Last Updated on October 11, 2022 by LawEuro
Information Note on the Court’s case-law 267
October 2022
Judgment 11.10.2022 [Section III]
Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Abortion performed at public hospital in breach of medical standards and against the will of a vulnerable young adult coerced by her parents; lack of effective investigation: violation
Facts – The applicant, a 20-year-old mother-to-be at the time of the events, was forced by her parents to have her pregnancy terminated after her partner and would-be father of the child was arrested on suspicion of having committed a violent crime. The medical intervention was carried out by a duty doctor at a public hospital, even though the applicant had made it clear both to her parents who forced her and then to medical personnel that she wished to keep her pregnancy. A police inquiry initiated in connection with the incident ended up with decisions not to prosecute criminally either the applicant’s parents, or the doctor, as no elements of crime in their actions could be established. The authorities considered that the applicant’s parents had “had no malicious intent” and had “believed that they had acted in the best interests of their child”. In the absence of any findings made in the context of criminal-law mechanisms, the hospital refused to hold the relevant doctor liable in disciplinary proceedings. The applicant’s civil claim for damages against the hospital was granted by the appellate court which awarded her the equivalent of EUR 500 as compensation for non-pecuniary damage, stating that she had not sustained any serious harm to her health.
Law – Article 3:
(a) Applicability – The applicant’s pregnancy had been aborted by the medical personnel of a public hospital. It had been carried out in breach of the applicable medical standards, as well as of the rules and safeguards envisaged in the domestic law. In particular, this procedure had remained unrecorded and had been performed in the absence of the applicant’s express, free and informed consent; moreover, she had not been provided with the necessary medical supervision and care either before or after the intervention, which had put her health at risk.
The applicant had complained to various domestic authorities that her pregnancy had been aborted against her will; that she had been forced by her parents to undergo that procedure; and that she had informed the relevant medical personnel of the situation. Her version of events had been confirmed by her brother, and her parents had confirmed that they had taken her to the hospital maternity department to undergo an abortion. The latter fact had been accepted by the law-enforcement agencies, as well as by the national courts. Moreover, the first-instance court had accepted that the applicant had let the abortion be performed because she had feared her father’s threats, a situation which that court had strikingly considered to have demonstrated that the applicant had given her free consent to the medical intervention in question.
The applicant had submitted sufficient evidence enabling the Court to conclude that she had underwent that procedure against her will. She had been vulnerable at the relevant time, given her apparent dependence on her parents, her young age and the fact that it had been her first pregnancy. Furthermore, whilst there was insufficient evidence to conclude that the relevant health professionals had exercised coercion, as alleged by the applicant, at the very least, they had displayed both indifference and negligence towards her situation, having failed to obtain her free consent and to ensure the necessary medical care. She must have suffered distress, anxiety and humiliation on account of the circumstances surrounding the interruption of her pregnancy. The medical evidence attested to the presence of psychological and physical after-effects of the medical intervention in question.
Therefore, taking into account the circumstances of the case as a whole, the applicant’s forced abortion, combined with her feelings of fear and helplessness, had been sufficiently serious to reach the level of severity required to fall within the scope of Article 3 and thus make this provision applicable in the present case.
(b) Merits –
(i) Substantive aspect – The applicant’s abortion had been carried out against her will and in breach of all the applicable medical rules. Such a forced abortion undergone in those circumstances had been contrary to the applicant’s human dignity. It had been an egregious form of inhuman and degrading treatment which had not only resulted in a serious immediate damage to her health – that is the loss of her unborn child – but had also entailed long-lasting negative physical and psychological effects.
Conclusion: violation (five votes to two).
(ii) Procedural aspect – Even if the applicant had received compensation in her civil proceedings brought against the hospital, it could not be considered sufficient for the fulfilment of the State’s positive obligations under Article 3, as such a civil remedy was aimed at awarding damages rather than identifying and punishing those responsible. The applicant thus had retained her victim status for the purpose of Article 3.
The criminal-law mechanisms had proved clearly ineffective. In view of the manner in which the authorities had handled the case – notably the authorities’ reluctance to open a criminal investigation into the applicant’s credible claims of forced abortion and their failure to take effective measures against the applicant’s parents and the relevant health professionals, ensuring their punishment under the applicable legal provisions – the State had failed to discharge its duty to investigate the ill-treatment that the applicant had endured.
Conclusion: violation (unanimously).
Article 41: EUR 19,500 for non-pecuniary damages.
(See also V.C. v. Slovakia, 18968/07, 8 November 2011, Legal summary; Valiulienė v. Lithuania, 33234/07, 26 March 2013, Legal summary; Volodina v. Russia, 41261/17, 9 July 2019, Legal summary)
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