Case: Carvalho Pinto de Sousa Morais v. Portugal
Judgement date: 25 July 2017
Topic: Gender equality
Aspect: Amount of compensation awarded for a medical error

Summary of the facts:
This case concerned a decision of the Portuguese Supreme Administrative Court to reduce the amount of compensation awarded to the applicant, a 50-year-old woman suffering from gynaecological complications, as a result of a medical error. An operation in 1995 had left her in intense pain, incontinent and with difficulties in having sexual relations. The applicant alleged in particular that the decision to reduce the amount of compensation was discriminatory because it had disregarded the importance of a sex life for her as a woman.

Summary of the Court's findings:
The Court held that there had been a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private and family life) of the Convention. It found in particular that the applicant’s age and sex had apparently been decisive factors in the Portuguese courts’ final decision not only to lower the compensation awarded for physical and mental suffering but also for the services of a maid. The decision had moreover been based on the general assumption that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age. In the Court’s view, those considerations showed the prejudices prevailing in the judiciary in Portugal. In this case the Court also recalled that gender quality was today a major goal for the member States of the Council of Europe, meaning that very good reasons would have to be put forward before a difference of treatment on grounds of sex could be accepted as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a country were insufficient for a difference in treatment on grounds of sex.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1945 and lives in Bobadela.
A. The background to the case
6. In December 1993 the applicant became a patient of the gynaecology department of the Alfredo da Costa Maternity Hospital (since renamed the Central Lisbon Hospital – Centro Hospitalar de Lisboa Central, hereinafter “the CHLC”).
7. On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease, on the left side of her vagina ( bartholinite à esquerda ). She started treatment, which included drainages ( drenagens ). After each drainage the Bartholin gland would swell, causing the applicant considerable pain. She would thus require a second drainage and painkillers.
8. She was offered surgery for the condition during a consultation at the beginning of 1995.
9. On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure to remove the left Bartholin gland. On 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed.
10. On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations.
11. On an unknown date the applicant was informed after being examined at a private clinic that the left pudendal nerve ( nervo pudenda do lado esquerdo ) had been injured during the operation.
B. Domestic proceedings against the hospital
12. On 26 April 2000 the applicant brought a civil action in the Lisbon Administrative Court ( Tribunal Administrativo do Círculo de Lisboa ) against the CHLC under the State Liability Act ( ação de responsabilidade civil extracontratual por facto ilícito ), seeking damages of 70,579,779 escudos (PTE), equivalent to 325,050 ,020 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation.
13. On 4 October 2013 the Lisbon Administrative Court ruled partly in favour of the applicant. It established, inter alia, the following facts:
(i) that the applicant had suffered since 1995 from a physical deficiency which had given her an overall permanent degree of disability of 73% and that the disability had resulted from the left pudendal nerve being cut;
(ii) after being discharged from hospital, the applicant had complained of pain associated with insensitivity in the part of the body which had been operated on and which had become swollen;
(iii) the left pudendal nerve had been injured during the operation, which had caused the pain from which the applicant was suffering, the loss of sensitivity and the swelling in the vaginal area;
(iv) the applicant had suffered from a decrease in vaginal sensitivity due to the partial lesion to the left pudendal nerve.
14. On the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant ’ s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations, which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 in compensation for non-pecuniary damage. In respect of pecuniary damage, the Lisbon Administrative Court awarded her EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks.
15. On an unknown date the CHLC appealed to the Supreme Administrative Court ( Supremo Tribunal Administrativo ) against the judgment of the Lisbon Administrative Court. The applicant lodged a counter -appeal ( recurso subordinado ), arguing that she should have received EUR 249,399 in compensation and that the CHLC ’ s appeal should be declared inadmissible. An opinion from the Attorney General ’ s Office attached to the Supreme Administrative Court ( Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo ) stated that the CHLC ’ s appeal should be dismissed because it had been established that there had been a violation of leges artis. As a consequence, the various requirements of the obligation to pay compensation had been verified and the first-instance court had decided on compensation in an equitable and proper way.
16. On 9 October 2014 the Supreme Administrative Court upheld the first-instance judgment on the merits but reduced, inter alia, the amount that had been awarded for the services of the maid from EUR 16,000 to EUR 6,000 and the compensation for non-pecuniary damage from EUR 80,000 to EUR 50,000. The relevant part of the judgment on those points reads as follows:
“ ... with respect to damages related to the charges for the maid ... [the plaintiff] could not show the amount paid under that head. Also ... we consider that the award of EUR 16,000 under that head is manifestly excessive.
Indeed, (1) it has not been established that the plaintiff had lost her capacity to take care of domestic tasks, (2) professional activity outside the home is one thing while domestic work is another, and (3) considering the age of her children, she [the plaintiff] probably only needed to take care of her husband; this leads us to the conclusion that she did not need to hire a full - time maid ...
Lastly, as regards non-pecuniary damage, it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal area, and for the difficulty sitting and walking, which causes her distress and prevents her from going about her everyday life, forcing her to use sanitary towels on a daily basis to conceal urinary and faecal incontinence and which has limited her sexual activity, making her feel diminished as a woman. In addition, there is no medical solution to her condition. All this has caused her severe depression, expressing itself in anxiety and somatic symptoms manifested in the difficulty she has sleeping, deep disgust and frustration with the situation in which she finds herself, which has turned her into a very unhappy person and which inhibits her from establishing relationships with others and has caused her to stop visiting family and friends, from going to the beach and theatre and which has given her suicidal thoughts.
It should be noted, however, that the plaintiff has been suffering from the gynaecological condition for a long time (at least since 1993) and that she had already undergone various kinds of treatment without any acceptable result and that it was that lack of results and the impossibility of curing the condition otherwise that was the motivation for surgery. She had already had unbearable pain and symptoms of depression before [surgery]. This means that the plaintiff ’ s complaints are not new and that the surgical procedure only aggravated an already difficult situation, a fact which cannot be ignored when setting the amount of compensation.
Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age.
Thus, having regard to all those aspects, we believe that the compensation awarded at first instance exceeded what could be considered reasonable and, as such, the plaintiff should be awarded EUR 50,000 in compensation [in respect of non-pecuniary damage] .”
17. On 29 October 2014 the Attorney General ’ s Office attached to the Supreme Administrative Court applied to the Supreme Administrative Court to have the judgment of 9 October 2014 declared null and void ( nulidade do acórdão ) in the part concerning the amount awarded for non-pecuniary damage. It argued that the reasoning in the judgment and the decision on the amount of compensation were contradictory. It further submitted that the compensation award should not have taken account of the applicant ’ s symptoms before the medical intervention, as if only a worsening of those symptoms had been at stake. The relevant parts of the application read as follows:
“ ...
III – In the instant case, we are dealing with surgical intervention which aimed exclusively at extracting the Bartholin glands.
...
During that surgical procedure the left pudendal nerve was partly damaged.
The pudendal nerve ... is a different organ from the one which was the object of the surgical intervention.
Following the extraction of the glands the plaintiff suffered damage which was considered as being established and which specifically arose from the lesion in question.
IV- In view of the factual basis of the judgment and having regard to the fact that ‘ in the absence of unlikely and unexpected occurrences doctors would have cured the plaintiff ’ s illness and she could have returned to her normal life ’, the decision setting the amount of compensation for non-pecuniary damage should not have taken account of the plaintiff ’ s pain and symptoms of depression prior to the surgical intervention as if they had worsened.
That is because, according to the judgment, they would have disappeared once the Bartholin glands had been removed and the plaintiff ’ s condition cured by surgery.
V – The reasoning in the judgment leads logically to a different decision.
That would be to set compensation for non-pecuniary damage on the basis of the fact that the plaintiff would have been cured if the pudendal nerve had not been injured. ”
18. On 4 November 2014 the applicant applied to the Supreme Administrative Court to join the Attorney General ’ s appeal of 29 October 2014, arguing that the judgment of 9 October 2014 should be declared null and void in the part concerning the amount of non-pecuniary damage she had been awarded.
19. On 29 January 2015 the Supreme Administrative Court dismissed the appeals by the Attorney General ’ s Office and the applicant and upheld its judgment of 9 October 2014. It considered that the causal link between the injury to the pudendal nerve and the alleged damage had been established. However, that injury had not been the only cause of damage to the applicant. In the opinion of the judges of the Supreme Administrative Court, the applicant ’ s health problems prior to the operation, and her gynaecological and psychological symptoms in particular, could not be ignored and had been aggravated by the procedure.
IV. Report BY the permanent observatory on PORTUGUESE justice
29. A report by the Permanent Observatory on Portuguese Justice ( Observatório permanente da justiça portuguesa ), drafted at the request of the Commission for Citizenship and Gender Equality ( Comissão para a Cidadania e Igualdade de Género ), about how the judicial authorities deal with cases of domestic violence, was published in November 2016 [1]. It pointed out that the approach of magistrates to cases often differed, depending on the economic, cultural and social background of the accused. The report also expressed concerns over prevailing legal and institutional sexism. It referred by way of example to a judgment concerning a man who had physically assaulted his wife and the fact that she was having sexual intercourse with other men was viewed as a mitigating factor (pp. 231-32 of the report).

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Portuguese Republic
20. The relevant provisions of the Constitution read as follows:
Article 13 – Principle of equality
“1. All citizens possess the same social dignity and are equal before the law.
2. No one may be privileged, favoured, prejudiced, deprived of any right or exempted from any duty for reasons of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.”
Article 16 – Scope and interpretation of fundamental rights
“ 1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international law and legal rules.
2. The constitutional precepts concerning fundamental rights must be interpreted and construed in harmony with the Universal Declaration of Human Rights. ”
Article 18 – Legal force
“ 1. The constitutional norms with regard to rights, freedoms and guarantees are directly applicable to and binding on public and private entities.
2. The law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution, and such restrictions must be limited to those needed to safeguard other constitutionally protected rights and interests.
3. Laws that restrict rights, freedoms and guarantees must have a general and abstract nature and shall not have retroactive effect or reduce the extent or scope of the essential content of constitutional norms. ”
Article 25 – Right to personal integrity
“ 1. Every person ’ s moral and physical integrity is inviolable.
2. No one shall be subjected to torture or to cruel, degrading or inhuman treatment or punishment.”
B. Portuguese Civil Code
21. The relevant provisions of the Code reads as follows:
Article 70 – protection of personality
1. The law protects individuals against any unlawful offence or threat of offence against their physical or moral person.
2. Regardless of any civil liability which may arise, the person threatened or offended against may request measures that are appropriate to the circumstance of the case in order to avoid the realisation of the threat or to mitigate the effects of an offence already committed.”
Article 483
“1. Whosoever, either intentionally or recklessly ( mera culpa ), unlawfully violates the rights of others or any legal provision intended to protect the interests of others is obliged to compensate the injured party for the damage resulting from that breach.”
Article 487
“1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it.
2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of a bonus pater familias, given the circumstances of the case.”
C. Legislative Decree no. 48051 of 21 November 1967
22. Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governs the State ’ s non-contractual civil liability. It contains the following provisions of relevance to the instant case:
Article 2 § 1
“The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence ( culpa ) by their agencies or officials in the performance of their duties or as a consequence thereof.”
Article 4
“1. The negligence ( culpa ) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.”
Article 6
“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.
In accordance with the case-law concerning the State ’ s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.”
D. Case-law
23. In a judgment of 4 March 2008 the Supreme Court of Justice considered allegations of medical malpractice and had to assess whether the amount the plaintiff had been awarded in respect of non-pecuniary damage had been excessive. The plaintiff alleged that he had been subjected to a full prostatectomy ( prostatectomia radical ) in which his prostate gland had been removed and he had become impotent and incontinent as a result. The Supreme Court of Justice found that there had been a medical error and awarded the plaintiff EUR 224,459.05 in compensation for non-pecuniary damage. To justify the amount awarded the court stated :
“It is irrefutable that the plaintiff has suffered non-pecuniary damage which was caused by the defendant. The devastating and irreversible consequence was a complete prostatectomy which left the plaintiff impotent and incontinent. The medical intervention was not even required given that the plaintiff had only been suffering from inflammation of the prostate.
...
It is clear that because of the defendant ’ s actions, the plaintiff, who at the time was almost 59 years old, underwent a radical change in his social, family and personal life as he is impotent and incontinent and will never again be able to live life as he used to. He is now a person whose life is physically and psychologically painful, and has therefore suffered irreversible consequences.
It is not unreasonable to assert that his self-esteem has suffered a tremendous blow .”
24. The Supreme Court of Justice considered another case of alleged medical malpractice and its consequences on 26 June 2014. The plaintiff in question had been wrongly diagnosed with cancer and had consequently had a prostatectomy. The court considered that the compensation set by the Lisbon Court of Appeal in respect of non-pecuniary damage ( EUR 100,000 ) was not excessive given that the plaintiff, 55 years old at the time, had suffered severe mental trauma for two months as a result of the defendant ’ s actions in erroneously diagnosing cancer, which had caused him great physical suffering. In addition, the prostatectomy had had a permanent effect on his sex life.
III. RELEVANT INTERNATIONAL LAW
A. The United Nations Convention on the Elimination of All forms of Discrimination against Women
25. The relevant Articles of the 1970 UN Convention on the Elimination of all Forms of Discrimination against Women, ratified by Portugal on 30 July 1980, read as follows:
Article 1
“For the purposes of the present Convention, the term ‘ discrimination against women ’ shall mean any distinction, exclusion or restriction on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Article 2
“State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation ... ”
Article 5
“States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
26. In its Concluding Observations on the combined eighth and ninth periodic reports on Portugal, adopted at its 1337 th and 1338 th meetings on 28 October 2015 (CEDAW/C/PRT/CO/8-9), the CEDAW Committee stated, in particular, as follows:
“ ...
Stereotypes
20. The Committee welcomes the State party ’ s efforts to combat gender stereotypes through education in schools, promotional materials and legislation prohibiting sex-based and gender-based discrimination in the media. It notes with concern, however, that gender stereotypes continue to persist in all spheres of life, as well as in the media, and that the State party lacks a comprehensive strategy for addressing discriminatory stereotypes.
21. The Committee recommends that the State party further strengthen its efforts to overcome stereotypical attitudes regarding the roles and responsibilities of women and men in the family and in society by adopting a comprehensive strategy addressing the issue and continuing to implement measures to eliminate discriminatory gender stereotypes, educating the public and establishing, as soon as possible, a mechanism for regulating the use of discriminatory gender stereotypes in the media.”
B. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)
27. On 5 May 2011 the Council of Europe adopted the Convention on preventing and combating violence against women and domestic violence, which entered into force on 1 August 2014. It was ratified by Portugal on 5 February 2013. The relevant parts of the Convention read as follows:
Article 1 – Purposes of the Convention
1. The purposes of this Convention are to:
...
b ) Contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women”
Article 12 – General Obligations
“1. Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”
C. Report of the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers
28. The relevant parts of the Report by the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, concerning her visit to Portugal from 27 January to 3 February 2015 (United Nations Human Rights Council, document A/HRC/29/26/add4 of 29 June 2015), reads as follows :
“72. The Special Rapporteur notes that the proper education and awareness-raising of judges and prosecutors are paramount for a better performance of judicial actors in the treatment of all victims of crimes. This is especially needed as a means to avoid the reproduction of prejudices in court rulings or the adoption of contradictory measures, for instance in relation to custody, which could facilitate the access of known aggressors to their victims. The Special Rapporteur appreciates the efforts made by the Centre for Judicial Studies in providing training that pays particular attention to human rights and vulnerable groups.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8
30. 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 Supreme Administrative Court for reducing the amount awarded to her in respect of non-pecuniary damage and about the fact that it had disregarded the importance of a sex life for her as a woman. She relied on Articles 8 and 14 of the Convention, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a minority, property, birth or other status.”
A. Admissibility
1. Applicability of Article 14 of the Convention taken in conjunction with Article 8
(a) The parties ’ submissions
31. The Government contended that the concept of private life was very broad and did not lend itself to an exhaustive definition. An individual ’ s physical and moral integrity fell within the notion of “private life” and was protected by Article 8 of the Convention. In that regard, they noted that the judgment of the Supreme Administrative Court had sought, inter alia, to provide the applicant with adequate compensation for the damage caused by the surgical procedure to her physical and psychological integrity, which had had an impact on both her health and her well-being. In addition, the Government observed that the applicant had complained of discriminatory treatment on the grounds of sex and age, elements which formed part of an individual ’ s personality and therefore included the concept of private life. The Government concluded therefore that the circumstances of the case fell within the scope of Article 8.
32. The applicant did not submit observations on the applicability of Article 8 to the facts of the case.
(b) The Court ’ s assessment
33. The Court must determine at the outset whether the facts of the case fall within the scope of Article 8 and hence of Article 14 of the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, § 129, ECHR 2012 (extracts) ).
34. It reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe that Article when read in conjunction with Article 14 for the reason that it is discriminatory in nature. Accordingly, for Article 14 to become applicable, it is enough that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see, among many other authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 53, 24 January 2017, and Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts) ).
35. In this connection the Court has on many occasions held that the notion of “private life” within the meaning of Article 8 is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person and, to a certain extent, the right to establish and develop relationships with other human beings. It can sometimes embrace aspects of an individual ’ s physical and social identity (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017 ). The concept of private life also encompasses the right to “personal development” or the right to self-determination ( ibidem ) and elements such as gender identification, sexual orientation and sex life, which fall within the personal sphere protected by Article 8 (see E.B. v. France, no. 43546/02, § 43, 22 January 2008).
36. In the present case the domestic proceedings aimed to establish liability for medical malpractice and an adequate amount of compensation for the physical and psychological consequences of the operation. Therefore, the facts at issue fall within the scope of Article 8 of the Convention. It follows that Article 14, taken together with Article 8, is applicable.
2. Conclusion
37. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties ’ submissions
38. The applicant contended that the various health conditions from which she suffered had been caused by the medical intervention of May 1995. She also argued that those specific conditions had not resulted from her previous health problems, contrary to the findings of the Supreme Administrative Court. In fact, her faecal and urinary incontinence, the difficulty in having sex and her depression had been caused exclusively by the medical error which had occurred during the operation.
39. Moreover, the applicant pointed to the fact that the Portuguese State, through the State Attorney ’ s Office attached to the Supreme Administrative Court, had argued that the Supreme Administrative Court judgment should be made null and void and that the amount awarded in respect of non-pecuniary damage should not have been reduced.
40. Lastly, the applicant argued that the Supreme Administrative Court had clearly discriminated against her on the grounds of her sex and age. In the applicant ’ s opinion, by expressly referring to the fact that she was fifty the Supreme Court had implied that if she had been younger and had had no children, she would most certainly have been awarded a higher amount. Moreover, the Supreme Administrative Court had made an assumption which had lacked a scientific basis. By disregarding her right to a sex life, the Supreme Administrative Court had breached one of the most basic principles of human dignity and had violated Articles 8 and 14 of the Convention. The applicant contended that the analysis of Portuguese case-law referred to above (see paragraphs 23 and 24 ) led to the conclusion that there was an obvious difference in treatment regarding compensation for men and women in situations involving their sex life. In particular, the amount awarded to men for non-pecuniary damage seemed to be manifestly higher in situations where plaintiffs had similar problems to those the applicant had suffered from following the medical intervention in question.
41. The Government argued that the Supreme Administrative Court ’ s decision to decrease the amount awarded by the first-instance court in respect of non-pecuniary damage had not been governed by prejudice or an intention to discriminate against the applicant on the grounds of her sex or age. On the contrary, it had been based on the fact that the Supreme Administrative Court had considered that the medical intervention had not been the only cause of the physical and psychological damage which the applicant had complained of. In that regard the Government emphasised that the amount awarded by the Supreme Administrative Court had been attributable to the fact that the applicant ’ s gynaecological problem had developed a long time earlier, that she had already been treated unsuccessfully several times and that she had already been suffering unbearable pain and symptoms of depression before the operation. For the Supreme Administrative Court, therefore, the applicant ’ s complains had not been new and surgery had merely aggravated what had already been a difficult situation. Moreover, the Government pointed out that the Supreme Administrative Court had also taken into account the fact that the applicant had become very unhappy and that she had felt “diminished as a woman” in the wake of the injury she had suffered.
42. The Government acknowledged that reading the impugned passage in the Supreme Administrative Court ’ s judgment out of context could indicate prejudice and a belittling of the applicant ’ s suffering, in particular because of her age. They further acknowledged that there had been an unfortunate use of terms. They observed, however, that the passage should be read on the understanding that the Supreme Administrative Court had also taken the above-mentioned factors into account.
43. In addition, the Government argued that comparing cases that had come before Portuguese courts was difficult and was liable to lead to errors because the clinical conditions of the plaintiffs seeking compensation were different and, as such, the physical and psychological consequences of the damage involved also differed. They noted that several factors had to be taken into account when assessing appropriate levels of compensation for non-pecuniary damage. These included any life- threatening risks; the number of medical procedures plaintiffs had undergone; the kind of treatment ( the degree of pain) applied; whether the injuries caused by the medical error could be reversed; and the degree of loss of autonomy and subsequent dependence on others in the essential tasks of everyday life. In that regard, the applicant could not be considered as being in the same position as other plaintiffs (including the male plaintiffs referred to in the two Supreme Court of Justice judgments in paragraphs 23 and 24 above). As such, the amount awarded in respect of non-pecuniary damage had not amounted to an unjustifiable difference in treatment on account of her sex and age as it had been proportionate to the damage suffered.
2. The Court ’ s assessment
(a) General principles
44. The Court has established in its case-law that in order for an issue to arise under Article 14, there must be a difference in treatment of persons in analogous or relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see, inter alia, Biao v. Denmark [GC], no. 38590/10, § § 90 and 93, ECHR 2016, and Sousa Goucha v. Portugal, no. 70434/12, § 58, 22 March 2016). The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017).
45. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute “status” including, inter alia, sex, race and property. The words “other status” have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 61 and 70, ECHR 2010, and Clift v. the United Kingdom, no. 7205/07, § § 56-58, 13 July 2010 ). In this regard, the Court has recognised that age might constitute “other status” for the purposes of Article 14 of the Convention (see, for example, Schwizgebel v. Switzerland, no. 25762/07, § 85, ECHR 2010 (extracts) ), although it has not, to date, suggested that discrimination on grounds of age should be equated with other “suspect” grounds of discrimination ( British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 88, 15 September 2016).
46. The Court further reiterates that the advancement of gender equality is today a major goal for the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127, with further references; see also Schuler- Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on the grounds of sex. For example, in a case concerning the bearing of a woman ’ s maiden name after marriage, it considered that the importance attached to the principle of non-discrimination prevented States from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family (see Ünal Tekeli v. Turkey, no. 29865/96, § 63, ECHR 2004 ‑ X (extracts) ). The Court has also considered that the issue with stereotyping of a certain group in society lies in the fact that it prohibits the individualised evaluation of their capacity and needs (see, mutatis mutandis, Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, with further references).
47. Lastly, as concerns the burden of proof in relation to Article 14 of the Convention, the Court reiterates that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see Khamtokhu and Aksenchik, § 65, and Biao, § 92, both cited above).
(b) Application of those principles to the instant case
48. In the present case the Court observes that the first-instance court awarded the applicant EUR 80,000 in respect of non-pecuniary damage, referring to criteria such as the physical and mental suffering caused by the medical error. It considered in particular that the injury to the left pudendal nerve caused during the operation had left the applicant in pain, led to a loss of sensation in the vagina, incontinence, difficulty walking and sitting, and in having sexual relations (see paragraph 14 above).
49. While confirming the findings of the first-instance court, the Supreme Administrative Court reduced the award to EUR 50,000. It relied on the same elements, but considered that the applicant ’ s physical and mental suffering had been aggravated by the operation, rather than caused exclusively by the injury to the left pudendal nerve during surgery. Moreover, the Supreme Administrative Court relied on the fact that the applicant “ [had been] already fifty years old at the time of the surgery and had two children, that is, an age when sexuality [was] not as important as in younger years, its significance diminishing with age ” (see paragraph 16 above).
50. The Court notes that the Supreme Administrative Court also reduced the amount that had been awarded to the applicant in respect of the costs of a maid on the grounds that she was not likely to have needed a full - time maid (see paragraph 16 above) at the material time as, considering the age of her children, she “probably only needed to take care of her husband”.
51. In the present case the Court ’ s task is not to analyse the actual amounts awarded to the applicant by the Supreme Administrative Court. In that connection the Court reiterates that as a general rule it is for the national courts to assess the evidence before them, including the means used to ascertain the relevant facts (see Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003 ‑ VIII, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B). The national authorities are thus, in principle, better placed than an international court to evaluate what is adequate compensation for the specific damage suffered by an individual. The issue which has to be determined, however, is whether or not the Supreme Administrative Court ’ s reasoning led to a difference of treatment of the applicant based on her sex and age, amounting to a breach of Article 14 in conjunction with Article 8.
52. The Court acknowledges that in deciding claims related to non-pecuniary damage within the framework of liability proceedings, domestic courts may be called upon to consider the age of claimants, as in the instant case. The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty - year - old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self -fulfilment of women as people. Apart from being, in a way, judgmental, it omitted to take into consideration other dimensions of women ’ s sexuality in the specific case of the applicant. In other words, in the instant case the Supreme Administrative Court made a general assumption without attempting to look at its validity in the specific case of the applicant herself, who was fifty at the time of the operation at issue ( see, mutatis mutandis, Schuler- Zgraggen, cited above, § 67).
53. In the Court ’ s view, the wording of the Supreme Administrative Court ’ s judgment when reducing the amount of compensation in respect of non-pecuniary damage cannot be regarded as an unfortunate turn of phrase, as asserted by the Government. It is true that in lowering the amount the Supreme Administrative Court also took it for granted that the pain suffered by the applicant was not new. Nevertheless, the applicant ’ s age and sex appear to have been decisive factors in the final decision, introducing a difference of treatment based on those grounds (see, mutatis mutandis, Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 35, ECHR 1999 ‑ IX; Schuler- Zgraggen, cited above, § 67; and, conversely, Sousa Goucha, cited above, §§ 64-65). This approach is also reflected in the decision of the Supreme Administrative Court [2] to lower the amount awarded to the applicant in respect of the costs of a maid on the grounds that she “probably only needed to take care of her husband” given her children ’ s age at the material time (see paragraph 16 above).
54. In the Court ’ s view, those considerations show the prejudices prevailing amongst the judiciary in Portugal, as pointed out in the report of 29 June 2015 by the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers (see paragraph 28 above) and in the CEDAW ’ s Concluding Observations on the need for the respondent State to address the problem of gender -based discriminatory stereotypes (see paragraph 26 above). They also confirm the observations and concerns expressed by the Permanent Observatory on Portuguese Justice regarding the prevailing sexism within judicial institutions in its report of November 2006 on domestic violence (see paragraph 29 above).
55. In this well - established factual context, the Court cannot but note the contrast between the applicant ’ s case and the approach taken in two judgments of 2008 and 2014, which concerned allegations of medical malpractice by two male patients who were fifty-five and fifty-nine years old respectively. The Supreme Court of Justice found in those cases that the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a “tremendous blow ” and “ severe mental trauma ” (see paragraphs 23 and 24 above). In view of its findings, the Supreme Court of Justice awarded EUR 224,459 and EUR 100,000 to the two male plaintiffs respectively. It follows from those cases that the domestic courts took into consideration the fact that the men could not have sexual relations and how that had affected them, regardless of their age. Contrary to the applicant ’ s case, the Supreme Court of Justice did not take account of whether the plaintiffs already had children or not, or look at any other factors. In particular, in the judgment of 4 March 2008, it found that the fact that the impugned surgical procedure had left the plaintiff impotent and incontinent was enough to consider that non-pecuniary damage had been caused.
56. In view of the foregoing considerations, the Court concludes that there has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
58. The applicant claimed 174,459.05 euros (EUR) in respect of non-pecuniary damage. She did not claim an amount in respect of pecuniary damage.
59. The Government considered the applicant ’ s claim excessive.
60. The Court considers that the applicant must have suffered distress and frustration as a result of the violation found. Making its assessment on an equitable basis, the Court awards the applicant EUR 3, 25 0 for non-pecuniary damage, plus any tax that may be chargeable on the above amount.
B. Costs and expenses
61. The applicant also claimed EUR 2,460 for the costs and expenses incurred before the Court.
62. The Government, referring to Antunes and Pires v. Portugal (no. 7623/04, § 43, 21 June 2007), left the matter to the Court ’ s discretion.
63. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.
C. Default interest
64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.