PARTLY DISSENTING OPINION OF JUDGE PAVLI

1. In 1927 the United States Supreme Court decided the case of Carrie Buck, a 20-year-old woman who had been forcibly sterilised while confined at the Virginia State Colony for Epileptics and Feeble-Minded. Buck was, in fact, neither epileptic nor intellectually disabled: her misfortune was to have been born poor, raped at the age of sixteen while living in a foster home and have her daughter taken away by her foster parents, who also managed to persuade a local judge to commit her to the State colony. Writing for the Supreme Court majority, Justice Oliver Wendell Holmes Jr., an otherwise widely respected jurist, argued that “it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” He added, infamously, “Three generations of imbeciles are enough.” [7] Worst of all, this judgment laid the groundwork for legitimising decades of State-sponsored sterilisation of mostly poor and Black women in the American South and beyond. [8]

2. There is no evidence that the applicant in the present case suffered from any intellectual or other disability. There is, however, every indication that the medical team at Krasnoyarsk municipal hospital no. 2 treated her, during and after her emergency surgery, with utter contempt as regards her autonomy and her ability to make informed decisions about her own reproductive life.

3. This would appear to be the first case involving a woman’s forced sterilisation in which the Court has held that, in contrast to earlier similar cases, her ordeal did not reach the threshold of inhuman or degrading treatment under Article 3 of the Convention. This despite reaffirming the Court’s long-standing position – confirmed by another Section of the Court as recently as this past April in recapitulating the applicable general principles in the case of M. v. France ((dec.), no. 42821/18, § 62, 26 April 2022) [9] – to the effect that “the sterilisation of a mentally competent adult without her full and informed consent, when there was no immediate threat to her life, amounted to treatment contrary to Article 3”. This latter finding is consistent with the practically unanimous position of other international human rights bodies, including leading United Nations mechanisms – such as the UN Human Rights Committee [10] and the UN Committee Against Torture [11] – and the Inter-American Court of Human Rights. [12] In the words of a former UN special rapporteur on torture, forced sterilisation is “an act of violence and a form of social control, and violates a person’s right to be free from ill ‑ treatment.” [13] The general principle is not qualified by reference to any form of special vulnerability of the victim, though these can certainly add to the gravity of the prohibited treatment.

4. Referring to the line of Slovak cases involving the forced sterilisation of Roma women, the majority notes that the Court found Article 3 applicable in those cases “taking into account the particular circumstances of the cases concerned, including the fact that the applicants belonged to a vulnerable population group (Roma); their young age and the fact that they were at an early stage of their reproductive life; the absence of imminent medical necessity; and the serious medical and psychological after-effects of the sterilisation procedure” (see paragraph 34 of the present judgment).

5. Every single one of those factors, bar one, is also present in the current case. These include the two central aspects of the relevant Article 3 analysis, namely that the applicant did not provide prior and informed consent to a sterilisation procedure that was, furthermore, not medically necessary to prevent any immediate harm to her life. The single distinction is that the present applicant is not an ethnic Roma woman. This is one of the two primary grounds on which the majority distinguishes this case from the Slovak line of cases. A second ground – and a novel factor implicitly added by the majority to the Article 3 analysis – relies on the finding that “the doctors had not acted in bad faith, let alone with an intent of ill-treating or degrading her” (see paragraph 37 of the judgment). I find both distinguishing factors to be deeply problematic.

6. Turning first to the vulnerability question, the majority seems to assume that only full-blown racism can cause medical personnel to violate the Article 3 rights of their patients. The record in the present case includes no information on the applicant’s social or educational background; it suffices to say that, apart from ethnicity, many other characteristics may render patients vulnerable in a medical environment in which doctors and other medical personnel occupy a position of often unquestioned authority. Without wishing to speculate on the reasons behind the applicant’s treatment in this specific case, the fact remains that such treatment was highly disrespectful and indeed contemptuous towards both the applicant and her husband. Ultimately, one would think that lying unconscious on an operating table while her reproductive function was being impaired permanently and unnecessarily, and without her prior consent, is by definition sufficient to place any woman (or any person, for that matter) in a position of great vulnerability.

7. The second distinguishing feature – the doctors’ supposedly well ‑ meaning attitude towards her future health – is equally unpersuasive in my view. As the majority concedes (see paragraph 35 of the judgment), the lack of an intent to debase or humiliate is not decisive under our case-law in determining the inhuman or degrading nature of the treatment. More importantly, seen from an historical perspective, reliance on the supposed good faith (or paternalism?) of medical personnel may lead us down some fairly dark paths. It is possible that the Virginia doctors who sterilised Carrie Buck, or the Slovak doctors who sterilised the Roma applicants in our earlier cases, sincerely thought that the procedure was in their patients’ best interests. It is possible, indeed likely, that Justice Holmes thought this was also the case for the “three generations of imbeciles”. It is even possible that some of our contemporary fellow citizens hold similar opinions. And yet, it is a school of thought that ought to make us cringe, being invariably based on contempt for the targeted person’s autonomy and equal dignity.

8. There are two additional factors that weigh heavily, in my view, in favour of finding that the Article 3 threshold has been met in this case. First, this was not a case of sterilisation caused by medical negligence: the surgical team at the Krasnoyarsk hospital made a deliberate decision to seal her single remaining fallopian tube, following internal discussions after they had already attended to the genuine medical emergency (the torn uterus). Secondly, the information that was given to the applicant and her spouse after the procedure – concerning its real nature and its consequences for the couple’s reproductive life – was so cruelly and deliberately misleading that they were kept in the dark for several years as they tried to become pregnant again.

9. The applicant in the present case was involuntarily sterilised in the name of saving her from supposed future health risks, by doctors who somehow felt entitled to make that unnecessary and untimely decision in her stead. This plain fact is recognised in lucid terms in the unanimous part of the judgment finding a violation of the applicant’s Article 8 rights. Yet, the message sent by today’s holding on the applicability of Article 3 is that such treatment was not serious enough to reach the threshold proscribed by that cardinal provision of the Convention. To meet the threshold future victims of forced sterilisation would be required to prove some degree of (undefined) special vulnerability as well as malicious intent on the part of the medical personnel.

10. I must respectfully dissent, in the hope that this approach will be reversed swiftly by the Court, before it causes any irreparable harm.

[1] To give a specific example, in Spain in 2022, 25% of deliveries are by Caesarean section. One of the reasons is late maternity, which makes childbirth more complicated, as well as the legalisation of obstetrics. See Charo Barroso, “Uno de cada cuatro bebés nace por cesárea de España” (“One in four babies in Spain are born by Caesarean section”), https://www.natalben.com/cesarea/demasiadas-cesareas-en-espana (accessed 6 September 2022).

[2] Also the case M. v. France (no. 42821/18, 26 April 2022, inadmissibility decision for non ‑ exhaustion of domestic remedies) is different from the present one because it is related to intersex situations which are very specific.

[3] See for example Article 5 of the Convention on Human Rights and Biomedicine (the Oviedo Convention), providing that “[a]n intervention in the health field may only be carried out after the person has given free and informed consent to it”, and, similarly, Article 6 of the Universal Declaration on Bioethics and Human Rights adopted by UNESCO’s General Conference in 2005, providing for the prior, free and informed consent based on adequate information of any medical intervention of the person concerned.

[4] On situational vulnerability regarding Article 3 cases, see Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR – Absolute Rights and Absolute Wrongs , Oxford: Hart Publishing, 2021, 103; Corina Heri, Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Chapter 3 on “A Typology of the Court’s Approach to Vulnerability under Article 3 ECHR”), Oxford: Hart Publishing, 2021, 31, 33, 38, 63-64, 78, 112-113.

[5] On the principle of effectiveness as applied in another Article 3 case, see my partly concurring, partly dissenting opinion in Savran v. Denmark [GC], no. 57467/15, 7 December 2021.

[6] See, inter alia, M.S.S. v. Belgium [GC], no. 30696/09, § 22, 21 January 2011; Jalloh v. Germany [GC], no. 54810/00, §§ 106-107, 11 July 2006; V. v. the United Kingdom, no. 24888/94, § 71, 16 December 1999; and R.R. v. Poland, no. 27617/04, § 151, 26 May 2011. See further discussion on this, in Mavronicola , op. cit. , 74.

[7] Buck v. Bell , 274 U.S. 200.

[8] See, for example, Linda Villarosa, “The Long Shadow of Eugenics in America”, The New York Times , 8 June 2022.

[9] « La stérilisation d’une personne pratiquée sans finalité thérapeutique et sans son consentement éclairé est ainsi en principe incompatible avec le respect de la liberté et de la dignité de l’homme et constitutive d’un traitement contraire à l’article 3. Il en va de même des mutilations génitales » (references omitted, emphasis added). Notably, there is no reference to a “mentally competent adult”; the sterilisation of children or adults with disabilities raises complex questions that will have to be addressed by the Court in the future.

[10] See General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), Doc. CCPR/C/21/Rev.1/Add.10, 29 March 2000, paragraph 11.

[11] See, among others, Concluding observations on the third periodic report of the Czech Republic, Doc. CAT/C/CR/32/2, 3 June 2004, paragraphs 5-6.

[12] I.V. v Bolivia , judgment of 30 November 2016, paragraph 266 (“The Inter-American Court considers that non-consensual or involuntary sterilization may cause severe mental and physical suffering by permanently ending a woman’s reproductive capacity, causing infertility, and imposing serious and lasting physical changes without her consent.”).

[13] Juan E. Méndez, Report of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/HRC/31/57, 5 January 2016, paragraph 45.