SECOND SECTION
DECISION
Application no. 4050/10
M.
against Turkey
The European Court of Human Rights (Second Section), sitting on 15 October 2013 as a Committee composed of:
Peer Lorenzen, President,
András Sajó,
Nebojša Vučinić, judges,
and Seçkin Erel, Acting Deputy Section Registrar,
Having regard to the above application lodged on 6 January 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, M., – to whom the President of the Section decided to grant anonymity (Rule 47 § 3 of the Rules of Court) – is a Turkish national, who was born in 1972.
The facts of the case, as submitted by the applicant and appearing from the case file, may be summarised as follows.
On 27 August 2008 the applicant went to the Cardiovascular Department of the Kayseri Education and Research Hospital in respect of the varicose veins in his legs. He was examined and hospitalised for an operation.
The applicant signed an empty form, the heading of which is “Informing the patient and obtaining consent to medical interventions”.
Prior to the operation, the doctor asked the applicant if he had another disease.
The applicant declared that he was HIV positive, a carrier of the disease.
The doctor allegedly stated aloud in reply that since he was HIV positive, he could not examine him. A friend of the applicant, who was there at the material time and had not been aware of the applicant’s condition until then, heard the doctor.
The doctor further wrote on the cover of the applicant’s patient file “HIV positive”.
On the same day the applicant was discharged from the hospital.
The discharge summary reads as follows:
“Diagnosis: Bilateral varicose in lower extremities
Treatment: Medical
State of Discharge (if assigned, the reason and the institution): As the patient declared that he was HIV (+) (said to be under control and treatment) the operation given up; discharged with recommendations.
(signature and seal of the doctor).”
On the hospitalisation form, it was noted down: “cancelled”.
Subsequently, the applicant lodged a criminal complaint against the doctor for breach and abuse of duty as well as the disclosure of personal data.
On 18 February 2009 the Governorship of Kayseri decided not to grant permission sought for the prosecution of the doctor, based on the preliminary investigation. It was held that the allegations had not been substantiated.
The applicant filed an objection against this administrative decision.
On 1 April 2009 the Kayseri Regional Administrative Court rejected the applicant’s objection.
On 14 April 2009 the public prosecutor gave a decision of non‑prosecution, which was upheld by the Boğazlıyan Assize Court on 12 June 2009. This decision was served on the applicant on 3 July 2009.
In his letter dated May 2010 the applicant informed the Court that he had not been operated on yet.
COMPLAINTS
The applicant complains that he has been denied medical care and thus discriminated against on the ground that he is HIV positive. He submits that he is still suffering from his varicose veins. He further complains that the principles of respect for privacy and the confidentiality of personal data were breached. The applicant argues that he did not avail himself of any civil remedy as there were no reasonable prospects of success in practice.
The applicant relies on Articles 8 and 13 of the Convention, Articles 6 and 21 of the Regulation on patient’s rights on the right to health care and the respect for privacy and Articles 86, 122, 135-137 and 257 of the Criminal Code regarding the offences of injury, discriminatory behaviour, misconduct in public office and the protection of personal data.
THE LAW
With regard to the allegation that the applicant was denied medical treatment on the grounds that he is HIV positive, the Court reiterates 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. In this connection, the Court also points out that the principles established by its case-law under Article 2 are also applicable to serious interferences with the right to physical integrity falling within the scope of Article 8 of the Convention (see Trocellier v. France (dec.), no. 75725/01, ECHR 2006‑XIV).
Accordingly, 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 8 of the Convention.
The Court further reiterates that in the specific sphere of health care, 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 and 54, ECHR 2002‑I and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII).
Turning to the circumstances of the present case, the Court observes that whether they amounted to denial of health care services (see Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, § 88, ECHR 2013), as alleged by the applicant, remains unsubstantiated.
The Court then notes that with regard to the applicant’s visit at the Kayseri Education and Research Hospital, his attempt to initiate criminal proceedings failed since the administrative permission sought for the criminal prosecution had not been granted. This suggests that the applicant should have become aware as a result that no criminal law remedy was available to him anymore.
The Court points out that thereafter 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 to the establishment of the physician’s liability and the payment of damages. Contrary to the applicant’s allegations, there is nothing in the case file to allow the Court to conclude that an action for damages would have no reasonable prospects of success and was bound to fail (see, Karakoca v. Turkey (dec.), no. 46156/11, ECHR 21 May 2013).
With regard to the alleged disclosure of personal medical information, the Court observes that the applicant did not make use of any domestic remedy available to him either.
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.
Seçkin Erel Peer Lorenzen
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy