The ECHR judgment of 25 July 2017 in the case of Carvalho Pinto de Sousa Morais v. Portugal (application no. 17484/15).
In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Portugal. The case successfully examined the applicant's complaint about the reasons given by the court for reducing the amount of compensation and the fact that the court did not take into account the importance of sexuality for her both for the woman and the applicant's age. There has been a violation of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who was diagnosed with a gynecological disease, instituted a civil case against the hospital in connection with medical negligence made after her operation. The administrative court ruled in her favor and awarded her compensation. While reviewing the complaint, the Supreme Administrative Court upheld the decision of the first instance court, but reduced the amount of compensation for damages.
In the conventional proceedings, the applicant complained that the decision of the Supreme Administrative Court discriminated against her on the basis of her sex and age. She, in particular, complained about the reasons given by the court for reducing the amount of compensation and the fact that the court did not take into account the importance of sexuality for her as a woman.
ISSUES OF LAW
Concerning compliance with Article 14 of the Convention in conjunction with Article 8 of the Convention. The dissemination of the idea of gender equality is an important objective of the member states of the Council of Europe, and very good reasons are required for the difference in treatment to be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social approaches in a particular country are insufficient justification for the difference in treatment based on sex. The problem of stereotypes of a certain group in society is rooted in the fact that it prohibits an individualized situation of their capabilities and needs.
The Supreme Administrative Court upheld the findings of the trial court, but decided that the physical and moral suffering of the applicant had been exacerbated by the operation she had performed, and did not admit that they were solely related to injuries sustained during the operation. The Supreme Administrative Court proceeded from the facts that the applicant was "almost 50 years old at the time of the operation, she had two children, that is, she was at the age when sexuality is not as important as in the young years, and her significance decreases with age "and that the applicant" may only need to take care of her husband ", taking into account the age of her children.
This issue was not related to age or gender considerations, but was an assumption that sexuality is not so important for a 50-year-old woman and a mother of two children than for a younger woman. This assumption reflected the traditional notion of female sexuality as related mainly to the goals of procreation, and therefore ignored its physical and psychological significance for the self-realization of women as individuals. In addition to categorical, this argument did not take into account other dimensions of female sexuality in the particular case of the applicant. In other words, the Supreme Administrative Court made a general assumption, not trying to consider its applicability in a particular case. The wording of the decision of the Supreme Administrative Court could not be considered an unfortunate expression. The applicant's age and sex, apparently, were decisive factors in making the final decision, introducing a difference in treatment on these grounds.
The Court noted the contrast between the applicant's case and the approach taken by the Supreme Court in two judgments in 2008 and 2014 in which two elderly patients aged 55 and 59 respectively referred to the alleged negligence committed by medical personnel. In these decisions, the Supreme Court noted that the fact that people can no longer have normal sexual relations affected their self-esteem, and they experienced "a tremendous shock" and "a strong mental shock." In assessing the extent of damage, he took into account the fact that men could not have sexual relations, and its consequences for them, regardless of their age, the presence or absence of their children or other factors.
The violation of the requirements of Article 14 of the Convention (accepted by five votes "for" with four against) was committed in the case.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 3,250 in respect of non-pecuniary damage.