SECOND SECTION
DECISION
Application no. 7513/06
Hilmi ÇAKIROĞLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 September 2013 as a Committee composed of:
Peer Lorenzen, President,
András Sajó,
Nebojša Vučinić, judges,
and Atilla Nalbant, Acting Deputy Section Registrar.
Having regard to the above application lodged on 27 January 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hilmi Çakıroğlu, is a Turkish national who was born in 1956 and lives in Samsun.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 August 2004 at 9 a.m. the applicant’s aunt was taken to the emergency service of the 19 Mayıs University Hospital. After having been kept waiting until 4 pm, she was advised to return home. While returning home, she felt sick. The same day she was once again hospitalised and died in the evening. The cause of death was established as cerebral haemorrhage.
On 10 September 2004 the applicant lodged a criminal complaint against the doctors who had been on duty at the material time.
On 30 September 2004 the public prosecutor referred the case to the 19 Mayıs University by virtue of the Higher Education Act to obtain permission for an investigation.
In its decision dated 2 February 2006, the academic commission appointed by the 19 Mayıs University held that the doctors concerned had not been negligent and had not caused the death.
In a letter dated 6 February 2006 the applicant was informed that no permission had been granted for a criminal prosecution.
The applicant initiated administrative proceedings against this decision.
On 28 March 2006 the Supreme Administrative Court set aside the impugned administrative decision and returned the case file to the 19 Mayıs University on the grounds that no proper investigation had been carried out into the death of the applicant’s aunt.
Following the Supreme Administrative Court decision, the 19 Mayıs University should conduct an administrative investigation and decide whether to grant permission to initiate criminal proceedings. However, there is nothing in the file about the outcome of this investigation and it is not possible to determine whether a criminal investigation was initiated or not.
In a letter dated 25 November 2010 addressed to the Registry, the applicant submitted that he had not been informed of subsequent developments.
COMPLAINTS
The applicant alleged violations of Articles 2, 3, 5, 6 and 13 of the Convention in relation to his aunt’s death.
THE LAW
The Court, being master of the characterisation to be given in law to the facts of the case, considers that the applicant’s complaints fall to be examined under Article 2 of the Convention alone. It considers that the complaints submitted under Articles 6 and 13 are absorbed by those to be dealt with under the mentioned article. The Court also assumes that the applicant can claim to be a victim in respect of the violation alleged in the circumstances of the present case.
In the specific sphere of medical negligence the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. The obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil/administrative courts and/or disciplinary measures, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress to be obtained (see, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I).
The Court observes that an administrative investigation was conducted in this case. However, there is nothing in the file about the outcome of this investigation and it is not possible to determine whether a criminal investigation was initiated or not.
The Court’s case-law does not exclude the provision of a criminal-law remedy in the context of medical negligence. However, the Court considers that, in principle, in the Turkish system the appropriate remedy to be used by applicants complaining of medical negligence is a civil and/or administrative action (see, Karakoca v. Turkey (dec.), no. 46156/11, ECHR 21 May 2013).
Turning to the circumstances of the present case, the Court observes that the applicant has not made use of the possibility of bringing compensation proceedings, a remedy that the Turkish legal system affords and that could have led both to the establishment of the health care professionals’ liability and to the payment of damages. In this connection, the Court notes that there is nothing in the case file to allow it to conclude that an action for damages would have no reasonable prospects of success and was bound to fail.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of a failure to exhaust domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Atilla NalbantPeer Lorenzen
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy