Article on the ECtHR and the protection of minority rights

 Bill Bowring has written the article Protecting minority rights through an individual rights mechanism: the Strasbourg Court, and some significant developments to June 2012 which will be published in the forthcoming issue of European Yearbook on Minority Issues. The article deals with several judgments of the ECtHR including an analysis of the case of V.C. v. Slovakia (I am planning to summarize this judgment later as well). 

This is the abstract:

The European Convention on Human Rights is essentially a document of the Eighteenth Century. With one possible exception it proclaims “first generation”, civil and political rights, and bears a remarkable resemblance to the French Declaration of Rights of Man and of the Citizen of 1789, and to the revolutionary American Bills of Rights. It protects the rights of individuals, physical and legal, and of groups of individuals; but not of groups as such. Collective rights are the province of the European Social Charter of 1961.

In Volume 7 of the European Yearbook for Minority Issues, Leto Cariolou surveyed Developments in the Field of the European Court of Human Rights Concerning the Protection of Minorities, from December 2007 to February 2009. She also noted a number of complaints which had been communicated but not yet adjudicated.

This article first of all returns to the origin and context of the European system for the protection of human rights, in order to take stock of the efficacy of that system for the protection of minority rights. Next, I review some of the analytical tools developed by some of the leading scholars in the field. Third, I turn to a closer look at Timishev v Russia, the first case in which the Strasbourg Court applied Article 14 to a Chechen complaint.

The article then focuses on some of the landmark judgments since early 2009, under the following headings:

Roma and discrimination

The landmark judgment in D.H. and Others v. the Czech Republic has been followed in the December 2009 Chamber judgment in Muñoz Díaz v. Spain;

First judgment under Protocol 12 to the ECHR: electoral rights and discrimination

A new landmark was established in December 2009, the Grand Chamber judgment in Sejdić and Finci v. Bosnia and Herzegovina;

An important correction on Roma education

On 16 March 2010 the Grand Chamber reversed a controversial chamber judgment in Oršuš and Others v. Croatia;

Forced sterilisation and Roma

The Court heard, with admirable speed, the case of V.C. v Slovakia;

Is there a right to “linguistic freedom”?

There was less success for the applicant in Birk-Levy v France. 

A.S. vs Hungary (Special Entry)

In the case A.S. vs Hungary (Communication no. 4/2004) the Committee on the Elimination of Discrimination against Women (the Committee) found the violation of Article 10 (h), 12 and 16, paragraph 1 (e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in relation with the coersive sterilisation of a Hungarian woman of Roma ethnic origin.

The author of the communication was a Hungarian Roma, a mother of three and she was pregnant with her fourth child.When she went into labour a physician currently attending her found that the foetus had died in her womb and informed her that a caesarean section was needed to be performed immediately in order to remove the dead foetus. The author was asked on the operating table to sign consent form to the caesarean section as well as a "barely legible note that had been hand-written by the doctor and added to the bottom of the form", stating that the author - having knowledge of the dead foetus - firmly requested her sterilisation since she would not want to give birth or become pregnant again. The author did not even understand the meaning of the word "sterilisation". After the doctors performed the caesarean section, the author's fallopian tubes were tied and therefore she was sterilised. The author only became aware of her infertility just before she left the hospital, when she asked the doctor for information on her state of health and when she could try to have another baby. The medical records also contained information on the poor health condition of the author upon the arrival to the hospital: "She felt dizzy [...], was bleeding more heavily than average and was in a state of shock".She stated that 

[...] the sterilization has had a profound impact on her life for which she and her partner have been treated medically for depression". She would never have agreed to the sterilization as she has strict Catholic religious beliefs that prohibit contraception of any kind, including sterilization. Furthermore, she and her partner live in accordance with traditional Roma customs — where having children is said to be a central element of the value system of Roma families.

The State party stressed that the relevant Hungarian law Act allows a physician to perform sterilisation when it seems to be appropriate in certain circumstances. These circumstances were present by the time of the intervention since it was not the author’s first caesarean section and her womb was in very bad condition. The surgery was safe because the risk of undergoing another abdominal operation was greater and appeared inevitable in the given circumstances. 

The author claimed that Hungary has violated Articles 10 (h), 12 and 16, paragraph 1 (e) of the CEDAW. She emphasized that sterilization is never a life-saving intervention that needs to be performed on an emergency basis without the patient’s full and informed consent. Furthermore sterilisation is regarded as an irreversible intervention and surgery to reverse its effects is complex and has a low success rate. She relied on statements of different  human rights stressing that "the practice of forced sterilization constitutes a serious violation of numerous human rights".

Violation of Article 10 (h) of the CEDAW

The authore claimed that the State party violated Article 10 (h) of the CEDAW by failing to provide information and advice on family planning. The Article 10 (h) states as follows:

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: […] (h) Access to specific educational information to help to ensure the health and well being of families, including information and advice on family planning.

In this respect the Committee recalled its general recommendation No. 21 on equality in marriage and family relations recognizing that women must have information about contraceptive measures and their use in order to make an informed decision about safe and reliable contraceptive measures and to avoid "coercive practices which have serious consequences for women, such as forced [...] sterilization".

The Committee noted that - according to the judgement of the appellate court - the author had not been provided with detailed information about the sterilisation, including the risks involved and the consequences of the surgery, alternative procedures or contraceptive methods. The author has a right protected by Article 10 (h) of the CEDAW to specific information on "sterilization and alternative procedures for family planning in order to guard against such an intervention being carried out without her having made a fully informed choice". Taking into account the author’s state of health on arrival at the hospital, any counselling that she received must have been given under stressful and most inappropriate conditions. The Committee, considering all these factors, found a failure of the State party to provide appropriate information and advice on family planning, which constituted a violation of the author’s right under Article 10 (h) of the CEDAW.

Violation of Article 12 of the CEDAW

It is the State Parites obligation - under Article 12 of the CEDAW - to "take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning". Women shall be provided appropriate services in connexion with pregnancy, confinement and the post-natal period.

In this regard the Committee examined the author’s description of the 17 minute timespan from her admission to the hospital up to the completion of two medical procedures. The Committee found that it was not plausible that during the short period of time the hospital personnel had provided the author with thorough enough counselling and information about sterilization, as well as alternatives, risks and benefits, to ensure that the author could make a well-considered and voluntary decision to be sterilised. The Committee also took note of the fact clearly indicating that the author had been unaware of the consequences of sterilization: she had enquired of the doctor when it would be safe to conceive again.

The Committee stated in its general recommendation No. 24 on women and health that those services to which a woman gives her fully informed consent are considered acceptable and states should not permit "forms of coercion, such as non-consensual sterilization […] that violate women’s rights to informed consent and dignity". Therefore the Committee found the violation of Article 12 of the CEDAW.

Violation of Article 16, paragraph 1 (e) of the CEDAW

Article 16, paragraph 1 (e) of the CEDAW wich states that states shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

In this relation the Committee recalled its general recommendation No. 19 on violence against women in which it stated that "compulsory sterilization [...] adversely affects women's physical and mental health, and infringes the right of women to decide on the number and spacing of their children". Due to the fact that the sterilisation had been performed on the author without her full and informed consent, the Committee found the violation of Article 16, paragraph 1 (e) of the CEDAW.

K.H. and Others v. Slovakia

In the case of K.H. and Others v. Slovakia (Application no. 32881/04) the ECtHR found - among others - the violation of Article 8 of the ECHR in relation with eight Slovak women of Roma ethnic origin who found that they were unable to conceive after having caesareans suspecting that they were sterilised without their knowledge during the operations.

All applicants were treated at gynaecological and obstetrics departments in eastern Slovakian hospitals during their pregnancies and deliveries. After their last stay in the hospitals, when they delivered their children via caesarean section none of them became pregnant dispite their continuing attempts. The suspected reason for their infertility was that they had been sterilised during their operations by the medical staff of the hospitals.Many of the applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.

In August and September of 2002 the applicants attempted to obtain access to their medical records through their authorised representative. However the lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so. In October of 2002 representatives of the Ministry of Health expressed the view that

section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.

The ECtHR noted that the complaint in issue concerned the exercise of their right of effective access to information concerning their health and reproductive status which is linked to their private and family lives within the meaning of Article 8.

The Court reiterated that there may be positive obligations inherent in effective respect for one’s private life in addition to the primarily negative undertakings in Article 8 of the ECHR. In determining whether or not such a positive obligation exists, the Court will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance. The existence of such a positive obligation is well established in the case-law. The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information”.

In this respect the Court took the view that such positive obligations should extend, in particular in cases where personal data are concerned, to the making available to the data subject of copies of his or her data files. Therefore the ECtHR considered whether the Slovakian authorities had complied with their positive obligation and, in particular, whether the reasons invoked for the refusal of access to personal medical records were sufficiently compelling to outweigh Article 8 of the ECHR. 

The Court dthat the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant health documents as the original records contained information which the applicants considered important from the point of view of their moral and physical integrity. The applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. 

The Court held that the arguments put forward by the domestic courts and the Government, namely that the prohibition on making copies of medical records had been justified by the need to protect the relevant information from abuse, are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8 of the ECHR, to outweigh the applicants’ right to obtain copies of their medical records. The Court did not see how the applicants could abuse information concerning their own persons by making photocopies of the relevant documents. Although  protection of medical data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life and respecting the confidentiality of health data is a vital principle in the legal systems of all the member state, however, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants.

The Court stated that dispite some legislative changes which explicitly provided for the possibility for patients or persons authorised by them to make copies of medical records, the new Slovakian law could not affect the applicants' position in the present case under consideration, therefore there had been a violation of  been of Article 8 of the ECHR. 

Special references:

Point 8 of the Recommendation R (97) 5 on the protection of medical data

X. v. Finland

In the case of X. v. Finland (Applicatioin no. 34806/04) the ECtHR found - among others - the violation of Article 8 of the ECHR in relation with the applicant's forced medication in a mental hospital which was based on a law lacking proper safeguards against arbitrariness.

In its judgment the  Court  reiterated  that  a  medical  intervention  in  defiance  of  the subject’s will gives rise to an interference with respect for his or her private life, in particular his or her right to physical integrity. Such an interference would constitute a breach of Article 8 of the ECHR, unless it was in accordance with the law, pursued a legitimate aim or aims under paragraph 2 of Article 8, and was necessary in a democratic society. In this respect, the  notion  of  necessity  implies  that  the  interference  corresponds  to  a pressing social  need  and,  in  particular,  that  it  is  proportionate  to  the legitimate  aims  pursued.  In  determining  whether  an  interference  was “necessary in a democratic society” a margin  of  appreciation  that is left  to  the  states shall be taken into account.

The Court noted that it had not been disputed by the Finnish government that the forced administration of medication constituted an interference  with  the  applicant’s  right  to  respect  for  her physical  integrity. It thus remained to be determined  whether  the  interference  was  justified  under  tparagraph 2 of Article 8. The Court stated that the expression “in accordance with the law”, within  the  meaning  of  Article  8 

requires  firstly  that  the  impugned measure should have some basis in domestic law; it also refers to the quality of  the  law  in  question,  requiring  that  it  should  be  accessible  to  the  person concerned, who must moreover be able to foresee its consequences for him, and  compatible  with  the  rule  of  law  (see e.g. Herczegfalvy  v.  Austria, 24 September 1992, § 88, Series A no. 244).

As  to  the  legal  basis  in  Finnish  law,  the  Court reiterated  that  in  accordance  with  the  case-law  of  the  Convention institutions the term “law” is to be understood in its “substantive” sense, not its “formal” one:

In a sphere covered by written law, the “law” is the enactment in force as the competent courts  have interpreted  it  (see, inter  alia, Société  Colas  Est  and  Others  v. France,  no.  37971/97,  §  43,  ECHR  2002-III).

In  this  respect,  the  Court found that its power to review compliance with domestic law was limited, it was the national authorities to interpret  and  apply  that  law in the first place. After the examination of the relevant law the Court  was satisfied that the interference complained of had had a legal basis in Finnish law.

As to the quality of  the law, the Court noted that the requirements of  the accessibility  and  the  foreseeability  of  the  law did not  raise  any problems in the current case. However, the Court reiterated that paragraph 2 of Article 8 also requires the law in question to be “compatible with the rule of law”.

In the  context  of forced  administration  of  medication,  the  domestic  law  must provide some protection to the individual against arbitrary interference with his or her rights under Article 8. The Court must thus examine the “quality” of the legal rules applicable to the applicant in the instant case.

The  Court  noted  in  the  first  place  that the relevant section  of the Finnich Mental Health Act contained detailed  provisions  on  the treatment  of  mental  illness, and in particular, that it is for the physician attending to the patient to decide on  the  treatment  to  be  given,  regardless  of  the  patient’s  will. A care  order  issued  for  an  involuntary  hospitalisation  of  a psychiatric patient is understood to contain also an automatic authorisation to  treat  the  patient, even against  his  or  her  will. There is  no obligation for doctors to have the patient's consent in written form or to seek such a consent from the patient’s relatives or guardian/trustee. The law allows forced administration of medication in case the patient refuses to give his or her  consent  or  withdraws previous consent. The decisions taken by the treating doctor concerning medication  of  a  patient are  not  subject  to  appeal.

The  Court considered that  forced  administration  of  medication represented a serious interference with a person’s physical integrity and must accordingly be based on a “law” that guarantees proper  safeguards against arbitrariness.

In the present case such safeguards were missing. The decision to confine  the  applicant  to  involuntary treatment  included  an  automatic authorisation  to proceed  to forced  administration  of  medication  when the applicant refused  the  treatment.  The decision-making  was  solely  in the hands  of  the  treating doctors who  could take  even  quite  radical  measures regardless of the applicant’s will. Moreover, their decision-making was free from any kind of immediate judicial scrutiny: the applicant did not have any remedy available whereby she  could  require  a  court  to  rule  on  the lawfulness,  including  proportionality,  of  the  forced  administration  of medication and to have it discontinued.

On these grounds the Court found that the forced administration of medication in  the  present  case  was implemented  without  proper  legal safeguards.  The  Court  concluded  that, even  if  there  could  be  said  to  be  a general legal basis for the measures provided for in Finnish law, the absence of sufficient safeguards against  forced  medication by  the  treating  doctors deprived the  applicant of  the  minimum  degree  of protection  to  which she was entitled under the rule of law in a democratic society. The interference in question was “in accordance with the law” as required by paragraph 2 of Article 8 of the ECHR, therefore there  had been a  violation  of Article 8 of the ECHR.