Sterilisation operations
THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. In their initial application the applicants complained of a breach of Article 6 § 1 of the Convention owing to the insufficient reasons given by the courts in making the award for compensation and the excessive length of the enforcement proceedings. However, in their subsequent observations they asked the Court not to proceed with the examination of this complaint. 22. The Court therefore sees no reason to continue with the examination of this complaint. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 23. The applicants complained that their rights protected under Article 8 of the Convention had been breached as a result of the first applicant ’ s sterilisation and the nominal amount of compensation awarded to them. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 24. The Court observes that, although the applicants alleged that the treatment endured by the first applicant also gave rise to an interference with the second applicant ’ s right to respect for his family life, it considers that it is only required to examine the issues raised from the standpoint of the first applicant ’ s right to respect for her physical integrity, having regard, of course, to the second applicant ’ s role as her husband (see, mutatis mutandis, Glass v. the United Kingdom, no. 61827/00, § 72, ECHR 2004 ‑ II ). 25. It also notes that the hospital in which doctor B. carried out the surgical procedure on the first applicant was owned by the State and that he was effectively a State employee. It has already found that the acts and omissions of medical staff at public health institutions are capable of engaging the responsibility of respondent States under the Convention (see Glass, cited above, § 71). 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 27. The applicants referred firstly to the fact that the domestic courts had established medical negligence in respect of the first applicant. There had thus been a very serious interference with her physical and psychological integrity, as confirmed by the domestic judgments. However, the finding that their rights had been breached was not sufficient to take away the applicants ’ status as victims of a violation of Article 8 of the Convention and the compensation awarded was far from being just or in line with comparable Article 8 cases examined by the Court. 28. The Government submitted that the applicants had failed to prove any non-pecuniary damage beyond that for which the domestic courts had already awarded compensation. In their submissions to the domestic courts the applicants had never referred to any case-law of the European Court to prove that the award needed to be increased. The Government argued that the present case did not differ in any significant manner from that of Pentiacova and Others v. Moldova ((dec.), no. 14462/03, ECHR 2005-I ), in which the Court had found no violation of Article 8 of the Convention in respect of the State ’ s insufficient funding of haemodialysis. 2. The Court ’ s assessment 29. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia, the physical and psychological integrity of a person ( see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). In particular, administering medical treatment contrary to the wishes of a patient will interfere with his or her rights under Article 8 of the Convention (see Glass, cited above, § 70 ). 30. In the present case, the domestic courts found a breach of the first applicant ’ s rights. Even though the courts did not expressly refer to Article 8 of the Convention, they established that there had been a serious interference with the first applicant ’ s physical and psychological integrity in the absence of her knowledge or consent (see paragraphs 12 - 14 and 16 - 19 above). 31. The object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 174, ECHR 2009 ). In the circumstances of the present case, where the domestic courts have examined the issues and found, in essence, a violation of Article 8 of the Convention, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national courts had misinterpreted or misapplied the relevant legal principles or reached a conclusion which was manifestly unreasonable ( ibid., § 174). That is clearly not the case here. 32. Therefore, the only issue which remains to be determined is the amount of compensation. The domestic courts awarded the first applicant the equivalent of EUR 607 in respect of non-pecuniary damage caused, in addition to EUR 75 for costs and an order against the hospital requiring it to provide her with medication until 2020 (see paragraph 16 above). This is considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8 (see, for example, Codarcea v. Romania, no. 31675/04, § 114, 2 June 2009, where the Court awarded the applicant EUR 20,000 ). The devastating effect on the first applicant from having lost her ability to reproduce and from the ensuing long-term health problems make this a particularly serious interference with her rights under Article 8 of the Convention, requiring sufficient just satisfaction. 33. Moreover, while citing the general criteria listed in the relevant legal provisions, the domestic courts did not specify how these criteria applied to the first applicant ’ s case or give any particular reason for making the award in the amount of EUR 607. The only exception was the first-instance court ’ s judgment, according to which a higher award would have undermined the hospital ’ s ability to continue to operate as a public health institution. In the Court ’ s view, the latter argument is unacceptable, given that the State owned that hospital and was liable to cover whatever expenses it generated. 34. The Court is unable to accept the Government ’ s argument that the case cannot be distinguished from Pentiacova and Others ( cited above ). In that case the Court found that the respondent State was unable to provide full medical treatment and had to distribute what little funding was available so as to provide as wide a range of medical assistance as possible to the population. The treatment requested by the applicants in that case involved substantial sums of money over a long period of time, unlike the present case, which involved a one- off payment. Moreover, the State could claim at least partial reimbursement of the expenses from B., the doctor found guilty of medical negligence. The State could also have made professional negligence insurance mandatory at medical institutions in order to be sufficiently covered to be able to pay victims (see, mutatis mutandis, Codarcea, cited above, § 107 ). 35. In the light of the foregoing, the Court considers that the first applicant has not lost her victim status and that there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. In respect of non- pecuniary damage, the applicants claimed EUR 60,000 and EUR 6,000 for the first and second applicants respectively. 38. The Government considered that the first applicant had not proved that there was a causal link between any damage allegedly caused to her and the compensation claimed. In any event, the amount claimed was excessive and should not exceed EUR 10,000, as awarded by the Court in Glass (cited above, § 87). 39. In the light of the particularly serious effect on the first applicant ’ s physical and psychological well-being and on her family life with the second applicant, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 40. The applicants also claimed EUR 2,800 for the costs and expenses incurred before the Court. They submitted an itemised timesheet in respect of their lawyer ’ s work ( thirty-five hours at an hourly rate of EUR 80). 41. The Government considered that both the number of hours worked on the case and the hourly rate charged by the lawyer had been excessive. 42. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court. C. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court considered that the first applicant had not lost her victim status and held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the amount of compensation awarded by the domestic courts was considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8 and required sufficient just satisfaction, as the devastating effects on the first applicant had made this a particularly serious interference with her Convention rights.