THIRD SECTION
CASE OF
G.B. AND R.B. v. THE REPUBLIC OF MOLDOVA
(Application no.
16761/09)
JUDGMENT
STRASBOURG
18 December 2012
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 G.B. and R.B. v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 27 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
16761/09) against the Republic of Moldova lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Moldovan nationals, Ms G.B. and Mr R.B.
(“the applicants”), on 24 March 2009. The President of the Chamber acceded to
the applicants’ request not to have their names disclosed (Rule 47 § 3 of the
Rules of Court).
The applicants were represented by Ms N. Mardari,
a lawyer practising in Chișinău. The Moldovan Government (“the
Government”) were represented by their acting Agent, Mr L. Apostol.
The applicants alleged, in particular, that their
rights under Article 8 had been breached and that the domestic courts had
failed to offer them sufficient redress.
On 25 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Following the resignation of Mr Mihai Poalelungi,
the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of
Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad
hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1968 and 1966
respectively and live in Ștefan Vodă. They are husband and wife.
A. The first applicant’s sterilisation and its effects
On 4 May 2000 the first applicant was giving
birth to a child. The head of the obstetrics and gynaecology department of the Ştefan-Vodă regional hospital, Mr
B., performed a Caesarean section on her. During the procedure he removed her
ovaries and Fallopian tubes, without obtaining her permission. As a result of
the operation, the first applicant, who was thirty-two at the time, suffered an
early menopause.
Since 2001 the first applicant has been having
medical treatment designed to counteract the effects of the early menopause,
including hormone replacement therapy. According to her doctors, she has to
continue such treatment until she is between fifty-two and fifty-five years
old, after which further treatment will be required.
According to a neurology report dated 5 November
2001, the first applicant was suffering from astheno-depressive syndrome and
osteoporosis. On 18 February 2002 the doctors found that the first applicant
experienced hot flushes, neurosis and frequent heart palpitations. On 8 May
2002 she was diagnosed with asthenic neurosis.
According to
the results of an examination carried out by a medical panel on 18 March 2003,
the removal of the first applicant’s ovaries and Fallopian tubes had been unnecessary
and the surgery had resulted in her being sterilised.
On 26 July 2006 a psychiatrist and a
psychologist established that the first applicant was suffering from long-term
psychological problems and that she continued to show signs of post-traumatic stress
disorder.
B. Criminal proceedings against the doctor
On 15 March 2005 the Căuşeni District Court
convicted B. of medical negligence which had caused severe damage to the health
and bodily integrity of the victim. He was sentenced to six months’
imprisonment, suspended for one year. The court referred to medical reports and
found, inter alia, that B. had failed to inform the applicants of
the sterilisation until ten days after the event. The first applicant’s ovaries
could have been preserved, but B. had failed to do so.
On 11 May 2005 the Bender Court of Appeal upheld
that judgment.
On 2
August 2005 the Supreme Court of Justice quashed the lower courts’ judgments
and adopted its own judgment, finding B. guilty but absolving him of criminal
responsibility because the limitation period for sentencing him had expired.
C. Civil proceedings initiated by the applicants
On an unknown date in March 2007 the applicants started
civil proceedings against the Ştefan-Vodă regional hospital and B., claiming compensation for the damage
caused, comprising 9,909 Moldovan lei (MDL - approximately 587 euros (EUR)
at the time) for pecuniary damage, MDL 1 million (EUR 59,740) for the
first applicant and MDL 100,000 (EUR 5,974) for the second applicant in
respect of non-pecuniary damage, and MDL 2,700 (EUR 160) for legal costs.
They also sought a court order for the hospital to provide the first applicant
with free treatment for as long as her condition required, as prescribed by her
doctors. The applicants’ lawyer provided detailed explanations and evidence in
support of each of these claims, including various medical reports, the cost of
medical consultations, laboratory analyses and treatment undertaken by the
first applicant, and the findings of the criminal courts in the case against B.
On 18
September 2007 the Căuşeni District Court
accepted the applicants’ claims in part, referring to the findings of the
criminal courts and the medical evidence in the file. It ordered the hospital
to provide the first applicant with the requisite medication until the year
2020. The court also awarded MDL 1,119 (EUR 69) to the applicants for pecuniary
damage, as well as MDL 5,000 (EUR 306) to the first applicant and
MDL 1,000 (EUR 61) to the second applicant in respect of
non-pecuniary damage. In this latter connection, the court found that B. had
voluntarily compensated the applicants for the pecuniary losses they had incurred
and that awarding sums as large as those claimed by the applicants would have seriously
affected the activities of the (State-owned) hospital.
On 24 January
2008 the Chişinău Court of Appeal partly quashed that judgment,
increasing the award for non-pecuniary damage to the first applicant to MDL 10,000
(EUR 607) plus MDL 1,237 (EUR 75) for costs. The court observed that,
under the applicable legal provisions, the size of an award of compensation for
non-pecuniary damage was to be determined by taking into consideration the
circumstances of the case, including the nature and seriousness of suffering
caused to the victim, the degree of guilt of the person who had caused the
suffering, and the degree to which such compensation could bring about just
satisfaction for the victim. The court referred to the findings of the criminal
courts in the case against B., as well as the first applicant’s medical reports
(see paragraph 10 above).
The applicants lodged an appeal on points of
law, arguing inter alia that the lower courts had not given sufficient
reasons for making such a nominal award, which had not offered them redress for
the violation of their rights. They referred to the various medical reports confirming
that, besides the long-lasting psychological effect on the first applicant resulting
from being permanently sterilised without her knowledge or consent, she
continued to suffer from health problems which required constant medical
treatment.
In a final judgment
of 24 September 2008 the Supreme Court of Justice upheld the judgment of 24
January 2008, essentially repeating the arguments of the lower court.
The award in the applicants’ favour was enforced
in March 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
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.
The Court therefore sees no reason to continue
with the examination of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
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
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).
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).
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
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.
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
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).
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).
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.
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.
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.
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).
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
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 non-pecuniary damage, the applicants
claimed EUR 60,000 and EUR 6,000 for the first and second applicants
respectively.
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).
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
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).
The Government considered that both the number
of hours worked on the case and the hourly rate charged by the lawyer had been
excessive.
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
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicants jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 12,000 (twelve thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicants, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
