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