CEDH · CASELAW;CLIN;ENG — 26 avril 2022

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France (dec.) - 42821/18 Decision 26.4.2022 [Section V] Article 3 Degrading treatment Inhuman treatment Applicability to “feminising” medical procedures carried out on an intersex person during childhood, without the person’s knowledge or consent: question left open Article 6 Criminal proceedings Article 6-1 Access to court Limitation period invoked in response to a criminal complaint by an intersex person concerning feminising medical procedures carried out during childhood, where other remedies were still available: inadmissible Facts – The applicant, who was born in 1977, is an intersex person who during childhood and adolescence underwent “feminising” surgery and medical treatment. According to the applicant, this led to severe psychological and psychiatric problems and to her being recognised as a disabled worker. As a result, she lives on the allowance granted to her on that basis, remains unable to find stable employment and has difficulty integrating both socially and economically. The applicant stressed that her parents had received only partial and inaccurate information when she was born and when her treatment commenced, that the decision to carry out “feminising” treatment had been taken when she was too young to give her consent, and that she had not been informed subsequently of the purpose of the treatments she received. She alleged that she had only become aware of this in 2000 when some correspondence had been accidentally intercepted, and that it was not until 2014 that a medical professional had explained to her the meaning of her status and the purpose of the operations. In November 2015 the applicant lodged a criminal complaint with the tribunal de grande instance against persons unknown for assault, and applied to join the proceedings as a civil party. However, the investigating judge refused to institute an investigation on the grounds that the limitation period had expired in November 2005, that is, ten years after the victim had reached the age of majority. The applicant argued unsuccessfully that, since she had not been properly informed by the doctors treating her, there had been an “insurmountable obstacle to prosecution” prior to the interception of the letter in 2000 and that, accordingly, the limitation period was suspended and had not started to run until that date. Relying on Article 3 of the Convention, the applicant complained that she had not had the benefit of an effective official investigation into these facts. She alleged that the State had failed in its obligation to take effective action to protect her against the ill-treatment to which she had been subjected by others. Under Article 6 § 1 of the Convention, she maintained that the refusal to investigate in response to her complaint and her application to join the proceedings as a civil party amounted to a breach of her right of access to a court. Law – Article 3: (a) Applicability – Cases concerning medical interventions could also be examined under Article 8 of the Convention, including where the applicants maintained that the interventions in question had been carried out without the patient’s consent. To fall within the scope of Article 3, on which the applicant relied, ill-treatment had to attain a minimum level of severity. The assessment of this minimum was relative; it depended 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, and on whether he or she was in a vulnerable position. Although an intention to injure, humiliate or debase the victim was normally required in order for ill-treatment to come within the scope of Article 3, the absence of any such intention could not conclusively rule out the applicability of that provision. A medical procedure carried out in the absence of any therapeutic necessity and without the informed consent of the person concerned was liable to constitute ill-treatment within the meaning of Article 3. With regard to the first aspect, a measure which was of therapeutic necessity from the point of view of established principles of medicine could not in principle be regarded as inhuman and degrading. A medical necessity therefore had to be convincingly shown to exist. As to the second aspect, in the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity. If the patient was a minor, the informed consent of his or her legal representative was required. The sterilisation of a person performed without any therapeutic purpose and without his or her informed consent was incompatible in principle with respect for freedom and human dignity and amounted to treatment contrary to Article 3. The same was true of genital mutilation. The Court left open the question whether, in the light of the foregoing considerations, the “normalising” medical procedures in question were liable, in the specific circumstances of the present case, to come within the scope of Article 3, since the complaint under that provision was in any event inadmissible for failure to exhaust domestic remedies. (b) Exhaustion of domestic remedies – The applicant had not previously raised her Article 3 complaint, even in substance, with the Court of Cassation. Conclusion : inadmissible (non-exhaustion of domestic remedies). Article 6: A civil action for damages had not ceased to be available when the applicant had opted to lodge a criminal complaint with the senior investigating judge together with an application to join the proceedings as a civil party. Actions for damages became time-barred ten years after the bodily harm complained of had stabilised, a period which increased to twenty years in the case of harm caused, in particular, by torture or acts of barbarity, or by violence against a minor as complained of by the applicant. Indeed, the applicant had herself argued in her submissions to the Court that the damage of which she complained had not yet stabilised. Furthermore, it was clear from the Government’s observations that it remained open to the applicant to bring an action for damages against the public hospital in the administrative courts. It could not therefore be said that the applicant had been deprived of access to a court for the determination of her civil rights solely on account of the decision not to proceed with a judicial investigation in respect of her complaint and her application to join the proceedings as a civil party. Conclusion : inadmissible (manifestly ill-founded). (See also V.C. v. Slovakia , 18968/07, 8 November 2011, Legal summary ; ES v. France (dec.), 59345/11, 7 April 2015; Sow v.   Belgium , 27081/13, 19 January 2016)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes