FIFTH SECTIONApplication no. 28859/11Šárka DUBSKÁagainst the Czech Republiclodged on 4 May 2011STATEMENT OF FACTS The applicant, Ms Šárka Dubská, is a Czech national, who was born in 1985 and lives in Jilemnice. She is represented before the Court by Mr D. Zahumenský, a lawyer practising in Brno.A.  The circumstances of the caseThe facts of the case, as submitted by the applicant, may be summarised as follows.The applicant gave birth to her first child in 2007 in a hospital without any complications. During the birth the hospital staff was urging her to subject herself to various medical interventions even though she had expressly stated her wish not to undertake any unnecessary medical treatments. She was also forced to give birth in a position she did not want to. She wanted to leave the hospital a few hours after the birth as the baby and herself were perfectly healthy but the doctor ordered her to stay in the hospital. She left therefore the hospital on the next day when she presented a letter from her paediatrician who confirmed that she was taking the child into her care.In 2010 the applicant became pregnant again with expected date of birth in the middle of May 2011. The pregnancy was without any complications and the medical examinations and tests did not discover any problems. Considering that giving birth in a hospital had been stressful for her she decided to give birth to her second child at home and started to search for a midwife that would assist at the birth.The applicant was, however, unable to find any midwife that was willing to assist at the birth at her home. Therefore, on 5 April 2011 she sent letters to her health insurance company and to the Liberec Regional Office to help her find a midwife.On 7 April 2011 the health insurance company replied that the Czech legislation did not provide for the possibility of a public insurance company to cover any costs accompanying births at home and therefore they had no contract with any health professional providing such a service. Moreover, the prevailing expert medical opinion did not approve of births at home.On 13 April 2011 the Regional Office informed her that its register of health professionals did not include any midwife and that in any case midwifes were legally allowed to assist at births only in premises with the technical equipment required by Decree no. 221/2010 and not at home.Not having found any health professional to assist her, the applicant gave birth to her son at home alone on 11 May 2011.On 1 July 2011 the applicant lodged a constitutional appeal claiming that she had been denied the possibility to give birth at home with an assistance of a health professional in violation of her right to private life.On 28 February 2012 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal. It held that it would be contrary to the principle of subsidiarity for the Constitutional Court to decide on the merits of the case because the applicant had not exhausted all available remedies, including the proceedings for protection of personal rights under the Civil Code and judicial review proceedings under section 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of the Czech legislation with Article 8 of the Convention and requested the relevant parties to start a serious and expert debate on new legislation. Nine out of fourteen judges attached to the decision their separate opinions in which they disagreed with the reasoning of the decision. They mostly considered that the Constitutional Court should have dismissed the appeal as actio popularis and should have refrained from expressing any views on the constitutionality of the legislation regarding home births.B.  Relevant domestic law1. Act on Medical Care (no. 160/1992)This act was valid until 1 April 2012 when it was superseded by the Act on Medical Services (no. 372/2011).Under section 5 a person could have provided medical care only with an appropriate authorisation, the conditions for which included having appropriate technical equipments at the place where the services were being provided as specified in a decree issued by the Ministry of Health.Under section 14 a person providing medical care could have been fined for violating this act. The amount of fine was not specified.2. Decree of the Minister of Health on technical equipments at health care establishments (no. 221/2010)This decree was valid until 1 April 2012 when it was superseded by the Act on Medical Services (no. 372/2011) and the accompanying Decree no. 92/2012.The decree did not envisage the possibility for health professionals to assist at home births. It envisaged a possibility for midwives to conduct births in rooms specially equipped for that purpose. Furthermore, such a place had to be maximum 15 minutes from a hospital that could perform a birth by a caesarean section.3. Criminal Code (no. 40/2009)Under Article 251 a person who, to a significant extent, provides services or carries on other gainful activity without being authorised thereto shall be sentenced to imprisonment for a period of up to two years or by prohibition of certain activity.According to the applicant the authorities lodged criminal complaints under this provision against at least two midwifes known to assist at child births at home.C.    Relevant international lawConcluding Observations of the Committee on the Elimination of Discrimination against Women on the Czech Republic, 22 October 2010“36. While acknowledging the need to ensure maximum safety for mothers and newborns during childbirth, as well as the State party’s low perinatal mortality rate, the Committee takes note of reports of interference with women’s reproductive health choices in hospitals, including the routine application of medical interventions, reportedly often without the woman’s free, prior and informed consent or any medical indication, a rapid increase in the caesarean section rate, separation of newborns from their mothers for up to several hours without health-related reasons, refusal to release the mother and child from hospital before 72 hours after childbirth, and patronizing attitudes of doctors which impede the exercise by mothers of their freedom of choice. It also notes reports about women’s limited options for delivering their babies outside hospitals.37. The Committee recommends that the State party consider accelerating the adoption of a law on patients’ rights, including women’s reproductive rights; adopt a protocol of normal birth care ensuring respect for patients’ rights and avoiding unnecessary medical interventions; ensure that all interventions are performed only with the woman’s free, prior and informed consent; monitor the quality of care in maternity hospitals; provide mandatory training for all health professionals on patients’ rights and related ethical standards; continue raising patients’ awareness of their rights, including by disseminating information; and consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.”COMPLAINTThe applicant complains under Article 8 of the Convention that Czech law does not enable assistance of a health professional at home births in violation of her right to private life.  QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention?