EHR MCC - 1st edition

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Team No. 084

THE EUROPEAN HUMAN RIGHTS

MOOT COURT COMPETITION

2012/2013

“Sterilisation of pregnant HIV women in Orosia”

Victims of Sterilisation

(Complainant)

vs

The Government of Orosia

(Respondent)

Submission for the Complainant

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TABLE OF CONTENTS

I. LIST OF REFERENCES ............................................................................................Pages 2-3

II. LIST OF ABBREVIATIONS ..........................................................................................Page 5

III. SUMMARY........................................................................................................................Page 6

IV. LEGAL PLEADING ........................................................................................................Page 7

Part A: Introduction

1. Introduction.

2. Sterilisation: Relevant Background Information

3. Admissibility of Claim

1. Scope within Art. 1

2. Applicant Status

3. Victim Status

Part B: Sterilisation – Merits of Claim ..................................................................................Page 8

4. Violation of Art. 3: Freedom from inhuman and degrading treatment………………...Page 8

i. Right to full and informed consent…………………………………………Page 9

ii. Sterilisation as Inhuman and Degrading Treatment……………………….Page 10

ii. Positive Obligations under Art. 3………………………………………….Page 10

5. Violation of Art. 2: Right to Life……………………………………………………...Page 10

6. Violation of Art. 8: Private and Family Life………………………………………….Page 11

i. Right to physical and moral integrity ……………………………………..Page 12

ii. Right to self-determination and personal autonomy……………………….Page 12

iii. Positive Obligations under Art. 8………………………………………….Page 13

iv. Alternative Contraceptive Options………………………………………...Page 15

v. Unjustifiable Interference………………………………………………….Page 15

7. Violation of Art. 12: Right to found a family…………………………………………Page 16

8. Violation of Art. 14: Freedom from Discrimination………………………………….Page 17

9. Violation of Right to Health…………………………………………………………..Page 19

Part C: Loss of Medical Records ..........................................................................................Page 20

Part D: Remedies ....................................................................................................................Page 20

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I. LIST OF REFERENCES

1. Conventions and Treaties

I. Convention for the Protection of Human Rights and Fundamental Freedoms, (entered into

force 3 September, 1953)

II. European Council and European Parliament Directive (2001/20/EC)

III. European Social Charter (Revised Charter 1999)

IV. 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)

V. International Covenant of Economic, Social and Cultural Rights (ICESCR)

VI. Convention on the Elimination of Discrimination Against Women (CEDAW)

VII. Universal Declaration of Human Rights (UDHR)

2. Cases

• Aksoy v. Turkey, no. 21987/93

• Assenov v Bulgaria, 28 October 1998

• Belgian Linguistics case (No.1) (1967) Series A, No. 5

• Boso v Italy (No. 50490/99)

• Chauvy and Others v France (No. 64915/01)

• Codarcea v Romania (No. 31675/04)

• Collins and Akaziebie v Sweden (No. 23944/05)

• Conka and Ors v Belgium, (No. 51564/99

• Costello-Roberts v The United Kingdom (No. 13134/87)

• DH & Ors. v Czech Republic (No. 57325/00)

• Dickson v United Kingdom (No. 31675/04)

• Dudgeon v United Kingdon (No. 7525/6)

• E.L.H .and P.B.H. v The United Kingdom (No. 32094/96 & 32568/96)

• Evans v the United Kingdom (No. 6339/05)

• Glor v Switzerland (No. 13444/04)

• Guerra v Italy (No. 14967/89)

• H v Norway (No. 17004/90)

• Handyside v United Kingdom (No. 5493/72)

• Hristozov and others v Bulgaria (No. 47039/11)

• I.G. and Others v Slovakia (No. 15966/04).

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• Ihlan v Turkey (No. 22277/93)

• Islamic Republic of Iran Shipping Lines v Turkey (No. 40998/98)

• K.H. and Others v Slovakia (No. 32881/04)

• Kiyutin v Russia (No. 2700/10)

• Klass v Germany (1979-1980) 2 EHRR

• Kudla v Poland

• McCann and Ors. v United Kingdom

• McGinley and Egan v United Kingdom

• Muñoz Díaz v Spain (No. 49151/07)

• N.B. v Slovakia (No. 29518/10)

• Niemitz v Germany (No. 13710/88)

• Osman v The United Kingdom [1998] EHRR 101

• Peck v United Kingdom (No. 44647/98)

• Pfeifer v Austria (No. 10802/84)

• Pretty v United Kingdom, (No. 2346/02)

• R.R. v Poland (No. 27617/04)

• Rees v United Kingdom (No. 9532/81)

• Satik v Turkey (2000)

• Shelley v The United Kingdom (No. 23800/06)

• Ternovszky v Hungary (No. 67545/09)

• I. v the United Kingdom (No. 25680/94)

• VC v Slovakia (No. 18968/07)

• VO v France (No. 53924/00)

• Marckx v Belgium (1979)

• X and Y v The Netherlands (No. 8978/80)

• X v Denmark (No. 1287/61)

• X v United Kingdom (No. 8416/79)

• YF v Turkey (No. 24209/94)

• Zarb Adami v Malta (2006)

3. Secondary Sources

De Cock et al (2000) 'Prevention of mother-to-child HIV transmission in resource-poor

countries: translating research into policy and practice', JAMA 283(9).

Dickens and Cook, “Dimensions of informed consent to treatment” International Journal

of Gynaecology and Obstetrics 85 (2004)

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FIGO; ‘Female Contraceptive Sterilisation Guidelines’, March 2011

FIGO Committee Report; ‘Guidelines regarding Informed Consent’, International

Journal of Gynecology and Obstetrics (2008) 101, 219-220

Forowicz, Magdalena, “The Reception of International Law in the European Court of

Human Rights”, Oxford University Press, 2009

Harris, D.J, O’Boyle, M.,Warbrick, C. and Bates, E., “Law of the European Convention

on Human Rights”, Butterworths, 2009

Korff, Douwe “The right to life: A guide to the implementation of Art. 2 of the

European Convention on Human Rights” (2006) Council of Europe

ICW Paper on “The forced and coerced sterilisation of HIv positive women in Namibia”

(2009)

Information document prepared by the Secretariat of the ESC “The Right to Health and

the European Social Charter” (March 2009)

LM Mann et al (eds) Health and Human Rights: A Reader (1999, Routledge)

O. Gostini and Lazzarini, International Human Rights Law in the AIDS Pandemic,

Oxford University Press, 1997

Ramcharan, Bertrand, “The Right to Life in International Law”, Martinus Nijhoff, 1985

‘Report of the International Bioethics Committee of UNESCO on Consent’, 2008

“Taking Stock: HIV in children” report by the (WHO 2006)

Zampas and Lamackova, “Forced and coerced sterilization of women in Europe”

International Journal of Gynecology and Obstetrics 114 (2001) at 164

II. LIST OF ABBREVIATIONS

ECHR - European Convention of Human Rights

ECtHR - European Court of Human Rights.

WHO - World Health Organisation.

UNESCO - United Nations Educational, Scientific and Cultural Organisation.

UN – United Nations.

HIV - Human Immunodeficiency Virus.

FIGO - International Federation of Gynaecology and Obstetrics.

III. SUMMARY

• A Campaign ‘encouraging the sterilisation of HIV positive women’, offered for free through

NHS, has been implemented by the Orosian State by administrative decree, with the aim of

reducing the instances of transmission of HIV from mother to child at birth.

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• However, 12.9% of sterilized HIV positive women have undergone the procedure without

giving prior consent, and 29% only agreed after coercion by Doctors.

• A.A. lived in one of the poorest neighbourhoods of Orosia, and she sought antiretroviral

therapy and pregnancy services at Mangonia General Hospital, provided by the NHS.

• A.A. was informed about the sterilisation campaign at the point of checking into the hospital

for the final time, prior to birth.

• A.A. gave ‘positive answers’ to Dr. Sylvester at a subsequent meeting for the sterilisation ,

however Dr. Sylvester later acknowledged that she may not have understood the

implications of the procedure, due to her lack of education.

• A.A. went on to deliver a healthy baby, she underwent a tubal ligation during birth.

• A.A. claims that she was not consulted or informed about the procedure and never gave

consent to it. She had merely told Dr. Sylvester to, “Do what is best for the wellbeing of my

child and me”.

• “Victims of Sterilisation”, an Orosian NGO, brought A.A.’s case to the domestic courts

claiming that she had not been informed or consulted about the sterilisation procedure.

• In all domestic instances the courts ruled that medical staff had obtained valid consent,

albeit oral consent, from the Complainant “in accordance with Orosian law”, citing the

failure to record consent as an “administrative irregularity”.

• The Complainant submits that her sterilisation without full and informed consent of A.A. is

a violation of the right to be free from inhuman and degrading treatment, the right to free

and informed consent, the right to private and family life, the right to marry and form a

family, and the right to be free from discrimination under the ECHR.

• The Complainant submits that the absence of registration of consent in A.A.’s medical

records is a violation of her right to accurately kept medical records under Art. 8.

Furthermore it is submitted that this lack of registration violated her right to an effective

remedy under Art. 13, as civil cases in Orosia are based on documented evidence.

• “Victims of Sterilisation” has filed a complaint on A.A.’s behalf at the European Court of

Human Rights.

V. LEGAL PLEADING

INTRODUCTION

The European Convention is interpreted teleologically; emphasis is placed on its ‘object and

purpose’ and interpretation of its provisions is “evolutive” and “dynamic”. Furthermore, the

Strasbourg Court has always stated that interpretation of the Convention must take into account

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relevant rules of international instruments and jurisprudence.1 Specifically, it has been held that a

treaty may be referred to whether the respondent State is a party to it or not.2

Prima facie, international human rights law is of persuasive value in interpreting the

Convention. However, recently, academics have identified a deeper relationship between the

ICCPR and the ECHR. In particular, Forowicz identifies a trend of convergence between the two

instruments, whereby the Strasbourg bodies increasingly refer to the ICCPR in order to harmonize

the ECHR with the Covenant.3 Therefore, it is submitted that above the value of elucidation, rights

guaranteed by the ICCPR underscore and delineate the substantive rights under the Convention.

Additionally, it shall be noted that the respondent is a member of the UN, the WHO and

UNESCO. The Orosian government owes particular obligations to these bodies and should be

heavily influenced by their regulations, protocols, treaties and reports. Furthermore, as Orosia is a

signatory of the UDHR, it has contracted to protect human rights therein proclaimed, allowing for

other international instruments and case law to inform these rights.

Relevant Background Information to Sterilisation

Sterilisation is a procedure that should be scrutinized carefully – particularly when it

comprises a government policy – because of its objective severity and the subjective context of its

use. Recent unsettling trends of sterilisation among vulnerable women, such as ethnic minorities4 or

those living with HIV5 warrant specific concern. Commentators have noted: “Being both a woman

and HIV positive renders positive women especially vulnerable to human rights violations,

particularly violations of sexual and reproductive health and rights."6 Thus, in the course of the

legal pleadings to follow, it is urged that the Court draw its attention to the contextual background

of this practice and the general public interest that underscores it.

PART A: ADMISSIBILITY OF CLAIM

1. Scope within Art. 1

1.1. Orosia is a contracting party to the ECHR and it’s associated protocols. Therefore, the Orosian

government owes particular obligations to these bodies and their particular regulations, protocols,

treaties, etc.

1 Harris, O’Boyle, Warbrick and Bates (2009), p. 14

2 Marckx v Belgium A 31 (1979); 2 EHRR 305

3 Forowicz (2009), p.154

4 K.H. and Others v Slovakia, no. 32881/04, ECHR, 28 April 2009; IG, MK & RH v Slovakia, No. 15966/04; VC v

Slovakia, No. 18968/07. 5 LM and Others v The Government of the Republic of Namibia (I 1603/2008, I 3518/200, I 30007/2008) [2012] NAHC

211 6 ICW Paper on “The Forced and Coerced Sterilisation of HIV Positive Women in Namibia” (2009)

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2. Applicant Status

2.1 In accordance with Art. 34, A.A. is a victim of a breach of the ECHR, by the Orosian State.

“Victims of Sterilisation” is an Orosian NGO with the purpose of advancing women's reproductive

health, self-determination and dignity as basic human rights. As an NGO, “Victims of Sterilisation”

has locus standi, as NGOs may exercise the right of application in the Court.7 The application has

not been brought before another international adjudicative body. The application has been signed by

the Complainant and she has approved Victims of Sterilisation’s representation.

3. Victim Status

3.1 A.A. has been a victim of a sterilisation procedure performed without the prior obtaining of full

and informed consent, therefore it is submitted there has been a violation of several convention

rights (Art. 3, 8, 12, 14). In accordance with Art. 35 (1), A.A. is a “victim” for the purposes of

admissibility, she is a “direct victim” of the sterilisation procedure. This is a “new complaint”,

taken within a 6 month period (5 month time span). A.A. has exhausted domestic remedies in

Orosia. In accordance with 35 (3)(b) as amended by Protocol 14 (12), it is submitted that A.A. has

suffered a significant disadvantage, having undergone sterilisation without giving her full and

informed consent to the procedure.

PART B: MERITS OF CLAIM

4. The failure to obtain ‘free and informed’ consent to sterilisation has violated A.A’s right to

bodily integrity, security of the person and protection from inhuman and degrading

treatment under Art. 3.

4.0.1 Freedom from inhuman and degrading treatment is guaranteed by Art. 3 of the ECHR.

Additionally, this right is protected by Art. 16 of CAT, Art. 5 of the UDHR and Art. 7 of the

ICCPR. It is submitted that by way of persuasive international standards, sterilisation without a

woman’s full consent is a violation of her right to bodily integrity, security of person and dignity8.

Further, for our purposes, sterilisation without consent constitutes inhuman and degrading treatment

within its meaning under the European Convention.

4.0.2 Art. 7 of the ICCPR and UN General Comment 14 ensure that freedom from such inhuman

and degrading treatment includes the right not to be subjected to medical or scientific

experimentation without full and informed consent. These authorities lend contextual value to the

7 Islamic Republic of Iran Shipping Lines v Turkey, no. 40998/98, § 76, ECHR 2007

8 General Comment #24 of CEDAW Committee, Adopted 1999

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general principle that a State may be responsible under Art. 3 for the acts of its servants or agents.9

There is a duty upon public authorities to afford protection against inhuman and degrading

treatment to citizens. Thus, through its failure to procure full and informed consent, the State, via its

agent the Mangonia General Hospital, has violated its international duty to protect the Complainant

against inhuman and degrading treatment.

4.1 Right to free, full and informed consent

4.1.1 Consent is the necessary cornerstone of all medical intervention. By way of international

benchmarks, “consent” requires that an individual, before medical intervention takes place, be

provided with all appropriate information as to the purpose and nature of the intervention as well as

its consequences and risks.10

Further, the modern legal framework has moved away from a

“physician standard” of what constitutes appropriate information to a “reasonable person

standard”.11

4.1.2. The Complainant submits that Orosian law relating to consent for medical procedures for

illiterate patients is contrary to international standards and jurisprudence.12

Information concerning

the procedure and its purpose and risks was not adequately conveyed to the Complainant in a

manner she could comprehend. Here, the Complainant’s positive affirmations cannot be understood

to be free, full and informed consent. According to academics, the expression ‘informed consent’ is

a misnomer as it is, in fact, ‘informed choice’ that governs the concept of voluntary consent.13

The

account of A.A’s “consent” demonstrates a large absence of choice and her consistent positive

answers underscore her lack of understanding. The presiding doctor, Dr. Sylvester, even concedes

that A.A. “could have misunderstood the results of the procedure due to her lack of education.”

Similar factors were considered in a Namibian case where it was found that the requisite standards

of consent, as discussed, were not met in relation to the sterilisation of an HIV-positive woman.14

4.1.3 These inadequacies were compounded by the absence of the Complainant’s husband. Under

national law, the standard of consent for surgical procedures in relation to illiterate patients is one of

9 Harris, O’Boyle, Warbrick and Bates (2009), p. 71

10 Art. 5, Council of Europe: Convention for the Protection of Human Rights and Dignity of the Human Being with

regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine; Art. 6 Universal

Declaration on Bioethics and Human Rights. 11

Dickens and Cook, “Dimensions of Informed Consent to Treatment” International Journal of Gynaecology and

Obstetrics 85 (2004) 12

Article 10(h) of CEDAW; Article 16(e) of CEDAW 13

Dickens and Cook, “Dimensions of Informed Consent to Treatment” International Journal of Gynaecology and

Obstetrics 85 (2004) at 310. 14

LM and Others v The Government of the Republic of Namibia (I 1603/2008, I 3518/200, I 30007/2008) [2012]

NAHC 211

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verbal acceptance in the presence of a ‘treating and ulterior witness’. Therefore, it is submitted that

A.A. did not give her consent to the procedure as required by Orosian law. Further, the lack of an

ulterior witness compromised the standard of A.A’s consent generally. Her only medium for

information was the presiding doctor, who, as established, did not ensure A.A was presented with

the relevant information in manner in which she could comprehend.

4.1.4 Further, it is submitted the consent requirement was not vitiated by a medical emergency.15

The sterilisation had not been a life-saving procedure in this case. It was carried out without

consideration for “alternative”16

ways of protecting the Complainant from the alleged risks linked to

a possible future pregnancy, such as the various methods of contraception and HIV treatment

available to her and her husband that would not have left her permanently infertile. FIGO guidelines

articulate that, in the context of surgical sterilisation, recognized available alternatives, especially

reversible forms of family planning which may be equally effective, must be given due

consideration. For these reasons, it is submitted that lack of full and informed consent is equated

with “coerced sterilisation”.

4.2. Sterilisation constitutes inhuman and degrading treatment

4.2.1 The Complainant submits that the extent of the medical intrusion, combined with the lack of

informed consent, rendered the procedure within the “severity” threshold required to amount to

inhuman and degrading treatment contrary to Art. 3.17

Considering the social and cultural

repercussions of A.A’s sterilisation, including the expulsion from her community, no one can deny

A.A has met the requisite degree of humiliation. Furthermore considering the court has held female

genital mutilation constitutes inhuman treatment18

within the meaning of the Convention it is

implored that the Court acknowledge A.A’s sterilisation without full and informed consent has also

reached a comparable threshold.

5. The Complainant’s sterilisation constitutes a violation of the right to life (Article 2).

5.0.1 The right to life is widely acknowledged as one of the most fundamental and basic human

rights19; “a primordial right which inspires and informs all other rights”.20 Its sanctity is reflected

both in its ubiquitous recognition in international treaties and in its acceptance as a non-derogable

15

Art. 8 Convention on Biomedicine and Human Rights: “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.” 16

General Comment #24 of CEDAW Committee (1999) 17

VC v Slovakia, no. 18968/07, § 106, ECHR 16 June 2009 18

Collins & Akaziebie v Sweden, no. 23944/05, ECHR 8 March 2007 19 McCann and Others v United Kingdom, no. 18984/91, § 147, 27 September 1995 20 Bertrand G. Ramcharan (1985), p. xi

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jus cogens in international law.21 In particular, the right to life is protected by Article 2 of the

ECHR, Article 3 of the UDHR and Article 6 of the ICCPR. The right not only incorporates a

negative obligation not to deprive an individual of his life, but also contains a positive obligation

upon Contracting States to protect the right effectively and appropriately.22

5.0.2 The Complainant submits that her coerced sterilisation is inconsistent with the provisions on

the right to life; in particular, the right to life of her future children. It is contended that Article 2 of

the Convention recognises and protects a right to life of the unborn with certain implied

limitations.23 While “life” – its beginning and ending – is left undefined by the Convention and its

international equivalents, its meaning has been held to possibly extend to the unborn child.24

Further, the Commission has expressed the opinion that in certain circumstances a sterilisation

operation might be contrary to Article 2 by denying a person the possibility even of conception.25

5.0.3 It has been recognised that the unborn does not enjoy an absolute right to life, as this could

lead to a denial of the mother’s rights. Here, however, the right to life of the unborn is not in danger

of infringing on A.A’s rights. Therefore, it is contended that the respondent State has failed in its

negative obligation to refrain from the deprivation of life and in its positive duty to vindicate the life

of the unborn.

6. The failure to obtain ‘free and informed’ consent to sterilisation has violated A.A.’s right to

respect for private and family life (Art. 8).

6.0.1 Art. 8 ensures freedom from interference by the State and respect for human dignity. This

freedom is also guaranteed in Art. 12 of the ECPFR and Art. 17 of the ICCPR. It is submitted that

there was a major interference in A.A.’s private and family life by the State. A.A. was subject to an

irreversible medical procedure to which she did not provide her full and informed consent. The

violation is within the scope of Art. 8, as a sterilisation ‘constitutes a major interference with a

person’s reproductive health status’.26

The Court in X and Y v The Netherlands held that the sexual

life of a person is within the sphere of Art. 8 and one’s “private life”27

, encompassing one’s

‘physical and mental well-being and emotional, spiritual and family life.’28

The Court has

21 Ibid, at xii 22 Korff, Douwe (2006), p. 61 23 X v United Kingdom no. 7992/77 , 13 October 1980; H v Norway no. 17004/90, 19 May 1992 as confirmed by Boso v

Italy no. 50490/99, 5 September 2002. 24 Vo v France, no. 53924/00, Decision of 8 July 2004 25 X v Denmark, no. 1287/61 Unreported Judgment 26

VC v Slovakia, no. 18968/07, § 106, ECHR 16 June 2009 27

X and Y v The Netherlands, no. 8978/80, § 22, 26 March 1985 28

VC v Slovakia, no. 18968/07, § 106, 16 June 2009

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previously acknowledged that the circumstances of giving birth incontestably form part of one’s

private life for the purposes of this provision’29

. It also must be noted that the sterilisation had not

been a life saving procedure, and more proportionate methods of contraception were not made

known to her by her meetings with the health care staff. A.A. did not give her free and informed

consent to the sterilisation procedure, (established above in para. 4.1). It is submitted the following

aspects of A.A’s ‘private and family’ life have been interfered with:

6.1 Right to physical and moral integrity.

6.1.1 The failure to obtain free and informed consent has interfered with A.A’s right to physical and

moral integrity. This claim is put forward in the alternate, where a claim of inhuman or degrading

treatment has failed under Art. 3 (see para. 4.2). The Court has previously Stated that if treatment

does not reach the threshold of severity under Art. 3, it may be found to be a violation of Art. 8,

where it infringes upon physical or moral integrity of the person.30

A person’s body has been held

to be “the most intimate aspect of private life”31

, this including circumstances of gynaelogical

medical intervention.

6.2 Right to self determination and personal autonomy.

6.2.1 A.A.’s right to self-determination and personal autonomy has been restricted. Personal

autonomy has been explicitly recognised by the Court, described as a “fundamental principle

underlying the interpretation of the guarantees of Art. 8.”32

The failure to obtain free and informed

consent has interfered with A.A.’s right of choice to become a parent in the future. The Court has

acknowledged that the right to respect for a decision to become, or not to become, a parent is within

the sphere of “private life”.33

A.A. can no longer exercise her choice to reproduce, nor make this

choice with her husband into the future, which also has implications for founding a family

(discussed in para. 7, under Article 12 ECHR).

6.2.2. Further, the respondent State has failed in its duty to allow individual reproductive self-

determination. In particular, the Complainant has been denied the right to decide freely and

responsibly on the number and spacing of her children, as guaranteed by Art 16(e) of CEDAW and

Article 23.1 of the CRPD. The CRPD also protects the right of persons with disabilities to retain

29

Ternovszky v Hungary, no. 67545/09, § 22, 14 December 2010 30

Costello-Roberts v The United Kingdom, 25 March 1993, no. 13134/87, § 34-36, Series A no 247-C 31

YF v Turkey, no. 24209/94, § 33, ECHR 2003 - IX 32

Pretty v The United Kingdom, no. 2346/02, § 62, ECHR 2002-III 33

Evans v The United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-IV

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their fertility on an equal basis with others.34 It is argued that A.A, for these purposes, is a disabled

individual as defined in Article 1 of the CRPD (see also para. 8.3.1).

6.2.3 The sterilisation has interfered with A.A.’s choice to develop her identity within her

community. The Complainant submits that, in particular, A.A.’s sterilisation violated her right to a

reputation, as guaranteed under Art. 8. This includes a failure to display any cultural sensitivity or

awareness of her community as one that holds the strong cultural and religious belief of ‘expulsion’,

an inevitable yet foreseeable outcome of the procedure. Specifically, it has been held35, and since

confirmed36, that a person’s reputation is protected by Art. 8 as part of the right to respect for

private life. The Court has recognised that the protection of one’s reputation comes within the

sphere of Art. 8, as it is an innate part of one’s individual identity and one’s psychological

integrity.37

Her reputation has been ruined as a direct consequence of the State’s action. The State

has also interfered with A.A.’s right to establish and develop relationships in her community. The

Court has confirmed that Art. 8 does not only protect the privacy of the immediate personal sphere

of the individual, but also of their right to ‘establish and develop relationships with other human

beings and the outside world.’38

This is known as the ‘zone of interaction’ with persons. As A.A.’s

community places a great emphasis on motherhood, her ability to develop relationships has been

massively impaired by her ‘expulsion’.

6.3 The State has failed in its positive obligations under Art. 8 to protect A.A. from

interference.

6.3.1 It is submitted that the obligation upon the State to protect the individual against arbitrary

interference also includes the duty to act upon positive obligations. These obligations may involve

adopting affirmative measures to uphold Art. 8.39

6.3.2 It is submitted that the State has failed in its positive obligations to protect A.A. from

interference, here, the arbitrary interference by a public authority in the family and private life of

the Complainant. Contracting parties to the ECHR have guaranteed to ‘respect’ the rights enshrined

in Art. 8. Without positive obligations on the part of the State, Art. 8 is ineffective. Positive

obligations are required to be upheld to give effect to the rights guaranteed under Art. 8 and to

34 Zampas and Lamackova (2001), p.164 35

Chauvy & Others v France, no. 64915/01, § 70, ECHR 2004-VI 36

Pfeifer v Austria, no. 10802/84, § 35, 25 February 1992, Series A no. 227 37

Ibid at § 32 38

Peck v United Kingdom, no. 44647/98, § 57, ECHR 2003 - I; Niemitz v Germany, no. 13710/88, § 29, 16 December

1992, Series A, no. 251-B 39

Dickson v United Kingdom, no. 31675/04, § 70, ECHR 2007 - XIII

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protect those at risk. The Council of Europe further recommends that ‘parties taking into account

health needs and available resources, shall take appropriate measures with a view to providing ...

equitable access to health care of appropriate quality.’40

It is submitted that the measures and

safeguards needed to obtain full and informed consent, (see para. 4.1) have not been satisfied.

6.3.3 In this case, the State failed to implement safeguards to ensure full and informed consent prior

to the sterilisation procedure, in a situation where the particular vulnerabilities of the patient were

not addressed. The procedure was not an emergency medical procedure, it was elective, therefore

there was ample time to ensure A.A. fully consented to the procedure. The Council of Europe

recommend for full and informed consent to be given, ‘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’41

, and the person must have the full capacity to consent.42

It is submitted

that these safeguards must take into account to acknowledge A.A.’s cultural, religious, education

and economic background and provide extra protection, a higher threshold for consent.

6.3.4 The Court has recognised that the right to information about one’s reproductive abilities

comes within Art. 843

, along with information about risks to the health of a person.44

In particular,

the advice given by the NHS to A.A. did not address the cultural and social ramifications of the

sterilisation procedure with regard to A.A.’s lifestyle afterwards. Thus, the lack of consent in this

case results in a disproportionate disadvantage to A.A. The consent was obtained in a highly

traumatic situation, with A.A. being only days away from giving birth to her first child. A.A. Had

visited the NHS hospital on numerous occasions beforehand to undergo treatment, yet she was not

informed of the campaign until admission. Furthermore, the procedure could have been carried out

days or even weeks after the birth, to ensure A.A. gave what the medical staff could then be assured

was absolute full and informed consent, with A.A. in a more appropriate decision making

environment with less urgency, as this was effectively an elective procedure with a foreseeable and

detrimental effect on her life. The Court has previously recognised the obligation to impose

safeguards when obtaining consent ‘based on a full understanding and knowledge of the

consequences of an operation’, ‘before any medical intervention is performed’, ensuring the

physical integrity of patients.45

The absence of safeguards is noted in VC v Slovakia46

, where this

40

Art. 3, Council of Europe: Convention for the Protection of Human Rights and Dignity of the Human Being with

regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. 41

Art. 5, Ibid. 42

Art. 6, Ibid. 43

K.H. and Others v Slovakia, no. 32881/04, § 44, ECHR 28 April 2009 44

McGinley & Egan v The United Kingdom, no. 21825/93 & 23414/94, § 97, ECHR 2000-I; Guerra v Italy, no.

14967/89, § 60, ECHR 1998 - I 45

Codarcea v Romania, no. 31675/04, 2 June 2009

15

was found to be enough to establish a violation of the State’s positive obligations. In the VC case,

the Complainant was told her consent for sterilisation was needed as, ‘both her and her baby were at

risk.’ That is a comparable setup to this case, with A.A. telling Dr. Sylvester to “do the best for the

wellbeing of my child and I” in similar medical circumstances. The doctor conceded A.A. may not

have understood the result of the decision, due to her ‘lack of education.’ Such lack of positively

implemented safeguards has led to an epidemic situation of coercion among similar women, noting

statistics outlined above in the ‘Summary of Facts’.

6.4 The State failed to provide A.A. with information about alternative contraceptive

methods.

6.4.1 As discussed in para. 4.1.4, alternative and less invasive contraceptive methods were not

discussed with A.A neither in her private consulation with Dr. Sylvester nor in her numerous visits

to the hospital beforehand. Specific information should have been provided by the hospital to A.A.

in order to safeguard against such an intervention being performed, without full and informed

choice on A.A.‘s part.

6.4.2 Finally, the Orosian State were under an additional positive duty to ensure safeguards in

obtaining consent due to the public nature of the provision of the sterilisation service. The

procedure in question is provided under the free, ‘National Health Service’. Ergo, administration of

the procedure without full and informed consent is going to impact those of a lower socio -

economic background disproportionately, and vulnerable groups that cannot afford private

healthcare.

6.4.3 It is submitted therefore that the failure to obtain A.A.’s free and informed consent to

sterilisation comes within the scope of possible violations under Art. 8 para. one. It is submitted that

this right to private and family life has been interfered with by the State. The failure to implement

safeguards on the part of the State led to a situation that is nothing short of coercion. Therefore it is

submitted the State failed in its positive obligations toward A.A.

6.5 The interference cannot be justified under Art. 8 (2).

6.5.1 The Court has said there must be “particularly serious reasons before interferences”47

for the

legitimation of interference under para. 2 of Art. 8. First, it is submitted that the measure is not in

accordance with Orosian law, as there was no ulterior witness present at the time the consent was

46

VC v Slovakia, no. 18968/07, §1 45, 152, 154, 16 June 2009 47

Dudgeon v United Kingdom, no.7525/76, 22 October 1981, § 52, Series A no. 45

16

sought from A.A. Furthermore, her consent was not recorded in her medical records, as is

prescribed for by Orosian law.

6.5.2 It is not disputed that the sterilisation was in pursuit of a legitimate aim, that of combatting

‘the increasing rate of people infected with HIV.’ This aim is provided for under the ‘protection of

health’ provision.

6.5.3 It is submitted that this procedure, carried out without full and informed consent, was not

“necessary in a democratic society”. The interference must be in response to address a ‘pressing

social need’48

for the interference in question. A pressing social need is not present in this case.

Antiretroviral therapy is available to prevent HIV from passing on from mother to child.

Furthermore, HIV is not an infectious disease, and does not present an immediate risk to public

health in itself. [Modern pharmaceuticals can cut risk of transmission from mother to baby to 2%]49

.

The interference must be no greater than necessary to address this need (this is the proportionality

test)50

. The above interference fails the proportionality test. There are less invasive alternatives to

the prevention of passing on HIV to unborn children. For example, as mentioned antiretroviral

therapy was provided to A.A., and she underwent this treatment to avoid transmitting the virus to

her unborn child. There are alternate and less intrusive methods of treatment available. Why could

this treatment not have been administered in future pregnancies? Furthermore, alternative

contraceptive methods were not discussed. Relevant and sufficient reasons for the restriction must

be present in this test. In light of the above, the exception, here the protection of health, must be

narrowly construed. This exception cannot be interpreted as a construction to avoid the need to

establish full and informed consent.

6.5.4 Therefore, the aim of protecting the sphere of public health is permissible under Art. 8.

However, it is submitted that the failure by the State to obtain ‘free and informed’ consent from

A.A amounted to a violation of Art. 8, as this cannot be deemed “necessary in a democratic

society”.

7. A.A’s coerced sterilisation is a violation her right to found a family (Art. 12)

7.0.1 It is universally acknowledged that individuals possess the right to marry and found a family

without discrimination.51

This right is protected by Art. 12 of the ECHR. A.A. was denied this right.

48

Handyside v United Kingdom, no. 5493/72, 7 December 1976, § 51, Series A no. 24 49

De Cock et al (2000) JAMA 283(9), March. 50

Handyside v United Kingdom, no. 5493/72, 7 December 1976, § 59, Series A no. 24 51

Article16(1) of Universal Declaration of Human Rights

17

The Complainant submits that her right to found a family has been breached by her sterilisation

without her full and informed consent. Additionally, the Government failed to establish appropriate

safeguards52

preventing such situations from occurring (see paras. 4.1.1- 4.4.4).

7.0.2 The Complainant submits the national laws governing the exercise of this right were

disproportionate and unnecessary in a democratic society. It has been held that the exercise of the

right to marry and found a family gives rise to social, personal and legal consequences. It is subject

to the national laws of the Contracting States, but the limitations thereby introduced “must not

restrict or reduce the right in such a way or to such an extent that the very essence of the right is

impaired.”53

7.0.3 Here, non-consensual sterilisation not only restricts or reduces the right, but completely

extinguishes it. The Complainant cannot now, nor in the foreseeable future, exercise her right to

found her own family. Furthermore, considering the variety of medical alternatives to ensure the

safety of children born to HIV-positive parents, the procedure was disproportionate and

unnecessary (see paras. 6.5.1-6.5.4).

8. A.A’s sterilisation is a violation of the Freedom from Discrimination (Article 14).

8.0.1 It is submitted that A.A. has been discriminated against both directly and indirectly on the

protected grounds of her HIv positive status, her cultural and religious beliefs and her socio-

economic status. These grounds are to be read in conjunction with Articles 2, 3, 8 and 12. It is

submitted that these rights have been violated in a discriminatory manner. Art. 14 guarantees

equality ‘[i]n the enjoyment of ... [the] rights and freedoms’ set out in the ECHR. Art. 1 of Protocol

12 – to which Orosia is a signatory – again confirms ‘The enjoyment of any right set forth by law

shall be secured without discrimination on any ground’. Art. 14 is an unqualified right.

8.1 A.A. faced direct discrimination due to her cultural and religious beliefs.

8.1.1 A.A. Suffered discrimination on the grounds that A.A.’s religious and cultural beliefs were

not taken into account when consent was sought. It is contended is a shortcoming in legislation, and

will affect women from these communities disproportionately, who are not informed of the impact

the procedure will have on their lives at time of giving consent, given the cultural and religious

beliefs they hold. Such lack of procedural safeguards has the potential to jeopardise not only the

52

VC. v Slovakia, no. 18968/07, 16 June 2009

53 Muñoz Díaz v Spain, no. 49151/07, § 78, 8 December 2009; Rees judgment, p. 19, § 50; F. v Switzerland, 18

December 1987, § 32, Series A no. 128; I. v The United Kingdom [GC], no. 25680/94, § 79, 11 July 2002.

18

rights of the individual, but the rights of the entire group of HIV positive mothers that hold such

cultural and religious beliefs in Orosia. A.A. has been unable to enjoy such rights. This is as a

result of her ‘expulsion’, which could have been avoided had adequate safeguards been in place,

taking into account the religious and cultural sensitivities of her community.

8.2 A.A. Faced indirect discrimination due to her Socio economic background

8.2.1 As a result of A.A.’s socio-economic background, she is unable to afford private healthcare.

She must use the free maternity services of the NHS, a body which offers the ‘encouraged’

sterilisation of HIV positive mothers. This is indirect discrimination as, upon first examination it

appears that all HIV positive women will be encouraged to undergo sterilisation. However, if the

woman can afford private healthcare, she will not be encouraged to undergo the procedure. As a

result it is those, without a choice of healthcare provider, who are ‘encouraged’ to undergo

sterilisation. It follows that it is those most vulnerable in society, who live in the ‘poorest

neighborhoods of the city’, that are affected disproportionately by the campaign. Poor socio

economic standing is a protected status under the ground of ‘social origin.’ (Social origin is also a

protected ground under Art. 2(2) of the ICESCR). While not expressly discriminatory, the rule

affects the ‘protected group’ in a disproportionate way by comparison to others in a similar

situation. Therefore, the State failed in its positive obligation to take extra care when obtaining

consent to sterilisation from mothers within the protected group. In addition, these are the groups at

risk due to the need to ‘leave school early’ and help with the ‘financial strains of the family.’ They

are statistically more likely to be illiterate. The protected ground in this case, ‘poverty’ was not

taken into consideration when obtaining consent from A.A. in order for her to enjoy the same

opportunity for choice as others. This discrimination cannot be objectively justified by the State.

Although there is no discrimination present by the mere provision of the services by the NHS, the

ensuing lack of safeguards in obtaining consent result is indirect discrimination. The Orosian State

has a GDP of 7032 American Dollars (2011). Consequently the sector of society touched by

poverty in Orosia will be proportionately larger than in other States. Thus, it is implored that the

Court take this into consideration, when adjudicating upon this case.

8.3 A.A. Faced direct discrimination as a result of her HIV positive status.

8.3.1 A.A.’s HIV positive status under the ECHR is a protected ground under the freedom from

discrimination protection in Art. 14, and it has been recognised by the Court that health

impairments including HIV fall within the scope of Art. 14; in Glor v Switzerland diabetes was seen

19

to come under the umbrella of disability.54

The Court has in the past emphasised that people living

with HIV represented “a particularly vulnerable group in society” 55

, due to common

misconceptions about the spreading of the disease. Due to A.A.’s HIV positive status, she has been

treated less favourably than other women in her position (i.e. Non-HIV positive women undergoing

maternity care). A.A. was in a situation where adequate safeguards were not taken, given her

positive status, to obtain full and informed consent to this procedure. Non-HIV positive women

could seek an elective sterilisation if desired, however they were not ‘encouraged’, or in this case,

coerced, to undergo sterilisation. It has already been established above under Art. 8, that the

sterilisation was not “necessary in a democratic is society”, not proportionate nor required to meet a

pressing social need, therefore this treatment cannot be objectively justified by the State. In this

case, where the restriction of fundamental rights is applied to such a vulnerable group, the State’s

margin of appreciation is narrowed substantially.

9. A.A’s coerced sterilisation is a violation to the right to health.

9.0.1 Health is a fundamental human right and an indispensable pre-condition for the enjoyment of

other human rights. The Complainant submits that the State violated her right to health under

Article 25.1 of the UDHR and Article 11 of the European Social Charter. The ESC right, a subject

of majority consensus in Europe56

, complements Articles 2 and 3 of the European Convention on

Human Rights – as interpreted by the case-law of the European Court of Human Rights – by

imposing a range of positive obligations designed to secure the effective exercise of that right.57

Further, the right to an adequate, if not the highest attainable, standard of health is recognised in a

plethora of international jurisprudence and human rights instruments.58 In particular, the ICESCR

Committee has clarified that the right to health is not to be understood as a right to be generally

healthy, but rather includes the right to control one’s health and body including sexual and

reproductive freedom.59

PART C: LOSS OF MEDICAL RECORDS - MERITS OF CLAIM

10. Right to accurately kept medical records

54

Glor v Switzerland (No. 13444/04) April 2009 §57. 55

Kiyutin v Russia, no. 2700/10, Judgment of 15 March 2011, §63. 56

http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp, Accessed 30 November 2012 57 Information document prepared by the secretariat of the ESC “The Right to Health and the European Social Charter”

(March 2009) 58 Article 25.1 of the Universal Declaration of Human Rights; Article 12 of the International Covenant on Social,

Economic and Cultural Rights 59 General Comment 14 of ICESCR, Adopted 11 August 2000

20

10.0.1 In addition to the above argumentation re: uninformed consent, the State has also infringed

upon A.A.’s access to accurate medical records. A.A.‘s alleged ‘consent’ was not recorded in her

medical records. The domestic court held this failure was an administrative irregularity, which is

wholly unsatisfactory. First, Orosian law requires hospitals to keep record of all medical treatments

and procedures performed in the hospital in the previous 10 years. Furthermore an administrative

decree requires “record of the valid consent given by the patient to the treatment or procedure.” The

Court has in the past confirmed that Art. 8 entails to the right to access to health information.60

It is

submitted that this right can also extend to access to medical records that are accurate and

comprehensive.

10.0.3 Further, it is submitted that the State failed in its positive obligation to investigate and to

provide an effective judicial or other remedy in response to an arguable claim of ill-treatment in

breach of Art. 3. This positive obligation has been identified by the court and derives from the Art.

2 obligation.61

The loss of medical records (and, thus, to accurately record consent) represents an

unacceptable impediment to a thorough investigation. Further, as civil cases in Orosia are based on

documented evidence, this ‘mere administrative failure’ constitutes a barrier to an effective judicial

remedy, for without evidence, A.A. could never expect to succeed in her claim. Therefore, Orosia

has failed to provide A.A. with an effective remedy as required by Art. 13.

PART D: REMEDIES

11. It is submitted, tantamount to the above, that it is found that Orosia has breached it’s

Convention obligations toward A.A. Therefore, under Art. 13, the State must provide an effective

remedy. In addition to a declaration of incompatibility, should a violation be found, under Art. 41, it

is submitted that the Court find cause to award A.A. ‘just satisfaction’ in light of the physical and

mental suffering she has undergone as a result of her sterilisation procedure. It is submitted that

equitable payment for non-pecuniary damages be awarded. In as far as a violation has been found, it

is also submitted that full costs and expenses incurred be reimbursed to the Complainant. In

addition, as an NGO, “Victims of Sterilisation” would also implore the Court to recommend the

instigation of an investigation into coerced sterilisation practices in Orosia. The Court has

previously acknowledged incidences where there is an obligation on States to carry out a thorough

and effective investigation of incidents of torture and inhuman treatment.62

60

McGinley & Egan v The United Kingdom, ECHR 9 June 1998 (Case no.10/1997/794/995-996) §97 61

Assenov v Bulgaria, 28 October 1998, 1998-VII 62

Aksoy v. Turkey, no. 21987/93, § 98, 18 December 1996