Case Study on Litigation Strategies: CEDAW v European Court of Human Rights

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Case Study on Litigation Strategies CEDAW v
European Court of Human Rights

• Christina Zampas
• Center for Reproductive Rights
• Intensive Course on Justiciability of Economic,
  Social and Cultural Rights, Finland
• 15 November 2006

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Facts

• A.S. v. Hungary (CEDAW)
• I.G. and Others v. Slovakia (ECtHR)
• Roma and poor
• Some were minors
• explained and signed consent forms while on
  operating table immediately prior to
  c-section-duress
• Did not understand implications of term
  sterilization-language
• Discovered later that could not ever have more
  children

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Some Issues To Address

• Informed consent (choice)
• Access to comprehensive and understandable
  information
• Non-discrimination (gender, race and
  intersection)

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Strategic considerations in choosing a forum

• Remedy
• Enforcement
• Impact and precedential value
• Length of proceedings
• Likelihood of success on major claims (is there
  supporting precedence in forum?)

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Remedy

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Enforcement
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Impact
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Length of Proceedings
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Likelihood of Success
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Some issues to address

• Informed consent (choice)
• Access to comprehensive and understandable
  information
• Non-discrimination (gender, race and
  intersection)

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Convention Provisions that were argued

• CEDAW
• ? Art. 12
• (right to access to health care services incl.
  those related to family planning)
• ? Art. 16(1)(e)
• (right to decide freely and responsibly on
  spacing and the number of children)
• ? Art. 10(h)
• (right to access to specific educational
  information)
• ?Non-discrimination in each provision

• ECHR
• ? Art. 3
• (right to be free from torture, inhuman or
  degrading treatment or punishment)
• ? Art. 8
• (right to respect for private and family life)
• ? Art. 12
• (right to marry and found a family)
• ? Art. 14
• (right to non-discrimination, race gender and
  intersection)

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Informed consent arguments in both cases

• criteria for informed consent/information
• 1. objective
• 2. comprehensive incl. purpose, nature,
  consequences, risks, and benefits of the proposed
  treatment, and proper counseling on alternatives
  to the proposed treatment and the effects of the
  non-treatment
• 3. understandable to the patient
• 4. considerable time for the informed
  decision
• 5. health risk not an exception to full and
  informed consent in the case of sterilization

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Some Applicable Provisions Informed Choice
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Informed consent I.G. (Art. 8 (2))

• No justification for the sterilizations under
  Article 8(2)
• a. In accordance with law Were not performed
  in accordance with the law
• Strategic issue
• b. No legitimate aim for involuntary
  sterilization
• c. Were not necessary in a democratic society

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CEDAW view under Article 12

• it is not plausible that during 17
  minutes period of time hospital personnel
  provided the author with thorough enough
  counseling and information about sterilization,
  as well as alternatives, risks and benefits, to
  ensure that the author could make a
  well-considered and voluntary decision to be
  sterilized
• general recommendation 24 on women and health
  states that acceptable services are those that
  are delivered in a way that ensures that a women
  gives her fully informed consent, respects her
  dignity.. States Parties should not permit forms
  of coercion, such as non-consensual
  sterilizationthat violate womens rights to
  informed consent and dignity.
• The Committee considers in the present case that
  the State party has not ensured that the author
  gave her fully informed consent to be sterilized
  and that consequently the rights of the author
  under Article 12 were violated. A.S. v.
  Hungary, para. 11.3

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CEDAW General measures related to Article 12

• -found violation of Articles 10(h), 12 and 16
  and makes the following recommendations to the
  State party
• ...review domestic legislation on the principle
  of informed consent and ensure conformity with
  international human rights and medical
  standardsconsider amending provisions of the
  Public Health Act whereby physician is allowed
  to deliver the sterilization without the
  information procedure generally specified when it
  seems to be appropriate in given circumstances.
  A.S. v. Hungary, para. 11.5 II

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• Thank you for your attention!
• Christina Zampas
• Center for Reproductive Rights
• czampas_at_reprorights.org
• 46-8-668-9320 (Sweden)