FIRST SECTION
DECISION
Application no. 32812/13
Anna MADĚROVÁ
against the Czech Republic
The European Court of Human Rights (First Section), sitting on 8 June 2021 as a Committee composed of:
Pauliine Koskelo, President,
Aleš Pejchal,
Tim Eicke, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to the above application lodged on 16 May 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the European Roma Rights Centre,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Anna Maděrová, is a Czech national, who was born in 1960 and lives in Mackovice. She was represented before the Court by Ms Z. Candigliota, a lawyer practising in Brno.
2. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Sterilisation of the applicant
4. On 30 May 1982 the applicant was sterilised during her second caesarean delivery at the Znojmo hospital. The applicant had neither demanded sterilisation nor had she mentioned it to a doctor before the delivery. It was only two days after the delivery, on 1 June 1982, that a nurse made her sign a consent form.
5. The applicant remarried in 1986 and wished to have another child. However, she was unable to get pregnant despite having undergone a reversal procedure, artificial insemination and in vitro fertilisation.
6. On 3 January 2005 the applicant approached the Ombudsperson (veřejný ochránce práv) who was then investigating forced sterilisation of Roma women, complaining of having been sterilised without her consent. In his statement of 2 February 2005, the Ombudsperson concluded that the applicant’s sterilisation had been irregular because she had never demanded it nor had she given any informed consent.
7. Nonetheless, the parties differ as to the exact moment when the applicant became aware of the sterilisation. According to the applicant, it was only after the Ombudsperson’s disclosure of his inquiry that she was granted access to her medical documentation and, accordingly, was informed of the medical treatment carried out in 1982. The Government, on the other hand, assert that it follows from the evidence taken before the domestic courts that the applicant was aware of the sterilisation and its consequences on 6 June 1982 at the latest.Criminal proceedings
8. In 2005 the applicant lodged a criminal complaint against two doctors involved in her delivery.
9. The Police ordered an expert report within the criminal investigation on 5 January 2006. It showed that the applicant’s consent to the sterilisation given after the medical treatment without a decision of a competent commission was null and void; moreover, her sterilisation had not been necessary at all.
10. Besides that, the Police questioned both the applicant and her then husband, Mr M. Both testified that the applicant had found out about her sterilisation at the beginning of June 1982, at the latest on 6 June during the senior doctor’s ward round.
11. On 28 February 2006 the public prosecutor discontinued the criminal proceedings since the prosecution was time-barred.Civil proceedings
12. The applicant attempted to bring her case before a court by identical actions filed on 31 August 2009 and 15 February 2010. Since she was by then unemployed, the applicant sought to be exempted from payment of the court fee and to be granted free legal assistance. She stated that she had already contacted some lawyers who requested a deposit of 30,000 Czech korunas (CZK) (equivalent to 1,150 euros (EUR)). After having refused her requests on the ground that she was owner and co-owner of in total three houses and of some plots of land and her financial situation, thus, did not justify the granting of any of the requests, the Znojmo District Court rejected her actions for procedural defects.
13. On 29 November 2010 the applicant lodged a civil action for protection of her personal rights under Article 11 et seq. of the Civil Code with the Brno Regional Court (krajský soud). She sought that the Znojmo hospital be ordered to provide her written apologies and to pay her CZK 6,000,000 (equivalent to EUR 235,248) in compensation for non‑pecuniary damage.
14. According to the applicant, she could not have instituted the proceedings at issue earlier due to a lack of finances and to misleading information by her lawyer who made her hope for an extrajudicial friendly settlement.
15. At a hearing on 21 April 2011, the applicant testified that in 1988 she had undergone an infertility treatment but then was not told that she had been sterilised. She would only realise this was the case while appearing as a guest on a TV show in 2005.
16. On 16 June 2011, after having assessed the merits of the action, the Brno Regional Court held that the applicant’s sterilisation had been carried out in breach of the relevant law then in force. As the respondent hospital had violated the law and, accordingly, breached the personal rights of the applicant, who suffered a serious and irreparable interference with her private and family life, the court ordered it to provide her with a written apology, which in its view constituted appropriate satisfaction. It further noted that the applicant had also received partial “compensation” by presenting her case and her opinion in a television show, even though her participation there was not remunerated.
17. However, as to the claim for monetary compensation, the respondent hospital argued that such a claim was statute-barred.
18. Having regard to the case-law (see paragraphs 28-32 below), the regional court concluded that, in the present case, a three-year statutory limitation period had begun to run the day after the medical intervention and had elapsed on 31 May 1985. Thus, the applicant had lodged her claim with the court after the statutory limitation period had already elapsed. However, in view of the Constitutional Court’s judgment no. II. ÚS 635/09 of 31 August 2010, the regional court gave special attention to whether the application of the statutory limitation period in the case at hand was contra bonos mores. It concluded that it was not, since the applicant knew about the impugned interference on 3 January 2005 at the latest. This was when she approached the Ombudsperson who subsequently confirmed her suspicion of having been sterilised on 2 February 2006. Moreover, although there had initially been a lack of clarity over the applicable time-limit for a claim for compensation for an unlawful interference with the right to the protection of personal rights, the domestic courts’ confirmation of the three‑year statutory limitation period had been made public on 31 January 2008 and the applicant did not lodge her claim with the court until 29 November 2010.
19. On 4 January 2012 the Olomouc High Court upheld the regional court’s judgment on the merits. It further noted that the reversal of the case‑law had not been contrary to the principle of legal certainty, having been done for the sake of important principles. Referring to two decisions of the Constitutional Court, that is no. I. ÚS 634/04 and no. II. ÚS 635/09, the High Court upheld the conclusion that the objection contra bonos mores was unfounded in the case at issue. The High Court recalled that when the applicant had attempted to initiate proceedings in 2009 and 2010, her requests to be exempted from the court fee were refused on the basis of information and evidence supplied by her regarding her income, debts and property (at the latest from 2004 she had been owner and co-owner of three houses and of some plots of land). Consequently, the court did not accept that her financial situation had prevented her from lodging her action at an earlier stage. The High Court concluded that, contrary to the applicant’s submissions, it had not been because of her financial situation that she had failed to lodge her action at an earlier stage.
20. The High Court further observed that the applicant had stated in the course of the criminal proceedings (see paragraph 10 above) that she had been informed of her sterilisation at a medical control carried out at the time of her release from the hospital in 1982. It noted in that respect, that according to the wording in force in 1982 (that is, prior to the 1990 amendment) Article 13 of the Civil Code did not provide expressly for granting any compensation for non-pecuniary damage; however, it did not exclude it either. The applicant had, therefore, a right to compensation pursuant to the legislation in force in 1982. Moreover, as the statutory limitation period was – and had also been at the time of the impugned interference – three years, it had elapsed on 30 May 1985. However, for reasons that may not be attributable to anyone else other than the applicant herself, it was not until 29 November 2010 that she had lodged her action, that is to say twenty-five years after the statutory limitation period had elapsed; almost three years after the public had been informed of the existence of the statutory limitation period for the right to a compensation for non-pecuniary damage following the 1990 amendment; and two years after such practice had been well-established by virtue of the judgment of the Grand Chamber of the Supreme Court. The applicant could not, therefore, reasonably contend that her claims were not statute barred.
21. On 31 October 2012 the Supreme Court dismissed the applicant’s appeal on points of law finding that the conclusions reached by the high court complied with its own long-standing conclusively settled case-law.
22. The applicant filed a constitutional appeal invoking a violation of her right both to a fair trial and to respect for her private and family life. On 17 January 2013 the Constitutional Court dismissed it as manifestly ill‑founded. It noted that even though the sterilisation had been carried out without the applicant’s consent, which constituted a serious and irreparable interference with her rights, it had to be underlined that the protection of such rights was not unlimited. It stated that the courts had duly reviewed the issue of the statutory limitation period in the light of the reversal of the case‑law, as well as the compliance of the application of the statutory limitation period with bonos mores. It observed that at the time when the applicant lodged her action, the issue of the statutory limitation period had already been clearly established in the case-law. The courts, therefore, proceeded in compliance with the Constitution by concluding that the applicant’s claim was time-barred and that such objection was not contra bonos mores.Relevant domestic law and practiceRelevant provisions of Act no. 40/1964, the Civil Code in 1982
23. Under Article 11, natural persons had the right to protection of their personal rights, in particular their life and health.
24. Under Article 13, natural persons had in particular 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 satisfaction.
25. Under Article 100 §§ 1 and 2, a right was time-barred unless it had been exercised within the time-limit set forth in the Civil Code. A court was to take time bar into account only on the basis of the debtor’s objection. If the debtor appealed to the time bar, the creditor could not be awarded the time-barred right. Time bar applied to all property rights.
26. Article 101 of the Civil Code provided that unless stipulated otherwise, the time bar period was of three years and started to run on the date on which the right could have been exercised for the first time.The Civil Code amendment by Act no. 87/1990, in force from 29 March 1990
27. In 1990, the relevant provisions of the personality rights were extended. Since then Article 13 § 2 provided that, in cases where the satisfaction obtained under Article 13 § 1 was insufficient, in particular because the injured party’s dignity or social standing had significantly been diminished, he or she was also entitled to monetary compensation for non-pecuniary damage.Domestic case law concerning limitation of claims for compensation for non-pecuniary damage
28. After the said Civil Code amendment, the courts’ interpretation of the statutory limitation period for bringing a claim for monetary compensation for non-pecuniary damage continued to develop until 2008.
29. First, in its judgment no. 30 Cdo 1542/2003 of 25 September 2003 the Supreme Court held that the right to just satisfaction for an unlawful interference with the right to the protection of personal rights, as part of the integrated personal right, should not be subject to time bar.
30. However, a few months later the Olomouc High Court in its judgment no. 1 Co 63/2003 of 17 February 2004 inferred that the right to monetary compensation for non-pecuniary damage under Article 13 § 2 of the Civil Code was a property right and as such it should be subject to the general time bar period.
31. This reversal of the case law was upheld by the Supreme Court in its judgment of the Grand Chamber of the Civil and Commercial Division no. 31 Cdo 3161/2008 of 12 November 2008.
32. Finally, in its judgment no. II. ÚS 635/09 of 31 August 2010 the Constitutional Court did not question the conclusion of the Supreme Court’s judgment of 2008. Nonetheless, it emphasised that owing to the reversal of the Supreme Court’s case-law (which it considered to be acceptable in specific circumstances), the time bar of actions on monetary compensation for a violation of personality rights should, within the proceedings instituted before the publication of the Supreme Court’s judgment of 2008, be particularly sensitively taken into account on a case-to-case basis and special attention should be paid to whether an objection to the time bar contra bonos mores has been raised.
COMPLAINTS
33. The applicant complains under Article 8 § 1 of the Convention that her right to respect for her family life was not afforded effective judicial protection.
34. The applicant further invokes a violation of fair trial principles enshrined in the Article 6 § 1 of the Convention.
THE LAWAlleged violation of Article 8 § 1 of the Convention
35. In essence the applicant is complaining about the failure of remedies addressing her unlawful sterilisation which occurred in 1982. Albeit the courts acknowledged that the unlawful sterilisation constituted an interference with the applicant’s Article 8 rights, she was awarded only a written apology but her claim for compensation for non-pecuniary damage was dismissed as time-barred.
36. Article 8 § 1 of the Convention reads as follows:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
37. The Government commented extensively on the merits and invited the Court to declare the applicant inadmissible as manifestly-ill founded.
38. The applicant’s observations were not included in the case file for the consideration of the Court as they were submitted outside the set time‑limit and without any extension of time being requested before the allotted period expired.
39. The European Roma Rights Centre intervened with an opinion saying that the intersectional discrimination suffered by victims of forced sterilisation required States to offer a specific remedy to compensate victims of this practice apart from the ordinary legal procedures open generally to victims of ill-treatment. Subjecting the victims to the ordinary statute of limitations amounted to a failure to recognise their inherent vulnerabilities as victims of intersectional discrimination.
40. Both the Government and the applicant commented on the submissions of the European Roma Rights Centre. The Government emphasised that the forced sterilisation practice had never applied to the Czech Republic. The Government were further convinced that Czech law provided an effective remedy to victims of unlawful sterilisation who could use an action for the protection of personal rights; a legal avenue which was effective and adequate. In their view, the applicant could have sought the remedy earlier than twenty-eight years after the sterilisation had been carried out. In addition, the establishment of a specific complementary remedy (as proposed by the European Roma Rights Centre) must be left to the discretion of national authorities. The applicant disagreed with the contention that she had had at her disposal an effective and adequate remedy, owing to the lack of information as to the nature and consequences of the conducted surgery and the scope of the alleged violation. She maintained that the harm continued up to the present day and that the Court’s finding on the alleged violation of her right to respect for her family life could give her moral satisfaction.
41. First and foremost, the Court notes that the applicant is not strictly complaining about the sterilisation itself, but rather the failure of the authorities to provide adequate judicial protection for rights enshrined in Article 8.
42. The Court reiterates its well-established case-law that, although the right to health is not as such among the rights guaranteed under the Convention or its Protocols, the High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under its Article 8, firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ physical integrity and, secondly, to provide victims of medical negligence with access to proceedings in which they could, where appropriate, obtain compensation for damage (see Jurica v. Croatia, no. 30376/13, § 84, 2 May 2017, with further references). The Court notes that the applicant’s sterilisation was an intentional act, performed without consent and without any medical justification. If the above-mentioned procedural obligation applies to cases of medical negligence, all the more so must it be a fortiori ratione applicable in cases involving intentional interference with physical integrity of an individual on the part of a hospital or an intervening doctor as it was in the instant case (see, Codarcea v. Romania, no. 31675/04, § 101, 2 June 2009).
43. At the same time, the High Contracting Parties have a margin of appreciation in choosing how to comply with their positive obligations under the Convention (see, Lambert and Others v. France [GC], no. 46043/14, § 144, ECHR 2015 (extracts)), and enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems meet its requirements (see, albeit in different contexts, König v. Germany, 28 June 1978, § 100, Series A no. 27; Taxquet v. Belgium [GC], no. 926/05, §§ 83 and 84, 16 November 2010; and Finger v. Bulgaria, no. 37346/05, § 120, 10 May 2011).
44. In the present case, since the sterilisation was carried out on 30 May 1982, a question arises concerning the Court’s temporal jurisdiction in respect of the Article 8 complaint. This limitation being a matter of the Court’s jurisdiction, it must be observed ex officio, regardless of any objection raised by the Government (see, among many authorities, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III). The Court notes that the Czech Republic has been bound by the Convention as of its accession thereto on 18 March 1992. Although it is not in dispute that the applicant’s unlawful sterilisation had caused her both physical and mental trauma which continues to produce its effects to date, she is not suggesting that it was a continuing violation. On the contrary, it constituted an instantaneous act (see, similarly, Kikots and Kikota v. Latvia (dec.), no. 54715/00, 6 June 2002). Therefore, the Court has no jurisdiction to examine any substantive complaint relating to the sterilisation as such.
45. When it comes to the above-mentioned procedural obligation arising under Article 8, its detachable (“separate and autonomous”) nature (in the context of Article 2) was first identified in Šilih v. Slovenia ([GC], no. 71463/01, §§ 153 et seq., 9 April 2009) in relation to hospital treatment. The Court is, furthermore, of the opinion that this must apply whether the issue is medical negligence (which is not in play here) or, a fortiori ratione, deliberate infliction of injury (which is the case here). Even in so far as the procedural obligation under Articles 2 and 8 requires the States to set up an effective independent judicial system so that the cause of death or harm to the physical integrity of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see İbrahim Keskin v. Turkey, no. 10491/12, § 64, 27 March 2018, and Šilih, cited above, § 192), the effectiveness of that system prior to 18 March 1992, the date of the entry into force of the Convention with regard to the Czech Republic (“critical date”), is plainly outside the Court’s competence ratione temporis (see Šilih, cited above, § 162).
46. As concerns the proceedings instituted by the applicant after the critical date, the Court has to be satisfied that there was a “genuine connection” between the triggering event (the sterilisation) and the critical date. The “genuine connection” standard will be satisfied if the following two criteria are met: first, the lapse of time between the triggering event and the critical date must remain reasonably short, in any case not exceeding ten years; and secondly, a major part of the procedural steps must have been carried out, or ought to have been carried out, after the entry into force of the Convention in respect of the respondent State (see, Jurica, cited above, § 70). As concerns the first criteria, the Court observes that lapse of time was roughly 9 years and 9 months from the date of the sterilisation, or the date when the applicant learned about it (6 June 1982, at the latest), and the entry into force of the Convention in respect of the Czech Republic (18 March 1992). It is thus just below the maximum limit of ten years. The second criteria is clearly fulfilled as the criminal complaint and the civil proceedings were instituted by the applicant in 2005 and 2010 respectively. It follows that the Court has competence to consider whether the State’s procedural obligation under Article 8 of the Convention has been fulfilled.
47. In this respect, the Court first notes that the applicant lodged a criminal complaint against the two doctors involved in her delivery in 2005 (see paragraph 8 above) and that the public prosecutor discontinued these criminal proceedings in February 2006 (see paragraph 11 above). Since the application was lodged before the Court in May 2013, in so far as the applicant’s complaint can be considered to include the criminal proceedings, these have been lodged outside the six-month time-limit.
48. Turning to the civil proceedings that the applicant lodged against the hospital, the Court notes that she instituted these proceedings only in 2010 (see paragraph 13 above), some 28 years after the sterilisation had taken place and she had become aware of it (see paragraphs 4 and 10 above). Having regard to its well-established case-law, the Court reiterates that it has held that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States and that they serve several important purposes, namely, to ensure legal certainty and finality, protect potential respondents from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time (see, among many other, Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports of Judgments and Decisions 1996‑IV).
49. In the present case, three levels of national jurisdiction stated that the statutory limitation period was three years and that, at the time that the applicant lodged her action, the issue of the statutory limitation period had already been clearly established in case-law. The domestic courts further noted that it had been open to the applicant to lodge an action for damages already when she found out about the sterilisation in 1982 and that the delay of 28 years before lodging such an action was entirely attributable to her. The Court sees no reason to question this uniform evaluation by the domestic courts and observes that, indeed, these courts did not decline to consider the applicant’s claim but simply concluded that her claim for monetary compensation was statute-barred. In these circumstances, the Court finds no indication that the respondent State has failed in its positive obligations under Article 8 in the present case and thus considers that the applicant’s complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.Alleged violation of Article 6 § 1 of the Convention
50. The applicant further alleges that in the domestic proceedings (i) her arguments and objections were not duly considered, in particular her argument that the counterparty’s objection based on the statutory limitation period was contra bonos mores, and (ii) the reversal of the case-law concerning the statutory limitation period for compensation claims for non-pecuniary damage was not foreseeable and not in compliance with the principles of the rule of law.
51. Article 6 § 1 of the Convention, as far as concerned, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal... ”
52. The Government argued that the Court should reject the complaint as manifestly ill-founded. They drew the Court’s attention to the relevant applicable law and case-law, placing emphasis on the fact that the applicant had instituted her proceedings only after the reversal of the case-law and that the domestic courts had duly given answer to her arguments and objections. They had also commented widely on the merits of her complaint.
53. The applicant’s comments on the Government’s observations were not included in the case file (see paragraph 38 above).
54. The Court considers unfounded the complaint that the development of the Czech case-law concerning the limitation of compensation claims for non-pecuniary damage was unforeseeable and did not comply with the principles of the rule of law.
55. First, the Court observes that the proceedings were instituted after the said case-law had already been established. Second, under the Court’s case law, statutory time-limits promote legal certainty (see Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, 11 April 2014, § 72) and do not in principle offend against Article 6 of the Convention provided that the limitation pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). Finally, the Court accepts in general a reversal of case-law, reiterating that it is primarily for the domestic courts to interpret and apply domestic legislation (see Worm v. Austria, 29 August 1997, § 38, Reports 1997‑V). As held in S.S. Balıklıçeşme Beldesi Tarım Kalkınma Kooperatifi and Others v. Turkey (nos. 3573/05 and 12 others, 30 November 2010), in the absence of arbitrariness and where not manifestly unreasonable, a reversal of case-law falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as the Czech Republic) and which are not, in theory, bound by precedent (compare with Borg v. Malta, no. 37537/13, § 111, 12 January 2016; and Petro-M SRL and Rinax-TVR SRL v. the Republic of Moldova (dec.), no. 44787/05, § 31, 23 March 2017).
56. In the present case, the Court does not find any indication that the impugned reversal of case-law or the way the domestic courts handled the applicant’s arguments and objections violated her rights under Article 6 § 1 of the Convention.
57. It follows that this part of the application is likewise inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 July 2021.
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Liv Tigerstedt Pauliine Koskelo
Deputy Registrar President
Full & Egal Universal Law Academy