Δευτέρα, 1 Ιουλίου 2013

Elena KOSAITĖ - ČYPIENĖ and others against Lithuania (Communicated to the Lithuanian Government)

SECOND SECTION
Application no. 69489/12
Elena KOSAITĖ - ČYPIENĖ and others against Lithuania
lodged on 19 October 2012
STATEMENT OF FACTS
The applicants, Ms I. Rinkevičienė (“the first applicant”), Ms E. Zakarevičienė (“the second applicant”), Ms O. Valaitienė (“the third applicant”) and Ms E. Kosaitė-Čypienė (“the fourth applicant”), are Lithuanian nationals who were born in 1983, 1979, 1982 and 1975, respectively. They all live in Vilnius.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2012 a non-governmental organisation for promoting child birth at home, “Gimimas LT”, was established. The third and the fourth applicants are active members.
The first applicant attempted to give birth at home in 2009. However, because of complications she had to give birth in a public hospital. She states that doctors there were critical of her attempt to give birth at home. Therefore, in 2011 she gave birth to her second child at home, assisted by an unlicensed midwife (pribuvėja), J.I.Š. The birth went well. In 2012 the first applicant asked the health care authorities, including public hospitals and the Ministry of Health Care, that a doctor could assist her during home birth. She claims that at that time J.I.Š. and B.K., a gynaecologist and an active member of “Gimimas LT”, were under [criminal] investigation and thus could not assist her. The authorities refused the first applicant’s request on the ground that, should any complications arise, it was safer both for the woman and for the child that the birth took place at a hospital and not at home. Therefore, the State could not assume responsibility by allowing a doctor to assist home birth where the conditions were not as safe as those in a hospital. The first applicant states that she gave birth at home on 11 July 2012 without appropriate medical assistance, thus putting at risk her and her child’s health and life.
The second applicant gave birth at home in 2006, 2008 and 2011, with the help of unlicensed midwife J.I.Š. All the births were without complications. When she was expecting her fourth child, and J.I.Š. and B.K. were under [criminal] investigation, the second applicant asked public hospitals and the Ministry of Health Care to provide her with medical assistance at home during the birth. This was refused for the same reasons as for the first applicant. The second applicant was due to give birth on 17 November 2012.
The third applicant gave birth at home in 2009 and 2010. She was assisted by unlicensed midwife J.I.Š. The third applicant gave birth without complications. She states that the two children are healthy. When she was expecting her third child and J.I.Š. and B.K. were under [criminal] investigation, the third applicant asked public hospitals and the Ministry of Health to provide her with medical assistance at home during the birth. This was refused for the same reasons as for the first and the second applicants. Given that in her requests the third applicant relied on the Court’s judgment in Ternovszky v. Hungary (no. 67545/0914 December 2010), the Ministry of Health Care consulted the Ministry of Justice on the matter. The Ministry of Justice noted that the Court had found a violation in the above case because the Hungarian Government had not enacted regulations on assisted home birth even though it had to do so under the domestic law. Moreover, under the Hungarian legislation health care professionals could be held liable for having assisted the home birth. Those considerations led the Court to conclude that the situation in Hungary, inasmuch as it related to health care professionals’ assistance during home births, was surrounded by legal uncertainty prone to arbitrariness. Nonetheless, the Court had acknowledged that, as concerned provision of health care services, the States had a wide margin of appreciation and regulation had to ensure a proper balance between societal interests and the right at stake. The Ministry of Justice noted that even though the Court had emphasised the importance of legal certainty when regulating such matters, it had not analysed whether prohibition on health care specialists assisting home births was proportionate in a democratic society. Accordingly, the Court’s judgment did not mean that a State was under a general obligation to establish such a regulatory framework which would allow health care specialists to provide services to women who gave birth at home. Taking into account the above, and given that the Lithuanian law did not provide for the provision of health care services when giving birth at home, the Ministry of Health Care concluded that a pregnant woman could not require that, upon her wish, a health care institution or a health care specialist would provide birth-related health care services outside the health care institution. Similarly, a health care institution or a specialist had no obligation to provide such services even if a pregnant woman so wished.
The third applicant was due to give birth on 11 March 2013. She states that she intends to do so at home, notwithstanding whether she is to receive qualified medical assistance or not.
The fourth applicant gave birth at home in 2001, 2003 and 2011; midwife J.I.Š. assisted her. The fourth applicant states that even though she is of “reproductive age”, she does not dare to become pregnant for the fourth time, because of the charges pending in respect of J.I.Š. and B.K. and the lack of an appropriate legislative framework in Lithuania as regards giving birth at home.
B.  Relevant domestic law
The Law on Health Care System provides that health care services provided to pregnant women are paid by the State (Article 47 § 2 (7)).
On 3 April 2006 the Minister of Health Care has issued decision 
no. V-245, approving the medical norm MN 40:2006 on the rights and responsibilities of a gynaecologist. The norm provides that a gynaecologist may practise at a health care institution which has a licence to provide gynaecological services. A gynaecologist may provide certain services at a patient’s home, except for assisting birth.
COMPLAINTS
The applicants complain under Articles 2 and 8 of the Convention of the fact that they cannot benefit from adequate professional assistance for a home birth in view of the domestic legislation. The applicants argue that the State thus puts at risk the health and even the lives of future mothers and babies. They also maintain that from the moment the State started pre-trial investigations in respect of J.I.Š. and B.K., pregnant women are left on their own, which will have tragic consequences sooner or later. On this point they rely on the joined concurring opinion of Judges Sajó and Tulkens in Ternovszky, arguing that “without ... legal certainty there is fear and secrecy, and in the present context this may result in fatal consequences for mother and child”. The applicants specify that they do not require that the State should assist them in giving birth by “keeping the operation rooms at the ready and sending health care specialists to their homes”. They merely ask that the State would not prohibit and obstruct the health care specialists who want to help pregnant women in providing those women with assistance during home birth.


QUESTIONS TO THE PARTIES

1.  Can each of the four applicants claim to be a victim within the meaning of Article 34 of the Convention (see Ternovszky v. Hungary, no. 67545/09§ 21, 14 December 2010)?

2.  Have the applicants exhausted the available domestic remedies, as regards their complaints under Article 8 of the Convention?

3.  Has there been an interference with the applicants’ private life? If so, was the interference in accordance with the law? Did the interference have a legitimate aim?

Given the need to ensure a proper balance between societal interests and the applicants’ rights (see Ternovszky, cited above, § 24), was the interference necessary and proportionate? On this point, the Court also notes the applicants’ argument that the existing rules allegedly dissuade health care professionals from assisting women who choose to give birth at home.