Case notes

Forced sterilisation of Roma women is inhuman and degrading but not discriminatory

Forced sterilisation of Roma women is inhuman and degrading but not discriminatory

13 November 2012

IG & Ors v Slovakia [2012] ECHR 1910 (13 November 2012)

Summary

The European Court of Human Rights has again declined to rule on whether the forced sterilisation of Roma women in Slovakia constitutes discrimination under article 14 of the European Human Rights Convention. This is the third such forced sterilisation case to come before the Court. The Court held that the sterilisation of two Roma women constituted inhuman and degrading treatment, and that Slovakia had violated the women’s right to respect for private and family life. The Court awarded damages and costs to the applicants. The claim of a third woman was struck out due to her death. The Court denied her children’s standing to continue the application on her behalf.

Facts

The three applicants were Roma women who, between the years 1999 and 2002, were sterilised without their knowledge by doctors in the Krompachy public hospital. The women were sterilised by tubal ligation immediately after giving birth by caesarean section.

While in the hospital, the women were accommodated separately from non-Roma women, in what were called “Gypsy rooms”. They were not permitted to use the same bathrooms and toilets as non-Roma women, and could not enter the common dining room.

A 2003 report, Body and soul: Forced and coercive sterilization and other assaults on Roma reproductive freedom in Slovakia, was used as evidence before the Court. It included an interview with the Krompachy Hospital Chief Gynaecologist in which he stated, “Roma did not know the value of work, that they abused the social welfare system and that they had children simply to obtain more social welfare”.

After a criminal investigation into the applicants’ cases was discontinued by the Slovakian authorities, the women repeatedly applied to have the investigation reopened. The case was closed in 2008 without any criminal charges being laid. All three applicants brought individual civil proceedings against the hospital. Only second applicant’s action was successful. She was awarded EUR 1,593.30 in compensation.

The women submitted an application with the Court against the Slovak Republic on 27 April 2004. They alleged breaches of their rights to be free from inhuman and degrading treatment (article 3), to respect for private and family life (article 8), to marry (article 12), and to an effective remedy (article 13). They also alleged that their forced sterilisation was a result of discrimination (article 14).

Decision

Standing of the third applicant

Under article 34, only individual victims of Convention violations can petition the Court. In the case of a deceased victim, the Court will consider whether (i) persons seeking to continue their case are close family members, (ii) the rights in question are “transferable”, and (iii) the case involves an important question of general interest that the court should consider notwithstanding the applicant’s death.

The Court held that the third applicant’s children could not continue the action based on previous decisions that found articles 3, 8, 12 and 14 constituted rights linked to a victim’s person that were non-transferable. As the third applicant’s case was similar to that of the first and second, the Court found that there was no general interest in considering her claim. Judge Bratza dissented with this decision, arguing that the “disturbing circumstances of the case” and the need to respect the third applicant’s human rights warranted its continuation by her children.

Convention violations

The Court followed the reasoning applied in VC v Slovakia and NB v Slovakia, two prior cases involving the sterilisation of Roma women. It held that non-lifesaving sterilisations, conducted without the informed consent of the women or their legal guardians constituted inhumane and degrading treatment and a substantial breach of Slovakia’s obligations under article 3. Regarding the applicants’ claim that their sterilisations had seriously interfered with their private and family lives, the Court held that by failing to put in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin, Slovakia was in breach of article 8.

As it had already found a violation of article 8, the Court declined to consider whether the women’s right to form a family (article 12) had been violated.

The Court dismissed the applicants’ claim that their article 13 right to an effective remedy had been violated. The two women had fully pursued their cases in the civil and criminal jurisdictions of the Slovakian courts. The Court highlighted that the right to a remedy is not a right to a remedy that succeeds, nor does article 13 require a remedy against the state of domestic law.

With regards to the women’s claim that their sterilisation had occurred due to racial discrimination against them as Roma, and sexual discrimination against them as women, the Court declined to rule. It relied on the reasoning applied in VC and NB that, as it could not be proven that the hospital staff’s conduct was intentionally racially motivated, a finding under article 14 was unnecessary. The Court felt it was sufficient to recognise, in the context of its article 8 analysis, that the shortcomings in Slovakian reproductive health practice were liable to particularly affect vulnerable communities such as the Roma.

Commentary

It is disappointing that the Court has, for the third time, refused to consider the discriminative character of forced sterilisations of Roma women. Scholars have already taken note of the Court’s reluctance to make findings of discrimination in case of violence against the Roma.

It is unfortunate that Judge Mijovic’s dissent in VC v Slovakia, arguing for a consideration of the article 14 claim on its merits, has failed to influence the court’s reasoning in this case:

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…. 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.

As for the Court’s refusal to allow the third applicant’s children to continue her case, the court relied on the authority of Angelov and Angelova v Bulgaria to classify the rights under consideration as personal and non-transferable. In order to bring complaints under section 34, an individual must be able to show that he or she has been directly affected by a purported breach of the Convention. In Angelov and Angelova v Bulgaria, the applicant’s daughter wished to continue her deceased father’s claim that his right to respect for his correspondence had been violated. The present case involves the children of a women whose reproductive health was compromised, resulting in a violation of her right to respect for her private and family life. It seems unreasonable that the Court should not consider the effect that this violation has had on the applicant’s children, her family, in assessing their standing to continue the action.

This decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/1910.html

Naomi Kinsella is an Australian lawyer currently working with the American Bar Association Rule of Law Initiative.