European Roma Rights Center (ERRC) Letter to Slovak Prime Minister: Fundamentally Flawed Investigation into Coercive Sterilizations of Romani Women
11 December 2003
On December 11, 2003, the ERRC sent a letter to Slovak Prime Minister Mikulas Dzurinda expressing deep concern that Slovak officials have failed to conduct adequate investigations into allegations that Romani women have been coercively sterilized. Without an impartial and effective official investigation, there will be no justice for the victims. The ERRC letter notes flaws to the recently concluded criminal investigation -- following which no charges were brought against any perpetrators of coercive sterilization -- including:
- It was conducted almost exclusively into the practices of one hospital;
- Investigators focused on the crime of genocide to the exclusion of other crimes related to violations of the right to health care and bodily integrity/autonomy;
- The investigation failed to evaluate whether consent, when given, was indeed informed;
- Human rights activists and possible victims were threatened with criminal charges for speaking out;
- Documented violations were ignored;
- Slovak authorities did nothing in order to address the inherent conflict of interest that exists whenever a Government investigates the wrongdoing of its own agents.
The ERRC letter concludes by urging the Slovak government to re-open the criminal investigation into all allegations of coerced sterilization of Romani women in Slovakia, to an internationally acceptable standard for a prompt, impartial and effective official investigation. The letter further urges a Government resolution or regulation instructing hospitals to allow patients together with their authorized legal representatives to have access to their medical files in-line with international law. In addition, the ERRC urges swift amendment of Slovakia's legal order, such that it is brought into line with international standards in the field of reproductive rights and provides all necessary guarantees that the right of the patient to full and informed consent to procedures undertaken by medical practitioners is respected in all cases.
The full text of the ERRC's December 11 letter follows:
Honorable Prime Minister Dzurinda,
The European Roma Rights Center, an international public interest law organization that defends the human rights of Roma, welcomes the part of the Government Resolution No.1018 that concerns the steps and measures to be adopted against the possibility of future forced sterilization of Romani women in the Slovak Republic. Slovakia can take important steps toward meeting its obligations under international law, by amending existing laws, passing and implementing new legislation, and training the medical profession in the areas of non-discrimination in health care, reproductive health, fully informed consent to medical interventions, as well as by allowing patients and their representatives unimpeded access to medical files.
At the same time though, we believe that the recently concluded official criminal investigation into allegations of coercive sterilizations of Romani women in Slovakia was fundamentally flawed as: it was conducted almost exclusively into the practices of one hospital; the investigators focused on the crime of genocide to the exclusion of other crimes related to violations of the right to health care and bodily integrity/autonomy; the investigation failed to evaluate whether consent, when given, was indeed informed; human rights activists and possible victims were threatened with criminal charges for speaking out; documented violations were ignored (e.g. even in situations where the Slovak Government expressly confirmed that sterilizations had indeed been performed without any consent it regardless failed to proceed and provide the victims with redress); and, finally, the Slovak authorities did nothing in order to address the inherent conflict of interest that exists whenever a Government investigates the wrongdoing of its own agents.
We note that Slovakia has an obligation under international law to undertake a comprehensive investigation into all allegations of serious human rights violations, and to afford a speedy, effective, and comprehensive remedy to all victims of such abuse. The criminal investigation into some of the allegations of coerced sterilization of Romani women, which was closed on 24 October 2003, the denial by hospitals to allow patients and their legal representatives to have access to medical records, and the obvious shortcomings of the existing Slovak legislation all raise serious concerns that Slovakia is currently failing to meet its obligations under international law, including Article 13 of the European Convention on Human Rights and Article 2 (c) of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which both provide that everyone whose rights and freedoms are violated shall have an effective remedy before a national authority.
In addition to the Slovak authorities' failure to provide a criminal remedy for the violations alleged, Slovak hospitals have denied and continue to deny access to medical records to patients with their legal representatives, thereby effectively precluding victims from having access to a civil remedy. Every hospital in Slovakia has uniformly and consistently blocked access to medical records to victims together with their lawyers, or the victims' lawyers alone, following the Slovak Government's instructions to do so (Order of the Ministry of Health no. M/0399/2003) and even after a court has ordered otherwise. In terms of the inadequate domestic legislation, we note that the Slovak Health Care Act and the Sterilization Regulation do not provide for full and informed consent. In his recommendations to your Government of 17 October 2003, Mr Gil-Robles, Council of Europe Commissioner for Human Rights, said that he "recommends the rapid adoption of new legislation introducing and sufficiently specifying the requirement of free and informed consent for medical acts, including sterilizations, in line with international law".
Your Excellency, may I remind you that the Slovak Government has international obligations concerning both an individuals right to access his or her medical records and the right to full and informed consent.
The European Convention on Human Rights and Biomedicine (ECHRB), Article 10 (2), states that "Everyone is entitled to know any information collected about his or her health". This right is reinforced in the World Health Organization (WHO) Declaration on Patients' Rights, Article 4 (4), which states that "Patients have the right of access to their medical records and technical records and to any other files and records pertaining to their diagnosis, treatment and care and to receive a copy of their own files and records or parts thereof".
The ECHRB also provides in Article 5 that "An intervention in the health field may only be carried out after the person 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 Explanatory Report to the Convention states that "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." The Explanatory Report further states that "Moreover, this information must be sufficiently clear and suitably worded for the person who is to undergo the intervention. The person 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."
The Committee on the Elimination of Discrimination against Women in its General Recommendation 24 on "Women and Health, has stated that 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 information." The Recommendation further states that "Acceptable [health care] services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her needs and perspectives. States parties should not permit forms of coercion, such as non-consensual sterilization..."
The WHO Declaration on PatientsRights, Article 2 (2), underscores that "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."
The European Charter on Fundamental Rights, proclaimed by the European Commission on 7 December 2000, has also anchored the right to full and informed consent at the core of the European Union. Article 3 of the Charter, on the right to the integrity of the person, guarantees that "in the fields of medicine and biology in particular", "the free and informed consent of the person concerned" [...] "must be respected in particular".
Finally, as a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the European Convention on Human Rights and Biomedicine, and as a member of the World Health Organization, Slovakia has legally binding obligations to provide a minimum standard of health care, free of any form of discrimination. The International Convention on the Elimination of Racial Discrimination states in Article 5 that "State Parties undertake to prohibit and eliminate racial discrimination... in the enjoyment of the right to public health, medical care, social security and social services." Article 12 of CEDAW provides that "1. States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure... 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..."
In view of the above, the European Roma Rights Center urges your Government to re-open the criminal investigation into all allegations of coerced sterilization of Romani women in Slovakia, to an internationally acceptable standard for a prompt, impartial and effective official investigation. We further urge you to instruct hospitals, by a Government resolution or regulation, to allow patients together with their authorized legal representatives to have access to their medical files in-line with international law. In addition, we look forward to swift amendment of Slovakia's legal order, such that it is brought into line with international standards in the field of reproductive rights and provides all necessary guarantees that right of the patient to full and informed consent to procedures undertaken by medical practitioners is respected in all cases.
Persons wishing to express similar concerns are urged to contact:
H.E. Mikulas Dzurinda
The Prime Minister of the Republic of Slovakia
Office of the Prime Minister
Urad vlady Slovenskej republiky
Námestie slobody 1
813 70 Bratislava
Fax: (421-2) 52-49-75-95