G.B. and R.B. v. the Republic of Moldova

In the case G.B. and R.B. v. the Repbulic of Moldova (Application no. 16761/09) the ECtHR found the violation of Article 8 of the ECHR in relation with the compensation rewarded to a victim of involuntary sterilization.

G.B. married R.B. abd they live together in Moldova. G.B. gave birth to their child via cesarean section in the local hopital in 2000 when she was 32. During the operation her doctor "removed her ovaries and Fallopian tubes, without obtaining her permission". As a consequence, she suffered from various psychological sideeffects such as neurosis and post-traumatic stress disorder. Furthermore in order to counteract the effects of the early menopausecaused by the sterilization, she has to receive a long-term therapy.

Criminal procedure had been  launched against the doctor performing the operation, however, the Supreme Court of Justice found the doctor guilty but absolved him of criminal responsibility because the limitation period for sentencing him had expired.

The couple sued the hospital and the doctor as well. In their application they claimed approximately 67000 euros as compensation (for pecuniary and non-pecuniary damage and legal cost). "They also sought a court order for the hospital to provide the first applicant with free treatment for as long as her condition required, as prescribed by her doctors." The court of the first instance accepted their claims in part: it ordered the hospital to provide the first applicant with the requisite medication until the year 2020. The court however awarded them only approximately 500 euros as compensation claiming that "awarding sums as large as those claimed by the applicants would have seriously affected the activities of the (State-owned) hospital". After the applicants appeal the higher court raised the amount of compensation up to around 700 euros which was later upheld by the Supreme Court.

G.B. and R.B. therefore submitted an applícation before the ECtHRin which they alleged the violation of Article 6(1) and 8 of the Convention since the sterilization and the compensation rewarded to them by the court violated their rights. During the procedure however they asked the Court to investigate the sace only from the perspective od the right to private life. Furhermore the ECtHR observed that

although the applicants alleged that the treatment endured by the first applicant also gave rise to an interference with the second applicant’s right to respect for his family life, it considers that it is only required to examine the issues raised from the standpoint of the first applicant’s right to respect for her physical integrity, having regard, of course, to the second applicant’s role as her husband (...).

Violation of Article 8 of the ECHR

The Court firtly reiterated that the concept of “private life” is a broad term which covers, inter alia, the physical and psychological integrity of a person. Hence administering medical treatment against the will of a patient constitutes an interfere with his or her rights under Article 8. The domestic courts, without expressly referring to Article 8, established that there had been a serious interference with G.B.’s physical and psychological integrity in the absence of her knowledge or consent. Therefore the ECtHR, with due regard to the principle of subsidiarity, found no need to establish the violation of the right to private life in this respect.

The only issue that remained to be examined was the amount od the compensation. In this repsect, the Court noted the serious effects of the sterilization require sufficient just satisfaction. However the amount rewarded by the courts was "considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8". Moreover the domestic courts lacked to specify how they applied the legal criteria to G.B.’s case in order to decide on the amount of sompensation. The only exception was the first-instance court which relied on the effects of a higher compensation on the activities of the hospital. The ECtHR, however, found this argument "unacceptable, given that the State owned that hospital and was liable to cover whatever expenses it generated". It also noted that the State

could claim at least partial reimbursement of the expenses from B., the doctor found guilty of medical negligence. The State could also have made professional negligence insurance mandatory at medical institutions in order to be sufficiently covered to be able to pay victims (...).

The Court therefore found that there has been a violation of Article 8 of the Convention.

I.G. and Others v. Slovakia

In the case I.G. and Others v. Slovakia (Application no. 15966/04) the Court found the violation of Articles 3 and 8 of the Convention in relation with the forced sterilization of Slovakian women of Roma ethnic origin.

I.G. gave birth to her second child via cesarean section at the age of 16 when she was sterilized without her or her parents full and informed consent. After the operation she had not been given any details about the delivery, except the gender of the baby, nor was she told that she had been sterilised. The following morning the doctor treating her came into her room and asked her to sign a document. I.G. was told that she had to sign it because she had undergone a caesarean section and all women who had this kind of operation have to sign it. Later she was transferred to another hospital due to post-surgery complications, a serious infection and sepsis. As a consequence the doctors had to perform a life-saving operation on her during which her uterus was removed. 3 years later, while reviewing her medical files with her lawyer, I.G. learned that she had been sterilised during her second delivery. The medical file contained a document entitled “Request for authorisation of sterilisation”, filled in using a typewriter and signed by her, and the approval of the district sterilisation committee at the hospital. I.G. has been living in constant fear that her partner will leave her because she is not able to bear him any more children.

M.K. gave birth to her second child via cesarean section at the age of 17 when she was sterilized without her or her parents full and informed consent. She learned only four years later, during a criminal investigation, that her medical record contained a form entitled “Request for sterilisation” with her signature and the approval of the district sterilisation committee at the hospital. Her partner left her whe he learned that she would not be able to have another child due to the sterilisation. Her social status in her community has fallen as well due to her sterility. M.K. was worried about the future of her current relationship because she and her partner wanted to have a child together and her partner is complaining about her infertility. She was also suffering serious medical side-effects from the operation.

R.H. gave birth to her fourth and fifth child (twins) via cesarean section when she was sterilized without her full and informed consent. Prior to the operation nurse gave her a pre-medication injection as a precursor to the anaesthetic after which R.H. felt dizzy. Then a nurse, with the doctor standing beside her, asked her to sign a paper which she did without understanding its contents: because she was feeling dizzy as a result of the injection, R.H. was unable to read what was written on the paper. The nurse told the applicant that she had to sign it as she was going to have a caesarean delivery.Upon leaing the hospital at her own request, she was asked to sign a document. She was given no time to read the document. In reply to a question from the applicant,adoctor stated that the paper confirmed that she had been sterilised.

In their application the applicants alleged the violation of Articles 3, 8, 12 and 14 in relation with their sterilization. During the procedure, R.H. died and against the request from the applicant's children, the Court decided to strike the application out of its list of cases in so far as it has been brought by the third applicant, Ms R.H. 

Violation of Article 3 (Il-treatment)

The ECtHR reiterated the relevant principles established in the Court’s case-law are set out in V.C. v. Slovakia and N.B. v. Slovakia.

As for the first applicant, the Court noted that her case differed from those of V.C. and N.B. 

in that she learned about her sterilisation only some three years later and that, due to a post-surgery complication, the doctors had to carry out a hysterectomy on her, with a view to saving her life, several days after the delivery. When deciding on her civil claim the domestic courts concluded that a causal link between the first applicant’s sterilisation and the damage which could attract compensation under the provisions of the Civil Code on which she had relied had ceased to exist once the hysterectomy had been performed. In their view, during the short period between the sterilisation and the hysterectomy the first applicant had suffered no damage which required compensation under the relevant law.

The Court must must have therefore determined whether the sterilization of I.G. can be qualified as incompatible with Article 3. In this respect it recalled that a person’s treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority; it may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others. To fall within the scope of Article 3 such treatment must attain a minimum level of severity. The assessment of such a minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.

I.G.'s sterilisation was not a life-saving intervention, and neither the her nor her legal guardians’ informed consent had been obtained prior to it. The intervention was therefore incompatible with the requirement of respect for her human freedom and dignity, similarly to the cases of V.C., and N.B. The Court further accepted that she had been susceptible to feeling debased and humiliated when she learned about the operation. Therefore, taking into account the nature of the intervention, its circumstances, the age of the applicant and also the fact that she belongs to a vulnerable population group , the ECtHR considered that the sterilization attained a level of severity which justifies its qualification as degrading within the meaning of Article 3. There has accordingly been a substantive violation of Article 3 of the Convention on account of the sterilisation of the first applicant.

As for the second applicant, the reasons set out above were also equally relevant in M.K.'s case. The Court concluded that hersterilisation was also incompatible with the requirement of respect for her human freedom and dignity, and attained a level of severity bringing such treatment within the scope of Article 3. Accordingly, there has been a substantive violation of Article 3 of the Convention on account of the sterilisation of the second applicant.

Violation of Article 3 (investigation)

The Court examined the circumstances of the case in relation with the State's obligation to carry out an effective official investigation, which must be thorough and expeditious. It noted that Slovakian civil courts examined the circumstances surrounding the first and second applicants’ sterilisation, and acknowledged that in both cases that it had been carried out in disregard of the statutory requirements. They awarded compensation to the second applicant but concluded that the first applicant was not entitled to compensation. Their case was also examined by three levels of prosecuting authorities and by the Constitutional Court.

In repsect of the requirement of "expeditious" investigation, the ECtHR noted that the civil proceedings in connection with I.G. lasted five years and eight months, in the case of M.K. they lasted for six years and five months. The appeal court twice quashed the first-instance court judgment as erroneous. The criminal proceedings lasted more than five years and three months. The Court accepted that the investigation was complex, in view of the subject matter and the number of people and authorities involved, however, the investigation was prolonged significantly. The procedure was not therefore in accordance with the requirements derived of Article 3. Accordingly, there has been a procedural violation of Article 3 of the Convention.

Violation of Article 8

The Court reiterated the relevant principles as conculded in V.C. v. Slovakia. In both applicants' case the sterilization was carried out contrary to the requirements of domestic law, as the national courts acknowledged. The ECtHR

previously held, with reference to both international and domestic documents, that at the relevant time an issue had arisen in Slovakia as regards sterilisations and their improper use, including disregard for the informed consent required by the international standards by which Slovakia was bound. Such practice was found to affect vulnerable individuals belonging to various ethnic groups. However, Roma women had been at particular risk due to a number of shortcomings in domestic law and practice at the relevant time

For these reasons, the Court found that the respondent State failed to comply with its positive obligation under Article 8 to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin. Accordingly, the failure to respect the statutory provisions combined with the absence at the relevant time of safeguards giving special consideration to the reproductive health of the first and second applicants as Roma women resulted in a failure by the respondent State to comply with its positive obligation to secure to them a sufficient measure of protection enabling them to effectively enjoy their right to respect for their private and family life. There has therefore been a breach of Article 8 of the Convention in respect of both the first and second applicants.

P. and S. v. Poland

In the case P. and S. v. Poland (Application no. 57375/08) the Court found the violation of Articles 8, 5(1) and 3 in relation with the access to legal abortion of a Polish minor.

P. is a Polish girl who was raped by a minor boy at the age of 14. As an effect of the crime she got pregnant. In order to have access to legal abortion allowed by the very strict Polish law, P. and her mother went to the district attorney to obtain "a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age" which enables her to have an abortion. They afterwards  encountered considerable difficulties in relation with access to the operation. This included contradictory information received from staff members of hospitals in Lublin

as to whether they needed a referral from the regional consultant for gynaecology and obstetrics in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with.

Furthernore, S. was requested by the head gynaecologist of a hospital in Lublin tosign a consent form to the abortion which warned that the abortion could lead to her daughter’s death. On a later occasion this doctor took P. to see a Catholic priest,without the knowledge of her mother or even asking whether she wished to see him. During this meeting, it became clear that the priest had already been informed about the circumstances of the case. He also tried to convince the applicant to carry the pregnancy to term and asked her to give him her mobile phone number for keeping in touch with her. P. gave him the number. When this meeting became clear to the mother, she had an argument with the doctor, theen the head gynaecologist expressly refused to allow the abortion to be performed in her ward, relying on her religious views. Hence the applicants travelled to Warsaw.The hospital after their departure "issued a press release to the effect that it would not perform an abortion in P.’s case". Journalists were informed of the circumstances of the case and a number of articles were published by various local and national newspapers and the case was the subject of discussions on the internet. 

S. was admitted to a hospital in Warsaw on 3 June 2008. She was told that she could have an abortion on the basis of the certificate issued by the prosecutor and a medical certificate issued by the national consultant in gynaecology, but that she would have to wait three days before the intervention could be performed". During her stay in the hospital, a doctor told her that the hospital was facing external pressure: various people wrote e-mails to pursue the hospital not to perform the abortion and criticised the applicants for their intention. P. also received harrassing text messages from the priest and from unknown people trying to convince her to change her mind. After these events P. and her mother decided to leave the hospital.  However, at the entrance of the institution, they were harassed by anti-abortion activists and were eventually taken to a police station, where they were questioned for several hours. 

At the police station they were informed about the decision of the Lublin Family Court before which a procesure was issued after the applicants left the city to divest S. of her parental rights because it was suspected that P. was under pressure from her to have an abortion, which she did not wish to have herself. The court therefore ordered P.’s placement in a juvenile shelter as an interim measure. The police thereafter took the girl to Lublin and placed there in a shelter the following day. P. subsequently was taken to hospital since she felt pain and suffered bleeding. She stayed there for a week after which she was allowed to go home with her mother.

After these event S. went to the Ministry of Health. She was eventually informed that P. could undergo an abortion in Gdańsk, approximately 500 kilometres from their home in Lublin. The applicants were driven there "in a clandestine manner" and the abortion was carried out on P. successfully. Various - civil and criminal - proceedings were issued in relation of the case. One of them was against P. on suspicion of sexual intercourse with a minor (!). The sace case was subsequently discontinued.

In their application, P. and her mother alleges the violation of their rights under Article 8, and the violation of P.'s rights under Article 5(1) and 3 of the Convention.

Violation of Article 8 of the ECHR in relation with the access to lawful abortion)

The Court firstly examined the circumstances of the case in relation with the procedural guarantees derived from Article 8 of the Convention. In this respext it reiterated that it had previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity. These may involve the adoption of measures including the provision of an effective and accessible means of protecting the right to respect for private life. Referring to Tysiąc v. Poland and A, B and C v. Ireland, it recalled that the right to respect of private and family life "cannot be interpreted as conferring a right to abortion", however the prohibition of abortion when sought for reasons of health and/or well‑being falls within the scope of Article 8. Furthermore,

once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion (...). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (...).

In the context of access to abortion the relevant procedure should allow to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision.

The ECtHR noted that it had held on previous occasions that Polish law "did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman’s health were met". It found theresfter that the events surrounding the determination of the P.’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness. The Court was of the view that "effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy". The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance: the procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation.

Two important argumant shall be noted besides the previous. One is the right of the doctors to refuse a treatment on religious grounds. In this respect the ECtHR noted that  Article 9 (1) does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief. Hence States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation. Polish law has acknowledged this right of the doctors since they are not obliged to carry out services to which they object. It also put in place a mechanism that includes elements allowing the right to conscientious objection to be reconciled with the patient’s interests. However, it was not proved during the procedure that these requirements contained by the law had been complied with or that the applicable laws were duly respected.

The second one is the about the position of the mother in respect of the decision considering the abortion and therefore the victim status of S. In this connection the Court recognised that the mother's case was different from that of the girl's since unwanted pregnancy affects the mother differently than the minor girl. The ECtHR was of the view that

legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. (...) However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. 

There must be a procedure for the determination of access to abortion whereby both parties, the minor and the parents, can be heard and their views fully and objectively considered. In the present case, however, it there were no proof indicating that "the legal setting in Poland allowed for the second applicant’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access".

Bearing in mind the previous argument, the Court concluded that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article 8 of the Convention.

Violation of Article 8 of the ECHR (protection of personal data)

In this connection, the Court reiterated the importance of protection of personal data, not least medical data: 

Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (...). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (...).

The Court firstly concluded that the information made available to the public by the hspital via the press release must have been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally. Therefore there was an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society” to attain them.

As to the legitimate aim, the Court recalled that States enjoys a certain margin of appreciation in deciding what “respect” for private life requires in particular circumstances. The fact, however, that the availability of legal abortion  is a subject of social debate in Poland "does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy". There were neither any other exceptional circumstanceswhich could justify public interest in P.’s health. It was the ECtHR's view that the disclosure of information about P.'s pregnancy and the circumstances of the case cannot be regarded as compatible either with the ECHR standards or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. The interference therefore did not pursue a legitimate aim.

The above was in itself sufficient to ground a breach of Article 8 of the Convention, the Court however addressed the lawfulness requirement as well. It noted that under Polish law both applicants were entitled to the protection of information concerning their private and family life. Yet the Lublin hospital made information concerning their case available to the press. Hence the Court concluded that "the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest". There has therefore been a violation of Article 8 of the Convention.

Violation of Article 5(1) of the ECHR

In this repsect the ECtHR reiterated that the detention of a person

must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (...). 

The Court observed that P. was placed in the juvenile shelter due to the provisions of the relevant Polish law, based on the decision of a court. Therefore the detention can be lawful in terms of domestic law. As to the lawfulness under the ECHR, the Government referred to “educational supervision” within the meaning of Article 5 (1d) of the Convention in connection with the detention. In this relation the the Court accepted that the words “educational supervision” must not be equated rigidly with notions of classroom teaching. Furthermore, it observed it legitimate to try to establish with certainty whether P. had had an opportunity to reach a free and well‑informed decision about having recourse to abortion. However, the essential purpose of the decision on the interim measure was to separate the girl from her parents, in particular from S. The ECtHR therefore was

of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court [was] of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14‑year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case.

Accordingly, the Court concluded that there had been a violation of Article 5(1) of the Convention.

Violation of Article 3

The ECtHR firstly reiterated its well‑established case-law according to which "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim". For the Court, it was of cardinal importance that P. was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse and a medical certificate issued immediately afterwards also confirmed bruises on her body as a result of a crime. The girls therefore was in a situation of great vulnerability. The circumstances of the case however showed the lack of proper regard to tP.’s vulnerability and young age and her own views and feelings. The Court was

particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal‑law system punishing all forms of sexual abuse

Assessing P.'s situation as a whole, having regard in particular to the cumulative effects of the circumstances, the ECtHR concluded that P. was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention. There has therefore been a breach of that provision.

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Johanna Westeson, Regional Director for Europe of Center for Reproductive Rights posted the guest article P and Sv. Poland: adolescence, vulnerability, and reproductive autonomy on Strasbourg Observers. Besides summarizing the judgment of the ECtHR she also adds some very interesting comments on the claims that were rejected by the Court in its decision: failure to provide the first applicant with emergency contraception (Articles 3 and 8), éack of respect towards the applicants non-belief (Article 9) and discriminatory aspects of the applicants' treatment (Article 14).