Communicated on 16 June 2016

FOURTH SECTION

Application no. 17484/15 Maria Ivone CARVALHO PINTO DE SOUSA MORAIS against Portugal lodged on 1 April 2015

STATEMENT OF FACTS

The applicant, Ms Maria Ivone Carvalho Pinto de Sousa Morais , is a Portuguese national, who was born in 1945 and lives in Bobadela . She is represented before the Court by Mr V. Parente Ribeiro, a lawyer practising in Lisbon.

A. The circumstances of the case

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

1. The background of the case

The applicant was a patient at the gynaecology department in Alfredo da Costa Maternity (since renamed Central Lisbon Hospital – Centro Hospitalar de Lisboa Central , hereinafter “the CHLC”) since December 1993.

On an unknown date in 1995 the applicant was diagnosed with bartholinitis , a gynaecological disease, located on the left side of her vagina ( bartholinite à esquerda ).

On 21 May 1995 the applicant was admitted to the CHLC to undergo a surgical procedure in order to remove the left Bartholin gland.

On an unknown date, after having been discharged, the applicant began to experience intense pain and loss of sensation in the vagina, suffer from urinary incontinence, have difficulty sitting and walking, and unable to have sexual relations.

On an unknown date, after having medical examinations at a private clinic, the applicant was informed that the left pudendal nerve ( nervo pudenda do lado esquerdo ) had been injured during the surgery.

2. Domestic proceedings against the hospital

On 26 April 2000 the applicant lodged a civil action (domestic proceedings no. 291/00) with the Lisbon Administrative Court ( Tribunal Administrativo do C í rculo de Lisboa ) against the CHLC under the State Liability Act ( ac çã o de responsabilidade civil extracontratual por facto il í cito ) seeking damages of 70,579,779 escudos (PTE), approximately 352,050 euros (EUR), from which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage due to the physical disability resulting from the surgery.

On 4 October 2013 the Lisbon Administrative Court ruled partially in favour of the applicant. It found that the surgeon had acted recklessly, not observing the objective duty of care in breach of leges artis and established the causality between his conduct and the injury suffered by the applicant to the left pudendal nerve. The Lisbon Administrative Court further established that it was the injury to the left pudendal nerve which caused, among others, the pain and loss of sensation in the vagina and the urinary incontinence suffered by the applicant and that, as a consequence, she had difficulty walking and sitting and having sexual relations which, all together, made her feel diminished as a woman. As a consequence the applicant was also facing depression and suicidal thoughts and avoiding contact with family members and friends. On that account, the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 for compensation of non-pecuniary damage.

On an unknown date the CHLC appealed to the Administrative Supreme Court ( Supremo Tribunal Administrativo ) against the judgment of the Lisbon Administrative Court. On an unknown date the applicant lodged a cross-appeal ( recurso subordinado ), claiming that the amount awarded for non-pecuniary damage should have amounted to EUR 249,399. The applicant further contested the CHLC ’ s appeal considering that it should be declared inadmissible.

On 9 October 2014 the Supreme Administrative Court upheld the first-instance judgment on the merits but reduced the amount awarded in respect of compensation for non-pecuniary damage from EUR 80,000 to EUR 50,000. In this respect, the relevant part of the judgment, reads as follows:

“... as regards non -pecuniary damage, it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal zone; the difficulty sitting and walking, which causes her malaise and prevents her from doing her normal life, forcing her to daily use sanitary towels to cover the urinary and faecal incontinence and which has been limiting her sexual activity, making her feel diminished as a woman. In addition, there is no medical solution to her condition.

All this has caused her a severe depressive disorder with an anxious and severe somatic expression which is manifested in the difficulty that she has sleeping, deep disgust and frustration at the situation in which she lives which has turned her into a deeply sad person and which inhibits her from establishing relationships with others and caused her to stop visiting family and friends regularly, from going to the beach and the theatre and having thought of suicide.

It should be recalled, however, that the gynaecological condition from which the plaintiff suffers is old (at least since 1993) and that she had already undergone various treatments without acceptable results and that it was this lack of results and the impossibility of that pathology be otherwise resolved that motivated the surgery.

On the other hand, we should not forget that the plaintiff, at the time of the surgery, was already 50 years ’ old and had two children, that is, an age in which sexuality has not the importance it has at younger ages; the significance of which diminishes with aging.

Thus, having regard to all these aspects, we believe that the compensation awarded at first-instance has exceeded what is considerable reasonable and, as such, the plaintiff should be awarded EUR 50,000 in compensation [ in respect of non-pecuniary damage ] .”

On 29 October 2014 the Attorney General ’ s Office attached to the Administrative Supreme Court ( Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo ) lodged an application with the Administrative Supreme Court claiming that their judgment of 9 October 2014 should be null ( nulidade do ac ó rd ã o ) in the part concerning the amount awarded as non-pecuniary damage arguing that the reasoning of the judgment and the decision fixing the amount awarded as non-pecuniary damage were contradictory. She further considered that the amount awarded in respect of non-pecuniary damage should not have taken into account the applicant ’ s symptoms before the medical intervention as if what was at stake was an escalation of those.

On 4 November 2014 the applicant lodged an application with the Administrative Supreme Court in order to join the Attorney General ’ s Office ’ s application of 29 October 2014, claiming that the judgment of 9 October 2014 should be void on the part concerning the amount of non-pecuniary damage awarded.

On 29 January 2015 the Administrative Supreme Court dismissed the Attorney General ’ s Office and the applicant ’ s request and upheld its judgment of 9 October 2014. It considered that the causal link between the injury to the pudendal nerve and the claimed damage had been established; however, the injury was not the only cause of those damages.

B. Relevant domestic law and practice

1. Legislative Decree no. 48051 of 21 November 1967

Legislative Decree no. 48051, in force at the time the proceedings were institute by the applicant, governs the State ’ s non-contractual civil liability. It contains the following provisions of relevance to the instant case:

Article 2 § 1

“The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.”

Article 4

“1. The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.”

Article 6

“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.”

In accordance with the case-law concerning the State ’ s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage. ”

2. Portuguese Civil Code

The relevant provisions of the Code read as follows:

Article 483

“1.Who, intentionally or recklessly ( mera culpa ), unlawfully violates the rights of others or any legal provision intended to protect the interests of others is obligate to compensate the injured party for the damages resulting from that breach.”

Article 487

“1. It is for the injured party to prove liability for damage through negligence (culpa), unless there is a legal presumption of it.

2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias , given the circumstances of the case.”

3. Case-law of the Supreme Court of Justice

In its judgment of 4 March 2008, the Supreme Court of Justice analysed a man ’ s allegations concerning medical malpractice. They considered that there had been a medical error and awarded EUR 224,459.05 to the plaintiff in compensation with regard to non-pecuniary damage. To justify the amount awarded they considered that:

“It is irrefutable that the plaintiff has suffered non -pecuniary damage caused by the defendant. The devastating and irreversible consequence was a complete prostatectomy which left the plaintiff impotent and incontinent.

...

It is clear that because of the actions of the defendant, the plaintiff, who at the time was almost 59 years ’ old, underwent a radical change in his social, family and personal life as he is sexually impotent and incontinent and will never again be able to live his life as he used to. He is now a person whose way of life is physically and psychologically painful, therefore suffering irreversible consequences.”

In its judgment of 26 June 2014 the Supreme Court of Justice was again called to analyse a man ’ s allegations concerning medical malpractice and the consequences to his life. They awarded him in compensation for non-pecuniary damage EUR 100,000. They noted:

“... the plaintiff, who at time was 55 years ’ old, suffered, as a result of the defendant ’ s action, a strong psychic shock on account of the erroneous diagnosis of an oncological disease ... [ and ] great physical suffering and ... as a consequence of the radical prostatectomy which he underwent, has been left with permanent after-effects in terms of his sexual capacity...”

C. Relevant international standards

1. Council of Europe Convention on preventing and combating vi olence against women and domestic violence (Istanbul Convention)

On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. It was ratified by Portugal on 5 February 2013. The relevant parts of the Convention read as follows:

Article 1 – Purposes of the Convention

“ 1. The purposes of this Convention are to:

...

b ) Contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women”

Article 12 – General Obligations

“1. Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”

2. The United Nations Convention on the Elimination of All forms of Discrimination against Women

The relevant articles of the 1979 UN Convention on the Elimination of all forms of discrimination against women, ratified by Portugal on 30 July 1980, read as follows:

Article 1

“For the purposes of the present Convention, the term ‘ discrimination against women ’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

Article 2

“State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation ...”

Article 5

“States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;”

COMPLAINT

The applicant complains under Articles 8 and 14 of the Convention that the judgment of the Administrative Supreme Court constituted discrimination against her on grounds of sex and age. In particular, she complains that the Administrative Supreme Court, in its judgment, disregarded the importance that sexual life has for her as a woman.

QUESTIONS TO THE PARTIES

1. Is Article 8 of the Convention applicable to the present case?

2. Has the applicant suffered discrimination in the enjoyment of her Convention rights on the ground of her gender and age, contrary to Article 14 of the Convention read in conjunction with Article 8 on account of the Administrative Supreme Court ’ s decision to reduce the amount awarded to her as non-pecuniary damage (see Salgueiro da Silva Mouta v. Portugal , no. 33290/96, ECHR 1999 ‑ IX; Schuler-Zgraggen v. Switzerland , 24 June 1993, Series A no . 263) ?

3. The Government are requested to submit relevant case-law of the national judicial authorities.