SECOND SECTION
DECISION
Application no. 49937/11
Ahmet KOCABAŞ
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 17 May 2011,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ahmet Kocabaş, is a Turkish national, who was born in 1963 and lives in Balıkesir.
On 3 July 2009 while the applicant’s mother was being operated on for uterus cancer at the İzmir Atatürk Education and Research Hospital, her bleeding could not be stopped and she died of cardiac arrest.
On 29 July 2009 the applicant lodged a complaint, among others, with the public prosecutor of İzmir. He complained that his mother had died as a result of her doctor’s malpractice and negligence and that the doctor concerned, an employee of a state hospital, had demanded money to do the surgical operation.
On 23 November 2009 the permission sought for the prosecution was obtained.
On 8 December 2009 the İzmir Chamber of Doctors decided to initiate an investigation in respect of the physician who had done the surgical operation.
On 26 January 2010 the İzmir Regional Administrative Court repealed the administrative decision granting permission for prosecution, as a result of which the criminal proceedings were barred.
COMPLAINTS
The applicant relied on Articles 2, 8 and 6 of the Convention. He complained that his mother had died due to the medical malpractice and negligence and that he had not had the possibility to participate in or to be informed of the administrative investigation carried out. He alleged that the surgeon had requested and received money from them to do the operation, which was illegal. He further pointed out that they had been given contradictory information as to the condition of their mother and the cause of the death.
THE LAW
The Court, being master of the characterisation to be given in law to the facts of the case, considers that all of the applicant’s complaints fall to be examined under Article 2 of the Convention and that the allegations of violations of Articles 6 and 8 are to be dealt with thereunder.
The Court reiterates that 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’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.
As regards the allegation that the doctor had solicited money in return for his service, the Court observes that this allegation had been raised before the domestic authorities and that it was found unsubstantiated. It further observes that the applicant’s main complaint before the Court consists in that his mother died as a result of the medical malpractice and negligence of the doctor. In light of the foregoing and regard being had to the fact that the applicant’s mother had been operated on eventually, the Court considers that this allegation does not have a bearing on the merits of the case.
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 Nalbant Peer Lorenzen
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy