Information Note on the Court’s case-law No. 162
April 2013
Mehmet Şenturk and Bekir Şenturk v. Turkey - 13423/09
Judgment 9.4.2013 [Section II]
Article 2
Positive obligations
Refusal to carry out urgent operation on pregnant woman owing to her inability to pay medical fees: violation
Facts – The first applicant’s wife and second applicant’s mother, who was thirty-four weeks pregnant, went to a university hospital together with her husband, complaining of persistent pain. She was examined by an emergency doctor before being treated by a team of doctors from the gynaecology and obstetrics department, who found, after performing an ultrasound scan, that the child she was carrying was dead and that she required immediate surgery. She was then allegedly told that a fee would be charged for her hospital admission and the operation and that a deposit equivalent to approximately EUR 1,000 had to be paid. Since the first applicant stated that he did not have the money required, his wife could not be admitted to the hospital. The emergency doctor accordingly arranged for her to be transferred to another hospital in a vehicle without any medical personnel. She died on the journey.
An investigation was opened by a commission of inquiry reporting to the Ministry of Health, which established the liability of the hospital doctors for the patient’s death. It criticised the decision to transfer the patient without treating her and the importance that had been attached to payment of her medical fees. No criminal proceedings were instituted against the duty doctor because prosecution of the alleged offence had become time-barred. Other doctors were found guilty at first instance but never faced any criminal penalties because the Court of Cassation terminated the proceedings in October 2010, also on account of the statute of limitations.
Law – Article 2
(a) Substantive aspect – The Court reiterated that the State’s positive obligations under Article 2 of the Convention required it to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives.
Although it was not the Court’s task to rule in abstracto on the State’s public-health policy concerning access to treatment at the time of the events complained of in the present case, it was sufficient for it to note, having regard to the findings of the national authorities, that the provision of treatment at the hospital in question had been contingent on advance payment. This requirement had served as a deterrent for the patient, causing her to decline treatment at the hospital. Such a decision could not possibly be regarded as informed, or as exempting the national authorities from liability as regards the treatment which the deceased should have been given. It was not disputed that the patient had arrived at the hospital in a serious condition and that she required emergency surgery, failing which there were likely to be extremely grave consequences. The medical staff had been fully aware that transferring the patient to another hospital would put her life at risk. Furthermore, the panel that had refused to authorise prosecution of the personnel concerned had not been provided with any material indicating how to proceed in medical emergencies where the requisite fees had not been paid. The domestic law in this regard did not appear to have been capable of preventing the failure to give the deceased the medical treatment she required on account of her condition. Accordingly, as a result of blatant failings on the hospital authorities’ part, the deceased had been denied access to appropriate emergency treatment. That finding was sufficient for the Court to hold that the State had failed to comply with its obligation to protect her physical integrity.
Conclusion: violation (unanimously).
(b) Procedural aspect – The State’s positive obligations also included the requirement to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable. However, the Court observed that the individuals suspected of being responsible for the first applicant’s wife’s death had not been convicted with final effect, on account of the statute of limitations. In addition, the length of the proceedings in the case had not satisfied the requirement of a prompt examination. There had also been a notable omission from the outset of the criminal proceedings in that no steps had been taken to prosecute the duty doctor. Accordingly, the State had failed to carry out an effective criminal investigation in the present case.
Conclusion: violation (unanimously).
(c) Alleged right to life of the foetus – The applicants alleged that no investigation had been carried out to determine the time of the foetus’s death. The Court repeated the approach it had adopted in previous cases by noting that in the absence of a European consensus on the point at which life began, it was left to the State to determine this issue. Since the life of the foetus in the present case had been intimately connected with that of the deceased, no separate examination of this complaint was necessary.
Article 41: EUR 65,000 jointly in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also: Vo v. France [GC], no. 53924/00, 8 July 2004, Information Note no. 66; A, B and C v. Ireland [GC], no. 25579/05, 16 December 2010, Information Note no. 136; Tysiąc v. Poland, no. 5410/03, 20 March 2007, Information Note no. 95)
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This summary by the Registry does not bind the Court.
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