In the case of Csoma v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy
Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
8759/05) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Ms Julia Kinga Csoma (“the applicant”), on
24 February 2005.
The applicant was represented by Mr Laczkó-Dávid
Geza, a lawyer practising in Târgu Secuiesc. The Romanian Government (“the
Government”) were represented by their Agent, Mrs Irina Cambrea, of the
Ministry of Foreign Affairs.
The applicant alleged that failures in her
treatment had led to medical complications endangering her life and leaving her
permanently unable to bear children.
On 7 July 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).
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as an ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules
of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1972 and lives in Covasna.
A. Background
information
The applicant, a nurse by profession, fell
pregnant in January 2002. The development of her pregnancy was monitored
by Dr P.C., a gynaecologist working in the Covasna Town Hospital, the same
hospital as the applicant.
. While she was
in the sixteenth week of pregnancy, the foetus was diagnosed with hydrocephalus.
Following a consultation with her doctor, it was
decided that the pregnancy should be interrupted.
On 13 May 2002 she was admitted to the Covasna Town Hospital. On the first day of admission she was put on a drip and medication was
infused in order to induce abortion, but to no avail. The next day,
concentrated glucose was injected into her stomach with the same purpose of
inducing abortion. After the injection, the foetus stopped moving. On 15 May 2002,
around midnight, she began to have a fever (39 degrees) and shivers, which
lasted until the morning. She was not seen by a doctor during this time. She
was only given painkillers.
In the morning, while she was still in bed in the ward and
without being taken to the surgery room, she expelled the foetus. She then
started bleeding profusely. Despite the fact that two curettages were performed
on her, the bleeding would not stop and she was diagnosed with disseminated
intravascular coagulation (DIC). The doctor then decided to transfer her
urgently to the County Hospital, located in Sfântu Gheorghe, some thirty
kilometres away. Although she was in a critical condition, during the transfer
she was assisted only by a nurse.
When she arrived at the County Hospital, the doctors there had to proceed with a total hysterectomy and bilateral adnexectomy
in order to save her life.
B. Complaint with the College of Doctors
After consulting several specialists, the
applicant formed the opinion that Dr P.C. had committed serious medical errors
in treating her.
She therefore lodged a complaint with the Covasna
County College of Doctors. The County Counsel of the College of Doctors delegated the assessment of the matter to a doctor from Sfântu Gheorghe County Hospital.
On 18 September 2002 the College of Doctors reached the following conclusions:
(i) the
termination of pregnancy had been correctly indicated;
(ii) as
regards the injection of hyperbaric glucose solution, it was found that it
could be done in two ways: vaginal or abdominal. The latter procedure ensured
better hygiene conditions, but it required a very precise localisation of the
placenta by ultrasound scans; these scans had not been found in the applicant’s
medical records. It was also recommended that the injection of the substance be
monitored by ultrasound. This method required the written consent of the
patient, after prior notification of the possible risks and complications. The
medical records did not include a consent signature or information as to the
clinical investigation of any abnormalities by the ultrasound laboratory;
(iii) DIC
was not a direct consequence of an abdominal injection, but it represented a
rare, very serious complication arising from this method; and
(iv) taking
into account that the diagnosis of DIC had been correctly detected in time to
allow the applicant to be transferred to the county hospital, with the result
that her life had been saved, no medical negligence could be identified.
It was noted that there were some procedural failures in the
handling of the case: the patient’s signature was missing on the consent form;
an ultrasound description of the location of the placenta was missing; and a
summary of lab test results was also missing.
Taking into account the Town Hospital’s facilities and human resources,
it was recommended that potentially risky cases should be treated in medical
establishments which possessed the necessary facilities to deal with
complications.
C. Criminal complaint
against Dr P.C.
On an unspecified
date in 2002, the applicant lodged a criminal complaint against Dr P.C.
containing two charges: grievous unintentional bodily harm and negligence in
the conduct of a profession. In a statement given on 19 November 2002, she joined
a civil claim to her complaint.
On 25 November 2002 the investigating officer ordered a medical
expert report to be prepared by specialist medical experts from the Covasna
County Forensics Department and from the County Hospital.
On 4 December
2002 a medical expert report was issued by the Sfântu Gheorghe Forensics
Department. This report concluded that no medical negligence had been
committed, noting that the method chosen for inducing the abortion could be
performed in any gynaecological hospital unit. Even if the medical records had
not included the results of a lab test, this did not exclude the possibility
that a test had been done but the results had not been written down. It was
also underlined that the diagnosis of DIC had been quickly determined and that
any delay in establishing this diagnosis might have rendered saving the
applicant’s life almost impossible.
On 15 January 2003 the applicant lodged her
objections to the medical expert report with the investigating authorities. She
noted that she had not been consulted with regard to the objectives of the
report and that in any event it was incomplete, even when compared to the questions
formulated by the police. She wanted the medical expert report to answer the
following questions:
(i) whether
there were other medical methods available for interrupting the pregnancy which
presented less risks and which did not entail endangering her life;
(ii) whether
the chosen method presented risks and, if so, what the treating physician’s
obligations were before applying this method and whether the doctor had
complied with those obligations;
(iii) whether
the medical procedure was urgent or whether there had been time to direct her
to another, better equipped, hospital unit;
(iv) whether
the use of ultrasound might have influenced the outcome of the procedure; and
(v) whether
subjecting her to a total hysterectomy and bilateral adnexectomy could have
been avoided if she had been hospitalised in a medical establishment which
possessed the necessary facilities to handle a diagnosis of DIC immediately
after it was detected.
On 27 March
2003 the Târgu Mures Forensics Institute issued an opinion (aviz) on the
case. Its conclusions were as follows:
(i) the
case file did not include medical information which could confirm the diagnosis
of hydrocephalus with certainty;
(ii) in
the case of medical procedures for interrupting pregnancy later than the
fourteenth week, the hospital’s standard procedure required that a medical form
be filled in and signed by two specialist doctors and by the hospital director.
This document was not found in the medical records;
(iii) providing
information to a patient in advance of treatment was compulsory. For certain
procedures that entailed risk, the written consent of the patient was required.
This document was not found in the medical records;
(iv) prior
to the procedure being carried out, lab tests had to be carried out. The
results of such tests were not found in the medical records;
(v) the
haemorrhaging following the procedure could also have been caused by the
rupturing of one or more blood vessels during the curettage, particularly
taking into account the fact that the post-operative report had mentioned a haemorrhagic
infiltration. The medical records did not include an ultrasound description of
the localisation of the placenta; and
(vi) the
diagnosis of DIC was not confirmed by the lab tests, as there were no such
results included among the medical documents submitted to the institute.
On 16 April 2003 the prosecutor attached to the
Covasna County Court, noting that based on the two medical reports it could not
be precisely determined whether there had been any medical negligence which
could trigger criminal liability on the part of Dr P.C., asked the Mina
Minovici National Forensics Institute (“the Forensics Institute”) to review all
the medical reports and to issue an opinion from a scientific point of view on
the medical acts performed in the case.
The Forensics Institute
issued its report on 26 January 2004. It confirmed the conclusions of the
report of 4 December 2002 and thus excluded any medical negligence. It
nevertheless observed that the doctor had failed to discuss the proposed
procedure and the possible complications with the applicant and her family and
to obtain her signature expressing her written consent to the proposed
procedure.
On 17 February 2003 the prosecutor decided not
to bring criminal charges against the practitioner concerned. This decision was
confirmed by the supervising prosecutor and by a final decision of the Covasna
County Court of 29 September 2004.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A series of laws concerning the public health
service and patients’ rights establish an obligation to inform a patient about
any surgical procedure proposed, the risks involved in the procedure,
alternative treatment, and diagnosis and prognosis: Laws nos. 3/1978 and
306/2004 on public health insurance; Law no. 74/1995 on the establishment and
functioning of the College of Doctors; Law no. 46/2003 on patients’ rights
(“Law no. 46/2003”); and Law no. 95/2006 on
reform of the medical sector (“Law no. 95/2006”).
According to Article 37 of Law no. 46/2003, a
breach of a patient’s right to be informed and consulted may engage
disciplinary or criminal action against the medical practitioner, depending on
the applicable law.
. The
judgement delivered in the case of Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes
in detail the relevant domestic case-law and practice concerning the delivery
of medico-legal expert reports and the authorities competent for their
issuance, as well as the relevant domestic case-law and practice concerning the
civil liability of medical staff.
In the judgment rendered in the case of Codarcea
v. Romania, the Court described in detail the relevant domestic practice
concerning the civil liability of doctors and hospitals for medical errors (see
Codarcea v. Romania, no. 31675/04, §§ 69-74, 2 June 2009).
26. Law
no. 95/2006 introduced the notion of medical negligence as a basis for the
liability of medical personnel and created an obligation on them to obtain insurance
for any civil liability resulting from their work (see Eugenia Lazăr,
cited above, § 54).
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
Relying on Articles 2, 6 and 13 of the
Convention, the applicant complained that she had not
been properly informed of the risks of the procedure and that because of
medical negligence her life had been endangered and she had become permanently
unable to bear children. She considered that the investigation of the case had
been superficial and that the forensic authorities had lacked impartiality in
issuing the medical expert reports, leading to a situation in which she had not
obtained recognition of the serious bodily harm inflicted on her and a guilty
person had been protected.
The Court is master of the characterisation to
be given in law to the facts, and can decide to examine complaints submitted to
it under another Article than that quoted by an applicant (see Guerra and
Others v. Italy, 19 February 1998, § 44, Reports of
Judgments and Decisions 1998-I). It will therefore examine the complaint under
Article 8 of the Convention (see Pretty v. the United Kingdom, no.
2346/02, §§ 61 and 63, ECHR 2002-III, and Codarcea, cited above, § 101), which 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 Government
raised a plea of non-exhaustion of domestic remedies, arguing that the
applicant should have lodged an action against the doctor and the hospital
under the general tort law (Articles 998-999 and 1000 § 3 of the
Civil Code). They developed the same arguments as those they had raised in Stihi-Boos
v. Romania ((dec.), no. 7823/06, §§ 46-48, 11 October 2011).
They also made reference to several domestic
court rulings whereby doctors’ liability had been engaged under Law no. 95/2006
for medical negligence and to other court decisions rendering hospitals liable
for the damage suffered by victims of medical negligence.
The applicant contested the Government’s
position. She argued that Dr P.C.’s actions had constituted serious
offences and therefore submitted that a criminal prosecution had been the best
suited remedy. She pointed out that her complaint concerned defects in the
investigations carried out by the domestic authorities and that engaging in
another set of proceedings (namely a tort action) could not possibly have
remedied those flaws. She also noted that the courts had concluded that the procedure
had been lawful and had thus held her claims to be unfounded.
Lastly, the applicant noted that the domestic
case-law presented by the Government showed that doctors had been criminally
convicted for less serious offenses than those done to her and that victims had
been awarded significant amounts in damages.
The Court considers that the arguments put
forward by the Government are closely linked to the substance of the complaint.
It therefore joins their examination to the merits.
It also notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’
submissions
The applicant reiterated that she had not been
informed of the nature and possible consequences of the procedure and pointed
out that the fact that she had been a nurse in the same hospital did not
dispense the doctor from his duty to provide her with sufficient information to
allow her to make an informed decision about the proposed treatment.
She also reiterated that the procedure had not been
urgent. Therefore, there had been no excuse for going ahead with the procedure without
proper preparation, notably pre-operative checks. Furthermore, the doctor
should have been able to assess the risks of her having the procedure in the Town Hospital, which had turned out to be an inadequate venue for handling the complications
that had ensued. He should have sent her straight to the County Hospital. Lastly, she argued that the doctor had not adequately prepared for dealing with the
complications, notably by failing to have an ambulance ready beforehand or to send
a doctor and not only a nurse with her to the County Hospital.
The Government argued that the applicant had
been fully aware of the nature of the procedure that was to be performed on
her. She had both known the foetus’s condition and had had extensive medical
knowledge, as she herself had been a nurse. They also pointed out that her
hospitalisation had been voluntary.
They averred that the applicant had submitted her complaint and
objections to the authorities, namely the College of Doctors and the Prosecutor’s
Office, and had fully participated in the ensuing proceedings. The decisions taken
had been based, among other things, on medical expert reports and had been
fully reasoned.
They reiterated that the authorities had not
found any medical negligence in the case. The complications that had occurred had
been very rare and unforeseeable. The doctor’s sole failing had been that he
had not obtained the applicant’s written consent to the procedure. However,
that lapse could not lead to the inference that the applicant had not been
informed of the nature of the procedure or the risks involved or had not given
her consent.
The Government considered
that the present case differed significantly from Eugenia
Lazăr, cited above. There had
not been any communication problems between the investigators and the Forensic
Institute. In addition, the medical expert reports had not been the sole
evidence in the case.
. For
the reasons above, they concluded that the State’s responsibility could not be
engaged under Article 8 of the Convention.
2. The Court’s
appreciation
(a) General principles
The Court makes reference to the general
principles it has established concerning the State’s responsibility for medical
negligence under Articles 2 and 8 of the Convention. In particular, it
reiterates that the Contracting States are under an
obligation to introduce regulations compelling both public and private
hospitals to adopt appropriate measures for the protection of their patients’
lives (see Trocellier v. France (dec.), no. 75725/01, §
4, ECHR 2006-XIV).
Moreover, the Court has underlined
that it is important for individuals facing risks to their health to have
access to information enabling them to assess those risks. It has considered it
reasonable to infer from this that the Contracting States are bound, by virtue
of this obligation, to adopt the necessary regulatory measures to ensure that
doctors consider the foreseeable consequences of a planned medical procedure on
their patients’ physical integrity and to inform patients of these consequences
beforehand, in such a way that the latter are able to give informed consent. In
particular, as a corollary to this, if a foreseeable risk of this nature
materialises without the patient having been duly informed in advance by
doctors, the State Party concerned may be directly liable under Article 8 for
this lack of information (see Trocellier,
cited above, § 4; Vo v. France [GC], no. 53924/00, § 89,
ECHR 2004-VIII; Codarcea, cited above, §
105; and Pretty, cited above, § 63).
Lastly, the Court reiterates that in the specific sphere of medical
negligence, if the legal system affords victims full access to civil proceedings
or to disciplinary proceedings which may lead to liability for medical
negligence being established and a corresponding award of compensation, this
could in principle be sufficient to discharge the State’s positive obligation
to provide an effective judicial system (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48-51, ECHR 2002-I, and Codarcea,
cited above, § 102).
(b) Application of
those principles to the present case
Turning to the facts of
the case under examination, the Court notes that following a medical procedure performed
by Dr P.C. in a state hospital, the applicant’s life was endangered and she was
left permanently unable to bear children.
. There
has accordingly been an interference with the applicant’s right to respect for
her private life.
. The
applicant did not argue that her loss had been caused intentionally by the
doctor. Her complaint refers rather to the doctor’s negligence in performing
the medical procedure and an inadequate response from the authorities.
It remains, therefore, to be assessed whether the State has
complied with its positive obligations set out in Article 8 of the Convention.
The Court first notes that all the medical expert reports in the case concurred that the
doctor had failed, prior to the procedure, to either obtain the applicant’s
informed written consent or to perform the pre-operative checks required.
. The Court attaches weight to the
existence of prior consent in the context of a patient’s right to respect for
his or her physical integrity (see Codarcea, cited above, § 104). Any disregard by the medical personnel of
a patient’s right to be duly informed can trigger the State’s responsibility in
the matter (idem, § 105).
. It also notes that domestic
legislation expressly provides for the patient’s right to receive information
sufficient to allow that patient to give, and the doctor’s corollary obligation
to obtain, informed consent prior to a procedure involving any risk.
. The Court cannot find a reasonable
explanation for why that consent was not obtained in
the present case. It cannot accept the Government’s position, according to
which the fact that the applicant was a trained nurse dispensed the doctor from
following established procedures and informing her of the risks involved in the
procedure.
. Furthermore,
it transpires from the facts that, while the need to abort the foetus was
undisputed, there was no extreme urgency in performing the procedure.
Therefore, the doctor was not under time constraints that could justify him not
conducting preliminary tests on his patient or not properly assessing whether
the town hospital was adequately equipped to deal with the possible
complications.
The expert opinion prepared for the College of Doctors lends force to this argument.
52. The Court notes
that the medical expert reports drafted during the criminal prosecution did not
deal with the issue of urgency, despite the applicant’s requests and objections
to this end. The questions asked by the applicant were relevant and in
answering them the forensic authorities could have helped shed light on the
unfortunate events that led to the applicant’s loss.
. It
remains to be ascertained whether the remedies at the applicant’s disposal were
sufficient to provide her redress for the loss suffered as a result of the
medical procedure (see paragraph 43 above).
. The
Court notes that in the instant case the applicant attached a civil claim to
her criminal complaint against the doctor (see paragraph 15 above, as well as Perez v. France [GC], no. 47287/99,
§ 70, ECHR 2004-I). In theory, at least, at the end
of these proceedings, the applicant could have obtained an assessment of and
compensation for the damage suffered. This remedy was therefore appropriate in
the present case and the Court will thus examine the manner in which the
investigation was carried out.
55. The Court
observes that the medical reports established that despite the obvious mistakes
made in the handling of the case, there was no medical negligence on behalf of
the doctor (see paragraphs 14, 16, 18 and 20 above and a contrario,
Stihi Boos, cited above, § 60). Looking at the documents before it, the
Court notes, however, that the prosecutor did not weigh the conflicting factual
issues presented by the case.
. In
particular, the prosecutor based his decision on the forensic reports issued at
his request. He did not take into account the medical expert report prepared
for the College of Doctors, although it was exhaustive and pointed to procedural
shortcomings. He also failed to take the opinion of the Forensics Institute - the
superior forensic authority - on that report into account. He thus only examined
the two reports issued by the forensic laboratories. He also failed to provide
answers to the questions raised by the applicant. The Court reiterates its
finding that those questions were relevant and significant for the
clarification of the events (see paragraph 52 above).
. The
Court is not in a position to contradict the domestic courts’ findings
concerning the lack of criminal responsibility of the doctor in the case.
However, given the serious consequences of the procedure, and the fact that the
applicant had to go through it without being properly informed of the risks
involved, the Court finds it unacceptable that an operation could be performed
without respect of the rules and the safeguards created by the domestic system
itself.
. The
Court will further examine whether, as the Government claimed, a civil action against
the doctor and the hospital could have constituted an effective remedy.
. The
Court reiterates that the existence of mere doubts
as to the prospects of success of a particular remedy which is not obviously
futile is not a valid reason for failing to exhaust domestic remedies (see Stihi
Boos, cited above, § 64).
. At
the outset, the Court notes that although the experts acknowledged the
existence of procedural failings on the part of Dr P.C., they excluded the
existence of medical negligence (see paragraphs 14,
16, 18, 20 and 55 above). In contrast, in Stihi Boos the medical
expert reports formed the opinion that there had been no medical negligence because
the decisions taken by the medical personnel had corresponded to the diagnosis and
the general state of the victim’s health (see Stihi Boos, cited above,
§§ 21 and 29-31).
. It
is to be noted that, when the facts of the present case occurred, the system
did not allow for a new forensic report to be commissioned, as the Forensics Institute
had already given its opinion on the case (see Eugenia Lazăr, cited above, § 90; and Baldovin
v. Romania, no. 11385/05, § 22,
7 June 2011). Therefore, it would have been impossible for the applicant to
raise the issue of medical negligence again in a new set of proceedings,
despite the significance that its elucidation might have had for the outcome of
those proceedings. This casts doubt on whether a civil claim by the applicant against
the doctor would have been an effective remedy, particularly given that an
expert report would have constituted the essential evidence to support her case
in the civil courts.
. The
Court has already identified
shortcomings in the Romanian system in respect of the limitation of doctors’
liability to cases of established medical negligence (see paragraph 26 above
and Eugenia Lazăr, cited above, § 90).
Bearing in mind the consistency with which the expert reports excluded the
existence of medical negligence in this case, the Court finds it even more difficult
to see how this remedy could be effective in practice in the applicant’s
particular situation.
. The
Court will also assess the ability for the applicant to seek compensation directly
from the hospital. It notes at the outset that she did not point to a lack of
coordination between the two hospitals involved. She restricted her complaint
to the decisions taken by one doctor.
64. The Court notes
that the domestic case-law in the matter is developing, but that the domestic
courts have not consistently established the liability of hospitals in cases of
medical negligence (see Codarcea, cited above, §§ 71 and 108; and Stihi
Boos, cited above, § 64).
. In
the case under examination, it appears that the hospitals immediately took charge
of the applicant’s case. Their swift intervention made it possible to limit the
negative consequences of the initial procedure and to save her life (see, a
contrario, Csiki v. Romania, no. 11273/05, § 78, 5 July 2011, and Floarea Pop v. Romania, no. 63101/00, §§ 22, 24 and 37, 6 April 2010). The lack of any fault in the hospital’s handling of the
matter, coupled with the developing domestic case-law concerning hospitals’
liability for medical acts (see paragraph 64 above), renders an action
for compensation against the hospital too weak a remedy to be deemed effective.
The Court also notes the changes brought about in 2006 by Law no. 95/2006 which, in
principle, would make it easier nowadays for victims of medical negligence to
seek compensation in the absence of a finding of guilt (see Eugenia
Lazăr, § 54, and Baldovin, § 27, judgments cited above).
However, the Government did not argue that the applicant could still avail
herself of these new provisions.
. Lastly,
the Court finds it relevant in the present case that the applicant did not
remain passive, nor was her sole goal to have the doctor criminally punished
(see, a contrario, Stihi Boos, cited above, §§ 51 and 65). She
lodged a request with the College of Doctors and pursued a civil claim within
the criminal proceedings. However, neither of these authorities offered her
redress.
In these circumstances, it would be disproportionate
to require her to lodge yet another action with the civil courts.
The foregoing considerations are sufficient to
enable the Court to conclude that by not involving the applicant in the choice
of medical treatment and by not informing her properly of the risks involved in
the medical procedure, the applicant suffered an infringement of her right to private
life.
Furthermore, the system in place as at the date of the facts of
the present case made it impossible for the applicant to obtain redress for the
infringement of her right to respect for her private life. The respondent State
has therefore failed to comply with its positive obligations under
Article 8 of the Convention.
For these reasons, the Court will dismiss the Government’s
objection and conclude that there has been a violation of Article 8 of the
Convention.
II. 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
The applicant claimed 75,000 euros (EUR) in
respect of
non-pecuniary damage.
The Government argued that there was no causal
link between the alleged violation and the damage claimed and that in any case
the amount sought in that respect was excessive. They considered that the
finding of a violation would constitute sufficient just satisfaction in the
case.
The Court reiterates having found a violation of
the applicant’s right to privacy. It considers that the applicant incurred
non-pecuniary damage which cannot be compensated by the mere finding of a
violation. It therefore awards the applicant EUR 6,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant did not make a claim under this
head.
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. Joins to the merits the Government’s
objection as to the exhaustion of domestic remedies and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 8 of the Convention;
4. Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros)
plus any tax that may be chargeable, in respect of non-pecuniary damage, 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
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified
in writing on 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
