Today the European Court of Human Rights delivered its judgment on the V. C. v. Slovakia case (no. 18968/07), founding a violation of article 3 and 8 (prohibition of inhuman and degrading treatment and right to respect for private and family life) of the Convention and considering that it is not necessary to examine separately the complaint under article 12 (right to marry and to found a family) of the Convention:
“The Court notes that sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life” (§ 106).
“The Court notes that the sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive function. At the time of her sterilisation the applicant was twenty years old and therefore at an early stage in her reproductive life (§ 116).
This case is the first of a number of cases brought before the European Court by several women of Roma ethnic origin who have been sterilized in public hospitals since 1999, i.e. after the fall of the communist regime in Slovakia.
The applicant alleged that she was the victim of a forced sterilization during the delivery of her second child in 2000 at the Prešov Public Hospital. She claims that in pain and fear she signed the sterilization consent form but, at the time, she neither understood what sterilization meant nor the nature and consequences of the procedure. Furthermore, the applicant claims that her Roma ethnicity was a deciding factor in her sterilization and that segregation according to ethnic origin in the gynecology and obstetrics ward was a common practice.
On 22 March 2011, the forth Section of the European Court of Human Rights held a hearing in a case.
The ECLJ welcomes the decision of the Court to condemn such practices. Nevertheless, the reasoning of the Court weakens the result of the judgment as it allows the following critics:
– Prior informed consent suffices to remove the inhuman or degrading nature of acts
This assertion infringes clearly and objectively the respect of human dignity. It is an error to assess the legitimacy of an act from a subjective point of view, namely the simple consent of the person to the act, whereas this should be assessed according to the purpose of the act and to the harm objectively suffered by the person. If tomorrow it will be established that detained persons gave their consent to harm suffered from other detainees, the Court will no longer be able to establish a violation for harmful acts. And will accept that
“[Sterilization] may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established” (§ 106).
– Human freedom prevails over human dignity
Even if the Court in its reasoning affirms the principle of human dignity on the same footing as the principle of human freedom, in reality the first one is weakened by the second one, as the mere consent removes the absolute interdiction of inhuman and degrading treatment enshrined in article 3 of the Convention.
(…) imposition of such medical treatment without the consent of a mentally competent adult patient. Such way of proceeding is to be interpreted as incompatible with the requirement of respect for human freedom and dignity, which is one of the fundamental principles on which the Convention is based (§ 107).
In the Court’s view, such an approach is not compatible with the principles of respect for human dignity and human freedom embodied in the Convention and the requirement of informed consent laid down in the international documents to which reference is made above (§ 112).
– We also regret that the Court did not examine separately the applicant’s complaint under article 12 of the Convention which guarantees the right to marry and to found a family. It would have been more appropriated to analyze the case also under that article as the very core of the interference touched her ability to procreate:
“sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive function (…) at the time the applicant had twenty years old and therefore at an early stage in her reproductive life” (§ 116) and “ owing to her infertility, the applicant experienced difficulties in her relationship with her partner and, later, husband. She indicated her infertility as one of the reasons for her divorce in 2009” (§ 118).
But as other cases against Slovakia and France addressing similar facts are currently pending before the Court, maybe this acknowledgment will come eventually and the errors indicated above will be redressed:
- In the I.G., M.K. and R.H. v. Slovakia case, three women of Roma ethnic origin claim to also be victims of “forced sterilization”, since they claimed to have been sterilized in the Krompachy Hospital without their full and informed consent (the first applicant on 23 January 2000, the second one on 10 January 1999 and the third one on 11 April 2002).
- In the N.B. v. Slovakia case, another woman of Roma ethnic origin has been sterilized by tubal ligation in the hospital of Gelnica, also during the delivery of her second child, without her full and informed consent, on 25 April 2001.
- In the Gauer and others v. France case, five young mentally handicapped women, who were under the responsibility of an association for young and adult handicapped, were sterilized by tubal ligation without their consent between 1995 and 1998.