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SECOND
SECTION
CASE OF CSŐSZ v. HUNGARY
(Application
no. 34418/04)
JUDGMENT
STRASBOURG
29
January 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Csősz v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
András
Baka,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Antonella
Mularoni,
Danutė
Jočienė,
Dragoljub
Popović,
judges,
Sally
Dollé, Section Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34418/04) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Hungarian nationals, Mr Krisztián
Csősz, Mr Márk Adrián Csősz and Mr Barnabás
Csősz (“the applicants”), on 25 June 2004.
- The
applicants were represented by Mr I. Barbalics, a lawyer practising
in Nagyatád. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
- The
applicants alleged that the proceedings had lasted an unreasonably
long time. Moreover, they submitted that the proceedings had not been
fair in that the courts had based their decisions exclusively on the
opinion of a specific body of experts, whose independence was
doubtful and who could not be summoned to give oral evidence at court
hearings, in breach of the principle of an oral and public procedure.
- On
6 December 2006 the Court decided to give notice of the application.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1985, 1988 and 1951, respectively, and live
in Székesfehérvár. Mr Krisztián Csősz
and Mr Márk Adrián Csősz are the sons of Mr
Barnabás Csősz, and the heirs of the latter's late wife
(their mother), Mrs Virgília Csőszné Dőry,
who was a plaintiff in the proceedings described below.
- Due
to an injury, Mr Krisztián Csősz developed a deformation
of his left leg. In 1994 and 1995 he underwent repeated orthopaedic
surgery at Pécs University Teaching Hospital. Despite these
efforts, his left leg remained some 5 cm shorter than the other,
causing him a certain disability.
- On
17 April 1996 Mr Krisztián Csősz and his parents, Mr
Barnabás Csősz and Mrs Virgília Csősz, filed
an action in compensation against the University. They claimed that
Mr Krisztián Csősz's disability was due to medical
malpractice and that they had not been properly informed of the
possible risks of the surgery proposed. On 21 May 1996 the
University's insurer joined the proceedings as an intervening party.
- After
three hearings, on 4 November 1998 the Baranya County Regional Court
gave an interim decision, holding that the respondent was liable to
pay compensation in the case, on account of the inadequate
information given to the patient's parents prior to the surgery. The
court relied on the opinion of an expert institution (the Semmelweis
Medical University Institute of Forensic Medicine) dated 26 November
1996 and its supplement on 25 June 1997. It also based the decision
on the supervisory expert opinion of the Forensic Committee of the
Council of Medical Science (“ETT IB”) dated 3 March 1998,
which contained a review of the medical documentation of the case and
the conclusion that the treatment applied had been carried out lege
artis medicinae, and a supplement dated 2 September 1998,
the latter having been prepared in reply to a motion introduced by
the applicants.
- On
appeal, on 11 May 2000 the Supreme Court's appellate bench quashed
this decision and remitted the case to the first instance court. It
held that further evidence was to be taken in respect of the
information given to the patient's parents prior to their consent to
the surgery.
- On
26 June 2000 Mrs Virgília Csősz died and was succeeded in
the proceedings by her two sons.
- On
9 March and 20 April 2001 the Regional Court held hearings. On
26 April 2001 it dismissed the action, holding that the surgery
had not been unadvised in the circumstances, that it had been carried
out respecting the rules of the medical profession and that the
information provided to the patient's parents had been adequate. The
court relied on the existing opinions of the expert institutions,
documentary evidence and the testimonies of witnesses as to the oral
information provided to the patient's parents about the risks.
- On
14 May 2003 the Supreme Court's appellate bench dismissed the
applicants' appeal. It accepted the first instance court's reasoning
concerning the adequacy of the treatment provided, which it endorsed
as follows:
“[...] it had to be determined whether the
requirement of maximum carefulness and circumspection was respected.
Relying on the expert's opinion and on the supervisory opinion of the
ETT IB, the first instance court reached the well-founded conclusion
that this requirement was met in respect of the elected surgery, of
the choice of the series of operations. ...
[...] altogether, to carry out the operation did not
mean a greater risk than its omission. This was also shown by the
ultimately good result. In respect of the plates and screws used in
the surgery, the supervisory opinion of the ETT IB also showed
unequivocally that the respondent had not committed any errors. In
sum, no surgical malpractice was committed generating any tort
liability.”
- Moreover,
the Supreme Court confirmed the Regional Court's finding that the
information given to the patient's parents had been adequate.
- On
9 December 2003 the Supreme Court rejected the applicants' petition
for review in a 4½-page reasoned decision. It applied sections
270(2) and 273 of the Code of Civil Procedure, as in force in the
relevant period, according to which a review of the substantive
unlawfulness of final decisions was only admissible if it was
considered necessary from the perspective of harmonising or
developing the application of the law. Having reviewed the merits of
the applicants' petition in detail, the Supreme Court was satisfied
that this condition was not met in the circumstances. The decision
was served on 13 January 2004.
- On
31 March 2004 the Regional Court rectified the decision of 26 April
2001. This decision was served on 5 April 2004.
II. RELEVANT DOMESTIC LAW
16. Code of
Civil Procedure
Section 206(1)
“The court shall establish the findings of fact by
synthesising the evidence given by the parties and the evidence
obtained during the proceedings; it shall assess all evidence in its
entirety and adjudicate ... according to its own conviction.”
17. Decree no.
13/1994. (IX.13.) NM on the Activities of the Forensic Committee of
the Council of Medical Science (“ETT IB – the Committee”)
(as in force in the relevant period)
Section 1(1)
“The ETT IB's task is to give supervisory opinions
on special issues of health care, at the request of courts, or of the
prosecution, police or ... other authorities, especially if the
opinions of medical experts are controversial or divergent.”
Section 9(1)
“The Committee shall sit in camera ...”
Section 10(1)
“The Committee's supervisory opinion may be
interpreted, supplemented or modified exclusively at the request of
the organ which requested the opinion, at a session of the
Committee.”
Section 10(3)
“The minutes of the Committee's sessions are
secret (szolgálati titok).”
18. Supreme
Court guideline no. BKT-PKT-GKT 1/1981 (as in force during the
relevant period)
Chapter IV
“The organ (body) giving a supervisory expert
opinion or its members may not be summoned to court hearings, but the
court may order that its opinion be supplemented.”
19. Act no.
XXVIII of 1994 on the Hungarian Medical Chamber (as in force at the
relevant time)
Section 1(1)
“The Hungarian Medical Chamber is the
self-governed, professional, 'public-law' organisation (köztestület)
of doctors and dentists, with the aim of defending their rights.”
Section 20(1)
“Activities requiring a medical degree ... can be
exercised only by members of the Hungarian Medical Chamber.”
20. Code of
Ethics of the Hungarian Medical Chamber
Rule 95
“In any utterances made, a doctor's conduct shall
be such as ensures respect for fellow doctors and trust in fellow
doctors' activities.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 17 April 1996 and
ended on 5 April 2004. It thus lasted almost eight years for three
levels of jurisdiction.
A. Admissibility
- The
Government submitted that the final domestic decision to be taken
into account for the purposes of the six-month rule was given by the
Supreme Court's appeal bench on 14 May 2003 and served on 27 August
2003. However, the application was introduced only on 25 June 2004
i.e. more than six months later. In their view, the applicants'
unsuccessful petition for review was bound to fail and therefore not
an effective remedy for the purposes of Article 35 § 1 of the
Convention. Consequently, the decision of 9 December 2003 adopted by
the Supreme Court's review bench did not interrupt the running of the
six-month time-limit.
The
applicants contested this submission.
- The
Court notes that the review bench dealt with the merits of the
applicants' petition. It is therefore not persuaded that this motion
was futile or ineffective in the instant case, for the purposes of
Article 35 § 1 of the Convention. The decision was served
on 13 January 2004. Moreover, another decision was adopted in the
case on 31 March 2004 with a view to rectification (see mutatis
mutandis Kreisz v. Hungary, no. 12941/05, §§ 7
and 10, 3 April 2007). In these circumstances, the application cannot
be considered as having been lodged out of time.
- Furthermore,
the Court notes that this complaint is neither manifestly
ill-founded, within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present circumstances. Having regard to its case-law on the subject,
the Court finds that the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE FAIRNESS OF THE PROCEEDINGS
A. Admissibility
- As
to the Government's objection based on the six-month rule which also
concerned this part of the application, the Court refers to its
finding in paragraph 25 above. Furthermore, the Court notes that this
complaint is neither manifestly ill-founded, within the meaning of
Article 35 § 3 of the Convention, nor inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicants submitted that the fairness of the proceedings was
prejudiced, in breach of Article 6 § 1 of the Convention,
because the domestic courts had based their judgments solely on the
opinion of the ETT IB. This body, whose activity was not subject to
any public scrutiny and consisted of doctors, was inherently not
independent and its procedure ignored the guarantees of Article 6.
This was evidenced by the fact that, at the material time, all
doctors had to be members of the Hungarian Medical Chamber, a
public-law body imposing an obligation on its members not to
criticise other doctors, which amounted to negative solidarity. The
ETT IB sat in camera, and could not be summoned to give oral
evidence at the hearings, which, in the applicants' view, was a
breach of the principle of an oral and public procedure.
- The
Government drew attention to section 206(1) of the Hungarian Code of
Civil Procedure (see paragraph 16 above) and submitted that the
courts had reached their conclusions in the applicants' case by
assessing the entirety of the evidence available, of which the ETT
IB's opinion had only been one element. Since the latter issued an
opinion, rather than a judicial decision, its procedure did not
attract the procedural safeguards of Article 6 § 1. Moreover,
the ETT IB was not available to give oral evidence in court because
it had formed its opinion consensually and a representative could not
react to any oral question or challenge in court without first
consulting his or her colleagues and producing another consensual
opinion from that body. In any event, this circumstance did not
breach the principle of “equality of arms” because both
parties were in the same situation vis-à-vis the
ETT-IB.
- The
Court reiterates that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention. In particular, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention. Moreover, while Article 6
of the Convention guarantees the right to a fair hearing, it does not
lay down any rules on the admissibility of evidence or the way it
should be assessed, which are therefore primarily matters for
regulation by national law and the national courts (García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR
1999 I).
- In
the present case, the Court notes that the Regional Court relied on
the opinions of expert institutions, documentary evidence and the
testimony of witnesses about the information given to the patient's
parents as to the risks of the proposed surgery. It also observes
that, under section 206(1) of the Code of Civil Procedure, the
domestic courts were under an obligation to synthesise the evidence
available and assess it in its entirety. It is true that, in
dismissing the applicants' appeal, the Supreme Court relied heavily
on the supervisory opinion of the ETT IB. However, for the Court, the
nature of the dispute – the adequacy of complex medical
procedures – justifies such an approach. Furthermore, it seems
that the applicants were able to put forward their arguments
throughout the proceedings and were not prevented from challenging
the medical opinions available to the courts. Indeed, the ETT IB's
supervisory opinion was supplemented following their request
(paragraph 8 above).
Considering
the proceedings as a whole, the Court is satisfied that the domestic
courts reached their conclusions in adversarial proceedings, without
attributing exclusive importance to a single piece of evidence not
susceptible to challenge (compare and contrast Chevrol v. France,
no. 49636/99, §§ 81-82, ECHR 2003 III).
- Moreover,
the Court is not persuaded by the applicants' argument that the
fairness of the proceedings was prejudiced because the ETT IB
essentially consisted of doctors. On the contrary, this is quite
normal for a body with the vocation of giving expert opinions on
sophisticated medical issues. In any event, neither the contents of
the case file nor the applicants' submissions disclose any evidence
that the members of this body lacked the requisite objectivity.
- Concerning
the ETT IB's unavailability for oral challenge in court, the Court
accepts the Government's argument that such an appearance would not
be feasible, especially in view of the fact that both parties could
request supplementary submissions from it by way of the written
procedure. This arrangement may likewise be seen as meeting the
requirements of the principle of “equality of arms”. As
to the applicants' suggestion that the ETT IB's procedure should be
subject to scrutiny under Article 6, the Court points out that the
safeguards enshrined in that provision concern a 'tribunal' and are
not applicable to the procedures of an expert institution which does
not adopt judicial decisions.
- In
sum, the Court cannot identify any element which would render unfair
the proceedings as a whole. It follows that there has been no
violation of Article 6 § 1 of the Convention in this respect.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- In
respect of pecuniary damage, the applicants claimed, jointly, 800,000
Hungarian forints
(HUF). Moreover, Mr Krisztián Csősz and Mr Márk
Adrián Csősz each claimed HUF 500,000,
and Mr Barnabás Csősz HUF 1 million.
- In
respect of non-pecuniary damage, each applicant claimed
HUF 3 million,
apparently for the suffering caused by the protraction of the
proceedings. Additionally, Mr Krisztián Csősz claimed HUF
6 million,
Mr Barnabás Csősz HUF 1.1 million
and Mr Márk Adrián Csősz HUF 1 million.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicants must have suffered some
non-pecuniary damage. Ruling on an equitable basis, it awards each
applicant EUR 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed altogether EUR 7,500 and HUF 282,820 for the
costs and expenses incurred before the domestic courts and the Court.
They submitted invoices in respect of legal costs amounting to
HUF 140,000 (approximately EUR 550).
- The
Government did not comment on these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects all claims
in excess of the sum in respect of which the applicants have produced
invoices. Accordingly, it awards them, jointly, the sum of EUR 550.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the length of the
proceedings;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the fairness of the
proceedings;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,200 (three thousand two hundred euros) to
each of the applicants in respect of non-pecuniary damage, and EUR
550 (five hundred and fifty euros) to the applicants, jointly, in
respect of costs and expenses, plus any tax that may be chargeable on
these sums, which are to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
