FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29496/09

by Wolfram HAUTH

against Germany

The European Court of Human Rights (Fifth Section), sitting on

19 October 2010 as a Committee composed of:

Mark Villiger, President,

Isabelle Berro-Lefèvre,

Ganna Yudkivska, judges

and Stephen Phillips, Deputy Registrar,

Having regard to the above application lodged on 4 June 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wolfram Hauth, is a German national who was born in 1946 and

lives in Berlin.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In October 2001 the applicant was diagnosed with a carcinoma in the caecum and

gall stones. His physician proposed that the cancer be removed and that the gall bladder

not be removed; the physician referred the applicant to a Berlin hospital for surgery.

On 2 September 2002 the applicant underwent colon surgery. During the course of

the surgery the surgeon – a professor of medicine at a hospital of a public university –

on his own motion decided to remove the applicant's gall bladder as well without having

obtained the applicant's consent prior to the removal.

After the surgery the applicant suffered from pyrosis.

On 19 December 2007 the Berlin Schöneberg District Court dismissed the applicant's

claim of compensation for non-pecuniary damages against the surgeon and the hospital.

It held that the surgeon had illegally and wantonly caused personal injury by removing

the applicant's gall bladder and that he had also violated the applicant's personal rights

(allgemeines Persönlichkeitsrecht) by acting without the applicant's consent. The court,

however, also held that the violation of the applicant's personal rights had not been so

serious as to require compensation. Furthermore, the court accepted the submissions of

a court appointed medical expert that pyrosis was not a typical after-effect of the

removal of the gall bladder and concluded that the applicant had failed to show that he

suffered from such typical physical after-effects, and that he had not shown that the

pyrosis was caused by the removal of the gall bladder.

The applicant appealed.

On 17 July 2008 the Berlin Regional Court informed the parties of its intention to

dismiss the applicant's appeal as ill-founded. It argued that the surgeon had acted in a

private capacity on a contractual basis, that the applicant was not suffering from

physical after-effects that had been caused by the removal of the gall bladder and that

the infringement of his personal rights had not been especially grave. The removal of

the gallbladder had not been more invasive than the colon surgery to which the

applicant had consented. Although the gall bladder, a whole organ, had been removed, it

had to be taken into account that it had been abnormal because of the gall stones.

On 25 August 2008 the Berlin Regional Court dismissed the applicant's appeal.

The applicant lodged a constitutional complaint in which he complained about a

violation of the positive obligations of his right to respect for his physical integrity and

his private life.

On 5 December 2008 the Federal Constitutional Court refused to admit the

applicant's constitutional complaint for examination

(no. 1 BvR 2691/08).

B. Relevant domestic law

A person who, intentionally or negligently, unlawfully injures the body and health of

another person is liable to make compensation to the other party for the damage arising

from the injury (Section 823(1) of the Civil Code). In such a case, the injured person

may also claim compensation for non-pecuniary damages (Section 253(2) of the Civil

Code).

According to the case-law of the Federal Court of Justice, serious violations of

personal rights may also give rise to a claim for compensation for non-pecuniary

damages. Whether a violation of personal rights is deemed serious enough to warrant

compensation is determined using the following factors: the intensity and consequences

of the violation; the actor's intentions; and the nature of the violated personal rights.

COMPLAINT

The applicant complained under Article 8 of the Convention that the dismissal of his

claim for compensation against the surgeon following the illegal removal of his gall

bladder had violated his right for respect for his private life.

THE LAW

The applicant complained under Article 8 of the Convention which reads, as far as

relevant, as follows:

“1. Everyone has the right to respect for his private ... life...

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 ... for the protection of the

rights and freedoms of others.”

The Court recalls that matters concerning individuals' physical and psychological

integrity, their involvement in the choice of medical care provided to them and their

consent to such care fall within the ambit of Article 8 of the Convention (see Trocellier

v. France (dec.), no. 75725/01, ECHR 2006-XIV). Even a minor interference with the

physical integrity of an individual must be regarded as an interference with the right to

respect for private life if it is carried out against the individual's will

(see Storck v. Germany, no. 61603/00, § 143, ECHR 2005-V). In the present case,

however, the surgeon, acting on a contractual basis and in his private capacity,

interfered with the applicant's physical integrity; the interference can therefore not be

directly attributed to the respondent Government.

The court reiterates that although the object of Article 8 is essentially that of

protecting the individual against arbitrary interference by the public authorities, it does

not merely compel the State to abstain from such interference: in addition to this

primarily negative undertaking, there may be positive obligations inherent in an

effective respect for private or family life; these obligations may involve the adoption of

measures designed to secure respect for private life even in the sphere of the relations of

individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23,

Series A no. 91). Contracting States are therefore under a positive obligation to maintain

and apply in practice an adequate legal framework affording protection against acts of

violence by private individuals (see Sandra Janković v. Croatia, no. 38478/05, § 45,

ECHR 2009-... (extracts)), as well as enabling victims to establish any liability of the

physicians concerned and obtaining appropriate civil redress, such as an order for

damages, in appropriate cases (see Codarcea v. Romania, no. 31675/04, § 103, 2 June

2009; compare, with regard to positive obligations under Article 2 of the

Convention, Colak and Tsakiridis v. Germany,

nos. 77144/01 and 35493/05, § 30, 5 March 2009; and

Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I).

The Court further reiterates that the choice of the means calculated to secure

compliance with Article 8 of the Convention in the sphere of the relations of individuals

between themselves, is in principle a matter that falls within the Contracting States'

margin of appreciation and that the nature of the State's obligation will depend on the

particular aspect of private life that is at issue (see Odièvre v. France [GC],no.

42326/98, § 46, ECHR 2003-III).

The Court must accordingly consider the legal framework for the applicant's claim

for non-pecuniary damages against the surgeon under German law as well as the

reasons given by the domestic courts for not awarding him non-pecuniary damages for

the illegal removal of his gall bladder.

The Court notes that the domestic courts unequivocally established the illegality of

the surgeon's actions but refused the applicant's claim for non-pecuniary damages

because he had failed to show that he suffered from physical after-effects that had been

caused by the removal of the gall bladder and because the violation of his personal

rights in removing the gall bladder without his consent had not been as grave as

requiring

non-pecuniary damages.

The Court is of the opinion that the German legal system in the present case provided

adequate redress for acts of medical malpractice; it also provided sufficient individual

redress for the applicant by unequivocally establishing the illegality of the surgeon's

actions. The requirements for non-pecuniary damages in cases of medical practice under

German law – namely suffering from after-effects or especially grave violation of the

patient's free will to determine the scope of surgery – were within the margin of

appreciation to be accorded to Contracting States under Article 8 of the Convention.

The Court notes, with the Berlin District and Regional Courts, that the applicant had not

shown that the pyrosis from which he suffered had been caused by the removal of the

gall bladder. The refusal of the applicant's request for an order for damages, therefore,

did not amount to a violation of the positive obligations under Article 8 of the

Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in

accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Mark Villiger

Deputy Registrar President HAUTH v. GERMANY DECISION

HAUTH v. GERMANY DECISION