Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE and DATE he made CARDINAL requests that a date be set for a hearing .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from the appointed experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court dismissed the applicant ’s appeal and upheld the ORG ’s appeal in part .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the court dismissed the applicant ’s appeal .


The applicant is an NORP national , born in DATE and currently residing in GPE .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicant is a member of ORG ( “ Cassa di previdenza e assistenza dei dipendenti della ORG ) . On DATE this fund was incorporated in the Mutual Fund W. ( “ ORG pensione dei dipendenti del FAC ” ) .

On DATE the applicant introduced a claim before ORG . Assuming that the decision taken on DATE was invalid , he requested the investigating judge to declare the stay of its execution .

In an order of CARDINAL DATE the GPE investigating judge accepted the applicant ’s claim .

On DATE the Mutual Fund I. challenged this order before ORG . It alleged , inter alia , that as Rule CARDINAL of the Fund ’s internal Rules contained an arbitration clause , the matter fell outside the ordinary courts’ jurisdiction .

The applicant contested the ORG ’s action , alleging that the latter ’s conclusion was contrary to ORG , DATE and DATE of the NORP LAW - guaranteeing the ORG fundamental rights , the principle of equality between citizens and the right to defend oneself in trial - and to LAW .

In a decision of CARDINAL DATE ORG revoked the order of CARDINAL DATE . It recalled that a distinction should be drawn between “ ordinary ” and “ extraordinary ” arbitration clause ( “ clausola di arbitrato rituale o irrituale ” ) . The first one was a substitute for the ORG ’s jurisdiction , aimed at obtaining a decision replacing a judgment , while the latter was a private agreement by which the parties conferred to an arbitrator the power to settle a litigation between them . An interim measure , such as the stay of execution , could be adopted only when an “ ordinary ” arbitration clause was at issue . Having found that the clause contained in LAW of the ORG ’s internal Rules was an “ extraordinary ” one , ORG declared that the action introduced by the applicant fell outside its jurisdiction ratione materiae . As the internal Rules had been freely accepted by the parties , the court considered that there was no appearance of a violation of the provisions invoked by the applicant .

This decision was final and not subject to any appeal . However , the Mutual Fund I. decided to convene a ORG assembly in order to take a new decision on the incorporation . According to the applicant , this was tantamount to an implicit acceptance of his complaints concerning the lawfulness of the decision of CARDINAL DATE .


CASE OF TERRA WONINGEN B.V. v. THE NETHERLANDS

Lack of jurisdiction (complaint inadmissible);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

ORG The applicant company have their registered office in GPE . Their business includes the development of real property .

ORG The company owns FAC flats in CARDINAL adjacent blocks situated on the PERSON in LOC , in a neighbourhood known as the ORG - zuid . These blocks of flats were built around DATE on land which , DATE , was levelled up to a height of QUANTITY above normal GPE level ( PERSON ) with silt dredged up from various docks of the nearby port of GPE .

ORG In DATE it was reported that a smell of mineral oil had been noticed in a garden in the GPE - Nieuwlandsepolder - zuid during digging . This and a survey by GPE ’s ORG of places where harbour silt had been discharged led ORG ( Openbaar Lichaam PERSON - a now defunct administrative body which used to exercise within the NORP estuary region authority transferred to it from ORG ( GPE ) ) to include the neighbourhood in its DATE programme of measures to be taken under LAW Act ( Interimwet Bodemsanering - see paragraph CARDINAL below ) and order ORG ( ORG PERSON ) to undertake an exploratory inspection ( oriënterend onderzoek - see paragraph CARDINAL below ) of the neighbourhood . The findings were such that in DATE ORG ( Inspectie Volksgezondheid ) advised the local residents not to eat fruit and vegetables grown in their own gardens or allotments . ORG of the province of GPE ordered a further inspection ( nader onderzoek - see paragraph CARDINAL below ) in DATE .

In DATE ORG submitted a report on its further inspection . It found that pollution caused by the heavy metals arsenic and mercury and by " drins " ( a group of compounds used as insecticides ) , especially dieldrin and isodrin , was severe in places ; where it occurred , it was generally present up to surface level . There were also moderate cadmium and lead pollution levels . The report noted that no covering layer of clean soil had been applied . The chapter headed " Findings " ( " Conclusies " ) included the following :

" It can be said that the additional concentration of chemicals as a result of the pollution of the soil is undesirable but not , given present ( relatively limited ) scientific knowledge , that it will cause noticeable or measurable harm to health . " ( p. CARDINAL )

The final chapter , headed " Recommendations " , stated that in unfavourable circumstances young children , if exposed to the pollution found , might absorb more than the acceptable DATE intake ( ORG ) of the pollutants concerned and that in many places the quantity of " drins " in the actual contact zone exceeded concentration level C given in the assessment tables of LAW ( see paragraph CARDINAL below ) . It was therefore recommended that an inspection should be carried out with a view to possibly cleaning the soil ( saneringsonderzoek - see paragraph CARDINAL below ) and determining

" how the detrimental effects of the soil pollution on public health and the environment can be eliminated , so as to achieve a result acceptable from the point of view of environmental hygiene " ( p. CARDINAL ) .

ORG In a letter of CARDINAL DATE ORG informed the local residents that the further inspection had led them to conclude that further soil cleaning measures were necessary . The letter referred to the " undesirable situation " caused by the presence of pollutants and their proximity to the surface and reiterated the advice to residents not to eat fruit and vegetables from their gardens . The letter went on to state that ORG had decided in principle to have the soil cleaned .

The draft of the decision was made available for public inspection for DATE from CARDINAL DATE ( see paragraph CARDINAL below ) .

ORG In a letter dated CARDINAL DATE ORG informed the municipal authorities of LOC that it had decided to order an inspection with a view to possibly cleaning the soil .

ORG implementation programme ( uitvoeringsprogramma ) for soil cleaning from DATE TIME ( see paragraph CARDINAL below ) included the Noord - Nieuwlandsepolder - zuid .

ORG On DATE the applicant company let a third - floor flat in CARDINAL of their blocks in the PERSON to a Mr W. as from DATE . The agreed rent was MONEY ( NLG ) DATE .

ORG On DATE Mr W. applied to ORG in PERSON for a ruling as to the fairness of the rent ( section CARDINAL ( CARDINAL ) of ORG GPE Act - see paragraph CARDINAL below ) .

A report established by a ORG inspector on DATE stated that there was neither serious overdue maintenance nor any " absolute or relative CARDINAL condition " , i.e. ground for reducing the rent to the legal minimum ( absolute of relatieve nulpunten ) . In the inspector ’s view , the standard of the flat should be assessed at CARDINAL points under the applicable point - rating system ( see paragraphs QUANTITY below ) .

At the hearing before ORG on DATE Mr W. submitted a copy of ORG letter of CARDINAL DATE ( see paragraph CARDINAL above ) but did not contest the inspector ’s findings .

ORG gave its ruling on DATE . It found that in view of factual circumstances relied on by the applicant company but overlooked by the inspector the standard of the flat should be assessed at CARDINAL points . On that basis it concluded that the agreed rent was not fair and assessed the fair rent at NLG CARDINAL.CARDINAL . It does not appear from the ruling that account was taken of ORG letter .

ORG On DATE the applicant company applied to ORG of PERSON for a binding decision ( see paragraph CARDINAL below ) . They contested certain factual assumptions made by ORG in regard to noise levels and argued that ORG had made a miscalculation ; the correct standard rating of the flat should be CARDINAL points . On that basis they sought an order to set the rent at NLG MONEY or , in the alternative , at the sum originally agreed ( NLG CARDINAL.CARDINAL ) .

ORG In the course of the ensuing proceedings , Mr PERSON argued that there was an " objectionable situation " ( hinderlijke situatie ) that justified reducing the points rating by CARDINAL points and setting the rent at the legal minimum , NLG CARDINAL ( point CARDINAL of Schedule IV to LAW Besluit huurprijzen woonruimte ) - see paragraph CARDINAL below ) . He submitted the following documents :

( a ) a copy of ORG letter of CARDINAL DATE ( see paragraph CARDINAL above ) ;

( b ) a copy of a decision given by ORG on DATE in a different but similar case concerning a flat in GPE ;

( c ) a copy of the letter of CARDINAL DATE from ORG to the municipal authorities of LOC ( see paragraph CARDINAL above ) ;

( d ) ORG implementation programme for soil cleaning from DATE TIME ( see paragraph CARDINAL above ) .

The applicant company , besides adducing further argument in support of their factual allegations , argued , inter alia , that the soil pollution should not be taken into account . Relying on the passage from the report of the further inspection quoted at paragraph CARDINAL above , they said that it did not appear from the report that there was " pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment " . In addition , the pollution found could not affect the standard of a third - floor flat without a garden . All things considered , there was no reason to deduct any points at all on this ground .

ORG gave its decision on DATE , assessing the standard of the flat at CARDINAL points and setting the rent at NLG MONEY with effect from DATE . Having regard to the fact that , after a further inspection as provided for by LAW , ORG had designated the area as one where soil cleaning was required , and had set it down in its DATE soil - cleaning programme for DATE as a site to be dealt with in accordance with that LAW , the court found it established that there was an " objectionable situation " that justified reducing the points rating by CARDINAL points and setting the rent at the legal minimum . Referring to its own precedent of CARDINAL DATE ( see paragraph CARDINAL below ) , it dismissed the applicant company ’s arguments that are summarised in the preceding paragraph . It did so in the following terms :

" CARDINAL.CARDINAL .... we consider that it is not for us to go into the question whether ORG acted correctly in making the decision pursuant to section CARDINAL ( CARDINAL ) , second sentence , of ORG , or whether that decision was well - founded . We should not even address such questions indirectly by weighing the findings of the investigation ( on a case - by - case basis ) when determining whether the ( absolute ) CARDINAL condition , as formulated under point CARDINAL of Schedule IV to the LAW implementing the Rents for LAW ... , is satisfied .

The ` serious danger etc.’ in the polder is necessarily implied by the decision of ORG to designate the site as one where soil cleaning is required [ saneringsgeval ] ; consequently , it is also established that the absolute CARDINAL condition ( which is formulated in identical terms ) is satisfied .

It makes no difference in this connection that the accommodation in question is a third - floor flat without a garden of its own . The pollution is present ` in the immediate vicinity’ of the accommodation . The [ applicant company ] have acknowledged that this expression is - justifiably – construed broadly in the relevant case - law . "

ORG The applicant company did not lodge an appeal against this decision ( see paragraph CARDINAL below ) .

ORG The following is a statement of the relevant domestic law and practice as they stood at the time of the events complained of .

ORG Rents for certain categories of housing accommodation are determined by ORG . With regard to all other housing accommodation , landlords and tenants of housing accommodation are in principle free to agree a rent between themselves ( section CARDINAL of the Rents for Housing Accommodation Act ) .

ORG However , section CARDINAL ( CARDINAL ) entitles both the landlord and the tenant , within DATE of entering into the tenancy agreement , to apply to ORG for a ruling on the fairness of the agreed rent .

ORG Parties are deemed to have agreed the rent found by ORG to be fair unless within DATE CARDINAL of them applies to ORG for a different decision ( section CARDINAL ( CARDINAL) ) .

ORG By LAW ( CARDINAL ) of ORG , no appeal lies against the decision of ORG other than an appeal on points of law " in the interests of the law " ( cassatie " in het belang der wet " - see paragraph CARDINAL below ) .

ORG Detailed substantive provisions for the implementation of ORG are to be found in LAW ( " the Ordinance " ) . The GPE is binding on ORG and ORG ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of ORG ) .

ORG According to LAW , the fairness of the rent for self - contained accommodation ( zelfstandige woonruimte ) such as the flat let to Mr PERSON by the applicant company must be assessed in accordance with the point - rating system set out in Schedule I to the GPE .

Under Schedule I , points are awarded for features relating to the standard of the accommodation itself - such as the type of dwelling ( house or flat ) , the size of the rooms , bathroom facilities and the standard of heating installations - and for features relating to the surroundings ( such as the proximity of public transport , schools and shops ) . CARDINAL points are deducted for the age of the accommodation and CARDINAL for " objectionable situations " ( such as persistent noise or pollution ) .

The " CARDINAL condition " system is succinctly explained in the explanatory memorandum to the GPE as follows :

" In the ORG ’s view , certain deficiencies of a technical or residential nature [ technische en woontechnische gebreken ] are so serious that they ipso facto stand in the way of rent increases . LAW ) refers in this connection to the serious deficiencies listed in PERSON to this GPE . These deficiencies are commonly referred to as ` zero conditions’ . If there is such a deficiency , ORG need not assess the seriousness of the situation [ hinder ] but must find without more ado that it is not reasonable to raise the rent . It must so hold even if the tenant does not explicitly rely on this deficiency .

The presence of a deficiency of the type referred to is considered unacceptable in view of the danger it presents . The deficiency ought therefore to be cured as soon as possible or the accommodation ought no longer to be occupied . However , as long as the accommodation continues to be occupied despite the unacceptable situation , it is not fair to raise the rent . "

ORG The range within which the rent is fair is calculated according to the resultant points rating . As a rule , the rent determined by ORG and by ORG will be at the higher end of the range ( section CARDINAL ( CARDINAL ) of the Ordinance ) ; however , the rent may be reduced if one of the " very serious deficiencies " or " absolute CARDINAL conditions " set out in Schedule IV to the GPE is established .

Schedule IV originally listed deficiencies relating to the accommodation itself , such as lack of a flush lavatory or cooking facilities , lack of main drainage , or gas pipes or electricity cables so dangerous that the public utility companies were not prepared to supply gas or electricity . Another such " absolute CARDINAL condition " was if accommodation was in such a poor state of repair that it was unsafe and therefore unfit for habitation . As of DATE , and without any separate explanatory memorandum , a fourth point was added to Schedule IV :

" The further inspection under LAW has indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment . "

ORG In DATE , partly owing to the discovery in DATE of cases of very extensive soil pollution , LAW ( of CARDINAL DATE ) was enacted . It entered into force on DATE . Its purpose was to set rules " aimed at eliminating within a short time or preventing soil pollution and its harmful effects where existing or potential pollution of the soil is such that there is a serious danger to public health or the environment " .

Section CARDINAL ( CARDINAL ) of this Act provided as follows :

" Over a period of DATE , the Provincial Executive shall each year draw up a programme for cleaning polluted soil . The programme shall indicate the cases within the territory of the province in which existing or potential pollution of the soil is such that there is a serious danger to public health or to the environment . The programme shall also indicate the cases in respect of which it must be determined whether such circumstances apply . "

ORG An explanation of various expressions used in the interim LAW and directions as to the manner in which the LAW was to be implemented were given in LAW .

ORG According to LAW , in the seventh revised version ( DATE ) , the possible danger had to be assessed as follows :

" During the parliamentary discussions of the bill [ which eventually entered into force as the interim Act ] this criterion was given the following construction . Direct and frequent contact between human beings or plant or animal life and the pollutants must either be present or imminent and it must be either certain or likely that such contact will be potentially detrimental to public health or the environment . On this construction , stress must be laid on the imminence of such contact and the probability of such detrimental effects . The expression ` serious danger’ therefore indicates an unacceptably increased risk rather than an acute threat ... [ Part II of the Guidelines ] mentions CARDINAL aspects which fall to be considered , namely the nature and concentration of the pollutants , the local pollution situation and the use made of the soil . The nature and concentration of the pollutants give an impression of the extent of the pollution and its possible effects . The local pollution situation gives an idea of the extent to which spreading or contact may occur . The use of the soil determines the likelihood of exposure to the pollutants and the resulting risks . A consideration of these CARDINAL aspects taken together [ integrale afweging ] must lead to an answer to the question whether cleaning is at all necessary or required as a matter of urgency ... " ( paragraph CARDINAL of Part I of LAW )

To assist in assessing the nature and concentration of the pollution , tables were drawn up listing the concentrations of various pollutants which , if exceeded , made action necessary . Concentration level A was the reference level below which no action was required . Concentration level B was the level indicating the need for a further inspection . Concentration level C necessitated an inspection with a view to possibly cleaning the soil as a matter of urgency .

ORG The stages in the preliminaries to soil cleaning , as they appeared from the Guidelines , were the following :

a ) preliminary measures , not laid down in the soil - cleaning programme :

( i ) a survey of the places where soil pollution might be expected ( inventarisatie ) . This might be based on complaints from individuals , as in the present case ( see paragraph CARDINAL above ) , an inspection of documents relating to land use or dumping , reports submitted by municipalities , or any other relevant information ;

( ii ) an exploratory inspection , the purpose of which was to gain a general idea of the nature , location and concentration of pollutants . This inspection was a limited one ;

b ) further measures , laid down in the soil cleaning programme :

( iii ) a further inspection , more extensive than the exploratory one , to obtain information which would make it possible to assess the dangers to public health and the environment , and hence to judge the necessity and urgency of cleaning the soil ;

( iv ) an inspection with a view to possibly cleaning the soil , the purpose of which was to enable a decision to be made on the necessary measures in the light of the budgetary and technical possibilities ;

( v ) the drawing up of a plan for actually cleaning the soil .

ORG LAW ( Temporary LAW provided as follows :

" CARDINAL . Before finally adopting a cleaning programme , the Provincial Executive shall make the draft available for public inspection with the reports of the inspections on which it is based . They shall at the same time send the draft to ORG [ ORG ] , the municipalities in their province and the ORG [ of ORG ] .

Before doing so , they shall give notice of the fact of making the draft available for public inspection in the Government Bulletin [ PERSON ] and in CARDINAL or more DATE papers or newspapers distributed in the province . These announcements shall also mention that members of the public are entitled to lodge objections in accordance with subsection ( CARDINAL ) below .

For DATE from DATE on which the draft of a programme is made available for public inspection , anyone may inspect free of charge the documents thus made available .

During the period referred to in subsection ( CARDINAL ) above , may lodge written objections to the draft , stating their reasons , with ORG . "

Paragraph CARDINAL.CARDINAL.CARDINAL of Part I of LAW made it clear that the final programme had to set out ORG views on any objections received and that such objections were to be appended to the final programme . Although the LAW did not provide for any form of appeal against the adoption of the programme , the objections were brought to the attention of the Minister , who was empowered to modify the provincial programme in a reasoned decision .

ORG The Soil Cleaning ( Temporary LAW was significantly amended by LAW . A number of its provisions , including sections CARDINAL and CARDINAL , were repealed .

The interim LAW as a whole was repealed by LAW DATE ( ORG Staatsblad ) DATE , no . CARDINAL ) , its provisions being incorporated into LAW ( Wet bodembescherming ) .

ORG Section CARDINAL of the Judicial Organisation Act provides as follows :

" CARDINAL . Except for an appeal on points of law [ filed by the Procurator - General with ORG ] ` in the interests of the law’ , an appeal on points of law against a judgment delivered by a district court in a civil case shall be allowed only :

- on the ground that the judgment did not state the reasons on which it was based ;

- on the ground that the judgment was not delivered in public ;

- on the ground of want of competence ;

on the ground that the district court exceeded its jurisdiction .

Except for an appeal on points of law ` in the interests of the law’ , appeals on points of law against a decision [ beschikking ] delivered [ following proceedings in camera where that is required by law ] by a district court in a civil case shall be allowed only on the grounds set out in DATE , DATE and DATE of subsection ( CARDINAL ) above . "

ORG An appeal on points of law " in the interests of the law " may be lodged with ORG ( PERSON ) by its Procurator - General ( procureur - generaal ) at his discretion and does not affect the parties’ rights and obligations as determined in the judgment or decision appealed against ( sections CARDINAL and CARDINAL of LAW ) .

ORG As mentioned in paragraph CARDINAL above , no explanation was given for introducing point CARDINAL of Schedule IV to the Ordinance . This situation has contributed to uncertainty as to how that provision is to be construed .

The first problem relates to the construction of the expression " under or in the immediate vicinity of the accommodation " . It is usually assumed in legal writing and the relevant case - law that this expression should be interpreted broadly .

The second problem relates to the question that was also at issue in the instant case : whether courts should themselves decide whether the " further inspection under LAW " justifies the conclusion that " pollution of the soil " is " such as to cause serious danger to public health or the environment " , or alternatively assume that such serious danger is present when the competent authorities have decided on the basis of a further inspection in a particular case that soil cleaning measures are required .

There is a difference of opinion on the latter point . A number of district courts have adopted the first view - see the following decisions : GPE ORG , DATE , ORG ) DATE , nos . CARDINAL and CARDINAL ; ORG , DATE , ORG , no . CARDINAL . Others have adopted the alternative view - see the following decisions : ORG , DATE , PERSON ( GPE Law Reports - NJ ) DATE , no . CARDINAL , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . DATE .

It would appear that the latter view is also that of the Deputy Minister ( Staatssecretaris ) for ORG ( who sets the rents for certain categories of housing accommodation and in so doing has regard to Schedule IV to the Ordinance ) , in the light of his letter of DATE , published in ORG at p. CARDINAL . This letter includes the following statement :

" Your view is that one may conclude from the drafting history and the wording of the fourth absolute CARDINAL condition in Schedule IV that this condition should always apply automatically in those cases in which ORG has decided that the situation is as set out in section CARDINAL ( CARDINAL ) , second sentence , of ORG . I can agree with your conclusion , while pointing out that the area in question should have been included in the soil - cleaning programme on the basis of the findings of a further inspection . "

In a case in which ORG ( Afdeling Rechtspraak ) of the Raad van State had to consider a rent decision of the Secretary of ORG in which point CARDINAL of Schedule IV had been applied to accommodation in the NORP in PERSON ( see next paragraph ) , it held that the Secretary of ORG " [ had ] not erred in considering it relevant that ORG of the province of GPE , in applying section CARDINAL of the Soil Cleaning ( Temporary LAW , [ had ] established on the basis of the report of the further inspection that there was a serious danger as referred to above " ( judgment of CARDINAL DATE , ORG , no . CARDINAL ) .

ORG As indicated in the previous paragraph , a number of the above - mentioned decisions and judgments relate to the Steendijkpolder , a polder adjoining the Noord - Nieuwlandsepolder - zuid which the municipal authorities of PERSON had had levelled up with polluted harbour silt and then sold as building land . Point CARDINAL of Schedule IV has consistently been held to be applicable to rents in that area : see ORG decision of DATE , ORG , no . DATE , and the judgment of ORG of the Raad van State of CARDINAL DATE , ORG , no . CARDINAL .

Mention may be made in passing of a judgment of ORG which seems also to adopt the alternative view . In its judgments of DATE ( cases ORG . CARDINAL , CARDINAL and CARDINAL , cited in the report of ORG judgment of DATE , GPE DATE , no . CARDINAL ) , ORG established that the municipality ( gemeente ) of PERSON was liable in tort for the sale of the PERSON as building land . ORG reasoning included the following :

" With regard to the liability of [ the municipality of ] PERSON , ORG notes first of all that as the Government [ rijksoverheid ] has decided in accordance with section CARDINAL et seq . of ORG that the soil should be cleaned , it must be held to have been established that there is in the present case a ` serious danger to public health or to the environment’ within the meaning of that LAW ( CARDINAL ) ) . "

No submissions challenging this reasoning were made in the ensuing appeals on points of law . In any event , ORG in its abovementioned judgment of DATE held the appeals to be unfounded and so allowed the judgment of ORG to stand .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

NORP The applicant , PERSON , is a NORP national . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .


Violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 13;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , who is of GPE ethnic origin , was born in DATE and lives in GPE . She finished compulsory education in the sixth grade and is unemployed . Her mother tongue is the GPE language , which she uses in DATE communication , together with a local dialect .

On DATE the applicant was sterilised while hospitalised at ORG in Prešov ( now known as ORG and ORG in LOC Hospital ” ) , which came under the management of ORG .

The procedure was carried out during the delivery of the applicant ’s second child via Caesarean section . The applicant ’s first delivery had also been via Caesarean section . The sterilisation of the applicant entailed tubal ligation by the ORG method , which consists of severing and sealing the Fallopian tubes in order to prevent fertilisation .

During her pregnancy the applicant did not have any regular checkups . She visited her general practitioner only once .

NORP The applicant was admitted to the gynaecology and obstetrics department of ORG on DATE shortly before TIME She came to the hospital in pain resulting from the progress of labour . On arrival the applicant was informed that the delivery would be via Caesarean section .

The delivery was documented in a written record indicating details of the labour and birth at regular intervals . The first entry in the record was at CARDINAL a.m. The applicant was subsequently monitored by ORG ( cardiotocography ) ; the last ORG entry was at TIME

According to the delivery record , after TIME , when labour was well established , the applicant requested sterilisation . That request is entered directly in the delivery record with the typed words “ Patient requests sterilisation ” . Below this is the shaky signature of the applicant . The signature was in an unsteady hand and the applicant ’s maiden name , which she used at the time , is split into CARDINAL words .

The applicant submitted that , after she had been in labour for TIME and was in pain , the medical personnel of ORG had asked her whether she wanted to have more children . The applicant responded in the affirmative but was told by the medical personnel that if she had CARDINAL more child , either she or the baby would die . The applicant started to cry and as she was convinced that her next pregnancy would be fatal , she told the medical personnel “ Do what you want to do ” . She was then asked to sign the delivery record under the note indicating that she had requested sterilisation . The applicant did not understand the term sterilisation and she signed the form out of fear that there would otherwise be fatal consequences . As she was in the last stage of labour , her recognition and cognitive abilities were influenced by labour and pain .

At TIME the applicant was put under anaesthesia , after which the delivery was completed via Caesarean section . In view of the state of the applicant ’s reproductive organs the CARDINAL doctors involved asked the head physician for an opinion as to whether they should perform a hysterectomy or a sterilisation . They subsequently performed tubal ligation on the applicant . The procedure ended at TIME and the applicant came round from the anaesthetic TIME later .

The words “ Patient is of GPE origin ” appear in the record of the applicant ’s pregnancy and delivery ( section “ Medical history ” , sub - section “ NORP and working conditions , especially during the pregnancy ” of the pre - printed form designed for that purpose ) .

During her hospitalisation on the gynaecology and obstetrics ward of ORG the applicant was accommodated in a room in which there were exclusively women of GPE ethnic origin . She was prevented from using the same bathrooms and toilets as women who were not of GPE origin .

The applicant has suffered serious medical and psychological aftereffects from the sterilisation procedure . Hence , at DATE and DATE she displayed the symptoms of a false pregnancy . She believed that she was pregnant and exhibited all the signs of pregnancy . However , the ultrasound examination revealed that she was not pregnant . Subsequently , in DATE , she was treated by a psychiatrist in NORP . According to the latter ’s statement , the applicant continues to suffer as the result of her infertility .

The applicant has also been ostracised by the GPE community . Her husband , the father of her children , left her several times owing to her infertility . In DATE the applicant and her husband divorced . The applicant maintained that her infertility was CARDINAL of the reasons for their separation .

A written statement by the Director of ORG dated DATE indicates that the applicant ’s first delivery in DATE ended with a Caesarean section as the size of the applicant ’s pelvis excluded a normal delivery . Prior to the delivery the applicant had attended a pre - natal care centre only twice , at the beginning of her pregnancy . After the delivery she was placed in a post - delivery room with sanitary equipment where she received medical care . On DATE she left the hospital without ORG consent and returned TIME later with sepsis caused by inflammation of the uterus . After CARDINAL days’ hospitalisation during which she received intensive treatment with antibiotics the applicant and her child were discharged from the hospital . The applicant was advised to visit a gynaecologist regularly but failed to do so .

During her second pregnancy , the applicant visited the pre - natal care centre only once , in the initial stages . At the time of the second delivery , owing to pain which the applicant experienced in the lower part of her uterus ( where she had been operated on during her first delivery ) and in view of the size of her pelvis , doctors indicated that a Caesarean section would be needed . They were of the view that there was a risk of rupture of the uterus . After they had explained to her the situation and the risks inherent in a possible third pregnancy , the applicant , who was fully aware of what was happening , signed the sterilisation request .

In a different statement dated DATE the Director of ORG denied deliberate and organised segregation of GPE women and the existence of so called “ Gypsy rooms ” . In practice , GPE women were frequently accommodated together at their own request .

On DATE , in response to the publication by ORG and Soul : Forced and Coercive Sterilisation and Other Assaults on ORG in GPE ” ( “ the Body and Soul Report ” ) , the Section for Human Rights and Minorities of the Government Office initiated a criminal investigation into the allegedly unlawful sterilisation of several different GPE women .

The criminal investigation was conducted within ORG of ORG in GPE by ORG . Several decisions were issued by the investigator , public prosecutors at several levels and ORG . The proceedings were ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of GPE ethnic origin ( further details are set out in GPE , GPE and GPE v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .

The applicant did not initiate any individual criminal proceedings .

In DATE , after the release of the Body and Soul Report , the applicant learned that a tubal ligation was not life - saving surgery as alleged by the medical personnel of ORG and that the patient ’s full and informed consent to such a procedure was required . For this reason , she unsuccessfully tried to review her medical records . She was allowed access to her medical file with her lawyer in DATE following a judicial order to that effect .

On DATE the applicant lodged a claim with the ORG under Articles CARDINAL et seq . of LAW , seeking protection of her personal rights . She submitted that the sterilisation performed on her had been carried out in violation of NORP legislation and international human rights standards including Articles CARDINAL , DATE , DATE and DATE of the Convention . The applicant argued that she had not been duly informed about the procedure as such , its consequences and alternative solutions . She requested an apology for the procedure and claimed compensation for non - pecuniary damage .

In the course of the proceedings ORG considered documentary evidence and obtained a number of statements from the applicant as well as from the medical personnel of ORG .

NORP In particular , the applicant described the circumstances in which she had given birth in ORG and how she had been asked to sign the relevant entry in the record . She also stated that the father of her children had left her for DATE owing to her infertility and that they had experienced problems in their relationship for that reason . She outlined the health problems which she was experiencing .

Doctor Č. of ORG , who had performed the procedure on the applicant , stated that he did not specifically remember the applicant or the circumstances of her hospitalisation . His statement was based on the information in the applicant ’s medical file . He alleged that the applicant had been fully informed about her medical condition and the progress of the labour TIME prior to the delivery . The information about the need for sterilisation had been conveyed to her by the head doctor of the gynaecology and obstetrics ward , as well as the second doctor who had participated in the surgery , and also by the anaesthetist . The sterilisation had been carried out at the applicant ’s request as a medical necessity . A possible third pregnancy could have been risky for the applicant unless she was monitored regularly during the pregnancy . Doctor PERSON stated that the sterilisation of the applicant had not been life - saving surgery .

Doctor PERSON , head doctor of the gynaecology and obstetrics ward of ORG , stated that he fully agreed with the testimony of Doctor Č. Doctor PERSON did not specifically recall the case of the applicant either . He assumed that her case was the same as other similar cases . He had not been present during the delivery and the sterilisation of the applicant but had been told about her case by other doctors . He described the sterilisation procedure as governed by the relevant law . In the case of the applicant , there had been no time to convene any committee as she had come to the hospital a very short time before delivery .

Doctor PERSON further stated that , after he had designated his colleagues PERSON and ORG to perform the surgery , he had also asked them to find out whether the patient would agree to sterilisation , and to have her consent confirmed by a signature . Even if a patient refused to give written consent to sterilisation , it could be carried out under LAW , which permitted such a move in the case of danger to a person ’s life .

In the civil proceedings , the applicant also submitted a psychologist ’s assessment of her mental capacity dated DATE . It indicated that her intellectual capacity was very low , on the verge of mental retardation , but that her thinking was well developed in relation to practical issues . The psychologist concluded that communication with the applicant needed to be adapted to her mental and language skills . No mental illness was detected that would prevent the applicant from making decisions concerning her life and assuming responsibility for matters related to her life .

On DATE the ORG dismissed the action . It held that the procedure had been performed only after the medical personnel had obtained the applicant ’s signature . It admitted that the applicant ’s signature on the delivery record had been obtained shortly before the Caesarean section was performed , when the applicant had been in “ a supine position ” . The procedure had been performed on medical grounds . It had been necessary owing to the applicant ’s poor medical condition . The medical personnel had proceeded in accordance with the law .

The fact that the procedure had not been approved earlier by a sterilisation committee amounted only to a failure to meet the formal requirements ; it could not have interfered with the applicant ’s personal integrity as protected by Articles CARDINAL et seq . of LAW . No violation of the applicant ’s rights under the LAW had been established .

Finally , ORG held that the applicant ’s situation was not irreversible as there was a possibility of in vitro fertilisation .

On DATE the applicant appealed . She maintained that she had been sterilised without her full and informed consent in a situation where she had not been able to understand fully the nature and consequences of the procedure . There were gaps and inconsistencies in the statements of the medical personnel and the medical file contained no record of her having been duly informed about the procedure , its irreversible character and the alternative methods . In violation of the legislation in force the sterilisation had not been approved by a sterilisation committee . A tubal ligation could not be considered as life - saving surgery . The applicant relied on documents issued by international medical organisations .

On DATE the ORG upheld the firstinstance judgment . It concluded that the applicant ’s sterilisation had been performed in accordance with the legislation in force and that it had been required by her medical condition .

The appellate court referred to the statements by the physicians involved and held that there had been a risk of rupture of the applicant ’s uterus . The applicant had requested sterilisation after she had been duly informed of her state of health . The procedure had complied with the relevant provisions of the CARDINAL Sterilisation Regulation . The decision as to whether or not sterilisation was required lay in such circumstances with the head physician . Prior approval by a sterilisation committee was required only where sterilisation was to be carried out on healthy reproductive organs . However , this had not been the case with the applicant .

On DATE the applicant lodged a complaint with ORG . With reference to her sterilisation and the ordinary courts’ conclusions in the above - mentioned civil proceedings , she submitted that she had been subjected to sterilisation in ORG without her informed consent and that she had been unable to obtain redress as a result of the conduct and decision of ORG . She alleged that the latter had thereby breached her constitutional rights and freedoms prohibiting discrimination and cruel , inhuman or degrading treatment or punishment , her right to protection from unjustified interference with her private and family life and her right to protection of her family , as well as her rights under LAW , DATE , DATE , DATE and CARDINAL of LAW CARDINAL of ORG . The applicant requested that ORG quash ORG judgment .

On DATE ORG dismissed the complaint as being manifestly ill - founded ( for further details see the decision on the admissibility of the present application of DATE ) .

The applicant referred to a number of publications pointing to a history of forced sterilisation of GPE women which had originated under the NORP regime in GPE in DATE and which she believed had influenced her own sterilisation .

NORP In particular , the applicant submitted that ORG DATE Sterilisation Regulation had been used to encourage the sterilisation of GPE women . According to a DATE document by LAW , a NORP dissident group , a programme had been launched in GPE offering financial incentives for GPE women to be sterilised because of earlier unsuccessful government efforts “ to control the highly unhealthy NORP population through family planning and contraception . ”

The applicant further maintained that in LOC PERCENT of the sterilisation operations performed from DATE had been on GPE women , who represented PERCENT of the population of the district . Another study found that in DATE PERCENT of sterilised women in eastern GPE ( the region where the applicant resides ) were GPE ; by DATE , this figure had risen to PERCENT .

In DATE a report by ORG noted that many GPE 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 DATE nurses working in NORP refugee reception centres informed researchers from ORG that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female GPE asylumseekers from eastern GPE . All the reports cited identified ORG as CARDINAL of the hospitals where such sterilisation practices were applied .

The Government submitted that health care in GPE was provided to all women equally . Statistical data based on the ethnic origin of patients were generally not gathered as this was considered to be contrary to ORG human rights .

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 GPE women .

The ORG ’s report of CARDINAL DATE , submitted to the parliamentary committee on human rights , nationalities and the status of women , indicated that the medical records of CARDINAL women who had been sterilised and those of QUANTITY women who had given birth by means of Caesarean section during DATE had been reviewed .

The rate of sterilisation of women in GPE amounted to PERCENT of women of reproductive age . In other NORP countries that rate was PERCENT . The low rate of sterilisation in GPE was mainly due to the fact that the procedure was not widely used as a method of contraception .

In the absence of official statistical data concerning the ethnic origin of inhabitants , the expert group could assess only indirectly the position regarding women of GPE ethnic origin . In those regions where it was possible to indirectly assess the proportion of women of GPE ethnic origin , the frequency of sterilisation and Caesarean section in the GPE population was significantly lower than among the rest of the population . The frequency of sterilisations was statistically insignificantly higher in the LOC and ORG regions than in other regions of GPE .

The group concluded that in the hospitals investigated by its members no genocide or segregation of the GPE 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 identified in several cases . However , they affected the whole population equally regardless of ORG 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 GPE women ; all patients received treatment within the same hospital facilities . Owing to the situation existing during DATE , medical personnel and individuals were not on an equal footing with regard to responsibility for maintaining and improving ORG state of health . This was reflected , in particular , in limited individual rights and responsibilities in matters of health care . Measures had been recommended to ensure that individuals received the necessary information to enable them to give informed consent to their treatment or refuse it . Individual requests for medical intervention were to be made in a legally valid manner permitting the persons concerned to express their own free will after receiving the appropriate information .

The measures recommended in the report consisted in the amendment of the legal rules on sterilisation with a view to ensuring compliance with , inter alia , ORG , which GPE had ratified . The report also contained a set of recommendations regarding the education of medical staff , focusing on “ cultural differences in regions with an increased concentration of GPE communities ” . In order to educate the GPE population in the area of health care , ORG in GPE was to establish , in cooperation with ORG , a network of health care assistants who would receive special training and operate in GPE settlements .

At the hearing the Government indicated that it was open to women allegedly affected by malpractice in the context of sterilisation to claim compensation before the civil courts . According to the information available to the Government , there were CARDINAL sets of proceedings of that kind pending before the NORP courts . CARDINAL other sets of proceedings had ended in a final decision . In CARDINAL of them the claimants had been successful .

Under LAW , natural persons have the right to protection of their personal rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .

Under LAW , natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be erased . They also have the right to appropriate just satisfaction .

Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been significantly diminished , he or she is also entitled to financial compensation for non - pecuniary damage .

Regulation No . Z-CARDINAL CARDINAL/CARDINAL-B/CARDINAL of ORG of the Slovak Socialist Republic , published in ORG . CARDINAL - CARDINAL/CARDINAL ( “ the DATE LAW ” ) and applicable at the relevant time , contained guidelines governing sterilisation in medical practice .

Section CARDINAL permitted sterilisation in a medical institution either at the request of the person concerned or with that person ’s consent where , inter alia , the procedure was necessary according to the rules of medical science for the treatment of a person ’s reproductive organs which were affected by disease ( section CARDINAL(a ) ) , or where the pregnancy or birth would seriously threaten the life or health of a woman whose reproductive organs were healthy ( section CARDINAL(b ) ) .

Section CARDINAL(CARDINAL)(a ) authorised the head physician of the hospital department in which the person concerned was treated to decide whether or not that person ’s sterilisation was required within the meaning of section CARDINAL(a ) of the DATE Sterilisation Regulation . Sterilisation on any other ground required prior approval by a medical committee ( “ sterilisation committee ” ) .

Point XIV of the ORG to the DATE Sterilisation Regulation indicated the following as obstetric or gynaecological reasons justifying a woman ’s sterilisation :

( a ) during and after a second or subsequent Caesarean section , where this method of delivery was necessary for reasons which were likely to persist during a further pregnancy and where the woman concerned did not wish to deliver again via Caesarean section ;

( b ) in the event of repeated complications during pregnancy , in the course of delivery and in the subsequent DATE period , where a further pregnancy would seriously threaten the woman ’s life or health ;

( c ) where a woman had several children ( CARDINAL children for women under DATE and CARDINAL children for women over that age ) .

The Regulation was repealed by LAW with effect from DATE ( see below ) .

At the relevant time the following provisions of Law no . CARDINAL/CARDINAL on ORG ( ORG o zdravotnej starostlivosti – “ the Health Care Act DATE ” ) were in force .

Section PERSON ) made medical treatment subject to the patient ’s consent . A patient ’s consent to medical procedures of a particularly serious character or which substantially affected a person ’s future life had to be given in writing or in another provable manner ( section CARDINAL ) ) .

Under LAW ) the doctor was obliged to advise the patient , in an appropriate and provable way , about the nature of his or her illness and the necessary medical procedures , so that the doctor and the patient could actively cooperate in the patient ’s treatment . The amount of information which it was appropriate to provide to the patient was to be determined by the doctor in the light , and was not allowed to affect the patient ’s treatment .

Law no . CARDINAL on health care and health care services and on the amendment and completion of certain Acts ( PERSON o zdravotnej starostlivosti , službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “ LAW CARDINAL ” ) came into force on DATE and became operative on DATE .

Section CARDINAL governs the provision of information to and giving of informed consent by patients . Pursuant to sub - section CARDINAL , medical practitioners are obliged , unless the law provides otherwise , to inform the persons listed below about the aim , nature , consequences and risks of treatment , the possibility of choice as to the proposed procedures and the risks connected with refusal to accept treatment . This obligation to inform extends , inter alia , to the person to be treated or another person chosen by the former ; to the statutory representative or guardian where health care is to be provided to a minor , a person deprived of legal capacity or a person with limited legal capacity ; and , in an appropriate manner , also to persons incapable of giving informed consent .

Section CARDINAL(CARDINAL ) obliges medical practitioners to provide information comprehensibly , considerately and without pressure , allowing the patient the possibility and sufficient time to freely give or withhold his or her informed consent , and in a manner appropriate to the maturity of intellect and will and the state of health of the person concerned .

Section PERSON ) provides that any person entitled to such information also has the right to refuse it . Such refusal has to be recorded in writing .

Pursuant to section CARDINAL(CARDINAL ) , informed consent is provable consent to treatment preceded by information as stipulated by LAW . A written form of informed consent is required , inter alia , in the case of sterilisation . Everyone with the right to give informed consent also has the right to freely withdraw that consent at any time .

Section CARDINAL reads as follows :

“ ( CARDINAL ) Sterilisation for the purposes of this law shall mean the prevention of fertility without the removal or impairment of a person ’s reproductive organs .

( CARDINAL ) Sterilisation may be performed only on the basis of a written request and written informed consent following the provision of information to a person with full legal capacity or to the statutory representative of a person not capable of giving informed consent , or on the basis of a court decision issued on an application by the statutory representative .

( CARDINAL ) The information preceding a person ’s informed consent must be provided as specified by section CARDINAL(CARDINAL ) and must encompass :

( a ) alternative methods of contraception and planned parenthood ;

( b ) the possibility of a change in the life circumstances which led to the request for sterilisation ;

( c ) the medical consequences of sterilisation as a method aimed at the irreversible prevention of fertility ;

( d ) the possibility that the sterilisation might fail .

( CARDINAL ) The request for sterilisation is to be submitted to a [ health care ] provider who carries out sterilisations . Requests for female sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of gynaecology and obstetrics ; requests for male sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of urology .

( CARDINAL ) Sterilisation may not be carried out DATE after informed consent has been given . ”

Section CARDINAL repeals the DATE Sterilisation Regulation .

Article IV of the Health Care Act CARDINAL introduces the offence of “ unlawful sterilisation ” , which is included in LAW as Article CARDINALb . ORG - paragraph CARDINAL of Article PERSON provides that anybody who sterilises a person contrary to the law is to be punished by a prison term of DATE , by a prohibition on carrying out his or her activity or by a pecuniary penalty . The prison term may be CARDINAL when the offence was committed in aggravating circumstances ( subparagraph CARDINAL ) .

DATE . The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine ( Council of Europe Treaty Series No . CARDINAL ) was ratified by GPE on DATE and entered into force in respect of GPE on DATE . The corresponding notification , together with the text of the ORG , were published in LAW under number CARDINAL on DATE . The relevant provisions read as follows :

“ Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone , without discrimination , respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine .

Each ORG shall take in its internal law the necessary measures to give effect to the provisions of this Convention .

“ Any intervention in the health field , including research , must be carried out in accordance with relevant professional obligations and standards . ”

“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time .

“ When because of an emergency situation the appropriate consent can not be obtained , any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned . ”

The relevant parts of ORG to ORG provide :

“ DATE Professional standards

Further , a particular course of action must be judged in the light of the specific health problem raised by a given patient . In particular , an intervention must meet criteria of relevance and proportionality between the aim pursued and the means employed . Another important factor in the success of medical treatment is the patient ’s confidence in his or her doctor . This confidence also determines the duties of the doctor towards the patient . An important element of these duties is the respect of the rights of the patient . The latter creates and increases mutual trust . The therapeutic alliance will be strengthened if the rights of the patient are fully respected .

DATE General rule

This article deals with consent and affirms at the international level an already well - established rule , that is that no one may in principle be forced to undergo an intervention without his or her consent . Human beings must therefore be able freely to give or refuse their consent to any intervention involving their person . This rule makes clear ORG autonomy in their relationship with health care professionals and restrains the paternalist approaches which might ignore the wish of the patient . ...

The patient ’s consent is considered to be free and informed if it is given on the basis of objective information from the responsible health care professional as to the nature and the potential consequences of the planned intervention or of its alternatives , in the absence of any pressure from anyone . DATE , paragraph CARDINAL , mentions the most important aspects of the information which should precede the intervention but it is not an exhaustive list : informed consent may imply , according to the circumstances , additional elements . In order for their consent to be valid the persons in question must have been informed about the relevant facts regarding the intervention being contemplated . This information must include the purpose , nature and consequences of the intervention and the risks involved . Information on the risks involved in the intervention or in alternative courses of action must cover not only the risks inherent in the type of intervention contemplated , but also any risks related to the individual characteristics of each patient , such as age or the existence of other pathologies . Requests for additional information made by patients must be adequately answered .

Moreover , this information must be sufficiently clear and suitably worded for the person who is to undergo the intervention . The patient must be put in a position , through the use of terms he or she can understand , to weigh up the necessity or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause .

DATE Emergency situations

In emergencies , doctors may be faced with a conflict of duties between their obligations to provide care and seek the patient ’s consent . This article allows the practitioner to act immediately in such situations without waiting until the consent of the patient or the authorisation of the legal representative where appropriate can be given . As it departs from the general rule laid down in DATE , it is accompanied by conditions .

First , this possibility is restricted to emergencies which prevent the practitioner from obtaining the appropriate consent ... An example that might be put forward is that of a patient in a coma who is thus unable to give his consent ( see also paragraph CARDINAL above ) , or that of a doctor who is unable to contact an incapacitated person ’s legal representative who would normally have to authorise an urgent intervention . Even in emergency situations , however , health care professionals must make every reasonable effort to determine what the patient would want .

ORG , the possibility is limited solely to medically necessary interventions which can not be delayed . Interventions for which a delay is acceptable are excluded . However , this possibility is not reserved for life - saving interventions .

Lastly , the article specifies that the intervention must be carried out for the immediate benefit of the individual concerned . ”

In his recommendation following fact - finding missions to GPE the Commissioner for Human Rights of ORG indicated , inter alia :

“ CARDINAL . The issue of sterilizations does not appear to concern exclusively CARDINAL ethnic group of the NORP 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 NORP population of eastern GPE has been at particular risk .

The initiative of the authorities to investigate into the sterilization practices in the country is welcomed . ORG engaged in an open and constructive dialogue with the Commissioner concerning this difficult issue . It is also encouraging to note that the Government is considering ways of improving the country ’s health care system in general , including reproductive health care , and access to it for vulnerable persons , including GPE women in particular .

The Commissioner is concerned about what appears to be a widespread negative attitude towards the relatively high birth rate among the GPE as compared with other parts of the population . These concerns are often explained with worries of an increased proportion of the population living on social benefits . Such statements , particularly when pronounced by persons of authority , have the potential of further encouraging negative perceptions of the GPE among the non - GPE population . It can not be excluded that these types of statements may have encouraged improper sterilization practices of GPE women .

In view of the difficulties encountered during the investigations , and limitations surrounding them , initiated by the Government , it is unlikely that they will shed full light on the sterilizations practices .

However , 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 GPE , 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 , ORG 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 sterilization practices although allegations of improper sterilizations have been made throughout the DATE ’s and DATE . ”

The relevant part of the Commissioner ’s follow - up report on GPE of DATE ( CommDH(CARDINAL)CARDINAL ) reads as follows :

“ CARDINAL . The involuntary sterilisation of GPE women

Development of the situation and measures taken

The allegations of forced and coerced sterilizations of GPE women in GPE were considered as a possible grave violation of human rights and therefore taken very seriously by ORG . A considerable effort was devoted to their thorough examination . In addition to a criminal investigation , a professional medical inspection of healthcare establishments was organised and an expert opinion of ORG of ORG in GPE requested . It was not confirmed that ORG would have supported an organized discriminatory ORG policy . Legislative and practical measures were taken by the ORG in order to eliminate the administrative shortcomings identified in the course of inquires and to prevent similar situations from occurring in the future .

LAW , which came into effect on DATE , sought to deal with these issues by including sections on sterilisation , informed consent and access to medical records . The law was elaborated in accordance with ORG , and among other things , eliminates the deficiencies in legislation found in the course of the investigations . The law , inter alia , guarantees informed consent and requires health care professionals to provide information to patients before , for example , undergoing sterilisation . It also requires a DATE waiting period after informed consent is given . In addition , the new law addresses the problem many individuals face in accessing their medical records . The law explicitly allows authorisation by the patient to another person , through a power of attorney , to view and photocopy their files .

Women allegedly harmed by sterilisation have the right to turn to the NORP courts with a request for compensation and it is the view of the NORP authorities that the existing legal framework offers them sufficient possibilities to seek compensation . Some of the cases have been concluded by rejecting the complaint or by halting proceedings . In other cases , court proceedings are still underway .

Conclusions

The Commissioner welcomes the coming into force of LAW , and its provisions on informed consent and access to medical records . These were crucial issues which the Commissioner had addressed in his Recommendation to the NORP authorities , and he is pleased to see that the new law has explicitly addressed these problem areas .

The Commissioner notes with regret that the NORP authorities have not yet established an independent commission to provide compensation or an apology to the victims . While victims may seek redress through the court system , in these types of cases , litigation has its practical shortcomings . These include the difficult and costly nature of obtaining legal counsel , particularly , for GPE women living in marginalised communities , and the extremely high evidential standards .

The Commissioner again encourages the authorities to consider creating an independent commission that might , on the examination of each case , provide effective and rapid non - judicial redress . Such redress would be given to individual applicants , who could show that appropriate procedures were not followed , without there necessarily having been intent or criminal negligence on the part of individual medical staff , but because of systemic shortcomings in the procedures permitted , and that in their particular case , sterilisation was without informed consent . Such a Commission might allow for alleged cases to be examined thoroughly , but with fewer formalities and less cost for applicants , than judicial proceedings . ”

ORG against Racism and Intolerance ( ECRI ) published its third report on GPE on DATE . The relevant parts read as follows :

“ ... The GPE minority remains severely disadvantaged in most areas of life , particularly in the fields of housing , employment and education . Various strategies and measures to address these problems have not led to real , widespread and sustainable improvements , and the stated political , priority given to this issue has not been translated into adequate resources or a concerted interest and commitment on the part of all the administrative sectors involved . Public opinion towards the GPE minority remains generally negative .

Allegations of sterilisations of GPE women without their full and informed consent

ORG is very concerned by reports which came to national and international attention at DATE claiming that GPE women have , in DATE and on an on - going basis , been subject to sterilisations in some hospitals in LOC without their full and informed consent . ...

Recommendations :

ORG is of the opinion that the possibility of sterilisations of GPE women without their full and informed consent necessitates immediate , extensive and thorough investigation . It seems clear to ORG that in such investigations , attention should be focused not on whether a signed form can be produced , but on whether the women involved were fully informed of what they were signing and the actual implications of sterilisation . ...

ORG also recommends that , prior to and notwithstanding the outcome of the investigation , more adequate safeguards should be put in place to forestall any further problems or lack of certainty in this area . In fact , the authorities have acknowledged there remains at present , at the legal level , some anomalies between the law in force and specific regulations issued previously . Clear , detailed and coherent regulations and instructions should thus be issued immediately to ensure that all sterilisations are being carried out in accordance with best medical knowledge , practice and procedures , including the provision of full and comprehensible information to patients about the interventions proposed to them . ”

In its next periodic report ( fourth monitoring cycle ) on GPE , published on CARDINAL DATE , ORG concluded as follows :

“ CARDINAL . ORG notes with concern that the problems as regards investigations into allegations of sterilisations of GPE women without their full and informed consent noted in its third report remained . The authorities continued to investigate these allegations under the crime of genocide rather than , for example , under the crimes of assault or of inflicting grievous bodily harm . The angle under which these allegations were investigated thus rendered proof of a crime having been committed virtually impossible and the possibility for redress through the courts almost null . The investigations also reportedly continued to focus on the issue of consent forms being signed rather than on whether full prior information was provided . Due to these flaws , in most cases , the courts decided that the allegations were unproven . ORG wishes to stress that at the very least , the authorities should secure legal aid to victims so that they can seek compensation through civil law .

Some legislative measures have been taken to provide better legal safeguards against the practice . LAW has been amended to include the crime of “ illegal sterilisation ” and it provides for a DATE waiting period from the time the patient has given her consent before the sterilisation is carried out . LAW No . CARDINAL/CARDINAL Coll . on ORG which entered into force on DATE provides that sterilisation can only be performed following a written request and informed written consent from a person who has been previously informed and is fully legally responsible for him / herself , or from a person who legally represents them and can provide their informed consent , or on the basis of a court decision based on a request by a legal representative . The patient information session preceding consent must be carried out according to the law and must include information on alternative methods of contraception and family planning , possible changes in life circumstances which led to the request for sterilisation , the medical consequences of sterilisation and the possibility that the sterilisation may fail .

While welcoming these legislative developments , ORG regrets that due to the above - mentioned problems in the investigations of allegations of sterilisations of GPE women without their full and informed consent , no redress has been possible for the majority of women involved .

ORG recommends that the NORP authorities monitor all facilities which perform sterilisations to ensure that the legislative safeguards concerning this procedure are respected . It also urges the authorities to take steps to ensure that complaints filed by GPE women alleging sterilisations without their full and informed consent are duly investigated and that the victims receive proper redress . ”

The UN Convention on the Elimination of All Forms of Discrimination against Women was ratified by the former GPE . Following the latter ’s dissolution , GPE declared itself bound by it as from DATE . In its relevant Articles the ORG provides :

“ For the purposes of the present Convention , the term ‘ discrimination against women’ shall mean any distinction , exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition , enjoyment or exercise by women , irrespective of their marital status , on a basis of equality of men and women , of human rights and fundamental freedoms in the political , economic , social , cultural , civil or any other field .

“ CARDINAL . GPE Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure , on a basis of equality of men and women , access to health care services , including those related to family planning .

Notwithstanding the provisions of paragraph CARDINAL of this article , GPE Parties shall ensure to women appropriate services in connection with pregnancy , confinement and the post - natal period , granting free services where necessary , as well as adequate nutrition during pregnancy and lactation .

“ CARDINAL . GPE Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure , on a basis of equality of men and women :

( e ) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information , education and means to enable them to exercise these rights ;

General Recommendation No . CARDINAL adopted by ORG ) in DATE includes , inter alia , the following opinion and recommendations for action by the GPE parties to the LAW on the Elimination of All Forms of Discrimination against Women :

“ CARDINAL . Women have the right to be fully informed , by properly trained personnel , of their options in agreeing to treatment or research , including likely benefits and potential adverse effects of proposed procedures and available alternatives .

GPE parties should report on measures taken to eliminate barriers that women face in gaining access to health care services and what measures they have taken to ensure women timely and affordable access to such services . ...

GPE parties should also report on measures taken to ensure access to quality health care services , for example , by making them acceptable to women . Acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent , respects her dignity , guarantees her confidentiality and is sensitive to her needs and perspectives . States parties should not permit forms of coercion , such as non - consensual sterilization , ... that violate women ’s rights to informed consent and dignity .

GPE parties should also , in particular :

( e ) Require all health services to be consistent with the human rights of women , including the rights to autonomy , privacy , confidentiality , informed consent and choice ;

( f ) Ensure that the training curricula of health workers includes comprehensive , mandatory , gender - sensitive courses on women ’s health and human rights , in particular gender - based violence . ”

At its CARDINALst session ( DATE to DATE ) CEDAW considered the combined second , third and fourth periodic report on GPE . The concluding observations contain , inter alia , the following text ( CEDAW / C / SVK / CO/CARDINAL ) :

“ DATE . While acknowledging the explanations given by the delegation on the alleged coerced sterilization of GPE women , and noting the recently adopted legislation on sterilization , the ORG remains concerned at information received in respect of GPE women who report having been sterilized without prior and informed consent .

Recalling its views in respect of communication No . CARDINAL/CARDINAL ( Szijjarto v. GPE ) , the ORG recommends that the ORG party monitor public and private health centres , including hospitals and clinics , that perform sterilization procedures so as to ensure that patients are able to provide fully informed consent before any sterilization procedure is carried out , with appropriate sanctions being available and implemented in the event of a breach . It calls upon ORG to take further measures to ensure that the relevant provisions of the LAW and the pertinent paragraphs of the ORG ’s general recommendations ORG . CARDINAL and DATE in relation to women ’s reproductive health and rights are known and adhered to by all relevant personnel in public and private health centres , including hospitals and clinics . ORG recommends that ORG take all necessary measures to ensure that the complaints filed by GPE women on grounds of coerced sterilization are duly acknowledged and that victims of such practices are granted effective remedies . ”

The World Health Organisation ( WHO ) NORP consultation meeting on the rights of patients , held in GPE in DATE , endorsed a document entitled “ Principles of the rights of patients in LOC ” as a set of principles for the promotion and implementation of patients’ rights in LOC . Its relevant parts read as follows :

“ CARDINAL . INFORMATION

CARDINAL Patients have the right to be fully informed about their health status , including the medical facts about their condition ; about the proposed medical procedures , together with the potential risks and benefits of each procedure ; about alternatives to the proposed procedures , including the effect of non - treatment ; and about the diagnosis , prognosis and progress of treatment .

ORG must be communicated to the patient in a way appropriate to the latter ’s capacity for understanding , minimizing the use of unfamiliar technical terminology . ...

CONSENT

CARDINAL The informed consent of the patient is a prerequisite for any medical intervention .

CARDINAL A patient has the right to refuse or to halt a medical intervention . The implications of refusing or halting such an intervention must be carefully explained to the patient . ”

The Universal Declaration on Bioethics and Human Rights was adopted by ORG ’s ORG on DATE . Its relevant provisions read as follows :

“ The autonomy of persons to make decisions , while taking responsibility for those decisions and respecting the autonomy of others , is to be respected . For persons who are not capable of exercising autonomy , special measures are to be taken to protect their rights and interests . ”

“ CARDINAL . Any preventive , diagnostic and therapeutic medical intervention is only to be carried out with the prior , free and informed consent of the person concerned , based on adequate information . The consent should , where appropriate , be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice . ”


The applicant is a NORP national , born in DATE and living in PERSON .

A.

Background of the case

Since DATE the applicant has been suffering from a schizo - affective psychosis . The condition of her health worsened at DATE , when she became pregnant .

During her pregnancy the applicant suffered from deep depression . After the birth of her child , on DATE , the applicant was placed in a psychiatric hospital for DATE . Her infant daughter was temporarily taken into public care .

Later , the applicant consented to placing her daughter in a foster home . On DATE ORG ( PERSON ) made an order restricting the applicant 's parental rights and placing her daughter with the foster family LOC The PERSON family was awarded custody of the child .

From DATE to DATE the applicant received psychiatric treatment . In DATE she decided that she should re - assume responsibility for the care of her daughter . She submits that after she had mentioned it to the PERSON family , they started to hinder her in maintaining contact with her daughter .

Proceedings relating to the applicant ’s request for her parental authority to be restored

On DATE the applicant requested ORG to restore her full parental authority . Since then , according to her submissions , her contacts with her daughter became even more difficult . The applicant submits that from this time on , the foster family started to express hostility towards her . For instance , during one of her visits in their home , the police had to intervene .

On DATE the applicant requested ORG to make an interim order ruling on the terms of her access to her daughter . Apparently , the court did not address the issue at that time .

On DATE , ORG dismissed the applicant 's request to restore her full parental authority . The court relied on an expert report according to which the applicant 's mental state was still unstable and constituted an obstacle to restoring her parental rights . The expert had not , however , seen any obstacles to the applicant maintaining personal contact with her daughter .

On DATE , upon the applicant 's appeal , ORG ( PERSON ) quashed the first - instance decision and remitted the case to ORG .

On DATE the applicant again requested the court to give an interim order ruling on the terms of her access to her daughter . On DATE , during a hearing , she upheld her request and specified that she wished to see her daughter twice a month in her own or her mother ’s residence .

On DATE ORG issued an interim order stipulating that the applicant should be allowed to take her daughter to her place of residence , twice a month for TIME .

Apparently , in the meantime , ORG had ordered that fresh expert evidence be obtained , in particular from experts in psychiatry and psychology . On DATE a psychiatrist prepared a report . On DATE experts in psychology and pedagogy from ORG ( Rodzinny Ośrodek PERSON ) prepared another report .

On DATE ORG dismissed the applicant 's request for her parental authority to be restored . It did , however , alter the manner in which the applicant 's parental rights were restricted . Relying on the expert reports and the parties’ submissions , the court found that the applicant 's state had improved and that it was desirable to unite the family . Therefore , it ordered the termination of the foster family ’s care , returned the child to the applicant and appointed a court guardian to supervise the applicant in her exercise of custody rights . At the same time , taking into account the interests of the child who had developed certain emotional ties with the foster family , the court fixed a schedule of visits and access between the PERSON family and the child . The former foster family was allowed to have access to the child on DATE , with the option that the child could stay with them TIME . The applicant did not appeal against this decision .

On DATE , upon the foster family ’s appeal , ORG partly amended the first - instance decision , ruling that the child ’s domicile should coincide with her mother ’s domicile , and upheld the remainder of the decision .

Proceedings concerning the former foster family ’s contact with the child

On an unspecified date in DATE , the applicant requested ORG to alter the arrangements in respect of the PERSON family 's contact with her daughter , as she considered this contact to have a detrimental influence on her child . In particular , she argued that the possibility of spending DATE with her daughter constituted an essential element of her family life .

A first hearing was held on DATE .

On DATE the court decided that evidence from experts at ORG be obtained in order to determine the scope of the emotional ties between the former foster family and the child , and whether there was a need to maintain that contact .

On DATE the experts submitted their report to the court .

On DATE the court held a hearing .

On DATE ORG decided that contact between the former foster family and the child should be maintained ; however , it placed further restrictions on S. ’s access to her . Consequently , the former foster family was allowed to see the child twice a month in the presence of the applicant and a court custody guardian , in the child ’s residence . The court relied on the expert report and the parties’ submissions .

On an unspecified date the applicant filed an appeal against this decision but did not state whether she sought to have it altered or quashed and remitted to the court of first instance .

On DATE ORG ordered the applicant to indicate the relief she sought , on pain of her appeal being rejected .

In her reply of DATE the applicant informed the court that “ she was indifferent about the way the appellate court would alter the contested decision ” .

On DATE ORG rejected the applicant 's appeal for her failure to comply with the procedural requirements laid down by LAW in respect of such appeals .

B. Relevant domestic law

Section CARDINAL of ORG ( PERSON i PERSON ) provides as follows :

" CARDINAL . If the interests of a child are endangered , the court shall give an appropriate order .

PERSON . The court may , in particular : …

DATE ) make an order placing a minor in a foster home or in a public care centre . "


The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON in the Karachayevo - Cherkessia Republic . She is represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by Mr PERSON , Representative of GPE at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant obtained a special - purpose settlement order ( целевой расчетный чек ) . By its terms the Government undertook to give her a NORP - made ORG passenger car within DATE .

As no cars were available , the applicant was placed on the waiting list under no . CARDINAL . She renewed her request on several occasions , but it could not be granted for want of cars .

On DATE the Convention entered into force in respect of GPE .

In DATE the applicant was offered a PERSON car or compensation of ORG CARDINAL,CARDINAL . She turned the offer down because a PERSON was cheaper than a ORG and the compensation was inadequate .

On DATE the applicant brought a civil action against ORG . She sought to be granted a ORG car or to recover the market value thereof .

On DATE ORG ( Черкесский районный суд КЧР ) allowed the applicant ’s claim and awarded her RUR CARDINAL ( ORG CARDINAL,CARDINAL ) for the value of the car and FAC ( ORG CARDINAL ) in court fees .

Unhappy about the amount of the award , the applicant appealed against the judgment . She submitted , in particular , that the court assessed the value of the car on the basis of the amount agreed between the car manufacturer and the federal government , whereas the car price at her local dealership was at least RUR CARDINAL,CARDINAL higher .

On DATE ORG of the Karachayevo - Cherkessia Republic upheld the judgment of DATE .

On DATE the applicant obtained a writ of execution and forwarded it to ORG of GPE . According to the Government , on an unspecified date the writ was returned to the applicant as the debtor ’s name was indicated incorrectly .

On DATE the applicant resubmitted the writ , together with copies of the necessary documents . On DATE its receipt was acknowledged .

On DATE the NORP Treasury enforced the judgment and credited RUR CARDINAL to the applicant ’s bank account .

The Federal Law “ On State commodity bonds ” ( no . CARDINAL-FZ of DATE , ФЗ « О государственных долговых товарных обязательствах ORG ) provided that the ORG commodity bonds , including special - purpose settlement orders , were to be recognised as the ORG internal debt ( section CARDINAL ) . They were to be enforced in accordance with the general principles of ORG ( section CARDINAL ) . The relevant parts of section CARDINAL read as follows :

“ The Government of the NORP Federation shall draft ORG for the redemption of the ORG internal debt ... The ORG shall provide for the terms of redemption of ORG commodity bonds that would be convenient for citizens , including , of their choice : provision of goods indicated in ... special - purpose bonds for the purchase of passenger cars ... ; redemption of ORG commodity bonds at consumer prices prevailing at the moment of the redemption ... ”

On DATE , section CARDINAL of the law was amended to read , in the relevant parts , as follows :

“ To establish that the repayment of the ORG internal debt of GPE under State commodity bonds ... is carried out in DATE in accordance with ORG ...

To set , in the above - mentioned ORG , the following sequence and terms of redemption of ORG commodity bonds , depending on the type of the bond :

... in respect of bearers of special - purpose settlement orders that gave the right to purchase passenger cars in DATE and DATE payment of monetary compensation equal to the value of the car described in the order , as determined in co - ordination with car manufacturers at the moment of redemption . The redemption period runs from CARDINAL DATE to DATE . ”

According to the LAW on co - ordination of market sale prices for ORG cars signed by the Deputy Ministers of Industry , Finance and ORG and the executive director of the GPE car plant , the price of a VAZ-CARDINAL car was MONEY during the period DATE .

On DATE the Government approved , by ORG no . ORG , ORG for the redemption of the ORG internal debt of GPE arising from ORG commodity bonds in DATE . Paragraph CARDINAL of the ORG set out that the ORG commodity bonds were to be redeemed by way of payment of pecuniary compensation .