SECOND SECTION
DECISION
Application no. 7969/12
Erdoğan OKOL
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 16 December 2011,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Erdoğan Okol, is a Turkish national, who was born in 1978 and lives in Bartın.
The facts of the case, as submitted by the applicant and appearing from the case file, may be summarised as follows.
On 20 December 2008 the applicant’s son, born on 9 April 2008, was admitted to the Bartın Obstetrics and Paediatric Hospital as he had diarrhea and vomiting. The applicant and his wife were recommended to give him syrup, not water.
On 21 December 2008 they went to the hospital once again as their son had fever and diarrhea. This time, they were told that the results of examinations were normal and that those were the symptoms of cold. The physician prescribed some drugs.
On 22 December 2008 the applicant’s son died at home.
The applicant lodged a complaint with the public prosecutor of Bartın.
On 24 November 2010 the Forensic Medicine Institute issued its opinion. The conclusion of it reads as follows:
“There is a failure in that although the findings concerning the dehydration of a child diagnosed with acute gastroenteritis should have been recorded, they were not. However, it cannot be determined whether the aspiration of food that caused the death had occurred as a result of his disease or for any other reason. Therefore, it is unanimously held that there is no medical evidence suggesting that the medical treatment administered by the physicians concerned was a factor in the death”.
On 20 May 2011 the public prosecutor gave a decision of non‑prosecution.
On 1 August 2011 the Karabük Assize Court dismissed the applicant’s objection.
COMPLAINTS
The applicant complained under Articles 2 and 6 of the Convention that the cause of death and those who were responsible had not been ascertained. He argued that the expert evidence obtained in the investigation had been deficient and that the investigation as a whole had been inadequate and ineffective. He further alleged a violation of Article 13 submitting that the decision of the Assize Court had prevented the use of domestic remedies.
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 in its substantive and procedural aspects. It also considers that the applicant’s complaints submitted under Articles 6 and 13 are absorbed by those to be dealt with under the mentioned article.
In this context, 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, 21 May 2013).
Turning to the circumstances of the present case, the Court notes, based on the case file, 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 an award of damages. In this connection, the Court observes 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.
Seçkin Erel Peer Lorenzen
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy