G.B. and R.B. v. the Republic of Moldova

In the case G.B. and R.B. v. the Repbulic of Moldova (Application no. 16761/09) the ECtHR found the violation of Article 8 of the ECHR in relation with the compensation rewarded to a victim of involuntary sterilization.

G.B. married R.B. abd they live together in Moldova. G.B. gave birth to their child via cesarean section in the local hopital in 2000 when she was 32. During the operation her doctor "removed her ovaries and Fallopian tubes, without obtaining her permission". As a consequence, she suffered from various psychological sideeffects such as neurosis and post-traumatic stress disorder. Furthermore in order to counteract the effects of the early menopausecaused by the sterilization, she has to receive a long-term therapy.

Criminal procedure had been  launched against the doctor performing the operation, however, the Supreme Court of Justice found the doctor guilty but absolved him of criminal responsibility because the limitation period for sentencing him had expired.

The couple sued the hospital and the doctor as well. In their application they claimed approximately 67000 euros as compensation (for pecuniary and non-pecuniary damage and legal cost). "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 court of the first instance accepted their claims in part: it ordered the hospital to provide the first applicant with the requisite medication until the year 2020. The court however awarded them only approximately 500 euros as compensation claiming that "awarding sums as large as those claimed by the applicants would have seriously affected the activities of the (State-owned) hospital". After the applicants appeal the higher court raised the amount of compensation up to around 700 euros which was later upheld by the Supreme Court.

G.B. and R.B. therefore submitted an applícation before the ECtHRin which they alleged the violation of Article 6(1) and 8 of the Convention since the sterilization and the compensation rewarded to them by the court violated their rights. During the procedure however they asked the Court to investigate the sace only from the perspective od the right to private life. Furhermore the ECtHR observed 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 (...).

Violation of Article 8 of the ECHR

The Court firtly reiterated that the concept of “private life” is a broad term which covers, inter alia, the physical and psychological integrity of a person. Hence administering medical treatment against the will of a patient constitutes an interfere with his or her rights under Article 8. The domestic courts, without expressly referring to Article 8, established that there had been a serious interference with G.B.’s physical and psychological integrity in the absence of her knowledge or consent. Therefore the ECtHR, with due regard to the principle of subsidiarity, found no need to establish the violation of the right to private life in this respect.

The only issue that remained to be examined was the amount od the compensation. In this repsect, the Court noted the serious effects of the sterilization require sufficient just satisfaction. However the amount rewarded by the courts was "considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8". Moreover the domestic courts lacked to specify how they applied the legal criteria to G.B.’s case in order to decide on the amount of sompensation. The only exception was the first-instance court which relied on the effects of a higher compensation on the activities of the hospital. The ECtHR, however, found this argument "unacceptable, given that the State owned that hospital and was liable to cover whatever expenses it generated". It also noted that 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 (...).

The Court therefore found that there has been a violation of Article 8 of the Convention.