Groundbreaking Report by Czech Ombudsman Recognises “Problem” of Coercive Sterilisation and Calls for Far-Reaching Changes to Law, Policy and Society

31 March 2006

Claude Cahn

On 23 December 2005, the Czech Public Defender of Rights (“Ombudsman”) published a report on investigations into allegations of the coercive sterilisation of Romani women in the Czech Republic. The report is the result of more than a year of research by the Ombudsman and his staff, on the basis of complaints brought by victims, as well as on various other documentary evidence. Its publication is among the most significant developments in the history of efforts to challenge these extreme harms in Central and Eastern Europe.

From the 1970s until 1990, the Czechoslovak government sterilised Romani women programmatically, as part of policies aimed at reducing the “high, unhealthy” birth rate of Romani women. This policy was decried by the Czechoslovak dissident initiative Charter 77, and documented extensively in the late 1980s by dissidents Zbynek Andrs and Ruben Pellar. Helsinki Watch (now Human Rights Watch) addressed the issue as part of a comprehensive report published in 1992 on the situation of Roma in Czechoslovakia, concluding that the practice had ended in mid-1990. A number of cases of coercive sterilisations taking place in 1990 or before then in the former Czechoslovakia have also been recently documented by the ERRC. Criminal complaints filed with Czech and Slovak prosecutors on behalf of sterilised Romani women in each republic were dismissed in 1992 and 1993. No Romani woman sterilised by Czechoslovak authorities has ever received justice for the harms to which they were systematically subjected under Communism.

During 2003 and 2004, the ERRC and partner organisations in the Czech Republic undertook a number of field missions to the Czech Republic to determine whether practices of coercive sterilisation have continued after 1990, and if they were ongoing to the present. The conclusions of this research indicate that there is significant cause for concern that until as recently as 2001, Romani women in the Czech Republic have been subjected to coercive sterilisations, and that Romani women are at risk in the Czech Republic of being subjected to sterilisation absent fully informed consent.

During the course of research, researchers found that Romani women have been coercively sterilised in recent years in the Czech Republic. Cases documented include:

• Cases in which consent had not been provided at all, in either oral or written form, prior to the operation;
• Cases in which consent was secured during delivery or shortly before delivery, during advanced stages of labour, i.e. in circumstances in which the mother is in great pain and/or under intense stress;
• Cases in which consent appears to have been provided (i) on a mistaken understanding of terminology used, (ii) after the provision of apparently manipulative information and/or (iii) absent explanations of consequences and/or possible side effects of sterilisation, or adequate information on alternative methods of contraception;
• Cases in which officials put pressure on Romani women to undergo sterilisation, including through the use of financial incentives or threats to withhold social benefits;
• Cases in which explicit racial motive appears to have played a role during doctor-patient consultations.

In April 2004, the ERRC submitted the results of this research confidentially to the UN Committee Against Torture, on the occasion of that body’s review of the Czech Republic’s compliance with the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Czech government reacted badly to this move, complaining that the ERRC had not presented the material to a domestic authority before internationalising it. Members of the Czech government urged us to work with the Czech Ombudsman to address the matter, suggesting that that authority was best placed to investigate the matter well.

In June 2004, the ERRC met with the Ombudsman and his staff to discuss proceedings. At that point, it was our position that the burden of action lay with the state, since reports concerning these practices dated back to 1978, and Czech authorities had never acted sufficiently on them. In addition, at the time, we did not yet have the permission of victims to bring individual complaints to any authority.¹ We also had a range of concerns about respect for the safety, comfort and privacy of the victims, should complaints ultimately be filed, based on experiences of challenging these practices in Slovakia (on that issue, more below). Despite these reservations, we agreed to return to the field and to facilitate complaints by victims to the Ombudsman.

During the summer months of 2004, together with partner organisations IQ Roma Service (Brno), League of Human Rights (Prague and Brno), and Life Together (Ostrava), we gathered evidence for complaints to the Ombudsman. The first ten of these were filed in September 2004.

Although we had not intended to publicise these complaints, information leaked, and in beginning in mid-September 2004, Czech media gave extensive coverage to the matter. With a few exceptions, this coverage was cautiously sympathetic to the victims. A number of women gave interviews to television and the press, with their faces blacked out and names concealed. As a result of this media attention, a number of other victims came forward and filed complaints on their own to the Ombudsman.

During Autumn 2004, we continued to document the matter, visiting sites such as the Chanov housing settlement outside Most in Northern Bohemia, where during the 1980s, Romani women were sterilised in a systematic campaign organised by a social worker named Machacova and her colleagues. Using threats to withhold social benefits and to take children into state care, Machacova bullied an estimated well over one hundred women into submitting to sterilisation.

Eighty-seven victims of coercive sterilisation – all but one of them women and the overwhelming majority of them Romani – submitted complaints to the Czech Public Defender of Rights (“the Ombudsman”) in the period to September 2005. Following discussions in late 2004 with the Ombudsman, the Czech Ministry of Health established a commission to review files of alleged victims and to provide answers to questions submitted by the Ombudsman. The commission met a number of times, and provided answers to the Ombudsman as to whether the complainants had provided full and informed consent at the time they were sterilised.

In early 2005, about 25 Romani women coercively sterilised by Czech medical officials established a victim advocacy group called the Group of Women Harmed by Sterilisation to press authorities to press for justice. This development – in which the victims themselves have organised, come out in public, and taken control of the process of pressing for change – has been among the most important dimensions of the action.

The Ombudsman’s report published in December 2005 concludes that “The Ombudsman is convinced that in the Czech Republic, the problem of sexual sterilization – carried out either with unacceptable motivation or illegally – exists, and that Czech society stands before the task of coming to grips with this reality.”² Measures undertaken by the Czech Ministry of Health are seen as to date grossly inadequate. The Ombudsman was evidently extremely dissatisfied at responses provided by the Ministry of Health commission to the Ombudsman’s questions concerning the contents of the medical files and evidence as to whether consent had been secured and whether it met the standard of full and informed. Law and procedural safeguards were not followed in the overwhelming majority of the cases. In discussions with the Ombudsman’s staff, it has been noted that while under Communism in the main policy and law was followed, following the official end of policies fostering a climate conducive to coercive sterilisation in 1991, a number of doctors have apparently acted fully outside the law to continue the practice. At a press conference launching the Ombudsman’s report, Deputy Ombudsman Anna Sabatova spoke of this phenomenon as “fully deformed praxis in the Czech medical community”.

Three areas of recommendations are brought by the Ombudsman in his report:

1. Changes to Czech domestic law to better anchor the principle of informed consent in these areas;
2. Supplementary measures to ensure a change of culture with regard to informed consent in the medical community, as well as among users;
3. A simplified procedure for compensation to victims, where social workers have been involved in implementing coercive sterilisation policy.

Pages 25-59 (i.e., approximately 1/3 of the report in total) concern “Sterilization and the Romani Community” and reach the conclusion of racial targeting. Case summaries included in the report highlight events in which, for example, the medical files reveal that social workers and doctors recommended caesarean section births in order to manufacture “indicators” through which sterilisation would appear legitimate and necessary.

The text of the report also includes detailed summaries of Czechoslovak state policies toward Roma in the 1970s and 1980s, in which social workers were enlisted in the task of controlling the Romani birth-rate – regarded as too high by policy-makers – and creating a culture of invasive control over Romani families which endures to today. The report also includes a separate section on the history of eugenics in Czechoslovakia, which the report’s authors evidently regard as key for the policies and practices detailed in the report.

Finally, the report notes that during 2005, the Ombudsman filed a number of criminal complaints in the cases at issue in his investigation. As of January 2006, those investigations were still open.

The Ombudsman’s report followed the decision of the District Court in Ostrava on 11 November 2005 that it would find violations of law concerning the coercive sterilization of Ms. Helena Ferencikova by Czech medical practitioners in 2001.

On 10 October 2001, Ms. Ferencikova gave birth in the Vitkovicka hospital in the eastern Czech city of Ostrava to her second child, a son named Jan. The child was born at 4:45 AM, by caesarean section birth. Ms. Ferencikova’s first child had also been born via caesarean section.

At the time of her second birth, Ms. Ferencikova was also sterilized by tubal ligation. Although her files indicate that “the patient requests to be sterilised”, procedures set out under Czech and international law to ensure that, for the extremely invasive and in most cases irreversible sterilisation procedure, consent must meet the standard of full and informed, were not followed by doctors at the Vitkovicka hospital. Although it had been foreseen well in advance of labour that she would give birth by caesarean section, Ms. Ferencikova’s “consent” to the sterilisation was apparently secured by doctors several minutes before the operation, and when she was already deep in labour. As a result, Ms. Ferencikova emerged from her second birth traumatised and irrevocably harmed by the doctors to which she had entrusted herself for care.

Ruling on 11 November 2005, the Ostrava court recognised that Ms. Ferencikova’s sterilisation was coercive and therefore illegal, and ordered the Vitkovicka hospital to apologize in writing because the act “seriously encroached into your most intimate sphere, and caused you durable physical and psychological harms”.

At the time it was believed that this was the first time a court had ever ruled favourably on these issues, but it later transpired that in 2000, a court in the western Czech town of Plzen had awarded 100,000 Czech crowns in damages (approximately 2500 Euro) to a woman sterilised there in 1998. She had repeatedly explicitly refused to be sterilised. Czech doctors had performed the operation anyway.

The publication of the report by the Ombudsman, as well as the decision by the District Court in Ostrava in the matter of Ferencikova v. Vitkovicka Hospital, are among the most important developments in Central and Eastern Europe to date in efforts to end the practice of coercive sterilisation and secure justice for victims of this practice. The humiliating treatment Ms. Ferencikova suffered is similar to that of countless other Romani women in the Czech Republic and elsewhere in Central Europe, where as a result of fundamental contempt for Romani women and their ability to make informed choices about matters related to their own bodies, doctors and social workers have, for at least the past three decades, routinely and regularly overridden their free will as individuals and subjected them to debasing bodily invasion, with irrevocable consequences. These specific practices targeting Romani women are made possible by a general culture of paternalism among medical practitioners in the region, resulting in threats of abuses of fundamental human rights to any persons entering medical care, and to women generally.

It has therefore been disappointing that the Czech government has not yet visibly welcomed the report, nor has it made clear how or when it intends to act on its recommendations. The following measures are now needed to give substance to the measures proposed by the Ombudsman in his report: 

• That the Prime Minister issue, as a “Decision of Government”, public apology to the victims of the practices described in the Ombudsman Report.
• That the Legislator act without delay to adopt the legislative changes necessary to establish the criteria for informed consent in the context of sterilisation set out in the recommendations of the Ombudsman Report (Recommendations Section A – “Legislative Measures”).
• That the Ministry of Health act without delay to implement in full the recommendations on “Methodological Measures” set out in section B of the Ombudsman Report.  
• That the Legislator act without delay to establish by law the compensation mechanism proposed in the Ombudsman Report (Recommendations Section C – “Reparative Measures”).
• That the Government establish a fund to assist victims of coercive sterilisation in bringing claims under the compensation mechanism or, where relevant, before courts of law, such that all victims of coercive sterilisation practices have access to justice. Such a fund should be able to: (i) provide compensatory damages to victims, in such cases where the mechanism established pursuant to the Ombudsman Report may not be able to; (ii) support the work of advocates in bringing claims to court; (iii) where relevant, ensure payment of court fees and other relevant costs arising in the course of establishing coercive sterilisation claims before courts of law and/or other instances.
• That the Government seek, in cooperation with the Council of Europe, legal opinion as to the best method for providing compensation to victims of coercive sterilisation practices during the period post-1991 (i.e. those not necessary covered by the measures included in Recommendations Section C – “Reparative Measures”), but possibly beyond relevant statutes of limitations, such that the Czech government is in full compliance with its obligations under the European Convention on Human Rights and other relevant international law.
• That in cases in which hospital records of relevance to establishing claims of coercive sterilisation have been destroyed, the Government make public criteria by which individuals shall establish the veracity of claims for compensation for practices of coercive sterilisation.
• That the Czech General Prosecutor monitor investigative proceedings in the matter of criminal complaints filed in the course of the Ombudsman’s investigation into these practices, and report to the Czech government’s Human Rights Committee the findings of these investigations.  
• That the Ministry of Foreign Affairs raise with the Slovak Government the issue of compensation for persons who are currently Czech citizens but who have been coercively sterilised in the Slovak Republic.

Finally, there remains the matter of the coercive sterilisation of Romani women in Slovakia. ERRC work to challenge the coercive sterilisation of Romani women in Czech Republic began in large part as a result of similar efforts in Slovakia. There, following publication of a report by the Center for Reproductive Rights and the Advisory Centre for Citizenship and Human and Civil Rights,³ and supported by documentation undertaken by the ERRC,⁴ significant international attention was focussed on this issue beginning in early 2003.

In 2003, the Council of Europe’s Commissioner for Human Rights Mr. Alvaro Gil-Robles stated, following visits to Slovakia: “[…] on the basis of the information contained in the reports referred to above, and that obtained during the visit, it can reasonably be assumed that sterilizations have taken place, particularly in eastern Slovakia, without informed consent. The information available to the Commissioner does not suggest that an active or organized Government policy of improper sterilizations has existed (at least since the end of the communist regime). However, the Slovak Government has, in the view of the Commissioner, an objective responsibility in the matter for failing to put in place adequate legislation and for failing to exercise appropriate supervision of sterilisation practices although allegations of improper sterilizations have been made throughout the 1990’s and early 2000.”⁵

The Commissioner further concluded that “The issue of sterilizations does not appear to concern exclusively one ethnic group of the Slovak population, nor does the question of their improper performance. It is likely that vulnerable individuals from various ethnic origins have, at some stage, been exposed to the risk of sterilization without proper consent. However, for a number of factors, which are developed throughout this report, the Commissioner is convinced that the Roma population of eastern Slovakia has been at particular risk.”⁶

Similarly, an independent study mission of the Inter-European Parliamentary Forum on Population and Development (IEPFPD) concluded, “Participants did find, that in most cases Romani woman were sterilized without sufficient information to make an informed consent. This is due to the fact, that hospital doctors do not consider it their duty to inform the woman, even when they should have realised that the patient has not attended prenatal care, where this information is supposed to be given and will also not attend post natal care. In cases of emergency the patient is also not informed. This is open to very strong criticism."⁷

In dramatic contrast to the actions of the Czech Ombudsman, Slovak authorities have expended extensive efforts to deny the problem, to thwart justice, and to harass and threaten the advocates of victims, as well as the victims themselves. To name only a few actions undertaken by Slovak authorities in response to these issues:

• Authorities including the Slovak Human Rights Commissioner and the Slovak ambassador to the Organization for Security and Co-operation in Europe threatened “the authors of the Body and Soul report” that they would be prosecuted. If the issues raised in the report were true, they would be prosecuted for failing to report a crime; if the issues in the report were false, they would be prosecuted for spreading false alarm. Both are crimes in Slovakia;
• The Slovak Ministry of Health directed hospitals not to release the records of the persons concerned to the legal representatives of the victims;
• Slovak prosecutors – despite extensive advice not to do so – opened investigations for the crime of genocide, a crime so serious that evidentiary standards could not be met, and they then predictably concluded that this crime had not been committed, ending their investigation into the matter. The same authority has repeatedly released misleading information to the media, deliberately perpetuating a state of delusion about the matter currently prevailing among the Slovak public.
• Slovak police investigating the issue urged complainants to testify, but reportedly warned a number of them that their partners might be prosecuted for statutory rape, since it was evident that they had become pregnant while minors; under this pressure, a number of victims withdrew testimony.
• Other.

A number of legal complaints are pending with respect to these issues in the Czech Republic and Slovakia. One complaint is pending concerning these issues in Hungary. Since no authority in any country in Central and Eastern Europe has yet provided the kind of just satisfaction the governments of Norway and Sweden have managed on coercive sterilisation issues, these efforts will continue. There are also reasons for believing that the time is right for a pan-European or even global initiative to examine the issue and to provide guidance on ways forward.

Endnotes:

1. Indeed, the ERRC had previously submitted a list of hospitals at issue to the Ombudsman, but this information was deemed not sufficient for investigation by the Ombudsman.
2. The report is not yet available in English, but the original Czech version can be downloaded at: http://www.ochrance.cz/documents/doc1135861291.pdf.
3. Center for Reproductive Rights and the Advisory Centre for Citizenship and Human and Civil Rights, "Body and Soul: Forced Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia", on the Internet at: http://www.crlp.org/pub_vid_bodyandsoul.html.
4. See for example "Joint Statement of the European Roma Rights Center (ERRC), the International Helsinki Federation for Human Rights (IHF) and the Slovak Helsinki Committee (SHC) on the Issue of Coercive Sterilizations of Romani Women, on the Occasion of the OSCE Supplementary Human Dimension Meeting on Roma and Sinti", on the Internet at: http://www.errc.org/cikk.php?cikk=312.
5. "Recommendation of the Commissioner for Human Rights Concerning Certain Aspects of Law and Practice Relating to Sterilization of Women in the Slovak Republic", paras. 51 and 52, at: http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/CommDH%282003%2912_E.doc
6. Ibid., Para. 35.
7. See: http://www.iepfpd.org/index.asp?ID=360&id_sous_menu=14.