FOURTH SECTION

DECISION

Application no . 61403/10 B.G . against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 August 2013 as a Chamber composed of:

Ineta Ziemele, President, David Thór Björgvinsson ,

Päivi Hirvelä , George Nicolaou , Paul Mahoney, Krzysztof Wojtyczek , Faris Vehabovi ć , j udges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 12 October 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms B. G., is a Polish national, who was born in 1960 and lives in Warszawa. Her application was lodged on 12 October 2010. She was represented before the Court by Ms N. OÅ‚owska ‑ Zalewska , a lawyer practising in Warsaw.

2 . The Polish G overnment (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant was suffering from a urological ailment. As non-surgical treatment had proved ineffective, an operation was recommended. On 18 May 2000 she was admitted to a public hospital in Warsaw ( Szpital DzieciÄ…tka Jezus w Warszawie ), where she signed a standard form consenting to the proposed treatment and operation and was discharged. The operation was performed on 26 May 2000.

5 . The operation was not successful so the applicant sought further treatment. Another operation was scheduled for 27 November 2000 in a private medical institution in Warsaw. Just before the operation she was informed that the first operation had resulted in sterilisation ; the procedure used in the first operation had been abandoned and replaced by a newer one because it had not been sufficiently effective: it had been successful in only approximately 30% of cases, and had necessarily entailed sterilisation .

6 . On 24 April 2001 the applicant brought a civil claim for compensation of 121,000 zlotys (PLN) against the hospital. This amount included PLN 100,000 for non-pecuniary damage caused by the unwanted sterilisation carried out without her consent, which had deprived her of the possibility of bearing children, causing her mental suffering. The claim also included PLN 21,000 for the costs she had incurred for the second operation, which had been carried out in a private hospital outside the general health insurance scheme in the amount of PLN 6,300, other medical costs and loss of earnings.

7 . On an unspecified date during the proceedings the applicant withdrew her claim for pecuniary damage.

8 . On 12 May 2008 the Warsaw Regional Court allowed the applicant ’ s compensation claim in part. It awarded her compensation for non-pecuniary damage in the amount of PLN 30,000, with statutory interest from the date when her claim had been lodged with the court until the date of payment.

9 . The court found that the surgical procedure used on the applicant had, at the material time, been widely used in Poland, even though in W estern Europe it had by then been replaced by another procedure known as TVT. The latter procedure did not entail sterilisation , unlike that used in the applicant ’ s case. The defendant hospital routinely informed its patients that tubal ligation was an element of the technique used, but did not explain that tubal ligation necessarily entailed sterilisation . At no time prior to the operation were patients asked about their family situation or whether they planned to have children in the future. The court noted that an operation leading to sterilisation necessitated a detailed and careful conversation with patients, addressing also the issue of possible planned pregnancies, with a view to obtaining their informed consent. The applicant had not signed any document consenting specifically to sterilisation ; she had only signed a general consent to the “proposed treatment and operation” on a standard form that did not contain any specific information about the envisaged procedure or its consequences.

The court further noted that the applicant had two children, aged three and thirteen, and that she had been pregnant four times. She had had one miscarriage and one child who had died at the age of one.

10 . The court observed that the surgical procedure used on the applicant was not, as such, inappropriate or contrary to medical knowledge at the material time, so the defendant hospital could not be held to be at fault for choosing it. However, it was of the view that sterilisation of a woman of reproductive age amounted to serious damage to her health. It could also amount to great irreparable harm to her psyche. Sterilisation not only made it impossible for a woman to give birth, but could also ruin her and her family ’ s life plans and lead to feelings of diminished worth as a woman, or even to losing her will to live. The defendant hospital had failed to show that appropriate measures had been taken prior to the operation to ensure that the applicant was informed before giving her consent and had been made aware of the consequences of the operation. Adequate measures were not taken to enable the applicant to exercise autonomy in respect of issues of crucial importance to her private life.

11 . The court was of the view that the PLN 30,000 awarded to the applicant in respect of non-pecuniary damage, with statutory interest from the date on which her claim had been lodged with the court until the date of actual payment, was commensurate with the damage she had suffered.

12 . The court relied on Articles 415 and 441 § 1 of the Civil Code and on section 31(1) of the Medical Profession Act 1996 (see paragraphs 21 ‑ 22 below).

13 . The applicant appealed. She submitted that the sum awarded to her for just satisfaction was too low and failed to remedy the serious, irreparable and persistent damage she had suffered as a result of being unable to have more children, as she and her husband had wanted. She observed that it was the practice of the Polish courts to make relatively low awards in respect of non-pecuniary damage such as suffering and distress. However, given that the hospital had irreparably deprived her of the possibility of further pregnancies, it should have incurred a heavier penalty than a mere obligation to pay a modest amount of compensation.

14 . On 31 March 2009 the Warsaw Court of Appeal dismissed the applicant ’ s appeal, considering that PLN 30,000 was adequate, given the circumstances of the case. The court noted in this connection that the applicant already had two children. She had given birth three times and one child had died in early childhood, and she had had one miscarriage. Not only was another pregnancy not recommended at her age, but in 2003 she had had another operation during which her uterus had been removed.

15 . The applicant ’ s lawyer submitted a cassation appeal to the Supreme Court. He argued, inter alia , that given that the case concerned one of the most important aspects of the applicant ’ s personal life and identity, the compensation awarded to her had been manifestly too low and could not be regarded as appropriate redress for the wrong that she had suffered.

16 . On 21 April 2010 the Supreme Court dismissed the applicant ’ s cassation appeal against the second-instance judgment. This decision was served on the applicant ’ s lawyer on 20 May 2010. He forwarded it to the applicant on the same day.

17 . On an unspecified later date, the compensation awarded to the applicant was paid to her with statutory interest, in the amount of PLN 60,000.

B. Relevant domestic law

18 . At the relevant time, patients ’ rights were protected under the Medical Institutions Act 1992 ( ustawa o zakładach opieki zdrowotnej ), section 19(2) of which provided that a patient had a right to obtain information about his or her condition. Section 19(3) provided that a patient had a right to give or refuse consent to medical treatment and to obtain appropriate information about available surgical procedures.

19 . Section 31(1) of the Medical Profession Act 1996 provides that physicians are under an obligation to provide to the patient, or his or her representative, comprehensible information about his or her health, diagnosis, proposed and possible diagnostic and surgical procedures, the foreseeable consequences of any decision to have recourse to them or not, and about the possible results of intervention and prognosis.

20 . Articles 415 et seq. of the Polish Civil Code provide for liability in tort. Under this provision, whoever by his or her fault causes damage to another person is obliged to redress it. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator is liable for all resulting pecuniary damage. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation.

COMPLAINT

21 . The applicant complained under Article 8 of the Convention that her sterilisation had been carried out without her consent and that her right to respect for her private life had thereby been breached.

THE LAW

22 . The applicant complained under Article 8 of the Convention that her right to respect for her private life had been breached. This provision of the Convention, in so far as relevant, reads:

“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.”

23 . The Government submitted that the applicant had lost her status as a victim of a breach of the Convention, since the domestic courts had acknowledged the damage to her health caused by the operation. The courts had emphasised the severity of the distress she had suffered as a result of the unwanted sterilisation carried out without her consent, and had awarded her compensation. In the domestic proceedings the applicant had failed to substantiate her claim for compensation for non ‑ pecuniary damage in the amount of PLN 100,000. In particular, she had failed to request an expert opinion of a psychologist with a view to quantifying the suffering she had been caused by the sterilisation .

24 . The applicant disagreed, arguing that the amount of compensation she had received in the domestic proceedings was not commensurate with the gravity of the injury she had suffered. The actual damage, both pecuniary and non-pecuniary, had not been remedied since the amount she had received had barely covered the necessary expenses incurred in connection with the second operation, which had been carried out outside the general health-insurance scheme. She had not been compensated for her suffering, the irreparable damage to her health and the ruining of her life plans. The damage she had suffered was irreparable and persisted to this day. The courts had made certain unwarranted and humiliating comments concerning her personal life in the written grounds of their judgments.

25 . The Court must first consider whether the applicant can still claim to be a victim of a violation of Article 8 within the meaning of Article 34 of the Convention. In this connection, it emphasises that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. A decision or measure taken by the domestic authorities in favour of the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. The question whether the applicant has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court ’ s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see, among many other authorities, Scordino v. Italy (no. 1) [GC ], no. 36813/97, §§ 179-181, ECHR 2006 ‑ V).

26 . At the same time, an applicant ’ s status as a victim of a breach of the Convention may depend on the amount of compensation awarded at domestic level (see Normann v. Denmark ( dec. ), no. 44704/98, 14 June 2001; Jensen and Rasmussen v. Denmark ( dec. ), no. 52620/99). The adequacy of that redress falls to be assessed in the light of all the circumstances of the case seen as a whole (see, mutatis mutandis , Dubjaková v. Slovakia ( dec. ), no. 67299/01, 19 October 2004). Further, the assessment of the victim status will depend on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision.

27 . In the present case the courts examined the applicant ’ s civil claim and acknowledged that the hospital had failed to ensure that appropriate safeguards had been respected in the process of obtaining the applicant ’ s consent to the operation. They established that the applicant had not signed any document confirming her consent to sterilisation ; the standard form of consent to “proposed treatment and operation” had not been sufficiently detailed, in particular in the context of an operation entailing such a serious and permanent impact on the applicant ’ s private life. The courts stressed that the operation necessitated a detailed conversation with patients with a view to making sure that they understood and appreciated the inevitable outcome.

28 . The courts were of the view that the applicant had suffered serious damage to her physical and mental health.

29 . In its judgment of 31 May 2009 the Warsaw Court of Appeal may be said to have used some unfortunate language in regard to the applicant, when it observed that another pregnancy was not recommended at her age. However, having regard to the circumstances of the case as a whole, the Court accepts that the domestic courts had regard to the applicant ’ s plight and that they acknowledged that her rights had been breached.

30 . It is further noted that the courts awarded compensation to the applicant in the amount of PLN 30,000, which was at that time equivalent to approximately EUR 7,500. This amou nt was further increased by PLN 30,000, corresponding to the statutory interest on the compensation accrued between the date when the applicant submitted her claim to the court and the date of the actual payment.

31 . Against this background, the Court finds that the applicant obtained adequate redress for the alleged violation of her rights under Article 8 of the Convention.

32 . Accordingly, for the purposes of Article 34, the applicant can no longer claim to be a victim of a violation of this provision. The application is therefore manifestly ill-founded within the meaning of Article 35 § 4 of the Convention (see Morby v. Luxembourg ( dec. ), no. 27156/02, ECHR 2003 ‑ XI, and Tamás Kovács v. Hungary , no. 67660/01, § 26, 28 September 2004).

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President