Last Updated on November 23, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
G.M. and Others v. the Republic of Moldova – 44394/15
Judgment 22.11.2022 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Positive obligations
Failure to establish and apply effectively a system providing protection to intellectually disabled women in psychiatric institutions against serious breaches of their integrity: violation
Failure to protect applicants’ physical integrity from non-consensual abortion and regaarding first applicant also forced contraception : violation
Effective investigation
Ineffective investigation into allegations of forced abortions and forced contraception after rape by doctor in neuropsychiatric residential asylum of three intellectually disabled applicants with legal capacity: violation
Facts – The three applicants, all affected by intellectual disabilities of varying levels of severity, have been institutionalised in the Bălți neuropsychiatric residential asylum (“the asylum”) for different periods of time. During their stays in the asylum they were raped on various occasions by the head doctor of one of the units. The first and third applicants claimed to have become pregnant after the rapes. All the applicants claimed to have been subjected to forced abortions and that subsequently, intrauterine contraceptive devices were implanted without their consent inside their uteruses to prevent further pregnancies. A domestic prosecutor refused on four occasions to open a criminal investigation into the applicants’ complaints. The second and third applicants continue to be residents of the asylum.
Law – Article 3: The position of inferiority and powerlessness typical of patients confined in psychiatric hospitals called for increased vigilance in reviewing whether the Convention had been complied with. While it was for the medical authorities to decide on therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients entirely incapable of deciding for themselves, such patients nevertheless remained under the protection of Article 3, whose requirements permitted of no derogation. The relevant legal instruments and reports adopted by the United Nations and the Council of Europe indicated that forced abortion, sterilisation and birth control were forms of gender violence.
In the present case, the alleged non-consensual medical interventions (abortions and birth control), concerning women with intellectual disabilities who had been victims of rape by a doctor in the psychiatric asylum where they had been resident but had retained full legal capacity, if established in combination with the applicants’ vulnerability, resulting from such elements as their gender, disability and institutionalisation, were sufficiently serious to come within the scope of application of Article 3. In addition, the allegations of non-consensual contraception could not be seen separately from those of non-consensual abortions, as they could raise issues about a systemic denial of agency to institutionalised women with intellectual disabilities concerning their reproductive rights. Given their gravity and the applicants’ vulnerability, they also had to be examined under Article 3.
(a) Procedural limb: the obligation to carry out an effective investigation –
The national authorities had promptly initiated a preliminary inquiry into the applicants’ allegations, which had partially confirmed the applicants’ statements. Therefore, the authorities had been faced with “arguable” claims, within the meaning of the Court’s case-law, of non-consensual medical interventions on persons with intellectual disability, and had had a duty under Article 3 to take the necessary measures without delay to assess the credibility of those claims, clarify the circumstances of the case and identify those responsible. However, no criminal investigation had been initiated to allow the collection of evidence. Further, the Court identified a number of serious omissions in the inquiry which were sufficient to enable it to conclude that the authorities had failed to carry out an effective investigation into the applicants’ allegations of forced abortions and forced contraception despite it having been reopened on four occasions following the applicants’ appeals. In sum, the authorities had not carried out investigations available to them, had not taken all reasonable measures to shed light on the facts of the present case and had not undertaken a full and careful analysis of the evidence before them. Moreover, the inquiry had not factored in the applicants’ vulnerability, or the gender and disability aspects of their complaints concerning institutionalised medical violence against them.
Conclusion: violation (unanimously).
(b) Substantive limb –
(i) The obligation to put in place an appropriate legislative and regulatory framework –
States had a heighted duty of protection towards persons with intellectual disabilities who, like the applicants in the present case, had been placed in the care of a public institution which was responsible for ensuring their safety and well-being, had no family, had not been deprived of their legal capacity and had no legal representative, and who were therefore in a particularly vulnerable situation. This was all the more so in respect of the protection of their reproductive rights.
In the present case, the Court found the applicants’ consent had been required under domestic law for the said interventions and that it had to be either confirmed in writing by the doctor in the medical file or expressed in writing by the patient. The conclusion to the contrary of the domestic authorities and the medical professionals was thus striking. Even if the Convention itself did not prescribe a particular form of consent, once the domestic law provided for certain specific requirements, these needed to be complied with. The principle of legality required States not only to respect and apply, in a foreseeable and consistent manner, the laws they had enacted, but also, as a necessary part, to ensure the legal and practical conditions for their implementation. The Court also noted the international standards in respect of informed consent in general and also in respect of people with mental disorders.
The applicants’ case was not isolated and the domestic case file referred to other abortions carried out on women from the asylum. That practice was particularly worrying when the conditions in which intellectually disabled persons were called upon to express their consent were unclear, to the extent that the professionals themselves seemed to question if such persons should be asked for consent at all. As found by international bodies, generally in human societies and more particularly in the Republic of Moldova, harmful stereotypes existed according to which persons with mental disabilities should not procreate and which result in various human rights violations in respect of persons with disabilities, and especially in respect of women with mental disabilities. International bodies had also found deficiencies in Moldovan legislation and medical protocols concerning informed consent for such interventions and had called for legislative reforms which would prevent non-consensual medical interventions on persons with mental disabilities.
In that context and against the background of a general domestic legal provision concerning consent for all medical interventions, which was neutral on its face, the Court observed the paternalistic tone of the Ministry of Health’s order no. 152 of 1994 authorising termination of pregnancies in respect of persons with intellectual disabilities. On the one hand, that order indicated intellectual disability as a contraindication for pregnancy without any further assessment of medical risks, which by itself was contrary to international standards. On the other hand, the order excluded the women concerned from the communication of their medical documents between medical institutions altogether, which reflected the limited extent to which a woman with mental disabilities was involved in the decision-making process concerning her own pregnancy.
Furthermore, the Government had failed to demonstrate the existence of any legal provisions, safeguards and mechanisms meant to support persons like the applicants, who were intellectually disabled but had not been deprived of their legal capacity, to express a valid and fully informed consent for medical interventions, especially in respect of abortions and contraception. Neither was the applicants’ situation envisaged by the updated 2020 National Standard for the termination of pregnancy in safe conditions. In this connection, it had not been shown that there existed any practice to provide persons with intellectual disabilities with information in a manner accessible to them. On the contrary, it followed from the results of the domestic inquiry that the authorities had considered that before 2006 consent had not even been required in cases of intellectual disability, when it actually had been required. The interviews with medical staff had reflected a paternalistic attitude towards the applicants, considering as they had that it was normal for the decision to terminate the pregnancy to have been taken by a doctor in the psychiatric asylum or by the medical committee without the applicants’ consent.
Although the Court agreed with the assessment of the domestic investigation that the allegations did not reveal criminal offences, this was not because of the applicants’ alleged consent to the procedures, but because the respondent State’s criminal legislation had been inadequate and so unable to protect the applicants from non-consensual abortion and contraception.
Accordingly, the existing Moldovan legal framework – which lacked the safeguard of obtaining a valid, free and prior consent for medical interventions from intellectually disabled persons, adequate criminal legislation to dissuade the practice of non-consensual medical interventions carried out on intellectually disabled persons in general and women in particular, and other mechanisms to prevent such abuse of intellectually disabled persons in general and of women in particular – fell short of the requirement inherent in the State’s positive obligation to establish and apply effectively a system providing protection to women living in psychiatric institutions against serious breaches of their integrity.
Conclusion: violation (unanimously).
(ii) The obligation to protect the applicants’ physical integrity – The factual circumstances of the alleged ill-treatment had to be examined simultaneously from the perspective of the State’s negative and positive obligations under Article 3.
1. The complaints concerning the termination of the pregnancies –
It was undisputed that the first and second applicants had had their pregnancies terminated. The Court had not been presented with any evidence of consent in respect of the first applicant. In respect of the second applicant, the domestic authorities had been unable to conclude that she had indeed signed the respective consent form. Even assuming that she had done so, in the absence of any legal safeguards to assist her in expressing a valid consent and in view of her vulnerability owing to her intellectual disability, despite retaining full legal capacity, the Court was not convinced that a simple handwritten letter “M.” in the fields for the patient’s name and signature could have constituted a validly expressed consent for the termination of her pregnancy. Although there was no indication that the medical staff of either hospital had acted with the intention of ill-treating the first and second applicants, they had nevertheless displayed gross disregard for their right to autonomy and choice as patients.
In respect of the third applicant, the difficulty in determining whether there was any substance to her allegations stemmed from the authorities’ failure to investigate her complaints effectively. In view of the Government’s control over her both at the time of the events and the present time owing to her continued residence at the asylum the burden of proof had been on them to provide a satisfactory and convincing explanation in respect of her allegations. However, they had not done so. The domestic authorities had limited their inquiry to her medical file, which had not contained any information about a pregnancy and related abortion, establishing thus that she had never been pregnant. Even so, the proven rape of multiple residents of the asylum (including the third applicant), the proven forced abortions of the other two applicants, and the deficiencies in the legal framework meant to protect any woman in the third applicant’s condition from such ill-treatment, allowed the Court to conclude that there was evidence in favour of her version of events and to consider her allegations as sufficiently convincing and established.
Conclusion: violation (unanimously).
2. The complaints concerning the birth-control measures and inability to procreate –
In view of the ineffective investigation and the practice which had sought to prevent women in the asylum from having children, the Court deemed it sufficiently established that the foreign body described in the medical investigation produced by the first applicant had been implanted in her body as a contraceptive measure while she had been under State control in the asylum. Given the Government’s failure to produce any evidence to the contrary, the Court considered that fact proven and found a violation of the substantive limb of Article 3 in respect of the first applicant. There was thus no need to examine separately her complaint as to her inability to procreate. Concerning the second and third applicants, taking into account the absence of prima facie evidence capable of shifting the burden of proof onto the Government and the finding of an ineffective investigation, the Court could not draw a conclusion that they had been subjected to forced contraception. Consequently, there had not been a violation of the substantive limb of Article 3 in their respect.
Conclusion: violation, no violation (unanimously).
Article 41: EUR 30,000 to the first applicant and EUR 25,000 to the second and third applicants each in respect of non-pecuniary damage.
(See also V.C. v. Slovakia, 18968/07, 8 November 2011, Legal Summary; I.G. et al v. Slovakia, 15966/04, 13 November 2012; X and Others v. Bulgaria [GC], 22457/16, 2 February 2021, Legal Summary)
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