Coercive Sterilisation of Romani Women: inhuman and degrading treatment but not discrimination according to the ECHR
25 November 2014
Coercive sterilisation is a gross human rights violation and although it is performed on both men and women throughout the world, women are more vulnerable as a result of sex – specific situations such as childbirth or miscarriage expose them to sterilisation more frequently. Evidence shows that for example in Czechoslovakia under the Communist regime State policy systematically targeted Romani women for sterilisation; there have been instances of coercive sterilisation of Romani women in Hungary too. Most of these sterilisations were performed during a Caesarean-section, without the informed consent of the patients. The latest known such intervention happened in 2008.
Unsurprisingly, in searching for justice some cases of coercive sterilisation have reached international tribunals after local courts failed to provide effective (or any) remedies for the victims. First, in 2006, in a landmark decision , the Committee monitoring compliance with the United Nations Convention on the Elimination of All forms of Discrimination Against Women (CEDAW Committee) found Hungary in violation of the CEDAW Convention as a result of the sterilisation of a Romani woman (A.S.) without her fully informed consent: Ms A.S. was transferred to the hospital because of a miscarriage. An emergency C-section had to be performed on her in order to remove the dead foetus, during which her tubes were tied. A.S. had no idea what happened to her; she only realised it when leaving the hospital and she was told that she no longer can have children. According to the CEDAW this intervention was a serious violation of her reproductive rights, her right to informed consent, her right to family planning and to freely decide on the number and spacing of her children.
A few years later, a similar case was brought, but this time before the European Court of Human Rights (the ‘Court’) and against Slovakia. In the case of V.C. v Slovakia , the Court delivered its judgment in 2011 confirming that coercive sterilisation is a serious human rights violation and finding violations of Article 3 (inhuman and degrading treatment) and Article 8 (right to private and family life) of the European Convention on Human Rights. The Court established that “sterilisation constitutes a major interference with a person’s reproductive health status”. It also opened up possibilities to secure remedies for other victims of coercive sterilisation who were unable to secure justice before the domestic courts for this violation of their reproductive rights.
Disappointingly, the Court did not find that coercive sterilisation of Romani women is a form of sex and ethnic discrimination, and so did not make a finding of a violation of the non-discrimination principle (Article 14) of the Convention. It is clear that the Court did not want to address V.C.’s from the discrimination angle despite the wide range of evidence of multiple discrimination presented to the Court. It also did not want to consider this case as one example of a wider practice of systematic human rights violation against Romani women, choosing instead to remain on the “individual” level, despite the fact that it is well known (and was well documented before the Court) that the coercive sterilisation of V.C. was not a single sporadic occurrence in Slovakia, but part of a systematic state practice that affected many Romani (and only Romani) women. No men, including no Romani men, suffered forced sterilisation.
While the Court did not want to examine the complaint under the non-discrimination provision of the European Convention on Human Rights (Article 14), it briefly touched upon the ethnic discrimination aspect when it discussed Article 8 (right to respect for private and family life). Significant evidence was provided to the Court by the applicant on both ethnic and sex discrimination, for example statistical evidence showing that 60 % of all sterilisations were performed on Roman women. This, taken with the fact that her medical records contained information about her ethnicity and that she was placed on a segregated maternity ward should have been enough to shift the burden of proof onto the State to show that there was no discrimination. However, the Court did not find this evidence convincing enough to make a finding. In fact, the Court did “not find it necessary to separately determine whether the facts of the case also gave rise to a breach of Article 14 of the Convention”. What additional evidence can be required from a victim of a serious human rights violation allegedly happened because of her sex and ethnicity in order to get the Court to focus in on the discrimination aspect of the case and shift the burden of proof onto the government?
The above question is particularly troubling as the Court had already established before V.C. that Roma are a vulnerable group who enjoy special protection under the European Convention. (See, for example: D.H. and Others v the Czech Republic [GC], 13 November 2007, § 181.) In addition, in the V.C. judgment, the Court acknowledges that sterilisation never can be a life-saving intervention, and therefore it cannot be performed without fully informed consent as an emergency procedure. If a medical emergency could not justify the sterilisation and statistical evidence shows that Romani women are grossly overrepresented as victims of forced sterilisation, and the applicant belongs to the group, what else does the applicant have to show to demonstrate discrimination? The Court wrongly required proof of intent in order to establish direct discrimination, and did not even consider the possibility of a finding of indirect discrimination.
Yet, to some very small extent the Court addressed ethnic discrimination: instead of finding Article 14 violation, it merged the discrimination claim with the positive obligations of States under Article 8, stating that the State should have adopted positive measures to enable Romani women to access to health care services. It found that Slovakia had failed to fulfil its obligation under Article 8 to respect private and family life in that it did not ensure that particular attention was paid to the reproductive health of the applicant as a Romani woman (§ 154). Confining its ruling to Article 8 was also inconsistent with the Court’s finding that “the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” (See: Thlimmenos v Greece [GC], § 44). In this context, in the case of Orsus and Others v Croatia the Court recognised the vulnerable position of Roma who require special protection and specified that such special protection includes "positive measures" to stem the high drop-out rate of Romani children from school. The Court concluded that Croatia failed to have "sufficient regard to their special needs as members of a disadvantaged group" and found a violation of the anti-discrimination protection of the Convention. (See: Orsus and Others v Croatia, §177). In applying these principles to the V.C. case, the Court should have found a violation of Article 14: Romani women admitted to hospital deserve special protection because of their particular vulnerability to sterilisation, and yet no steps were taken to avoid this woman being sterilised.
After years of facing calls for justice, some European governments have acknowledged their responsibility and some victims have been able to access compensation at international courts. Many are still left without any remedy. A finding of discrimination from the European Court of Human Rights would help them secure justice.
