The European Committee of Social Rights (ECSR) has held Bulgaria responsible for Roma women’s inferior access to reproductive healthcare in public hospitals, specifically during pregnancy and childbirth. [ECSR Press Release] In a unanimous merits decision, the Committee found that Bulgaria’s failure to take proactive steps—including by addressing the much lower levels of health insurance coverage among Roma women, barriers to maternal care such as a lack of translation services, and significantly higher infant and maternal mortality rates—constituted a violation of the rights to health and non-discrimination under the Revised European Social Charte (the “Charter“). See ECSR, European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 151/2017, Merits, 5 December 2018. While the complaint also alleged that Roma women are routinely segregated in maternity wards, the ECSR ultimately determined there was insufficient evidence that this is a systemic practice. See id. at para. 93. In 2008, the ECSR found Bulgaria responsible for related gaps in access to healthcare services and worse health status among the Roma population; according to the more recent decision, the situation has not seen any improvement since then. See ECSR, European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 46/2007, Merits, 3 December 2008; ERRC v. Bulgaria, 5 December 2018, paras. 56, 85.
Procedural History & Background
The European Roma Rights Centre (ERRC) lodged a complaint in May 2017on behalf of Roma women living in Bulgaria, alleging that Bulgaria was in violation of Article 11 (right to health) and Article 13 (right to social and medical assistance) in conjunction with Article E (non-discrimination) of the Charter. See ERRC v. Bulgaria, 5 December 2018, paras. 1-2. The complaint claimed specifically that Bulgaria’s failure to “eliminate systemic discriminatory practices targeting Romani women in access to sexual and reproductive healthcare services,” weakens “the protection of the reproductive health of Romani women in Bulgaria.” See id. at para. 2. Additionally, the ERRC claimed that national health insurance schemes “[are] the basis for inferior treatment for Roma women, and the maintenance of segregated maternity wards leads to inferior medical treatment and prevents them from accessing adequate healthcare during pregnancy and labor. See id. at paras. 37, 62. The Bulgarian government took issue with the facts presented, claimed that the evidence presented—based on a recent Bulgarian Helsinki Committee study and interviews of Roma women—was unreliable and unrepresentative, and asserted that these claims of discrimination must first have been raised in domestic courts or with its Commission for the Protection Against Discrimination. See id. at paras. 53, 63, 66, 67, 69. Despite the government’s claim that the complaint was “unfounded,” the ECSR declared the collective complaint to be admissible in October 2017. See id. at paras. 3, 11.
The Roma are an ethnic minority in the country, making up between 4.9 to 10 percent of the population. See id. at para. 43. Roma face marginalization, stigmatization, and discrimination across Europe. [Reuters] According to ERRC data, Roma women in Bulgaria disproportionately live in conditions of “severe deprivation,” lacking basic utilities that help prevent the spread of disease. See ERRC v. Bulgaria, 5 December 2018, at para. 44. With respect to health specifically, ERRC noted that Roma people’s life expectancy is 10 years shorter than that of the rest of the population, they frequently suffer from disease and illness rarely found among other Bulgarians, and from 55 to 80 percent of Roma people 16 years or older lack health insurance See id. at paras. 45, 49. While Bulgarian law ensures free obstetric care, the lack of health insurance allegedly causes Roma women not to visit their obstetricians during their pregnancy and leads to differential treatment in maternity wards. See id. at paras. 50.
The ECSR adopted its decision on the merits of the case on December 5, 2018, and published the decision on April 19, 2019. It declined to examine the alleged violation of Article 13 of the Charter because it viewed the claims as more specific, rather than concerning a general lack of access to social and medical assistance. See id. at para. 38. The Committee identified two distinct issues for its consideration: 1) the “lack of access to health insurance” and the “disproportionate impact” this had on Roma women’s access to maternal healthcare; and, 2) the segregation of Roma women in the maternity wards of public hospitals. See id. at para. 39.
On the issue of health insurance, the ECSR referenced its findings in prior case ERRC v. Bulgaria (Complaint No. 46/2007), in which it determined the percentage of Roma in Bulgaria without health insurance was 47% in 2007 and noted that available information suggests that this situation has not improved over the past 10 years. See id. at paras. 76, 85. The Committee acknowledged that certain factors—the termination of health insurance coverage after failing to make three contributions over 36 months and “exceptionally high” out-of-pocket payments for healthcare services—have a “considerable and disproportionate impact” on the most vulnerable members of Bulgarian society, and particularly on Roma women. See id. at paras. 76, 77, 83. Thus, the Committee found that the lack of progress in the health insurance situation along with the lower health conditions among Roma indicate that Roma women face disadvantages in the healthcare system and that the State has failed both its positive obligations to provide adequate access to maternal healthcare and to prevent indirect discrimination. See id. at paras. 81-82, 85-86.
With respect to the alleged segregation in maternity wards, the Committee took seriously evidence indicating that Roma women were kept separated from ethnic Bulgarians when admitted to give birth, and that hospital staff prevented many of them from moving freely within the ward. See id. at para. 56. The evidence also showed that these wards had notably inferior sanitation standards and lacked many of the features available to non-Roma women that provide for the patient’s comfort and well-being. See id. at para. 58. Although the ECSR considered the allegations to be serious, the examples and information provided—based on a report containing 65 interviews along with recorded telephone calls to various Bulgarian hospitals—were not sufficient to prove that there were “systematic discrimination practices against Roma women.” See id. at paras 53-54, 88, 92. Thus, the ECSR determined that there was no violation with respect to this claim. See id. at para. 93.
The European Committee of Social Rights
The ECSR, which has its seat in Strasbourg, France, oversees the protection of economic and social rights in most of Europe. The Committee was established under the European Social Charter of 1961 and is tasked with monitoring the implementation of the 1961 European Social Charter, the 1988 Additional Protocol, and the 1996 Revised European Social Charter. See IJRC, European Committee of Social Rights. Unlike many other international human rights bodies, the Committee receives collective – as opposed to individual – complaints against States that have accepted the collective complaints procedure. See id. Several types of organizations are entitled to file complaints with the Committee regarding a State’s violation of the Charter, including certain international nongovernmental organizations and national employer organizations and trade unions. See id. Following a Committee decision, the State must report annually to the Secretary General of the Council of Europe regarding the steps it has taken to implement the Committee’s recommendations. See id.
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