September 14, 2015
This guest post was written by Adam Weiss and Judit Geller, European Roma Rights Centre.
On 9 June 2015, a Chamber declared an application we submitted on behalf of a victim of forced sterilisation inadmissible. She had already received compensation from the domestic courts, depriving her (the unanimous Chamber found) of her victim status. You are probably thinking this is a sour-grapes blog – and of course you are right, no one likes to lose, but we’ve already let of steam elsewhere. This blog is about the legal reasoning of the judgment: if you are interested in reproductive rights, or anti-Roma discrimination, or intersectionality, read on.
There are cases where victims of violations of the Convention have received compensation from the domestic courts but nonetheless succeeded in Strasbourg (see, e.g., Ciorap v Moldova (no.2)), but these cases are rare. Subsidiarity dictates that the European Court does not re-open questions of quantum of damages. These are best left to domestic courts. In any event, who wouldn’t try to go to Strasbourg to get more damages if they thought they could? The Court would be flooded with fourth-instance-type applications.
That was what the Court saw here:
To the extent that the applicant claims that the medical intervention, which was carried out with her consent but without a written procedure required by the domestic law, amounts to an infringement of her right to respect for private life under Article 8, the Court finds that the applicant can no longer claim to be a victim of a violation for the following reasons.
The Court notes that material compensation, in an amount of EUR 3,300, was awarded to the applicant for the grievance in question, that the courts recognised a breach of her rights, and that the hospital apologised for the procedural irregularity committed.
In these circumstances, the Court considers that an express acknowledgement of the violation of the applicant’s rights occurred and she received adequate redress.
What the Court glosses over (with the strange formula “to the extent”) is the issue of consent. The applicant was sterilised during an emergency medical procedure to remove the dead foetuses of her twins, which she discovered when she went to the hospital because of heavy bleeding. The domestic courts found that she consented to the procedure orally (although it was not informed consent, and the procedural formalities were not followed, including signing a consent form – that’s why the Hungarian Supreme Court upheld the finding of a violation and awarded her around €3,300).
The Court did not accept the applicant’s view, although they were not very clear when they did so:
The facts of the case, as submitted by the applicant, may be summarised as follows…. The applicant mentioned to her doctors that she thought it was reasonable to tie her Fallopian tubes in order to sterilise her. The doctors repeatedly asked her if that was indeed her desire and explained that this intervention could not be subsequently undone. The applicant answered in the affirmative, confirming that she wanted no more children. These statements were made to three doctors and a midwife (para. 4).
That is not quite how the applicant submitted it – we were clear that she did not give any form of consent. (You can find an anonymised version of the application submitted here.) But we cannot fault the Court for accepting the domestic courts’ findings – again, that is what subsidiarity dictates. The problem is with the consequence the domestic courts and the Strasbourg Court drew from that version of the facts: if a woman gives some form of consent to sterilisation in the middle of a pregnancy-related medical emergency, that somehow mitigates the human rights violation she has suffered.
The International Federation of Gynaecologists and Obstetricians has said, in its own guidelines on the subject, that “No woman may be sterilised without her own, previously-given informed consent, with no coercion, pressure or undue inducement by healthcare providers or institutions”, and that “Sterilisation for prevention of future pregnancy is not an emergency procedure. It does not justify departure from the general principles of free and informed consent.”
The European Court normally awards tens of thousands of euros in cases of forced sterilisation. The €3,300 G.H. received from the Hungarian courts was not just stingy – it was based on conclusion that the applicant’s “consent” mitigated the damage. The Strasbourg inadmissibility decision finding that she was not a victim confirmed this approach. It is a procedural blow to reproductive rights, women’s rights, and Roma rights. A woman in the middle of a pregnancy-related medical emergency is vulnerable to serious abuse and irreparable harm.
It is no accident that so many Romani women are affected by forced sterilisation: one of the most common racist stereotypes about Roma is that they have large families, and one of the most common racist beliefs is that they should not. There was an opportunity for the Court to examine these intersectional issues in a sophisticated way. Instead they saw someone asking for more money.
 The applicant herself was not Roma but she and her Roma husband already had seven children at the time she was admitted to hospital, and she was placed in a segregated maternity ward for Romani women.
[…] See similarly G.H. v. Hungary. As the ECtHR acknowledges in L.F., Article 8 provides wide protection for consent. Interventions […]