DISSENTING OPINION OF JUDGE MIJOVIC

While I have no difficulty in sharing the majority’s view that there have been violations of both Articles 3 and 8 of the Convention, to my regret, my opinion on the Article 14 complaint differs significantly from the conclusion reached by the majority. The Chamber decided that no separate examination of the complaint under Article 14 of the Convention was called for. To me, that complaint was the very essence of this case and should have been dealt with on its merits, with a finding of a violation of Article 14.

In its case-law the Court has established that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. Against the background of the principles of the Court’s case-law as confirmed in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, §§ 175-181, ECHR 2007) and Oršuš and Others v. Croatia ([GC], no. 15766/03, §§ 147-153, ECHR 2010), I am compelled to disagree totally with the Chamber’s finding and regret that the discrimination to which the applicant was clearly subjected is given scant attention in the judgment.

The facts of the case confirm that the applicant had a medical record and that under the “Medical history” sub-section, the words “Patient is of Roma origin” appeared. The Government explained that that entry in the delivery record indicating the applicant’s ethnic origin had been necessary as Roma patients’ social and health care had frequently been neglected and they therefore required “special attention”.

I find this argument totally unacceptable since the “special attention” was in fact the applicant’s sterilisation, which has been found to be in breach of both Articles 3 and 8 of the Convention. Finding violations of Articles 3 and 8 alone in my opinion reduces this case to the individual level, whereas it is obvious that there was a general State policy of sterilisation of Roma women under the communist regime (governed by the 1972 Sterilisation Regulation), the effects of which continued to be felt up to the time of the facts giving rise to the present case. Additionally, and in order to illustrate that not many things had changed regarding State policy towards the Roma population, in its third report on Slovakia ECRI stated that public opinion towards the Roma minority remained generally negative. Furthermore, ECRI expressed particular concern about reports indicating that Roma women had been, on an ongoing basis, subjected to sterilisation in some hospitals without their full and informed consent. The fact that there are other cases of this kind pending before the Court reinforces my personal conviction that the sterilisations performed on Roma women were not of an accidental nature, but relics of a long-standing attitude towards the Roma minority in Slovakia. To my mind, the applicant was “marked out” and observed as a patient who had to be sterilised just because of her origin, since it was obvious that there were no medically relevant reasons for sterilising her. In my view, that represents the strongest form of discrimination and should have led to a finding of a violation of Article 14 in connection with the violations found of Articles 3 and 8 of the Convention.

For the above reasons I also voted against the Chamber’s finding that the remainder of the applicant’s claim for just satisfaction should be dismissed, since I am of the opinion that a violation of Article 14, if found, would have led to the acceptance of these claims.

1. The applicant relied on the following documents:

Commission of the European Communities, Regular Report on Slovakia’s Progress Towards Accession (2002), p. 31.

European Roma Rights Centre, “Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania and Slovakia”, 2004, available at www.errc.org .

Amnesty International Report 2003, chapter on Slovakia.

European Roma Rights Centre, “Discrimination in the Slovak Judicial System”, Roma Rights 1/2002, pp. 106–108.

Bureau of Democracy, Human Rights and Labour, US State Department, “Human Rights Practices: Slovak Republic 2001”, 2002, § 5.

Open Society Institute, “Monitoring the EU Accession Process: Minority Protection in Slovakia”, 2001.

R. Tritt, J. Laber, Lois Whitman, “Struggling for Ethnic Identity: Czechoslovakia’s Endangered Gypsies”, Human Rights Watch, New York, August 1992, pp. 19, 22 and 139-144.

David M. Crow, “History of the Gypsies of Eastern Europe and Russia”, St. Martin´s Griffin, New York, 1995, p. 60.

Ruben Pellar and Zbyněk Andrš, “Statistical Evaluation of the Cases of Sexual Sterilisation of Romani Women in East Slovakia”, Appendix to the Report on the Examination in the Problematic Sexual Sterilisation of Romanies in Czechoslovakia, 1990.

Dr med. Posluch and Dr med. Posluchová, “The Problems of Planned Parenthood among Gypsy Fellow-citizens in the Eastern Slovakia Region”, published in Zdravotnícka pracovníčka No. 39/1989, p. 220-223.

1. Recommendation of the Commissioner for Human Rights concerning certain aspects of law and practice relating to sterilization of women in the Slovak Republic, CommDH(2003)12, Strasbourg, 17 October 2003.