CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 septembre 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sBD8E234 { width:4.87pt; text-indent:0pt; display:inline-block } .s8C6C4B { width:7.65pt; text-indent:0pt; display:inline-block } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB8084949 { width:138.49pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 15966/04 by I.G., M.K. and R.H. against Slovakia The European Court of Human Rights (Fourth Section), sitting on 22   September 2009 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 27 April 2004, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Ms I.G., Ms M.K. and Ms R.H., are Slovakian nationals. They are of Roma ethnic origin and were born in 1983, 1981 and 1972 respectively. They were represented before the Court by Ms V. Durbáková, a lawyer practising in Košice, as well as by Lord Lester of Herne Hill QC, of Blackstone Chambers in London, and Ms B. Bukovská of the Center for Civil and Human Rights in Košice.   The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicants’ sterilisation in Krompachy Hospital The applicants were sterilised in the gynaecology and obstetrics department of Krompachy Hospital and Health Care Centre in Krompachy ( Nemocnica s poliklinikou Krompachy – “Krompachy Hospital”). Krompachy Hospital was incorporated as a medical institution under the authority of the Ministry of Health. With effect from 1 January 2003 it was transferred to the administrative supervision of Krompachy municipality. The companies register available on the Internet indicates that, as from 22   January 2004, a private company, Krompachy Hospital ( Nemocnica Krompachy spol. s r.o.) extended the scope of its activities to encompass health care services including gynaecology and obstetrics. One of its partners was Krompachy municipality. The latter’s share in the company’s capital amounts to 52% per cent. Both the private company and the original Krompachy Hospital have the same address. The applicants submitted in this context that the public hospital in Krompachy formally still existed, although it did not perform any activities or possess any assets. (a)     The case of the first applicant The first applicant, Ms I.G., was sterilised on 23   January   2000, during the delivery of her second child. According to the first applicant, after her admittance and preliminary checks, the gynaecologist in the hospital ordered her to be transferred to theatre for a Caesarean section. She was asked to write down the names for her future child on a piece of paper. The first applicant was subsequently transferred to theatre and a Caesarean section was performed on her. During the operation, the first applicant was sterilised by means of tubal ligation. This was the first applicant’s second delivery and her second delivery by Caesarean section. After she woke up from the anaesthetic, the first applicant was told that she had given birth to a girl. The first applicant submitted that she had not been given any further details about the delivery, nor was she told that she had undergone tubal ligation and that she had been sterilised. Furthermore, she did not receive any information about post ‑ sterilisation treatment. The next morning she was approached by the doctor treating her, who came into her room and asked her to sign a document. The first applicant was told that she had to sign the document because she had undergone a Caesarean section and all women who had Caesarean sections had to sign it. Several days after her delivery in 2000 the first applicant experienced medical problems which culminated in a hysterectomy. It was performed in a different hospital in Košice. She first learned that she had been sterilised during her second delivery while reviewing her medical files with her lawyer on 16 January 2003. The medical file contained a form entitled “Request for authorisation of sterilisation”. The form had been filled in using a typewriter. It was dated 23   January   2000 and was signed by the first applicant. The second half of the pre-printed form contained the decision of the district sterilisation committee at Krompachy Hospital dated 23   January   2000. In it the committee approved the first applicant’s sterilisation. It indicated that the sterilisation was required for medical reasons, that the applicant had two children, that she had earlier given birth by Caesarean section and that she had a small pelvis. The conditions laid down in the 1972 Sterilisation Regulation had been met in relation to the applicant’s sterilisation. The decision was signed by the president of the committee, the district medical specialist on the issue and the secretary to the sterilisation committee. The first applicant submitted that her sterilisation had been contrary to Slovakian law as at the relevant time she had been 16 years old and her legal guardians had not consented to the operation. The first applicant has been living in constant fear that her partner will leave her because she is not able to bear him any more children. (b)     The case of the second applicant The second applicant, Ms M.K., was sterilised in Krompachy Hospital on 10 January 1999. The sterilisation was performed on her during her second delivery by Caesarean section. Shortly after being admitted to Krompachy Hospital, she was transferred to a ward, where she was approached by a nurse who told her that the delivery would have to be by Caesarean section. The Caesarean delivery was then performed. During the operation the medical personnel of Krompachy Hospital also performed a tubal ligation on the second applicant. At the date of delivery the second applicant was 17 years old (that is to say, a minor) and not legally married. Neither the second applicant nor her parents were informed of her sterilisation and they never signed any document consenting to it. The second applicant learned only four years later, during a criminal investigation, that her medical record contained a form entitled “Request for sterilisation” with her signature dated 9 January 1999. The form lists as the reason for the sterilisation “multiple varices in the pelvis minor” and indicates that the applicant had given birth to two children by Caesarean section. The same document contains a decision by the district sterilisation committee approving the request and dated 9 January 1999. When the second applicant’s partner learned that she would not be able to have another child due to the sterilisation, he left her. Due to her inability to have more children, her social status in her community has fallen and, as a result, it has been very difficult for the second applicant to find a new partner. Currently, the second applicant has a partner, but she is worried about the future of this relationship because she and her partner want to have a child together and her partner is complaining about her infertility. The second applicant also suffers from serious medical side-effects from her sterilisation. (c)     The case of the third applicant The third applicant, Ms R.H., was sterilised in Krompachy Hospital on 11 April 2002. The sterilisation was performed during her fourth delivery, when she delivered her fourth and fifth children (twins). It was her first delivery by Caesarean section. Prior to her delivery the third applicant had regular pre-natal check ‑ ups with the chief gynaecologist in Krompachy Hospital. She was told that her pregnancy would be risky since she was expecting twins. In the eighth month of her pregnancy she was informed that she would have to deliver by Caesarean section. The third applicant arrived at Krompachy Hospital in the evening of 10   April 2002 after she had started feeling contractions. She was admitted to the gynaecology ward at 10.15 p.m. and spent the night there. At approximately 8 a.m. on 11 April 2002 she was taken to theatre. A nurse gave her a pre-medication injection as a precursor to the anaesthetic. The applicant’s head started spinning. A nurse, with the doctor standing beside her, asked the third applicant to sign a paper. Because her head was spinning as a result of the injection, the third applicant 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. The third applicant alleged that she had signed the document without understanding its contents. On 18 April 2002 the third applicant was discharged from Krompachy Hospital at her own request. According to her, the doctor in the hospital had asked her to sign a document prior to her discharge. She was given no time to read the document when signing it. In reply to a question from the applicant the doctor stated that the paper confirmed that she had been sterilised. The doctor refused to give any further explanation to the applicant. The discharge report indicates that the third applicant was sterilised during the Caesarean delivery. It was only later, on 14 August 2003, during questioning at a police station, that a police investigator showed the applicant the request for sterilisation which apparently contained her signature. The form had been filled in using a typewriter and was dated 10   April   2002. The second part contains the decision of the sterilisation committee dated 10 April 2002 approving the operation as being compliant with the 1972 Sterilisation Regulation. The document states that there existed “medical reasons” for the operation and that the applicant already had three children. The third applicant submitted that she had not given informed consent of her own free will to her sterilisation. The sterilisation has had serious consequences for the private and family life of the third applicant, as she cannot have any more children with her partner; she has also suffered medical side-effects from the sterilisation. (d)     The applicants’ treatment in Krompachy Hospital The applicants submitted that they had received inferior treatment during their stay in Krompachy Hospital. In their view, racial prejudice on the part of medical personnel had played a significant role in the quality of the treatment they received. In particular, the applicants stated that they had been accommodated separately from non ‑ Roma women in so called “Gypsy rooms”. They had been prevented from using the same bathrooms and toilets as non-Roma women and could not enter the dining room where there was a television set. The second applicant had also experienced verbal abuse from health care personnel during her stay in Krompachy Hospital. With reference to the Body and Soul Report (see below), the applicants stated that the chief gynaecologist at Krompachy Hospital had admitted that patients were categorised and separated according to their “adaptability” and level of hygiene. That categorisation was carried out by him on an individual basis. According to the Body and Soul Report the same physician had also stated that Roma did not know the value of work, that they abused the social welfare system and that they had children simply in order to obtain more social welfare benefits. The Government disputed the above allegations. They relied, inter alia , on the statement of a gynaecologist at Krompachy Hospital, according to whom there had been no deliberate segregation of Roma women. On the contrary, due to the similarity of their habits Roma women themselves asked to be placed in rooms together; they even moved without authorisation to other rooms for that purpose. There were also cases where Roma women with a higher social status requested isolation from other patients of Roma origin. 2.     The applicants’ attempts to obtain redress (a)     Criminal investigation In reaction to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of Body and Soul: Forced and Coercive Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia (“the Body and Soul Report”), the Human Rights and Minorities Section of the Office of the Government of Slovakia initiated a criminal investigation into the alleged unlawful sterilisation of several women, including the three applicants. The first and third applicants joined the Office of the Government in their criminal complaint and, together with the second applicant, also acted as witnesses and injured parties in the proceedings. The proceedings were formally brought by the regional criminal investigation department in Košice on 31 January 2003 and concerned the alleged offence of genocide. In a decision of 24 October 2003 the regional criminal investigation department in Žilina, to which the case had been transferred, discontinued the criminal investigation, finding that the alleged facts underlying the investigation had not occurred and that nothing indicated that any offence under the Criminal Code had been committed. The decision comprises 30 pages and refers to statements by 13 women, including the applicants, who were sterilised in Krompachy Hospital and who acted as injured parties in the proceedings, statements by 23 other women who were sterilised in Krompachy Hospital, statements by 30   physicians and a number of other witness statements. The police authority also had regard to a report by the Ministry of Health dated 28   May   2003 (see below) on an investigation relating to the alleged genocide and segregation of persons of Roma ethnic origin in gynaecology and obstetrics departments and to compliance with the instructions governing sterilisation. The police authority obtained an expert opinion submitted by the Faculty of Medicine of the Comenius University in Bratislava, addressing the circumstances under which the women in question had been sterilised. The opinion concluded that the sterilisations in 22 of the cases under review, including those of the applicants, had been lawful. As to the first and the second applicants, they had been sterilised for medical reasons, namely repeated delivery by Caesarean section, a small pelvis and varices in the minor pelvis. The absence of consent by their legal representatives was of a formal character, as the sterilisation of the patients concerned had been indicated for medical reasons independent of the will of their legal representatives. The third applicant had been sterilised on the ground that she already had several children, that is, for social rather than medical reasons. In all cases the operation had been approved by a sterilisation committee and had been in conformity with the 1972 Sterilisation Regulation. The expert opinion further indicated that surgery in the context of a Caesarean section resulted in scars on the uterus which affected its tissues. A third pregnancy following two deliveries by Caesarean section was dangerous for a mother and her child as there was a high risk of rupture of the uterus resulting in fatal bleeding during the pregnancy. The contemporary scientific view was that it was necessary to prevent further pregnancy in such cases. Sterilisation was not an operation aimed at the immediate saving of a woman’s life. However, where sterilisation was to be carried out, it was appropriate to do so in the context of surgery in the course of which the abdominal cavity was being opened, such as a Caesarean section. On 31 October 2003 the applicants and two other persons filed a complaint against the police investigator’s decision of 24 October 2003. On 9 March 2004 the regional prosecutor’s office in Košice dismissed the complaint, holding that the injured persons, including the applicants, were not entitled to file a complaint against the decision of 24   October   2003. In a separate letter of 9 March 2004 the regional prosecutor addressed the arguments of the complainants and found that the police investigator’s decision had been lawful and correct. On 15 April 2004 the applicants filed a request for the General Prosecutor to submit a complaint about a breach of law to the Supreme Court. The General Prosecutor’s Office considered it as a request for review of the lawfulness of the criminal proceedings. On 10 June 2004 it informed the applicants that their request had been rejected, and that the General Prosecutor fully approved the proceedings and the decision to terminate the investigation. On 1 June 2005 the Constitutional Court quashed the decision given by the regional prosecutor’s office in Košice on 9 March 2004 for the reasons set out below. On 28 September 2005 a public prosecutor of the regional prosecutor’s office in Košice dismissed a further complaint against the police investigator’s decision of 24 October 2003. The public prosecutor found that all the available and necessary evidence had been gathered with a view to determining the issue. It had not been shown that the medical doctors concerned had taken unauthorised actions with a view to preventing the birth of children or that they had otherwise acted in a manner contrary to the law. Following the Constitutional Court’s judgment of 13 December 2006 (see below) the Košice regional prosecutor’s office, on 9 February 2007, quashed the investigator’s decision of 24 October 2003 to discontinue the criminal proceedings. Subsequently, the police investigator examined and cross-examined the applicants and the medical staff. On 28 December 2007 the investigator again discontinued the proceedings, concluding that no criminal offence had been committed. On 4 January 2008 the applicants lodged a complaint. They argued that the investigator had failed to deal with all relevant aspects of the case and had not remedied the shortcomings to which the Constitutional Court had pointed in the judgment of 13 December 2006. In particular, the legal representatives of the first and the second applicants had not consented to the applicants’ sterilisation as required by the law and the third applicant had not given her informed consent to the operation. On 19 February 2008 the Košice regional prosecutor’s office dismissed the applicants’ complaint. The relevant parts of the decision read as follows: “...The investigation showed that not a single sterilisation was carried out with the aim of preventing the birth of children in the Roma ethnic community in Slovakia. The expert opinion in the field of gynaecology and obstetrics submitted by the Medical Faculty of the Comenius University in Bratislava ... showed that in each individual case the sterilisation of Roma women pursued the aim of protecting their health; in several cases it resulted in saving ... their life. The sterilisations were carried out in accordance with the law then in force, namely [the 1972 Sterilisation Regulation]... Witness statements and documentary evidence show that all the patients of Roma origin who were sterilised were advised by the physician involved and gave written consent to their sterilisation... [The applicants] allege that they did not give their ‘informed’ consent to sterilisation; they signed a form which they believed confirmed the fact that they had undergone a Caesarean section, or did not know what they were signing. A cross-examination was carried out of [the applicants] and [the four physicians involved] after which the latter firmly reiterated that the [applicants] had been duly advised of their sterilisation. [The applicants’] statements contradict the other evidence taken. The bulk of witnesses of Roma origin who were sterilised stated that they had been advised, even repeatedly, and that they had understood the nature and consequences of sterilisation. Witnesses [M.K., J.K. and K.Š.], physicians in the gynaecology and obstetrics department of Krompachy Hospital, categorically denied having sterilised women on their own initiative and without any medical indication or legal grounds. Their only aim in carrying out the operations had been the preservation of the health and life of the patients and their foetus... The expert opinion indicated, as a serious example of a patient’s refusal to consent to sterilisation, the case of [M.H.] who in 1999 had died, together with her child, because of her refusal to consent to her sterilisation. The expert opinion explains ... that in accordance with current medical opinion it is necessary to prevent further pregnancy in women who have undergone two Caesarean sections as there is a risk of complications which could result in the patients’ death. Sterilisation is a reliable method of preventing further pregnancy after two Caesarean sections... Witness statements [of three physicians in the gynaecology and obstetrics department of Krompachy Hospital] indicate that the sterilisation committee, composed of the hospital’s director, the head physician and the head nurse of the department, met as the need arose; in urgent cases its members were convened even when they were not on duty... In the cases of [the first and second applicants], who were minors and whose state of health required urgent surgery, it had been impossible to obtain the consent of their legal representatives. Witnesses [K.Š. and M.P.] ... stated that [the second applicant] had been an undisciplined patient without any interest in her pregnancy and that she had failed to attend ante-natal consultations. A similar statement was made by [B.B.], district gynaecologist, according to whom all Roma women including [the first applicant] knew what sterilisation implied; none of the patients had complained afterwards that they had been sterilised against their will. Witness [J.K.] stated that, in accordance with the charter of patients’ rights, the consent of a patient who was over the age of 16 sufficed where the physician concluded that the patient’s mind and will were sufficiently mature to be able to assess the consequence of his or her decision. That condition was met in the cases [of the first and the second applicants], who had previously given birth... Witness [J.P.], the legal representative of [the first applicant] and witness [B.K.], the legal representative of [the second applicant], stated that, if asked, they would certainly have given their agreement to sterilisation... It was also examined in the context of the investigation whether ... the physicians had not committed other criminal offences [than genocide]. No objective or subjective appearance of any criminal offence was established in any of the individual cases of sterilisation. In the present case no offence of causing harm to the rights of other persons within the meaning of Article 209 § 1 of the Criminal Code was committed, as the investigation showed that the injured persons had given their informed consent to sterilisation. ... The decision of [the police investigator] is correct and lawful.” On 16 March 2008 the applicants complained about that decision to the General Prosecutor’s Office. On 19 May 2008 the latter replied that no reason had been found for reaching a different conclusion. In particular, the prosecuting authorities had considered all relevant aspects of the case and had correctly concluded that no criminal offence had been committed. The General Prosecutor’s Office expressed the view that, contrary to what the prosecuting authorities at lower level had held, the applicants could not be considered as injured parties for the purpose of the criminal proceedings as they had suffered no harm to their health or other damage, and their rights had not been infringed. (b)     Civil proceedings In 2003 the applicants unsuccessfully requested doctors to assess the damage they had suffered, in accordance with Regulation No.   32/1965 as amended, so that they could claim damages before a court. On 5 September 2003 the Spišská Nová Ves District Court rejected their request for an interim measure ordering the doctors concerned to submit an opinion enabling the damage to be quantified. The court found that such an obligation could be imposed on medical professionals only in the context of regular proceedings concerning a claim for damages. On 12 February 2004 and 2 June 2004 respectively the first and second applicants claimed damages from Krompachy Hospital. They relied on Articles 420 and 444 of the Civil Code and claimed that they had been unlawfully sterilised by the defendant’s employees. The third applicant filed a similar action with the Spišská Nová Ves District Court on 7   October   2004. As regards the above mentioned civil actions of the first and the third applicants, the Regional Court in Košice, in 2005, quashed the first-instance decisions according to which the right claimed had lapsed. The Regional Court sent the cases back to the District Court in Spišská Nová Ves. On 22   March 2006 the District Court sought an expert opinion. As regards the proceedings concerning the civil action of the second applicant, the court of appeal returned the case to the court of first instance on 6 February 2006. In the context of appeal proceedings it was established that the private company which had started providing health care services including gynaecology and obstetrics in January 2004 was not the legal successor to Krompachy Hospital. On 28 March 2006 the district prosecutor’s office in Spišská Nová Ves admitted, in reply to the applicants’ complaint, that Krompachy municipality had been under an obligation to formally liquidate Krompachy Hospital after the above-mentioned private company had started providing health care services. On 4 July 2006 the prosecutor informed the applicants that the municipality envisaged doing so before the end of 2006. All three sets of proceedings are pending. (c)     Constitutional proceedings (i) Complaint of 24 May 2004 On 24 May 2004 the applicants lodged a complaint with the Constitutional Court under Article 127 § 1 of the Constitution. They referred to the above decisions by the police investigator of the regional criminal investigation department in Žilina and the regional prosecutor’s office in Košice of 24 October 2003 and 9 March 2004 respectively, and alleged that their rights under Articles 12 § 2, 16 § 2, 19 § 2 and 41 § 1 of the Constitution and Articles 3, 8, 12, 13 and 14 of the Convention had been breached. As regards Article 12 of the Convention in particular, the applicants alleged that in the absence of their genuine consent they had lost the possibility of having more children, as a result of which their relationships with their partners as well as their position within the family and the Roma community had been affected. On 16 March 2005 the Constitutional Court declared admissible the complaints under Articles 3, 8, 13 and 14 of the Convention and their constitutional equivalents relating to the above decisions of the criminal investigation department and the regional prosecutor’s office. It declared inadmissible the remainder of the applicants’ complaint. In particular, it found no causal link between the decisions of the police investigator and the public prosecutor and the applicants’ right under Article 12 of the Convention to found a family. On 1 June 2005 the Constitutional Court found that the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 13 and 3 of the Convention in that it had erroneously rejected their complaint against the police investigator’s decision of 24 October 2003 without addressing its merits. The Constitutional Court quashed the decision of the regional prosecutor’s office of 9 March 2004 and ordered that authority to examine the applicants’ complaint. That order, together with the finding of a violation of the applicants’ rights, was held to constitute sufficient just satisfaction in the circumstances of the case. The Constitutional Court did not accept that there had also been a violation of Articles 8 and 14 of the Convention as the assessment of those complaints depended on the outcome of the future proceedings before the prosecuting authorities. Finally, the Constitutional Court ordered the regional prosecutor’s office in Košice to reimburse the applicants’ costs and expenses in the constitutional proceedings. (ii) Complaint of 30 November 2005 On 30 November 2005 the applicants complained that the authorities involved in the above criminal proceedings had failed to ensure that the persons responsible for their sterilisation be prosecuted and that the applicants be awarded compensation. The applicants alleged a violation of Articles 3, 8, 13 and 14 of the Convention. They also relied on several constitutional rights. On 13 December 2006 the Constitutional Court found that by its decision of 28 September 2005 the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 3 and 8 of the Convention in their procedural aspect as well as the constitutional equivalents of those rights. The decision stated that it had not been appropriate to discontinue the criminal proceedings in the circumstances of the case. In particular, the prosecuting authorities had not duly examined whether the applicants had been sterilised with their informed consent and whether or not an offence had been committed in that context. The Constitutional Court quashed the decision in issue and ordered the regional prosecutor’s office to re-examine the case taking into account the applicants’ rights under Articles 3 and 8 of the Convention. The decision indicated the issues which the prosecuting authorities were required to clarify. The Constitutional Court awarded 50,000 Slovakian korunas (SKK) (the equivalent of 1,430 euros (EUR)) to each of the applicants. It ordered the regional prosecutor’s office to reimburse the applicants’ costs. (iii) Complaint of 24 April 2008 On 24 April 2008 the applicants complained under Articles 3, 8, 13 and 14 of the Convention about the Košice regional prosecutor’s decision of 19   February 2008 and the fact that their case had not been investigated in a prompt and efficient manner. The applicants indicated that they had also complained of that decision to the General Prosecutor’s Office by means of an extraordinary remedy and that the latter had not yet replied to them. On 3 June 2008 the applicants sent the Constitutional Court a copy of the letter of the General Prosecutor’s Office of 19 May 2008 rejecting their complaint about the regional prosecutor’s decision. The Constitutional Court rejected the applicants’ complaint on 29   July   2008. It held that the decision of the Košice regional prosecutor’s office of 19 February 2008 had been reviewed by the General Prosecutor’s Office at the applicants’ request. Any interference with the applicants’ rights which the Constitutional Court was entitled to examine in the context of the proceedings complained of therefore stemmed from the decision which the General Prosecutor’s Office had given on 19 May 2008. Since the applicants had exclusively challenged the decision of the regional prosecutor’s office and since the Constitutional Court was bound by the way in which they had specified the subject-matter of their complaint, the court concluded that it lacked jurisdiction to deal with the complaint. 3.   Accounts of sterilisation practices in Slovakia (a) Information submitted by the applicants The applicants referred to a number of publications pointing to a history of forced sterilisation of Roma women which had originated under the communist regime in Czechoslovakia in the early 1970s and which they believed had influenced their own sterilisation. In particular, they submitted that the Ministry of Health’s 1972 Sterilisation Regulation had been used to encourage the sterilisation of Roma women. According to a 1979 document by Charter 77, a Czechoslovakian dissident group, a programme had been launched in Czechoslovakia offering financial incentives for Roma women to be sterilised because of earlier unsuccessful governmental efforts “to control the highly unhealthy Roma population through family planning and contraception.” In 1992 a report by Human Rights Watch noted that many Roma women were not fully aware of the irreversible nature of the procedure and were forced into it because of their poor economic situation or pressure from the authorities. According to other reports, in 1999 nurses working in Finnish refugee reception centres informed researchers from Amnesty International that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female Roma asylum seekers from eastern Slovakia. The applicants further referred to a number of reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies such as the European Commission against Racism and Intolerance, the UN Human Rights Committee, the US Helsinki Commission, Amnesty International, the European Roma Rights Centre, Human Rights Watch and the International Helsinki Federation for Human Rights, requesting the Slovakian authorities to conduct an impartial and fair investigation into the allegations of forced and coerced sterilisation of Roma women in Slovakia or criticising the absence of such an investigation. In 2002 the Center for Reproductive Rights in collaboration with Centre for Civil and Human Rights conducted a fact-finding mission involving private interviews with more than 230 women in almost 40 Romani settlements in eastern Slovakia on topics including sterilisation practices, treatment by health-care professionals in maternal health-care facilities and access to reproductive health-care information. They also interviewed Slovak hospital directors, doctors, nurses, patients, government officials, activists, and non-governmental organisations on the same issues. In 2003 the above organisations published “ Body and Soul: Forced Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia ”. In it the authors concluded that there had been widespread violations of Romani women’s human rights in eastern Slovakia, such as coerced and forced sterilisation, misinformation in reproductive health matters, racially discriminatory access to health-care resources and treatment, physical and verbal abuse by medical care providers and denial of access to medical records. The publication also includes a set of recommendations with a view to remedying to the situation. [1] On 12 December 2005 the applicants submitted a statement by Julia Van Rooyen, M.D., written on behalf of Physicians for Human Rights. The statement expressed the view that accepted medical standards had been violated in the applicants’ cases. In particular, the author stated that sterilisation had never been a life-saving procedure, that full and informed consent must always be obtained prior to tubal ligation and that the medical literature supported the practice of vaginal birth after Caesarean section as safe and medically indicated where previous Caesarean sections had been low transverse sections. (b) Information relied upon by the respondent Government (i) Report of the Ministry of Health Following the publication of the Body and Soul Report the Ministry of Health established a group of experts with a view to investigating allegedly unlawful sterilisations and segregation of Roma women. The Ministry’s report of 28 May 2003 submitted to the Parliamentary Committee on Human Rights, Nationalities and the Status of Women indicated that the medical records of 3,500 women who had been sterilised and those of 18,000 women who had given birth by means of Caesarean section during the preceding 10 years had been reviewed. The rate of sterilisation of women in Slovakia amounted to only 0.1% of women of reproductive age. In European countries that rate was between 20   and 40%. The low rate of sterilisations in Slovakia was mainly due to the fact that the procedure was not widespread as a method of contraception. In the absence of official statistical data concerning the ethnic origin of the population, the expert group was able to assess the position as regards women of Roma ethnic origin only indirectly. In those regions where it was possible to indirectly assess the proportion of women of Roma ethnic origin, the frequency of sterilisation and Caesarean section in the Roma population was significantly lower than among the rest of the population. The frequency of sterilisations was statistically insignificantly higher in the Prešov and Košice regions than in other regions of Slovakia. The group concluded that in the hospitals investigated by its members no genocide or segregation of the Roma population had occurred. All cases of sterilisation had been based on medical indications. Certain shortcomings in health care and non-compliance with the regulations on sterilisation (such as failure to observe the administrative procedure) had been established in several cases. However, they affected the whole population regardless of patients’ ethnic origin. Hospitals in which administrative errors had been discovered had adopted measures with a view to eliminating them. In none of the hospitals visited by the expert group did there exist separate rooms for Roma women; all patients received treatment within the same hospital facilities. The report also contained a set of recommendations in the field of legislation and education of both medical personnel and persons of Roma ethnic origin. It indicated that due to the situation existing during the preceding decades, medical personnel and individuals were not on an equal footing as regards responsibility for maintaining and improving individuals’ state of health. This was reflected, in particular, in limited individual rights and responsibilities in matters of health care. Measures were recommended to ensure that individuals received the necessary information with a view to being able to give informed consent to their treatment or refuse it. Individual requests for medical intervention were to be made in a legally valid manner enabling the persons concerned to express their own free will after receiving the appropriate information. The measures recommended in the report comprised an amendment to the statutory rules on sterilisation. (ii) Position of the Slovakian Society for Planned Parenthood Representatives of the Slovakian Society for Planned Parenthood and Parenthood Education submitted a position on the Body and Soul Report. The authors of the position contested the allegation that obsolete and inappropriate medical methods were used in Slovakia when performing Caesarean sections. They argued that 80% of births after a previous Caesarean section in Slovakia were by vaginal delivery. Admittedly, the requirement of prior informed consent to sterilisation was absent in the regulatory framework in Slovakia. Informing the women concerned about the necessity of sterilisation in the process of delivery did not enable them to be informed in an optimal manner so that they could fully assess the repercussions of their decision to consent to the procedure. However, it was frequently the case with Roma women that they failed to visit ante-natal care centres. The only possibility for medical personnel to inform them about contraception and sterilisation was therefore the short period during the delivery. The medical practitioners involved in sterilisations acted in good faith and in accordance with the law in force. (iii) Position of Krompachy Hospital In a letter to the spokesman of the Ministry of Health dated 3   February   2003 the director of Krompachy Hospital contested the allegation that Roma women had been forcibly sterilised in his hospital. The letter contained the following information. In the area covered by Krompachy Hospital the post-natal mortality rate of Roma children had fallen from 25 per thousand in 1990 to 5 per thousand in 2002. The majority of deliveries in the hospital concerned Roma women; the peri-natal mortality rate was around 10 per thousand, that is, approximately the same as in other hospitals within the region. The Richnava Roma settlement (where the first and second applicants lived) was outside the area served by Krompachy Hospital. However, its staff did not refuse to treat inhabitants of that settlement, as it was closer than the hospital to which they administratively belonged. Between 1990 and 2003 150 women from Richnava settlement had given birth by vaginal delivery and 18 Roma women (that is, 12 per cent) had delivered by Caesarean section. The ratio was around 15 per cent nationwide. During the same period 801 Roma women had given birth in the hospital, of whom 75 (that is, 9.3 per cent) had undergone a Caesarean section. There had been a further 768 deliveries by women who were not of Roma origin. Of the latter, 139 women (that is, 18 per cent) had delivered by Caesarean section. Between 1999 and February 2003 there had been 28 sterilisations performed on women of Roma origin and 65 sterilisations of non-Roma patients. All patients had been duly advised and had signed the relevant request. Furthermore, Krompachy Hospital had carried out 96 procedures on Roma women who were experiencing difficulties in conceiving. In several cases the patients had become pregnant thereafter. The letter also mentioned the case of a Roma woman who had delivered her eighth child in 1998. As she had been brought to the hospital in a state of shock, the staff could not inform her about sterilisation prior to the delivery, which was carried out by Caesarean section. No sterilisation was performed and she was subsequently advised to undergo sterilisation after the post-natal period. The patient did not follow the medical advice. One year later she was brought to the hospital with bleeding, 14 days after the scheduled date of her ninth child’s delivery. Due to severe haemorrhagic shock she could not be saved. B.     Relevant domestic law and practice 1.     Constitution, Constitutional Court Act 1993 and relevant practice (a)     Constitution of the Slovak Republic Article 7 § 5 provides, inter alia , that international treaties on human rights and fundamental freedoms as well as international treaties which directly establish rights or obligations of natural or legal persons take precedence over the law provided that they were ratified and promulgated by means laid down by law. Article 12 § 2 guarantees fundamental rights and freedoms to everybody without distinction as to sex, race, colour, language, belief and religion, political or other opinion, national or social origin, membership of a national or ethnic group, property, birth or other position. Nobody may suffer any harm or be put in a position of advantage or disadvantage on these grounds. Article 16 § 2 provides that nobody may be subjected to cruel, inhuman or degrading treatment or punishment. Article 19 § 2 guarantees to all persons protection from unjustified interference with their private and family life. Article 41 § 1 provides that marriage, parenthood and the family are protected by law. Special protection is afforded to children and juveniles. Article 127, which came into effect on 1 January 2002, provides in its relevant part as follows: “1.     The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2.     Where the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash any such decision, measure or other interference. Where the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that the authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3.     In its decision on a complaint the Constitutional Court may grant appropriate financial satisfaction to the person whose rights under paragraph 1 have been violated.” (b) The Constitutional Court Act 1993 Section 20(1) of the Constitutional Court Act 1993 provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia , the matter concerned, the person against whom the complaint is directed and the decision which the plaintiff seeks to obtain; it must also specify the reasons for the request and indicate evidence in support of the complaint. Under paragraph 3 of section 20, the Constitutional Court is bound by a request from a plaintiff for proceedings to be started unless the Act expressly provides otherwise. Section 51 provides that the parties to proceedings on complaints lodged by natural or legal persons are the plaintiff and the person against whom the complaint is directed. Under section 53(1), a complaint to the Constitutional Court is admissible only where the applicant has used effective remedies provided for by the law to protect his or her fundamental rights. (c)     Practice of the Constitutional Court The Constitutional Court addressed the scope of its jurisdiction to interfere with decisions given by the authorities dealing with criminal cases, including public prosecutors, in its judgment II. ÚS 58/1998 of 13   January   1999 [2] . In particular, it held that it had power to examine such decisions exclusively from the point of view of their compliance with the Constitution and with international treaties governing human rights and freedoms ratified by the Slovak Republic. The Constitutional Court further held that it could review the alleged unlawfulness of an action by the authority concerned provided that it was relevant for the protection of a person’s constitutional rights. On 27 June 2003 the Constitutional Court delivered judgment   III.   ÚS 70/01, in which it found a violation of Article 16 § 2 of the Constitution as a result of the failure of the public prosecution auth