V. C. v. Slovakia, Slovak Republic, European Court of Human Rights, 2011.
VC, a Romani woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form. After learning that the sterilization was not medically necessary, VC filed a civil lawsuit in Slovakia. All her petitions were rejected, and she filed a complaint against Slovakia at the ECtHR The Court found a violation of Articles 3 and 8 of the ECHR, i.e. the right to freedom from inhuman and degrading treatment and the right to private and family life respectively. The court noted that sterilization is never a lifesaving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. However, it did not address whether such conduct was a violation of the right to non-discrimination (Article 14), thus falling short of addressing the crux of the problem: racial stereotypes. The ruling is the first of its kind issued by the ECHR, and will have the major effect of bringing justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.
Hajduová v. Slovakia, Slovak Republic, European Court of Human Rights, 2010.
Mrs. Hajduová was verbally and physically assaulted by her (now former) husband, who repeatedly threatened to kill her and her children. Mrs. Hajduová’s husband was convicted, and the district court ordered psychiatric treatment but no incarceration. The psychiatric hospital did not carry out the treatment, and Ms. Hajduová’s husband was released as the district court failed to order the hospital to retain him for psychiatric treatment. After his release, he verbally threatened Mrs. Hajduová and her lawyer. As a result, they filed criminal complaints against him, and the district court, in accordance to its earlier decision, arranged for psychiatric treatment and transported Mrs. Hajduová’s husband to a different hospital.
Mrs. Hajduová filed a complaint with the Constitutional Court; she cited the violation of her right to liberty and security the right to a fair trial, the right to integrity and privacy and the right to the protection of private and personal life and claimed that the district court failed to ensure her husband’s placement in a psychiatric hospital immediately after his conviction. The Constitutional Court rejected her complaint on the grounds that she should have pursued an action for the protection of her personal integrity before ordinary courts.
Mrs. Hajduová then filed a claim with the European Court of Human Rights (the “European Court”) alleging the failure of the Slovak Republic to fulfill its positive obligations to protect her from her husband, in violation of the right to private and family life (Article 8 of the Convention). Under Article 8, the State has positive obligations to implement effective measures to ensure respect for private and family life, and the duty to protect the physical and moral integrity of an individual from attack by other persons. The European Court further held that Mrs. Hajduová’s husband’s history of physical abuse and menacing behavior was sufficient to establish a well-founded belief that his threats would be carried out. It was the domestic authorities’ failure to ensure that Mrs. Hajduová’s husband was duly detained for psychiatric treatment which enabled him to continue his threats against her and her lawyer. The lack of sufficient measures taken by the domestic authorities, in particular the district court’s failure to comply with its statutory duties to ensure psychiatric treatment, amounted to a breach of the State’s positive obligation under Article 8 of the Convention to secure respect for the Mrs. Hajduová’s private life. The European Court awarded the claimant EUR 4,000 in damages.
Slovak Republic, Constitutional Court, Decision No. 10/2010-36, 2010, Slovak Republic, Constitutional Court, 2010.
Ms M.V. (the claimant) was sterilized while giving birth to her second child. She was informed that sterilization would be performed on her shortly before delivery by C-section, to which she did not give her written consent. The day after giving birth, while inquiring about her own health and that of her child, she was informed that sterilization was performed due to health reasons, as another pregnancy could be dangerous. She was given a form to sign for the “sake of her health,” which she did without reading or inquiring due to her concerns about the well-being of her newborn child. The claimant only later found out that sterilization was not a “life-saving” procedure after speaking with a representative from a non-governmental organization. Her claim was dismissed by the district and regional courts based on hospital records which contained her written consent and the testimonies of the doctors and other staff members. She filed a claim with the Constitutional Court which held that the decisions of the district and regional courts did not sufficiently address the claimants claims, in breach of the claimants' right to a fair trial. The Constitutional Court awarded the claimant EUR 1,500 damages and ordered the re-examination of the matter by the district court.
E.S. and Others v. Slovakia, Slovak Republic, European Court of Human Rights, 2009.
E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.
Slovak Republic, District Court, File No. 17C/65/2009, Slovak Republic, District Court, 2009.
Ms V.Š. (the claimant) was sexually assaulted by her colleague, Mr. S.B. (the defendant) at work. The criminal court found the defendant guilty of sexual violence by means of an agreement on crime and punishment. The claimant sued the defendant for damages sustained as a result of the defendant’s actions. The claimant supported her claims with the opinion of a psychological expert, who stated that the claimant had suffered damage to her dignity, honor and personal and intimate life, as well as material costs. The amount of non-pecuniary damage awards is determined with regard to the facts of each case individually and the opinion of the court. As a result of the sexual assault, the claimant was traumatized, depressed and afraid to go to work because of the obvious threat posed by the defendant. The district court held that the protection of privacy and other aspects of the personal life of each individual is paramount. Every individual has the right to make decisions about his/her intimate and sexual life and in this case, such right was grossly violated. Furthermore, under Section 11 of the Civil Code, the claimant has the right to protect her life, health, honor, dignity, privacy, name and expressions of personal value. The district court held that the defendant was obliged to pay to the claimant non-pecuniary damages in the amount of EUR 3,319.
File No. 6T 156/05-301, Slovak Republic, District Court Košice II, 2008.
Over the course of two months Mr. X (the “Accused”) threatened to kill his wife, Mrs. Y, (the “Aggrieved”) and to blow up the apartment. His actions and verbal assaults caused the Aggrieved to fear that he would carry out his threats. The Aggrieved and other witnesses attested to the Accused’s violent behavior. The Accused had previously been found guilty of similar violent acts for which the court had imposed a conditional sentence. The Aggrieved alleged that since the Accused was released from custody, his behavior had not changed and that he still had been insulting and threatening her. Other witness statements supported these accusations. According to an expert opinion, the Accused was emotionally unstable and in terms of his patriarchal understanding of the head of family, the Accused behaved towards the Aggrieved dominantly and without respect. The court found the Accused guilty of the criminal offence of violence against an individual or group of individuals pursuant to Section 197a of the former Criminal Code and imposed a sentence of imprisonment for 1 year.
File No. 5T 3/07-114, Slovak Republic, District Court Košice - okolie, 2007.
Over the course of two years Mr. X (the “Accused”) abused his wife Ms. Y (the “Aggrieved”) by constantly humiliating and beating her. As a result, the Aggrieved experienced substantial psychological trauma. According to the Aggrieved, the aggressive behavior of the Accused occurred on a daily basis and despite her refusal of intercourse, the Accused forced her into sexual intercourse by use of violence. The daughter of the Aggrieved stated that she saw the Accused slapping and kicking her mother and after the Accused found a girlfriend, relations between him and the Aggrieved deteriorated and resulted in the decision of the Aggrieved to leave the common household with her daughter and search for professional psychological care. Expert opinions confirmed that the Aggrieved suffered psychological trauma of abused woman that resulted in loss of confidence, depressions, anxiety. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 208 (1a) of the Criminal Code and sentenced him to conditional imprisonment for a term of 3 years with a probation period of 30 months. Furthermore, the Court issued the Accused a 5 meter restraining order.
File No. 5T 33/2007-41, Slovak Republic, District Court Košice I, 2007.
Mr. X (the “Accused”) threatened to kill his ex-wife, Mrs. Y, (the “Aggrieved”) by cutting her throat and hitting her head with a hammer. Two days later, the Accused threatened to kill the Aggrieved and her whole family and thereby caused the Aggrieved to fear that he would carry out such threats. The court ruled that the Accused had committed the criminal offence of dangerous threat under Section 360 (1) of the Criminal Code and sentenced him unconditionally to imprisonment for sixteen months. The court ordered the Accused to serve his term of imprisonment in a minimum security correctional facility under Section 48 (2a) of the Criminal Code.
File No. 7C/203/2006, Slovak Republic, District Court Prešov, 2007.
On August 4, 2006 Ms. M. G. (the “Claimant”) filed an action with the District Court Prešov against her husband, Mr. F. G. (the “Defendant”) requesting that his right to use the common household be revoked. The court ruled to revoke the Defendant’s common right to use the household and found the Defendant guilty of the criminal offence of making a dangerous threat under Section 360 (1) of the Criminal Code and sentenced him to imprisonment for six months. The Defendant, under the influence of alcohol, threatened to throw the Claimant off the balcony and forced her by violence to leave the house. During the trial, the Claimant’s allegations regarding the violent behavior of the Defendant were supported by the testimonies of both children of the disputing parties. According to an expert opinion, the Defendant was suffering from alcohol addiction and in need of medical treatment, which was later ordered by the court.
Pursuant to Section 705a of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court in Prešov revoked the Defendant’s common right to use the household under the abovementioned provision of the Civil Code.
Kontrová v. Slovakia, Slovak Republic, European Court of Human Rights, 2007.
Mrs. Kontrová, (the claimant) a married women with two children, filed a criminal complaint against her husband, accusing him of assaulting and beating her with an electric cord. In her complaint, she mentioned the long history of physical and psychological abuse by her husband and submitted a medical report indicating that her latest injuries would prevent her from working for at least seven days. This statement was later modified upon the advice of a police officer, so that it could have been treated as a minor offence and the police decided to take no further action.
One month later, the Police Department received two night emergency calls reporting that Mrs. Kontrová’s husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning Mrs. Kontrová went to the police station and inquired about her criminal complaint from the previous month as well as the incident of the previous night, the police took no further action and no new criminal complaint was filed. Four days later, Mrs. Kontrová’s husband shot and killed their two children and himself.
Criminal proceedings initiated against the police officers involved in the case on the grounds of dereliction of duty produced no tangible results, and Mrs. Kontrová’s complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. Mrs. Kontrová filed a claim with the European Court of Human Rights alleging a breach of the protection of her rights to life, privacy, a fair trial and right for an effective remedy. The local police department knew all about Mrs. Kontrová and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against Mrs. Kontrová’s husband, which the police failed to do. The direct consequence of this was the death of Mrs. Kontrová’s children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an ‘effective’ remedy and Mrs. Kontrová’s compensation. The only action available to Mrs. Kontrová related to the protection of her personal integrity and this provided her with no such remedy. This amounted to a breach of right to an effective remedy , in connection with a breach right to life. The European Court held that an examination of the other Articles was not necessary and awarded her EUR 25,000 in damages.
File No. 13C/175/2003, Slovak Republic, District Court Bratislava II, 2006.
Ms. M. M. (the “Claimant”) filed an action with the District Court Bratislava II against her husband, Mr. Š. M. (the “Defendant”) to revoke his right to use the common household. This action was subsequently granted by the District Court Bratislava II, first in the form of a preliminary decision revoking the Defendant’s right to use the apartment and later as a final decision in the form of Decision No. 5 T 26/04. The court also found the Defendant guilty of the criminal offence of battery of a close relative and entrusted person and sentenced him to imprisonment. The Defendant had frequently insulted the Claimant, punched her, thrown pots at her and forced her by threats to have sexual intercourse with him, which made the Claimant afraid to use the common household with the Defendant. Although they were divorced, they had not agreed on a property settlement and thus, the apartment formed a part of the undivided co-ownership of spouses and the Defendant retained his rights to the apartment. Pursuant to Section 146(2) of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court Bratislava II revoked the Defendant’s right to use the apartment under the abovementioned provision of the Civil Code.
Slovak Republic, Constitutional Court, Decision No. 194/06-46, 2006, Slovak Republic, Constitutional Court, 2006.
Mrs. I.G., Mrs. R.H. and Mrs. M.K. (the claimants of Roma ethnicity) were sterilized while giving birth to their children. The claimants initiated criminal proceedings on the grounds of unlawful sterilization, claiming that their consent (or informed consent in the case of R.H.) was not given. Criminal proceedings were stopped by the regional prosecutor with the conclusion that no unlawful act had been committed. The claimants filed a formal complaint against the decision, in part claiming that the investigation did not examine the substantive material issue, the lack of consent to sterilization. This formal complaint was dismissed by the regional prosecutor. The claimants petitioned the Constitutional Court to address the decision to discontinue criminal proceedings by the regional prosecutor; they claimed among other things the breach of their right to private and family life and of their right to privacy. The Constitutional Court held that sterilization was not a “life-saving” procedure, as claimed by the regional prosecutor and the hospital. Therefore, the explanation given by the regional prosecutor for the discontinuation of criminal proceedings on these grounds was unfounded. The Constitutional Court further held that the investigation did not exhaust all possible avenues, and completely ignored the issue of consent. This and the subsequent dismissal of the complaint amounted to inhumane or degrading treatment of the claimants affecting their private and family lives. The Constitutional Court awarded each claimant 50,000 SK (EUR 1,659.70) in damages and ordered the regional prosecutor to re-examine the issue.
Slovak Republic, Supreme Court, Decision No. 36/2005, File No. 2 Cdo 67/03, Slovak Republic, Supreme Court, 2005.
Ms X.Y. (the claimant) had worked as a nurse in the Hospital in the city of Velký Krtíš (the employer) since November 30, 1998. On April 11, 2002, the claimant received a notice of the termination of her employment due to her failure to take an oath in accordance with new legislation. The new legislation came into force on April 1, 2002, when the claimant was on maternity leave. The notification of the new legal prerequisite was posted in the halls of the hospital making it almost impossible for workers on maternity leave to be informed. The claimant sued the employer for unlawful termination of employment, arguing that the termination was discriminatory on the grounds of her gender. The district court ruled in favor of the claimant; however, on appeal the regional court quashed the decision and dismissed the case. The claimant appealed to the Supreme Court which held that the termination was unlawful for a number of reasons. Firstly, the employer failed to perform its legal obligations to enable the claimant to take the oath. Secondly, the acts of the employer with respect to the termination of employment were discriminatory. The employer had disadvantaged a certain group of its employees, in particular those on maternity leave, by failing to provide them with notice about the new requirement to take the oath, breaching the prohibition of discrimination established in labor relations. This was in breach of the prohibition of discrimination under Section 13 of the Labor Code of the Slovak Republic. Lastly, the Supreme Court held that the employer had abused its rights as an employer, which is in violation of moral principals. The Supreme Court further held that the termination would have been lawful if the employer had duly informed the claimant about the new regulations and provided her with a chance to comply with them, and ordered a re-examination of the issue by the district court.
File No. 7T 167/03-121, Slovak Republic, District Court Košice II, 2004.
Over the course of seven years, Mr. X (the “Accused”) caused substantial physical and psychological suffering to his wife Mrs. Y and his daughter Ms. Z (jointly the “Aggrieved") including strangling, physical assaults, threats of killing, and constant humiliation. Furthermore, the Accused prevented his daughter from entering the apartment, where she lived with her parents. During the main trial, the Accused refused to testify and so did the Aggrieved Persons. However, the Court disposed of witness testimonies of the Aggrieved Persons provided at the preliminary hearing, according to which the spouses had permanent conflicts due to the alcoholism of the Accused. An expert opinion confirmed that the Aggrieved Persons had suffered from battering. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 215 (1a) of the former Criminal Code and sentenced the Accused to imprisonment for a term of 2 years. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code, the court suspended this sentence for a probationary period of 3 years.
File No. 1T 107/01, Slovak Republic, District Court Martin, 2001.
Mr. X (the “Accused”) under the influence of alcohol physically assaulted his wife Mrs. Y (the “Aggrieved”) by hitting her head and face. Subsequently, the Accused physically assaulted the children of the Aggrieved from her first marriage. When the Aggrieved attempted to protect her children, the Accused beat her with his fists and kicked her. The Aggrieved and her children suffered various minor injuries which caused the inability to work for less than six days.
The court ruled that the Accused had committed the criminal offence of attempted bodily harm under Section 221 (1) of the former Criminal Code , the criminal offence of violence against an individual or group of individuals under Section 196 (1) and Section 197a of the former Criminal Code and sentenced him unconditionally to imprisonment for six months. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code , the court suspended this imprisonment sentence for a probationary period of 15 months. Moreover, the Accused was obliged to pay damages to Aggrieved for the harm they suffered.
Slovak Republic, Supreme Court, Decision No. 113/1999, File No. 3 To 61/98, Slovak Republic, Supreme Court, 1998.
In the summer of 1995, Mr. P.Š. and Mr. K.P. (the defendants) transported juvenile Ms. Š.N. and juvenile Ms. A.G. (the Aggrieved) to Prague under the guise of providing employment. The defendants intended to sell the Aggrieved to R.R. into prostitution. After examining the Aggrieved primarily on the basis of their moral standing and their relationship with the defendants, the district court acquitted both defendants. Subsequently, the Prosecutor appealed the decision to the Supreme Court. The Supreme Court quashed the decision of the district court and found the defendants guilty of trafficking in women. It further held that an examination of the moral standing and the relationship of the Aggrieved to the defendants was unreasonable. The Supreme Court clarified that the criminal act of trafficking in women is committed if a woman is lured (i.e., by promises, offers of money, etc.), hired (conclusion of any agreement, including illegal agreements about the trafficking of women to another country), or transported to another country (crossing of a border being sufficient, the specifics of the actual location not required) for the purpose of prostitution. It is irrelevant whether the women in question actually worked as prostitutes or not, the intention to work as a prostitute is sufficient. The Supreme Court ordered the district court to re-examine the case.
Decision No. 11/1995, File No. 6 Tz 17/94, Slovak Republic, Supreme Court, 1994.
Ms. V. Ž. (the “Aggrieved”) was sexually assaulted by her mother’s partner, Mr. M. P. (the “Accused”) who had lived with them in same household for more than 5 years. The Bratislava I County Prosecutor terminated criminal proceedings after the Aggrieved refused to testify and to give her consent to initiate the criminal prosecution. The Attorney General of the Slovak Republic challenged this termination arguing that the Aggrieved was not entitled to refuse her testimony or withhold permission to initiate criminal proceedings. The Supreme Court of the Slovak Republic ruled that by testifying against the Accused, a person with whom she has family like ties, she could suffer considerable harm herself, as the harm reflected upon the Accused could be perceived as a harm done to the Aggrieved herself and therefore she was in a position to refuse such testimony.
The Attorney General challenged the decision and the Supreme Court admitted the insufficient assessment of the relevant criminal offence as only restraint of personal freedom and determined the relevant criminal offence as a combination of the criminal offences of sexual abuse and blackmail. Pursuant to Section 163a of the former Criminal Procedure Code , the initiation of criminal prosecution for these criminal offences was subject to the consent of the aggrieved person. Whereas, the Aggrieved was a minor and did not have full legal capacity to provide such consent, she should have been represented by her legal representatives, i.e., her parents. In this case, since her mother was the partner of the Accused, there was a high risk of conflict of interest. In such cases, the parents are replaced by other legal representatives, i.e., court appointed custodians. Since the Bratislava I County Prosecutor failed to observe these requirements, the Supreme Court superseded its resolution and ordered a new one to follow all of the findings made by the Supreme Court.
According to current legislation, the prosecution of defendants of two related criminal offences, i.e., sexual abuse and blackmail, is no longer subject to the consent of the aggrieved person. Nonetheless, this Supreme Court Decision No. 11/1995 is applicable, especially in regard to the mandatory legal representation of aggrieved minors. Pursuant to Section 211 of the current Criminal Procedure Code, the prosecution of offenders of other criminal offences (e.g., copyright violations or theft) is still subject to the consent of the aggrieved person. Minors must be represented by their legal representatives not only in relation to giving consent, but in performing any relevant legal action. The relevant authorities shall always examine whether there is possibility of a conflict of interest and if so, exclude such representatives and ask the relevant court to appoint a custodian.
Slovak Republic, Supreme Court, Decision No. 6/1984, File No. 3 To 3/28, Slovak Republic, Supreme Court, 1984.
Ms. L.G. (the Aggrieved) a mentally disabled female, under the age of 15, was forced into sexual intercourse with A.G. (the defendant). The district court found the defendant guilty of attempted rape, even though the defendant had confessed to a number of facts during the police investigation and the trial including knowledge of the fact that the Aggrieved was under the age of 15 and the fact that he took advantage of the Aggrieved party’s mental condition and fully knowing that she would not resist, proceeded to rape her. The district court´s decision relied on the testimony of an expert witness who examined the condition of Ms. L.G., and concluded that no sexual intercourse had occurred due to the undamaged status of the hymen. The Prosecutor appealed the decision to the Supreme Court, which quashed the decision of the district court and found the defendant guilty of rape. The defendant had exploited the vulnerable nature of Ms. L.G., and the fact that she was under the age of 15. The defendant also knew that Ms. L.G. would not resist him, as a result of her mental state, as evidenced by submissions from a number of experts. The decision did not consider the status of the claimant’s hymen, since the defendant´s penetration was proven. The Supreme Court sentenced the defendant to 8 years in a correctional facility.