SECOND SECTION
DECISION
Application no. 33612/08
Fatih YÜKATANOĞLU
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 4 July 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Fatih Yükatanoğlu, is a Turkish national, who was born in 1972 and lives in İzmir. He was represented before the Court by Mr G. Dönmez.
The applicant’s father was under treatment at the Atatürk Education and Research Hospital since 9 June 2007.
On 17 June 2007 he died of cardiac arrest.
On 22 October 2007 the Governorship of Konak District decided not to grant permission sought for the prosecution of the health care professionals involved based on the investigation file. It was held that no negligence could be attributed to them and that there was no sufficient evidence requiring the grant of permission for prosecution.
On 12 December 2007 the applicant’s objection filed against this decision was dismissed by the İzmir Regional Administrative Court.
COMPLAINTS
The applicant complained under Articles 2 and 6 of the Convention about the death of his father and administrative investigation carried out into the circumstances. He particularly pointed out that the expert opinion, on the basis of which the decision not to grant permission for prosecution had been given, had been issued by the colleagues of the doctor concerned.
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 alone.
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 alleged damage would have no reasonable prospects of success and was bound to fail. The deficiencies of the expert opinion do not alter the conclusion reached by the Court.
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