ITEMID: 001-107364
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF V.C. v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: 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
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 8. The applicant, who is of Roma ethnic origin, was born in 1980 and lives in Jarovnice. She finished compulsory education in the sixth grade and is unemployed. Her mother tongue is the Roma language, which she uses in daily communication, together with a local dialect.
9. On 23 August 2000 the applicant was sterilised while hospitalised at the Hospital and Health Care Centre in Prešov (now known as the University Teaching Hospital and J.A. Reiman Health Care Centre in Prešov –“Prešov Hospital”), which came under the management of the Ministry of Health.
10. 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 Pomeroy method, which consists of severing and sealing the Fallopian tubes in order to prevent fertilisation.
11. During her pregnancy the applicant did not have any regular checkups. She visited her general practitioner only once.
12. The applicant was admitted to the gynaecology and obstetrics department of Prešov Hospital on 23 August 2000 shortly before 8 a.m. 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.
13. 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 7.52 a.m. The applicant was subsequently monitored by CTG (cardiotocography); the last CTG entry was at 10.35 a.m.
14. According to the delivery record, after 10.30 a.m., 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 two words.
15. The applicant submitted that, after she had been in labour for several hours and was in pain, the medical personnel of Prešov Hospital 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 one 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.
16. At 11.30 a.m. 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 two 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 12.10 p.m. and the applicant came round from the anaesthetic ten minutes later.
17. The words “Patient is of Roma origin” appear in the record of the applicant’s pregnancy and delivery (section “Medical history”, sub-section “Social and working conditions, especially during the pregnancy” of the pre-printed form designed for that purpose).
18. During her hospitalisation on the gynaecology and obstetrics ward of Prešov Hospital the applicant was accommodated in a room in which there were exclusively women of Roma ethnic origin. She was prevented from using the same bathrooms and toilets as women who were not of Roma origin.
19. The applicant has suffered serious medical and psychological aftereffects from the sterilisation procedure. Hence, at the end of 2007 and the beginning of 2008 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 July 2008, she was treated by a psychiatrist in Sabinov. According to the latter’s statement, the applicant continues to suffer as the result of her infertility.
20. The applicant has also been ostracised by the Roma community. Her husband, the father of her children, left her several times owing to her infertility. In 2009 the applicant and her husband divorced. The applicant maintained that her infertility was one of the reasons for their separation.
21. A written statement by the Director of Prešov Hospital dated 3 July 2008 indicates that the applicant’s first delivery in 1998 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 the third day she left the hospital without doctors’ consent and returned 24 hours later with sepsis caused by inflammation of the uterus. After nine 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.
22. 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.
23. In a different statement dated 27 July 2009 the Director of Prešov Hospital denied deliberate and organised segregation of Roma women and the existence of so called “Gypsy rooms”. In practice, Roma women were frequently accommodated together at their own request.
24. On 23 January 2003, in response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of “Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” (“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 Roma women.
25. The criminal investigation was conducted within the Regional Directorate of the Police Corps in Žilina by the Office of the Judicial and Criminal Police. Several decisions were issued by the investigator, public prosecutors at several levels and the Constitutional Court. The proceedings were ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of Roma ethnic origin (further details are set out in I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009).
26. The applicant did not initiate any individual criminal proceedings.
27. In January 2003, 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 Prešov Hospital 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 May 2004 following a judicial order to that effect.
28. On 9 September 2004 the applicant lodged a claim with the Prešov District Court under Articles 11 et seq. of the Civil Code, seeking protection of her personal rights. She submitted that the sterilisation performed on her had been carried out in violation of Slovakian legislation and international human rights standards including Articles 3, 8, 12 and 14 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.
29. In the course of the proceedings the District Court considered documentary evidence and obtained a number of statements from the applicant as well as from the medical personnel of Prešov Hospital.
30. In particular, the applicant described the circumstances in which she had given birth in Prešov Hospital 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 two years 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.
31. Doctor Č. of Prešov Hospital, 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 approximately ninety minutes 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 Č. stated that the sterilisation of the applicant had not been life-saving surgery.
32. Doctor K., head doctor of the gynaecology and obstetrics ward of Prešov Hospital, stated that he fully agreed with the testimony of Doctor Č. Doctor K. 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.
33. Doctor K. further stated that, after he had designated his colleagues Š. and Č. 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 section 2 of the 1972 Sterilisation Regulation, which permitted such a move in the case of danger to a person’s life.
34. In the civil proceedings, the applicant also submitted a psychologist’s assessment of her mental capacity dated 17 February 2006. 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.
35. On 28 February 2006 the Prešov District Court 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.
36. 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 11 et seq. of the Civil Code. No violation of the applicant’s rights under the Convention had been established.
37. Finally, the District Court held that the applicant’s situation was not irreversible as there was a possibility of in vitro fertilisation.
38. On 12 May 2006 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.
39. On 25 October 2006 the Prešov Regional Court 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.
40. 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 1972 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.
41. On 17 January 2007 the applicant lodged a complaint with the Constitutional Court. 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 Prešov Hospital without her informed consent and that she had been unable to obtain redress as a result of the conduct and decision of the Prešov Regional Court. 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 Articles 3, 8, 12, 13 and 14 of the European Convention on Human Rights and Article 5 of the Convention on Human Rights and Biomedicine. The applicant requested that the Constitutional Court quash the Regional Court’s judgment.
42. On 14 February 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded (for further details see the decision on the admissibility of the present application of 16 June 2009).
43. The applicant referred to a number of publications pointing to a history of forced sterilisation of Roma women which had originated under the communist regime in Czechoslovakia in the early 1970s and which she believed had influenced her own sterilisation.
44. In particular, the applicant submitted that the Ministry of Health’s 1972 Sterilisation Regulation had been used to encourage the sterilisation of Roma women. According to a 1979 document by Charter 77, a Czechoslovakian dissident group, a programme had been launched in Czechoslovakia offering financial incentives for Roma women to be sterilised because of earlier unsuccessful government efforts “to control the highly unhealthy Roma population through family planning and contraception.”
45. The applicant further maintained that in Prešov District 60% of the sterilisation operations performed from 1986 to 1987 had been on Roma women, who represented only 7% of the population of the district. Another study found that in 1983 approximately 26% of sterilised women in eastern Slovakia (the region where the applicant resides) were Roma; by 1987, this figure had risen to 36.6%.
46. In 1992 a report by Human Rights Watch noted that many Roma women were not fully aware of the irreversible nature of the procedure and were forced into it because of their poor economic situation or pressure from the authorities.
47. According to other reports, in 1999 nurses working in Finnish refugee reception centres informed researchers from Amnesty International that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female Roma asylumseekers from eastern Slovakia. All the reports cited identified Prešov Hospital as one of the hospitals where such sterilisation practices were applied.
48. The Government submitted that health care in Slovakia 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 persons’ human rights.
49. Following the publication of the Body and Soul Report the Ministry of Health established a group of experts with a view to investigating allegedly unlawful sterilisations and segregation of Roma women.
50. The Ministry’s report of 28 May 2003, submitted to the parliamentary committee on human rights, nationalities and the status of women, indicated that the medical records of 3,500 women who had been sterilised and those of 18,000 women who had given birth by means of Caesarean section during the preceding ten years had been reviewed.
51. The rate of sterilisation of women in Slovakia amounted to only 0.1% of women of reproductive age. In other European countries that rate was between 20 and 40%. The low rate of sterilisation in Slovakia was mainly due to the fact that the procedure was not widely used as a method of contraception.
52. 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 Roma ethnic origin. In those regions where it was possible to indirectly assess the proportion of women of Roma ethnic origin, the frequency of sterilisation and Caesarean section in the Roma population was significantly lower than among the rest of the population. The frequency of sterilisations was statistically insignificantly higher in the Prešov and Košice regions than in other regions of Slovakia.
53. The group concluded that in the hospitals investigated by its members no genocide or segregation of the Roma population had occurred. All cases of sterilisation had been based on medical indications. Certain shortcomings in health care and non-compliance with the regulations on sterilisation (such as failure to observe the administrative procedure) had been identified in several cases. However, they affected the whole population equally regardless of patients’ ethnic origin. Hospitals in which administrative errors had been discovered had adopted measures with a view to eliminating them.
54. In none of the hospitals visited by the expert group did there exist separate rooms for Roma women; all patients received treatment within the same hospital facilities. Owing to the situation existing during the preceding decades, medical personnel and individuals were not on an equal footing with regard to responsibility for maintaining and improving individuals’ state of health. This was reflected, in particular, in limited individual rights and responsibilities in matters of health care. Measures 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.
55. 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, the Convention on Human Rights and Biomedicine, which Slovakia 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 Roma communities”. In order to educate the Roma population in the area of health care, the Slovak Health University in Bratislava was to establish, in cooperation with the Ministry of Health, a network of health care assistants who would receive special training and operate in Roma settlements.
56. 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 five sets of proceedings of that kind pending before the Slovakian courts. Six other sets of proceedings had ended in a final decision. In three of them the claimants had been successful.
57. Under Article 11, 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.
58. Under Article 13 § 1, 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.
59. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 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.
60. Regulation No. Z-4 582/1972-B/1 of the Ministry of Health of the Slovak Socialist Republic, published in Official Journal of the Ministry of Health No. 8-9/1972 (“the 1972 Sterilisation Regulation”) and applicable at the relevant time, contained guidelines governing sterilisation in medical practice.
61. Section 2 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 2(a)), or where the pregnancy or birth would seriously threaten the life or health of a woman whose reproductive organs were healthy (section 2(b)).
62. Section 5(1)(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 2(a) of the 1972 Sterilisation Regulation. Sterilisation on any other ground required prior approval by a medical committee (“sterilisation committee”).
63. Point XIV of the Annex to the 1972 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 six-week period, where a further pregnancy would seriously threaten the woman’s life or health;
(c) where a woman had several children (four children for women under the age of 35 and three children for women over that age).
64. The Regulation was repealed by the Health Care Act 2004 with effect from 1 January 2005 (see below).
65. At the relevant time the following provisions of Law no. 277/1994 on Health Care (Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force.
66. Section 13(1) 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 13(2)).
67. Under section 15(1) 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.
68. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts (Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005.
69. Section 6 governs the provision of information to and giving of informed consent by patients. Pursuant to sub-section 1, 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.
70. Section 6(2) 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.
71. Section 6(3) provides that any person entitled to such information also has the right to refuse it. Such refusal has to be recorded in writing.
72. Pursuant to section 6(4), informed consent is provable consent to treatment preceded by information as stipulated by the Health Care Act 2004. 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.
73. Section 40 reads as follows:
“(1) Sterilisation for the purposes of this law shall mean the prevention of fertility without the removal or impairment of a person’s reproductive organs.
(2) 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.
(3) The information preceding a person’s informed consent must be provided as specified by section 6(2) 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.
(4) 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.
(5) Sterilisation may not be carried out earlier than thirty days after informed consent has been given. ”
74. Section 50 repeals the 1972 Sterilisation Regulation.
75. Article IV of the Health Care Act 2004 introduces the offence of “unlawful sterilisation”, which is included in the Criminal Code as Article 246b. Sub-paragraph 1 of Article 246b provides that anybody who sterilises a person contrary to the law is to be punished by a prison term of between three and eight years, by a prohibition on carrying out his or her activity or by a pecuniary penalty. The prison term may be between five and twelve years when the offence was committed in aggravating circumstances (subparagraph 2).
76. 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. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, were published in the Collection of Laws under number 40/2000 on 10 February 2000. 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 Party 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 cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”
77. The relevant parts of the Explanatory Report to the Convention on Human Rights and Biomedicine provide:
“Article 4 – Professional standards
...
33. 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.
...
Article 5 – General rule
34. 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 patients’ autonomy in their relationship with health care professionals and restrains the paternalist approaches which might ignore the wish of the patient. ...
35. 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. Article 5, paragraph 2, 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.
36. 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.
...
Article 8 – Emergency situations
56. 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 Articles 5 and 6, it is accompanied by conditions.
57. 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 43 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.
58. Next, 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.
59. Lastly, the article specifies that the intervention must be carried out for the immediate benefit of the individual concerned.”
78. In his recommendation following fact-finding missions to Slovakia the Commissioner for Human Rights of the Council of Europe indicated, inter alia:
“35. The issue of sterilizations does not appear to concern exclusively one ethnic group of the Slovak 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 Roma population of eastern Slovakia has been at particular risk.
36. The initiative of the authorities to investigate into the sterilization practices in the country is welcomed. The Slovak Government 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 Roma women in particular.
37. The Commissioner is concerned about what appears to be a widespread negative attitude towards the relatively high birth rate among the Roma 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 Roma among the non-Roma population. It cannot be excluded that these types of statements may have encouraged improper sterilization practices of Roma women.
...
50. 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.
51. 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 Slovakia, without informed consent.
52. 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, the Slovak Government 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 1990’s and early 2000. ”
79. The relevant part of the Commissioner’s follow-up report on the Slovak Republic of 29 March 2006 (CommDH(2006)5) reads as follows:
“4. The involuntary sterilisation of Roma women
...
Development of the situation and measures taken
33. The allegations of forced and coerced sterilizations of Roma women in Slovakia were considered as a possible grave violation of human rights and therefore taken very seriously by the Slovak Government. 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 the Faculty of Medicine of the Comenius University in Bratislava requested. It was not confirmed that the Slovak Government would have supported an organized discriminatory sterilizations’ policy. Legislative and practical measures were taken by the Government in order to eliminate the administrative shortcomings identified in the course of inquires and to prevent similar situations from occurring in the future.
34. The Public Health Act, which came into effect on 1 January 2005, 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 the Council of Europe Convention on Human Rights and Biomedicine, 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 thirty day 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.
35. Women allegedly harmed by sterilisation have the right to turn to the Slovak courts with a request for compensation and it is the view of the Slovakian 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
36. The Commissioner welcomes the coming into force of the Public Health Act, 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 Slovak authorities, and he is pleased to see that the new law has explicitly addressed these problem areas.
37. The Commissioner notes with regret that the Slovak 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 Roma women living in marginalised communities, and the extremely high evidential standards.
38. 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.”
80. The European Commission against Racism and Intolerance (ECRI) published its third report on Slovakia on 27 January 2004. The relevant parts read as follows:
“...The Roma 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 Roma minority remains generally negative.
...
Allegations of sterilisations of Roma women without their full and informed consent
...
93. ECRI is very concerned by reports which came to national and international attention at the beginning of 2003 claiming that Roma women have, in recent years and on an on-going basis, been subject to sterilisations in some hospitals in Eastern Slovakia without their full and informed consent. ...
...
Recommendations:
96. ECRI is of the opinion that the possibility of sterilisations of Roma women without their full and informed consent necessitates immediate, extensive and thorough investigation. It seems clear to ECRI 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. ...
...
98. ECRI 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.”
81. In its next periodic report (fourth monitoring cycle) on Slovakia, published on 26 May 2009, ECRI concluded as follows:
“111. ECRI notes with concern that the problems as regards investigations into allegations of sterilisations of Roma 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. ECRI 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.
112. Some legislative measures have been taken to provide better legal safeguards against the practice. The Criminal Code has been amended to include the crime of “illegal sterilisation” and it provides for a thirty-day waiting period from the time the patient has given her consent before the sterilisation is carried out. Section 40 of Law No. 576/2004 Coll. on Healthcare which entered into force on 1 January 2005 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.
113. While welcoming these legislative developments, ECRI regrets that due to the above-mentioned problems in the investigations of allegations of sterilisations of Roma women without their full and informed consent, no redress has been possible for the majority of women involved.
114. ECRI recommends that the Slovak 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 Roma women alleging sterilisations without their full and informed consent are duly investigated and that the victims receive proper redress.”
82. The UN Convention on the Elimination of All Forms of Discrimination against Women was ratified by the former Czechoslovakia. Following the latter’s dissolution, Slovakia declared itself bound by it as from 1 January 1993. In its relevant Articles the Convention 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.
...”
“1. States 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.
2. Notwithstanding the provisions of paragraph 1 of this article, States 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.
...”
“1. States 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;
...”
83. General Recommendation No. 24 adopted by the Committee on the Elimination of Discrimination against Women (CEDAW) in 1999 includes, inter alia, the following opinion and recommendations for action by the States parties to the Convention on the Elimination of All Forms of Discrimination against Women:
“20. 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.
21. States 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. ...
22. States 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.
...
31. States 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.”
84. At its 41st session (30 June to 18 July 2008) CEDAW considered the combined second, third and fourth periodic report on Slovakia. The concluding observations contain, inter alia, the following text (CEDAW/C/SVK/CO/4):
“44. While acknowledging the explanations given by the delegation on the alleged coerced sterilization of Roma women, and noting the recently adopted legislation on sterilization, the Committee remains concerned at information received in respect of Roma women who report having been sterilized without prior and informed consent.
45. Recalling its views in respect of communication No. 4/2004 (Szijjarto v. Hungary), the Committee recommends that the State 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 the State party to take further measures to ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee’s general recommendations Nos. 19 and 24 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. The Committee recommends that the State party take all necessary measures to ensure that the complaints filed by Roma women on grounds of coerced sterilization are duly acknowledged and that victims of such practices are granted effective remedies.”
85. The World Health Organisation (WHO) European consultation meeting on the rights of patients, held in Amsterdam in March 1994, endorsed a document entitled “Principles of the rights of patients in Europe” as a set of principles for the promotion and implementation of patients’ rights in the European Member States of the WHO. Its relevant parts read as follows:
“2. INFORMATION
2.2 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.
...
2.4 Information must be communicated to the patient in a way appropriate to the latter’s capacity for understanding, minimizing the use of unfamiliar technical terminology. ...
...
3. CONSENT
3.1 The informed consent of the patient is a prerequisite for any medical intervention.
3.2 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.”
86. The Universal Declaration on Bioethics and Human Rights was adopted by UNESCO’s General Conference on 19 October 2005. 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.”
“1. 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.”
VIOLATED_ARTICLES: 3
8
NON_VIOLATED_ARTICLES: 13
3


ITEMID: 001-86003
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BENNICH-ZALEWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 6. The applicant was born in 1966 and lives in Warsaw.
7. In 1945 a factory owned by the applicant’s legal predecessor was de facto taken over by the State in the context of a countrywide campaign of nationalisation of industry. It was subsequently run by a Stateowned enterprise.
8. Pursuant to a decision given on 5 July 1966, the Ministry of Infrastructure stated that the factory and the land on which it was situated had become the property of the State under the provisions of the 1958 Act on Regulation of Legal Status of Properties Managed by the State.
9. In 1991 the applicant’s mother lodged an application with the Ministry of Industry to have the expropriation decision declared null and void under Article 156 of the Code of Administrative Procedure.
10. In March 1994 the applicant’s mother died. The applicant joined the proceedings as her legal successor.
11. In 1996 the Ministry found that it lacked competence to deal with the case and referred it to the Ministry of Construction. In January 1997 the case was referred to the Ministry of Housing as the Ministry of Construction had ceased to exist. In October 1997 that Ministry forwarded the case file to the Ministry of Internal Affairs for a decision.
12. On 27 October 1997 the applicant complained to the Supreme Administrative Court about the failure of the administration to rule on his 1991 application.
13. On 18 January 1997 the Minister of Internal Affairs declared that he was competent to deal with the case.
14. On 22 January 1999 the Supreme Administrative Court, having examined the applicant’s complaint, ordered the Minister of Internal Affairs to issue a decision concerning the case within one month from the date of the service of its judgment.
15. On 27 July 1999 the Minister of Internal Affairs, having gathered various documents concerning the legal status of the property, declared that the 1966 expropriation decision was null and void as it had been given in flagrant breach of the laws applicable to properties de facto taken over by the State.
16. On an unspecified date before August 1999 the State-owned enterprise was transformed into an independent public company, Izolacja, the structure and functioning of which were governed by the provisions of the Commercial Code. The State however retained a minority shareholding in the company. In August 1999 the Izolacja company, which was running the factory as the legal successor of the former State-owned enterprise, requested that the case be reexamined. Subsequently, the Ministry summoned the parties to submit their further pleadings and documents.
17. On 17 April 2000 the Minister, having re-examined the case, upheld its previous decision and declared that the expropriation decision was null and void.
18. The public company in possession of the factory requested that the enforcement of this decision be stayed pending the outcome of the proceedings in which it had appealed against the decision of the Minister to the Supreme Administrative Court. On 12 September 2000 the Supreme Administrative Court allowed this request. On 16 November 2000 the applicant’s request to have this decision set aside was dismissed by the same court.
19. On 12 January 2001 the Supreme Administrative Court upheld the decision of 17 April 2000.
20. On 30 November 1992 the Kalisz Governor gave a decision to the effect that from 5 December of that year the ownership of the factory and the right of perpetual use of the land on which it was situated was to be vested in the Izolacja company. On an unspecified later date this hitherto Stateowned company changed its status and became an independent public company governed by the Commercial Code and in which the State was a minority shareholder (see also paragraph 16 above).
21. In February 1997 the applicant instituted proceedings in which he sought to have that decision declared null and void.
22. On 7 April 1997 the Kalisz Governor stayed those proceedings, pending the outcome of the administrative proceedings described above.
23. The proceedings were resumed on 11 September 2000.
24. On 17 October 2001 the President of the Office for Housing Matters declared that the 1992 decision was null and void. The company requested that the case be reexamined.
25. On 11 January 2002 the President of the Office for Housing Matters, having reconsidered the case, upheld his earlier decision.
26. In 1997 the applicant instituted civil proceedings before the Kalisz Regional Court, seeking recovery of possession of the production hall of the factory.
27. On 19 February 1998 the court stayed the proceedings pending the outcome of the administrative case, holding that the outcome of the administrative proceedings in which the lawfulness of the 1966 decision was being examined (see paragraphs 7-19 above) was decisive for any decisions to be taken by a civil court. The applicant appealed. On 1 April 1998 his appeal was dismissed by the Łódź Court of Appeal. The proceedings were later resumed. At a hearing held on 24 October 2000 the court stayed the proceedings again. On 24 April 2001 the court resumed the proceedings. On 22 January 2002 the court, having regard to the parties’ concordant request, stayed the proceedings, with a view to the possibility that they might settle the case.
28. On 1 September 2003 the applicant and other successors of the factory’s former owner submitted a settlement offer to the defendant company. The proceedings were resumed on 9 October 2003 at the defendant’s request.
29. On 7 July 2004 the court adopted a judgment by which it ordered the defendant company to clear the production hall and return it to the applicant. On 1 and 3 September 2004 respectively the defendant company and the applicant appealed against that judgment.
30. On 22 December 2004 the Łódź Court of Appeal quashed the judgment and remitted the case. On 18 August 2005 the defendant company informed the court that on 10 August 2005 it had concluded an agreement with the applicant concerning the settlement of arrears in the payment of compensation for noncontractual use of the property for the period from May 2002 to August 2005. They had agreed that the defendant company would pay the applicant 177,040 Polish zlotys (PLN) in three instalments. In addition, the parties concluded a lease contract valid until 31 December 2007. As the applicant refused to withdraw his case in so far as it concerned the claim for repossession of the production hall, the proceedings were continued. They are currently pending.
31. On 10 February 2001 a lawyer representing nine legal successors of the former owner, including the applicant, called on the Izolacja company to pay PLN 18,000 per month for using their property without a contractual basis. On 13 November 2001 the applicant, together with six other legal successors, brought a civil action against the company in the Jarocin District Court, demanding payment for noncontractual use of the property in February 2001.
32. On 12 February 2003 the Jarocin District Court gave judgment. It ordered the defendant company to pay PLN 11,025 plus default interest to the legal successors of the former owner in damages for the use of the property in February 2001. The court observed that the company had been in possession of the factory in bad faith at least since the judgment of the Supreme Administrative Court given in January 2001 (see paragraph 19 above). This judgment was upheld on 25 June 2003 by the Kalisz Regional Court.
33. Subsequently, the applicant brought civil actions in the Jarocin District Court, seeking compensation from the Izolacja company for noncontractual use of the property during the following periods: March and April 2001, May and June 2001, July and August 2001, and a number of further similar actions covering the period from May 2002 until March 2005.
34. The Jarocin District Court joined his two first actions and allowed the applicant’s claim on 14 January 2004. Its judgment was upheld on 24 September 2004 by the Kalisz Regional Court.
35. The parties concluded an outofcourt settlement in respect of the third action and the civil proceedings were discontinued. The remaining actions were joined and transferred to the Warsaw-Praga District Court, before which they are currently pending.
36. On 14 October 2004 the applicant brought another civil action in the Jarocin District Court, seeking compensation for the company’s effective enjoyment of ownership from 6 May 1992 to 5 January 2001.
37. On 20 December 2004 his action was dismissed. The court, bearing in mind the presumption of lawfulness of final administrative decisions, considered that in that period the defendant company had been holding the property in question as an independent possessor in good faith. Hence, it was not obliged to pay. This judgment was upheld by the Kalisz Regional Court on 6 May 2005.
38. On 17 April 2003 the applicant requested the Ministry of Internal Affairs to pay him damages for the period during which the Stateowned factory had been using his property. He relied on Article 160 of the Code of Administrative Procedure in connection with the decision of 17 April 2000 declaring the 1966 expropriation decision null and void.
39. On 31 March 2004 the Minister for Infrastructure refused to grant compensation to the applicant and the other legal successors. He considered that they had not proved that they had sustained damage as a result of the 1966 expropriation decision, and that no link between the alleged damage and the decision had been shown.
40. On 14 May 2004 the applicant brought a civil action in the Warsaw District Court against the State Treasury, seeking compensation for the damage resulting from the unlawful expropriation decision issued in 1966. He based his claim on Article 417 of the Civil Code. The applicant specified that the damage should be assessed as the difference in the value of the enterprise between 1945 and 2004. He also claimed one-quarter of the profits which the enterprise had made between 1945 and 2003.
41. On 28 February 2005 the Warsaw-Śródmieście District Court dismissed the applicant’s action. It was of the view that the applicant had failed to show that he had suffered damage. It noted that it was open to him to bring a claim for repossession against the company. The only damage that could be examined was the alleged difference in the value of the property on the date when it had been taken over by the State Treasury and the date on which the unlawfulness of the expropriation decision had been recognised. However, it transpired from the evidence submitted by the applicant that the buildings on the property had been modernised by the company. Hence, the value of the property had in fact increased.
42. On 11 April 2005 the judgment, together with its reasoning, was served on the applicant. The applicant did not appeal and on 26 April 2005 the judgment became final.
The factory remains in the possession of the Izolacja company and monthly rent for the lease is paid to the applicant.
43. Under Polish law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected in the context of agrarian reform. Therefore, no specific legal framework is available, enacted with the purpose of mitigating the effects of certain infringements of property rights.
44. However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law. In particular, a final administrative decision can be declared null and void at any time if it was issued without a legal basis, or in flagrant violation of law.
45. If the flaw that taints the challenged decision is of a substantive character, i.e. if the decision had been given without a legal basis or in flagrant violation of law, the administrative authority shall declare it null and void.
46. Decisions flawed as a result of lesser procedural shortcomings, listed under items 1, 3, 4 and 7 of Article 156 § 1, such as those given by an authority which lacked competence to issue a decision in a given case, or in a case which had already been decided or addressed to a person not being a party to the proceedings, can only be declared null and void if less than ten years have elapsed from the date on which such decisions were given. In respect of such decisions it is only possible to declare that they were issued contrary to law; the decisions themselves remain valid.
47. A decision to declare the old decision null and void, or a refusal to do so, may ultimately be appealed to the Supreme Administrative Court.
48. Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part:
"A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual loss, unless he has been responsible for the circumstances mentioned in this provision."
49. An administrative decision in respect of the compensation claim could be appealed against in a civil court.
50. Under Article 35 of the Code of Administrative Procedure of 1960, the administration was obliged to deal with cases without undue delay. Simple cases should be dealt without any delay. In cases requiring some enquiry a first-instance decision should be given in no more than one month. In particularly complex cases decisions should be taken within two months.
51. If the decision had not been given within those time limits, a complaint under Article 37 of the Code could be filed with the higherinstance authority, which should fix an additional time limit, establish the persons responsible for the failure to deal with the case within the timelimits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays.
52. In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995. It created further procedures in which a complaint about the administration’s failure to act could be raised.
53. Under Article 17 of that Act, that court was competent to examine complaints about the administration’s inactivity in administrative proceedings in cases referred to in Article 16 of the Act.
54. Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority was well-founded, the court should oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation.
55. On 1 January 2004 the Law on Administrative Courts came into force, which replaced the 1995 Act and established a two-tiered system of appeals against administrative decisions to administrative courts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-78249
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VERAART v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant is a Netherlands national who was born in 1944; he is an advocate practising in Alkmaar (Netherlands).
6. On 19 June 2000 the NCRV, a private organisation holding a public broadcasting license, broadcast a television documentary entitled “Secret mothers” (Verborgen moeders). It featured a woman, one Ms A.K., who claimed to have been the victim of incest committed by her grandfather, her father and two of her brothers.
7. Ms A.K. alleged that five pregnancies had resulted. One had been terminated. Of the babies born from the other four, three had been ritually murdered and one had been sold.
8. These statements were said to be based on memories which Ms A.K. had repressed but which she had been able to recover with the aid of a therapist, Mr Kieft, who had been treating her for six years.
9. The K. family, who denied the truth of Ms A.K.'s allegations, sought the assistance of the applicant.
10. The Amsterdam public prosecutor (officier van justitie) opened a prosecution file, charging the NCRV with criminal libel.
11. On 14 June 2002 the public prosecution service published a press release in which it was stated that the NCRV had admitted having libelled the K. family and had settled out of court. The prosecution had been dropped subject to the conditions, which the NCRV had accepted, that the NCRV would pay a sum of money to the public prosecution service, publish a retraction and pay the K. family compensation for pecuniary and nonpecuniary damage and legal costs.
12. On 28 November 2001 another private organisation holding a public broadcasting license, the AVRO, broadcast a radio programme featuring an interview with the applicant about the case of the K. family.
13. The applicant said, among other things:
“Here we are faced with a dangerous group of individuals who ... [though] unproved, nonetheless present, er, a horrible crime. I mean, we're talking about five infanticides, we're not talking about nothing. ... all right, three murders, one abortion and one child allegedly sold, whatever, it's a terrible accusation and you can't just do that. That should not go unpunished.”
The interviewer explained that the reference was to
“... alternative therapies such as hypnosis and regression therapy ...”
going on to say:
“The alternative therapist who was treating [Ms A.K.] at the time was Mr Kieft. He actually does believe in recovered memories, and therefore also in the recollection of incest and of quadruple infanticide.”
14. Referring to the intuitive methods used by Mr Kieft, the interviewer stated:
“So, Mr Kieft can sense and see whether people have been sexually abused.”
The applicant responded, saying, among other things:
“I can't understand how he, how he can do that! To me, that shows how dangerous these therapists are. Someone like that shouldn't, should not be allowed to be a therapist surely? That man, he lives in North Holland province, he should, er, grow cabbages for the market ... He should go and grow cabbages out there, but he should absolutely not be working with with with patients, or with people who who are in emergency situations. I find this very worrying. I consider this very unprofessional. It's possible of course [that] these people are magi (magiërs), that has nothing to do with therapists, nothing to do with doctors. They take people back in regression therapy. Where was that man educated? Where did that man study? I have no idea, and what does he presume to be? That man likens himself to God. There is no medical practitioner, surely, who could say that?”
15. Later in the programme, referring to a conversation which Mr Kieft had had with Ms A.K.'s parents in 1994, the applicant said, among other things:
“... I just can't imagine how anyone can be so presumptuous as to tell two vulnerable old people, like some sort of guru, and, er, his truth, and then give them an audio tape and tell them: well, go and listen carefully to what I have said. Such arrogance. In my opinion it's quite terrible. Well, if you know that father K. died shortly after that, he went to his grave accused by him, right, accused by a relative ...”
16. The programme also comprised an interview with Mr Kieft, who stated that he was neither a hypnotist nor a regression therapist properly socalled. He believed, however, that the emotions aroused by relaxation exercises and acupressure reflected true events and he was certain that the memories which he had helped Ms A.K. recover were the truth.
17. On 9 December 2001 Mr Kieft lodged a complaint against the applicant with the Dean (deken) of the local Bar Association (Orde van Advocaten).
18. The Dean gave a provisional opinion on 22 March 2002. It mentions that Mr Kieft was asked, on 24 January 2002, to state his medical and scientific qualifications but declined to do so.
19. The Dean noted that Mr Kieft's refusal to state his qualifications did not, at any rate, indicate that the applicant's statements were incorrect. However, it was understandable that Mr Kieft should feel aggrieved and it was not clear that the interests of the K. family were served by the applicant's statements.
20. The provisional conclusion was that the complaint was well-founded. The Dean forwarded Mr Kieft's complaint to the Amsterdam Disciplinary Council (Raad van Discipline) on 5 April 2002.
21. The Disciplinary Council held a hearing on 14 October 2002. On 16 December 2002 it gave a decision finding Mr Kieft's complaint unfounded. It recognised that the K. family had a legitimate interest in contesting, in the media and elsewhere, the accusations levelled against them by Ms A.K.; the applicant's expressions, though forceful, had not been disproportionate.
22. Mr Kieft appealed to the Disciplinary Appeals Tribunal (Hof van Discipline).
23. That Tribunal held a hearing on 28 April 2003, at which it was stated among other things that Mr Kieft had been practising as a self-employed psychotherapist since 1981. He had been trained at the International Institute of Unitive Psychotherapy, after which he had taken some practical and theoretical courses and a two-year course on multi-method relationship therapy. He was a recognised member, supervisor and trainer of the Association for Unitive Psychotherapy (Vereniging voor Unitieve Psychotherapie). He was associated with the private foundation (stichting) Institute for Registration, Certification and Development of Nature-Oriented Health Care (Stichting Registratie-, Certificatie- en Ontwikkelingsinstituut Natuurgerichte Gezondheidszorg, also known as “Registration Institute for Nature-Oriented Health Care”, Registratie-instituut Natuurgerichte Gezondheidszorg, or “RING”), which had set up a disciplinary system.
24. On 3 October 2003 the Tribunal gave its decision. It considered that a lawyer had not to judge the quality of a particular therapeutic method. Although Ms A.K. had levelled accusations against her family involving five pregnancies, three infanticides, an abortion and the sale of a baby, Mr Kieft had not been present when she did so; the applicant should therefore not have connected Mr Kieft to them.
25. Nor should he have suggested that Ms A.K.'s alleged repressed memories had been caused by Mr Kieft's use of hypnotism or regression therapy, Mr Kieft not having claimed to be a hypnotist or a regression therapist. The applicant had been unclear in explaining what improper therapeutic measures exactly he held against Mr Kieft.
26. The conversation between Mr Kieft and Ms A.K.'s parents in 1994, also criticised by the applicant, had not been part of the therapy. In any case, the applicant's criticism of that conversation was unfounded given that the applicant had not clearly explained why he considered Mr Kieft negligent in his therapeutic methods.
27. The applicant's vagueness might have been defensible if only he had chosen to make the interview a “clarion call” (klaroenstoot) preparatory to a civil suit to follow shortly after, but no civil suit had ever been brought.
28. The applicant had not been entitled either to describe Mr Kieft as a “magus” who “likened himself to God”. Mr Kieft had in fact stated, in his 1994 conversation with Ms A.K.'s parents, his reasons for believing the truth of Ms A.K.'s statements, and he had been careful to spare them feelings of guilt for the acts of their sons and to avoid labelling the sons as delinquents.
29. Whether or not the applicant could be said to have used “irony”, as he argued, the way in which he had expressed himself had been unnecessarily wounding (onnodig grievend) for Mr Kieft.
30. Mr Kieft's complaint was therefore well-founded. Since the applicant had a clean record, he was given a mere admonition (enkele waarschuwing).
31. On 16 March 2005 Mr Kieft, through his counsel, informed the Court that he had instituted civil proceedings in the competent domestic tribunal, which proceedings had been adjourned pending the Court's decision.
32. The K. family brought an action for damages against Mr Kieft on 13 October 2005, based on what the applicant describes as the escalation of Ms A.K.'s problems and the statements made by Mr Kieft as to the veracity of Ms A.K.s alleged recollections.
33. Article 7 of the Constitution of the Kingdom of the Netherlands provides as follows:
“1. No one shall require prior permission to make public thoughts or feelings (gedachten of gevoelens) in printed form, the individual responsibility of everyone under the law notwithstanding.
2. There shall be statutory rules governing radio and television. There shall be no prior control of the content of a radio or television broadcast.
3. No one shall require prior permission to make public thoughts or feelings in any other way than those mentioned in the preceding paragraphs, the individual responsibility of everyone under the law notwithstanding. ...
4. The preceding paragraphs are not applicable to commercial advertising.”
34. Section 46 of the Legal Profession Act (Advocatenwet) provides as follows:
“Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after, or ought to look after, any breach of the Regulations of the National Bar, and any act or omission not befitting a respectable advocate (enig handelen of nalaten dat een behoorlijk advocaat niet betaamt). This disciplinary justice shall be dispensed at first instance by the Disciplinary Councils, and, on appeal, by the Disciplinary Appeals Tribunal, which shall also be the highest instance.”
35. Guidance on the nature of an “act or omission not befitting a respectable advocate” is found in the Rules of Conduct for Advocates (Gedragsregels voor advocaten), the most recent version of which dates from 1992. The Rules relevant to the present case are the following:
“Advocates should conduct themselves in such a way that confidence in the profession or in their own exercise of the profession is not diminished.”
“Advocates should not express themselves, either orally or in writing, in a way that is unnecessarily wounding.”
VIOLATED_ARTICLES: 10