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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

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. 2. 3. Scope within Art. 1 Applicant Status Victim Status

Part B: Sterilisation Merits of Claim ..................................................................................Page 8 4. Violation of Art. 3: Freedom from inhuman and degrading treatment...Page 8 i. ii. ii. Right to full and informed consentPage 9 Sterilisation as Inhuman and Degrading Treatment.Page 10 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. ii. iii. iv. v. Right to physical and moral integrity ..Page 12 Right to self-determination and personal autonomy.Page 12 Positive Obligations under Art. 8.Page 13 Alternative Contraceptive Options...Page 15 Unjustifiable Interference.Page 15

7. Violation of Art. 12: Right to found a familyPage 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

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 Muoz Daz 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, OBoyle, 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

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 its associated protocols. Therefore, the Orosian government owes particular obligations to these bodies and their particular regulations, protocols, treaties, etc.

1 2

Harris, OBoyle, Warbrick and Bates (2009), p. 14 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) 7

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 Sterilisations 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.As 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 womans full consent is a violation of her right to bodily integrity, security of person and dignity 8. 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 8

Islamic Republic of Iran Shipping Lines v Turkey, no. 40998/98, 76, ECHR 2007 General Comment #24 of CEDAW Committee, Adopted 1999 8

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 Complainants 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.As 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 Complainants husband. Under national law, the standard of consent for surgical procedures in relation to illiterate patients is one of
9

Harris, OBoyle, Warbrick and Bates (2009), p. 71 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 9
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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.As 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 alternative16 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.As 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.As sterilisation without full and informed consent has also reached a comparable threshold. 5. The Complainants 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 10

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 mothers rights. Here, however, the right to life of the unborn is not in danger of infringing on A.As 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 persons 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 ones private life27, encompassing ones physical and mental well-being and emotional, spiritual and family life.28 The Court has
21 22

Ibid, at xii 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 11

previously acknowledged that the circumstances of giving birth incontestably form part of ones private life for the purposes of this provision29. 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.As 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.As 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 persons body has been held to be the most intimate aspect of private life31, 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 selfdetermination. 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 30

Ternovszky v Hungary, no. 67545/09, 22, 14 December 2010 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 12

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 persons reputation is protected by Art. 8 as part of the right to respect for private life. The Court has recognised that the protection of ones reputation comes within the sphere of Art. 8, as it is an innate part of ones individual identity and ones psychological integrity.37 Her reputation has been ruined as a direct consequence of the States 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 35

Zampas and Lamackova (2001), p.164 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 13

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 risks41, 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 ones 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 14

was found to be enough to establish a violation of the States 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 47

VC v Slovakia, no. 18968/07, 1 45, 152, 154, 16 June 2009 Dudgeon v United Kingdom, no.7525/76, 22 October 1981, 52, Series A no. 45 15

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 need48 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.As 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 49

Handyside v United Kingdom, no. 5493/72, 7 December 1976, 51, Series A no. 24 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 16

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.As 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 socioeconomic 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 53

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

Muoz Daz 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. 17

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

18

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 States margin of appreciation is narrowed substantially. 9. A.As 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 ones 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 55

Glor v Switzerland (No. 13444/04) April 2009 57. 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 19

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 its 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 61

McGinley & Egan v The United Kingdom, ECHR 9 June 1998 (Case no.10/1997/794/995-996) 97 Assenov v Bulgaria, 28 October 1998, 1998-VII 62 Aksoy v. Turkey, no. 21987/93, 98, 18 December 1996 20