the PreÅ¡ov Regional Court upheld the first ‑ instance judgment on the merits of the case. It held that the District Court had established all relevant facts and had correctly applied the relevant 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 claim for protection of her personal rights. The reference to such intervention in only one of several medical documents established in the context of the applicant ’ s delivery did not suffice for proving that the intervention had actually been performed given that a subsequent test had shown that her fallopian tubes were not blocked. The fact that the applicant refused to undergo more reliable tests had also 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 conclusion according to which it had not been clearly established that the applicant had been sterilised was arbitrary and in disregard of the information in the applicant ’ s medical file. In view of the entry about the sterilisation in that file, it was for the defendant hospital to show that the applicant had not been sterilised. Requesting the applicant to submit herself to invasive medical interventions 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 were addressed and which was not arbitrary. In those circumstances the other complaints of the applicant were manifestly ill-founded.

3. Proceedings on 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 investigato r 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 of the Prešov Hospital . Doctor L. had been present during the delivery but he could not remember its circumstances including the fact whether the applicant had been sterilised. Similarly, nurse M. stated that she did not remember the applicant ’ s delivery. An expert indicated that sterilisation as such was not a life serving intervention. It could 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 the applicant ’ s complaint against the investigator ’ s decision.

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 lower level. It was particularly relevant that the surgeon who had intervened on the applicant had died, and that the period during which the alleged criminal offence could be prosecuted had lapsed on 22 February 2003.

33. On 17 December 2010 the General Prosecutor ’ s Office found no breach of law in the context 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 illness of her reproductive organs in the form of fallopian tubes blockage.

35. Only the surgery record of 22 February 1993 indicated that the applicant had been sterilised. A sterilisation intervention was not mentioned in the delivery record, in the file about the applicant ’ s delivery and subsequent treatment, in the record on the anaesthesia or in the report established upon the applicant ’ s release from the hospital. Doctor S., who had operated on the applicant and who died in the meantime, was reported by her colleague to draw records after she completed all surgeries scheduled for a given day. An expert found that four caesarean sections, one of which was 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 about 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 established in the course of the second delivery. According to the expert, a 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 asking the applicant to undergo such surgery. Even if it were thereby established that she had been unlawfully sterilised, no criminal law consequences could be drawn as the surgeon involved had died and the alleged offence had lapsed.

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 resulted from unfairness or arbitrariness of the proceedings complained of. As the applicant in her complaint neither relied on Article 6 of the Convention nor invoked its guarantees in substance, her Convention complaints could not be dealt with in t he constitutional proceedings.

4. Other facts invoked by the applicant

39. With a view to describing the overall situation and context 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 appli cant had been accommodated in a “Gypsy room” separated from women who were not of Roma ethnic origin.

40. The applicant referred to a number of publications pointi ng 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, requesting 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 absenc e 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, civil and human dignity, privacy, name and personal characteristics.

43. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be erased. They also have the right to appropriate just satisfaction.

44. Article 13 § 2 provides that, in cases where the satisfaction 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 of People ’ s Health Act 1969 (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 health condition prevented the patient from expressing his or her will but where his or her consent could be presumed.

47. Pursuant to section 27 a sterilisation intervention was permissible only with the consent of or upon the request of the person concerned and subject to the conditions defined 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 complains 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 Convention the applicant complains that her sterilisation was unlawful and has seriously interfered with her private and family life.

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

52. The applicant also alleges that her sterilisation was based on grounds of sex, race, colour, membership of a national minority and ethnicity. She relies on Article 14 of the Convention in conjunction with Articles 3, 8 and 12.

QUESTIONS TO THE PARTIES

1. Was the applicant sterilised during the delivery of her second child and, if so, was she subjected to inhuman or degrading treatment in that context, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities an effective one as required by Article 3 of the Convention?

3. Has there been a violation of the applicant ’ s right to respect for her private and family life, contrary to Article 8 of the Convention?

4. Has there been a violation of the applicant ’ s right to found a family, contrary to Article 12 of the Convention?

5. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Articles 3, 8 and 12 in the context of the alleged sterilisation intervention and the way in which the authorities subsequently dealt with the case?