CASE OF VESELÝ v. THE CZECH REPUBLIC

FIFTH SECTION

CASE OF VESELÝ v. THE CZECH REPUBLIC

(Application no. 12431/22)

JUDGMENT
 

STRASBOURG

28 November 2024

This judgment is final but it may be subject to editorial revision.

In the case of Veselý v. the Czech Republic,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Andreas Zünd, President,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 12431/22) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 March 2022 by a Czech national, Mr Vladimír Veselý (“the applicant”), who was born in 1980, lives in Třebelovice and was represented by Ms A. Prchalová, a lawyer practising in Jihlava;

the decision to give notice of the complaint concerning Article 8 to the Czech Government (“the Government”), represented by their Agent, Mr P. Konůpka, of the Ministry of Justice, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 7 November 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns, in particular, the allegedly insufficient amount of compensation awarded to the applicant on account of medical malpractice (Article 8 of the Convention).

2.  Following medical treatment and abdominal surgery which he had undergone in a semi-public regional hospital in December 2013, the applicant sought damages from the hospital in the amount of approximately 30,260 euros (EUR), on account of alleged errors in his treatment which had led pain and lasting health problems, resulting in loss of amenity and earnings. In the course of the ensuing proceedings he was exempted in full from paying court fees and a lawyer was assigned to his case at no cost to him.

3.  By a judgment of 21 December 2017, the Třebíč District Court partly granted and partly dismissed the applicant’s action. Relying on two expert opinions, medical reports and witness statements, it concluded that two aspects of the treatment – a rectal infusion administered prior to surgery, and a wrong-site abdominal incision – had not been lege artis. Although the applicant’s claim for damages on account of acute pain caused by the rectal infusion had become time-barred, the court awarded him approximately EUR 1,580 in damages for the pain and healing complications suffered as a result of the wrong-site incision. The amount was based on an expert assessment, carried out pursuant to Decree no. 440/2001 of the Ministry of Health (which was repealed in 2014 when the new Civil Code entered into force), but the court decided to double the amount in question, given on account of problematic healing of the surgical incision and an apparent risk of further complications.

However, the court noted that no causal link had been established between the medical malpractice and the applicant’s lasting health problems, which were deemed to have arisen as a result of the original infection and the surgery; thus, the applicant was granted no compensation for loss of amenity and earnings.

4.  Following the appeals by the applicant and the hospital, the Brno Regional Court reduced the amount of compensation to EUR 790, as initially proposed by the expert, holding that a higher amount could only be awarded in exceptional cases of extreme pain, which had neither been claimed by the applicant nor proven by the expert opinions.

5.  The Supreme Court dismissed a subsequent appeal by the applicant on points of law as inadmissible, noting that it did not have jurisdiction to review the points of fact and assessment of the causal link being contested by the applicant. It found that the lower courts had duly considered the expert opinions as well as the existence of a causal link, and that the Brno Regional Court’s assessment was in accordance with the settled case-law. Lastly, it ordered the applicant to pay the fees of the lawyer representing the hospital, amounting to approximately EUR 540.

6.  On 14 September 2021 a constitutional appeal by the applicant, in which he relied on his rights to health and to a fair hearing, was dismissed as manifestly ill-founded (decision no. III. ÚS 1306/21, served on 17 September 2021). The Constitutional Court found that the lower courts had examined the applicant’s case with due care, relying on expert opinions, and provided convincing reasoning for their conclusions. No response was given as to the complaint regarding the applicant’s obligation to pay the defendant’s lawyer’s fee.

THE COURT’S ASSESSMENT

7.  In his observations, the applicant repeated the complaints he had raised when lodging the application, in particular those concerning an erroneous assessment of his case and the courts’ arbitrary conclusion that the errors in his medical treatment had not caused lasting health consequences, resulting in loss of amenity and earnings.

8.  The Court notes that the President of the Section, sitting in a single‑judge formation, had already declared those complaints inadmissible on 2 September 2022, upon communication of the remainder of the application to the Government.

9.  The Court reiterates in this connection that it cannot examine complaints which have already been declared inadmissible and that the scope of the case now before the Court is thus limited to the complaint which was communicated to the Government (see, mutatis mutandis, Stebnitskiy and Komfort v. Ukraine, no. 10687/02, § 39, 3 February 2011).

10.  The Government argued, first, that in his appeal on points of law the applicant had not contested the amount of damages awarded, and had done so only incidentally in his constitutional appeal. In addition, he had not brought an action against the hospital for the protection of his personality rights. As to the lawyer’s fee he had been ordered to pay by the Supreme Court, the applicant had not explained in his constitutional appeal what difficulties he had encountered in paying the lawyer’s fees, as ordered by the Supreme Court; equally, he had not asked the Constitutional Court, which had not addressed the above issue, to adopt a supplementary judgment pursuant to Article 166 of the Code of Civil Procedure (the Government referred in this respect to, inter alia, Latif Fuat Öztürk and Others v. Turkey, no. 54673/00, § 29, 2 February 2006).

11.  The Court notes that although the applicant mainly challenged the lack of compensation for loss of amenity before the highest domestic courts, he also contested the amount awarded by the appellate court on account of the pain suffered, referring to the changes of rates stemming from the entry into force of the new Civil Code and pointing out that part of the compensation had been absorbed by the fee he was required to pay. Moreover, having brought proceedings against the hospital, the applicant could not be required to sue the doctor also. As to the request for a supplementary judgment from the Constitutional Court, the Government did not submit any example of a case in which such a request had been successful. Thus, their objection as to non-exhaustion of domestic remedies must be dismissed.

12.  The Government further submitted that the applicant had lost his victim status as a result of the courts’ findings and the award made in the impugned proceedings.

13.  The Court observes that although the domestic courts did not expressly refer to Article 8, they established in the present case that there had been medical malpractice and, consequently, interference with the applicant’s physical integrity, calling for compensation. As the only issue raised by the present case is the amount of that compensation, the Court finds that the question of the applicant’s victim status as regards redress for the violation of his rights is linked to the merits of the complaint. It therefore joins it to the merits.

14.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

15.  The general principles concerning the protection of physical integrity and the redress required by the Convention for medical malpractice have been summarised in Trocellier v. France ((dec.), no. 75725/01, § 4, ECHR 2006‑XIV) and Codarcea v. Romania (no. 31675/04, §§ 101-105, 2 June 2009).

16.  The Court reiterates that 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 (see paragraph 13 above), 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. That is not the case here.

17.  The only issue which remains to be determined is therefore the amount of compensation. The first-instance court awarded the applicant the equivalent of EUR 1,580 in respect of non-pecuniary damage. While confirming the findings of the first-instance court, the appellate court halved this award to EUR 790, considering that a higher amount could only be awarded in exceptional cases of extreme pain. In doing so, it relied on the same expert opinion and on the Ministry of Health’s 2001 Decree (which had been repealed in the intervening period, inter alia because there had been a manifest and long-lasting disproportion between the basic rates set by the Decree and the extent of the damage sustained by claimants). The appellate court would appear not to have used the discretionary power, conferred on the lower courts by the Constitutional Court (see, for example, judgment no. IV. ÚS 3122/15 of 2 February 2016), to deviate from the Decree and to increase the award, in order for it to be proportionate to the extent of the damage to the applicant’s health.

18.  In the Court’s view, the amount of EUR 790 is considerably lower than the minimum level of compensation generally awarded by the Court in cases of medical malpractice in which it has found a violation of Article 8 (see, for example, Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016, and Botoyan v. Armenia, no. 5766/17, 8 February 2022). Moreover, this disproportion is exacerbated by the fact that two-thirds of that award was ultimately absorbed by the sum that the applicant had to pay to the hospital for the legal fees incurred by it before the Supreme Court. In this regard, the Court observes that like the lower courts, which had exempted the applicant from court fees and had applied a special provision enabling them to refrain from awarding the defendant’s legal fees where the outcome of a case depended largely on the opinion of a medical expert, the Supreme Court ought to have taken account of the specific character of the proceedings before it, in which the applicant sought to protect his rights under Article 8.

19.  In the light of the foregoing, the Court considers that the applicant has not lost his victim status and that there has been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant did not claim any compensation in respect of pecuniary or non-pecuniary damage. He only asked to be reimbursed the costs of his legal representation, amounting to EUR 2,543, which the Government considered reasonable.

21.  The Court observes that, having regard to the exceptional circumstances, it has previously found it necessary in rare cases to award compensation in respect of non-pecuniary damage, even where no such claim has been submitted to it. The Court emphasises in this connection that, in particular as regards just satisfaction on account of non-pecuniary damage, the Court’s guiding principle is equity, which involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred (see Nagmetov v. Russia [GC], no. 35589/08, §§ 69 and 73, 30 March 2017).

22.  In the present case, the Court considers that the applicant must have experienced pain and suffering which cannot be compensated solely by the Court’s finding of a violation, and that the case may be seen as disclosing exceptional circumstances which call for an award in that respect. Indeed, the applicant suffered a breach of his right to protection of physical integrity which seems to have significantly altered his quality of life and, given the domestic regulation applicable at the material time, there appears to be no reasonable prospect of success for obtaining adequate “reparation” at the domestic level, even if proceedings were reopened before the Constitutional Court.

For these reasons, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

23.  Furthermore, having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,500 for the costs incurred in the proceedings before it, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;

Done in English, and notified in writing on 28 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Andreas Zünd
 Deputy Registrar President