CEDH · CASELAW;CLIN;ENG — 25 juillet 2017

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Portugal - 17484/15 Judgment 25.7.2017 [Section IV] Article 14 Discrimination Reduction in damages award on grounds of sex and age of claimant: violation Facts – The applicant, who had been diagnosed with a gynaecological disease, brought a civil action against a hospital for clinical negligence following an operation for her condition. The Administrative Court ruled in her favour and awarded her compensation. On appeal the Supreme Administrative Court upheld the first-instance judgment but reduced the amount of damages. In the Convention proceedings, the applicant complained that the Supreme Administrative Court’s judgment in her case had discriminated against her on the grounds of her sex and age. She complained, in particular, about the reasons given by the court for reducing the award and about the fact that it had disregarded the importance of a sex life for her as a woman. Law – Article   14 in conjunction with Article   8: The advancement of gender equality was a major goal for the member States of the Council of Europe and very weighty reasons would have to be put forward before a difference of treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions, or prevailing social attitudes in a particular country were insufficient justification for a difference in treatment on the grounds of sex. The issue with stereotyping of a certain group in society lay in the fact that it prohibited the individualised evaluation of their capacity and needs. The Supreme Administrative Court had confirmed the findings of the first-instance court but considered that the applicant’s physical and mental pain had been aggravated by the operation, rather than considering that it had resulted exclusively from the injury during surgery. It relied on the fact that the applicant was “already fifty years old at the time of the surgery and had two children, that is, an age when sexuality is not as important as in younger years, its significance diminishing with age” and the fact that she “probably only needed to take care of her husband”, considering the age of her children. The question at issue was not considerations of age or sex as such, but rather the assumption that sexuality was not as important for a fifty-year old woman and mother of two children as for someone of a younger age. That assumption reflected a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignored its physical and psychological relevance for the self-fulfilment of women as people. Apart from being judgemental, it omitted to take into consideration other dimensions of women’s sexuality in the concrete case of the applicant. The Supreme Administrative Court had, in other words, made a general assumption without attempting to look at its validity in the concrete case. The wording of the Supreme Administrative Court’s judgment could not be regarded as an unfortunate turn of phrase. The applicant’s age and sex appeared to have been decisive factors in the final decision, introducing a difference in treatment based on those grounds. The Court noted the contrast between the applicant’s case and the approach that had been taken by the Supreme Court of Justice in two judgments of 2008 and 2014 in which two male patients aged 55 and 59 respectively had alleged medical malpractice. In those judgments the Supreme Court of Justice found that the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a “tremendous shock” and “strong mental shock”. In assessing the quantum of damages it took into consideration the fact that the men could not have sexual relations and the effect that had had on them, regardless of their age, of whether or not the plaintiffs already had children, or of any other factors. Conclusion : violation (five votes to two). Article   41: EUR 3,250 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes