Individual Application

The Facts

The applicant claimed that after an operation she had undergone, she was paralysed from the waist down as a result of a negligence attributable to the administration. Arguing that she therefore suffered certain damages, the applicant brought a full remedy action before the administrative court, seeking pecuniary and non-pecuniary damages, plus statutory interest running from the date of the incident.

In the expert report obtained during the proceedings, the amount of pecuniary damages was calculated to be higher than the amount initially claimed by the applicant. Following the completion of the appeal proceedings, the increased amount of pecuniary damages was awarded to the applicant together with statutory interest running from the date of her application to the administration. Upon appeal, the Council of State upheld the said decision. Following the administration’s subsequent request for rectification, the Council of State partially accepted the administration’s request, insofar as it concerned the starting date of the interest to be applied to the increased compensation amount. It held that interest should accrue from the date when the petition for increase was served on the administration, which was the date when the administration fell into default.

In accordance with the Council of State’s judgment, the administrative court held that the starting date of interest for the increased part of the pecuniary compensation would be the date when the petition for increase was served on the administration, and that the interest calculated from that date would be paid to the applicant. The applicant’s appeal against the decision was dismissed, and her subsequent request for rectification was also rejected.

The Applicant’s Allegations

The applicant maintained that the damage she had suffered as a result of a medical negligence had not been fully redressed, despite the long and exhausting judicial process. She therefore claimed that her right to an effective remedy, in conjunction with her right to the protection and improvement of her corporeal and spiritual existence, had been violated.

The Court’s Assessment

With the amendment introduced to the second sentence of Article 16 § 4 of the Law no. 2577 on Administrative Procedure, a mechanism for increasing the claimed amount in full remedy actions, akin to rectification, was incorporated into administrative jurisdiction. The rationale for introducing this mechanism was to ensure the right to an effective remedy and right to a fair trial, thereby fully redressing the damages caused by the administration.

In the present case, although the relevant legislation contained no explicit prohibition regarding the determination of the starting date of interest, the Council of State, by way of its interpretation, made a distinction between the amount claimed in the initial petition and the amount sought in the petition for increase. Setting the starting date of interest for the increased part as the date of service of the latter petition on the administration resulted in a loss of value in the applicant’s compensation, since the interest on that portion was calculated from a much later date (approximately nine years after the incident), despite arising from the same administrative act.

The Court considers that the Council of State’s decision on the starting date of interest for the increased compensation amount was not capable of adequately addressing the applicant’s allegations or providing her with a genuine opportunity for redress. Moreover, as there was no legislative provision restricting the determination of such a starting date, the Council of State’s approach did not allow for an effective examination of the alleged violations of the applicant’s fundamental rights and freedoms. Hence, the applicant’s damage resulting from a medical negligence could not be fully redressed, and the mechanism for increasing the claimed amount, incorporated into the administrative jurisdiction to ensure the right to an effective remedy, was rendered ineffective in practice.

As a matter of fact, the issue regarding the starting date of interest applicable to the increased compensation amount in full remedy actions was later referred to the General Assembly on the Unification of Case-Law of the Council of State, which ruled that the same starting date of interest applicable to the amount claimed in the initial petition should also apply to the increased amount.

Consequently, the Court has found a violation of the right to an effective remedy in conjunction with the right to the protection and improvement of the applicant’s corporeal and spiritual existence.