SECOND SECTION

DECISION

Application no . 46156/11 İclal KARAKOCA and H ü seyin KARAKOCA against Turkey

The European Court of Human Rights (Second Section), sitting on 21 May 2013 as a Chamber composed of:

Guido Raimondi , President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović , Işıl Karakaş , Nebojša Vučinić , Paulo Pinto de Albuquerque , judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 28 June 2011,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms İclal Karakoca (“the a pplicant”) and her husband Mr Hü seyin Karakoca (“the second applicant”), are Turkish nationals who were born in 1966 and 1971 respectively and live in Diyarbak ı r. They were represented before the Court by Mr E. Bulut, a lawyer practising in Diyarbakır.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 31 October 2006 the applicant underwent some medical examinations in the Özel Dünya Hospital. After consulting the doctor on 4 November 2006, the applicant consented to the treatment proposed, namely the resection of uterine fibroids.

On 5 November 2006 the doctor operated on the applicant but carried out a hysterectomy (the surgical removal of the uterus). On 7 November 2006 the applicant was discharged from the hospital.

On 9 November 2006 she went to the hospital complaining of aches and swellings. The doctor gave her an injection against stomach gas and let her return home.

On 11 November 2006 the applicant was hospitalised and transferred to the Dicle University Medical Faculty Hospital on suspicion of cirrhosis. Since the examinations carried out therein revealed that she had been suffering from a bladder rupture, she was immediately operated on.

Subsequently, she had to have another surgical operation for both bladder and vaginal ruptures at the Dokuz Eylül University Medical Faculty Hospital.

The applicants lodged a criminal complaint against the doctor who had done the first operation at the Özel Dünya Hospital.

On 21 January 2009 the public prosecutor of Diyarbakır issued a decision of non-prosecution based on the report of the Istanbul Forensic Medicine Institute, according to which the complications had stemmed from the applicant ’ s disease and the doctor could not be held responsible for medical negligence.

On 2 November 2010 the Siverek Assize Court, relying on the opinion of the Higher Health Council, dismissed the objection filed against this decision. In its decision, the Assize Court stated, presumably by mistake, that the nose surgery in question had been carried out in accordance with the medical standards. On 29 December 2010 the final decision was served on the applicants.

COMPLAINTS

The applicants relied on Articles 2, 6 and 13 of the Convention.

The applicants alleged that as a result of the medical malpractice and negligence of the doctor both in the surgical operation and thereafter they had incurred irreparable damage and had borne excessive hardship. The applicants also complained that their consent had been limited to the resection of uterine fibroids and that the doctor had breached his duty of disclosure about possible treatments, particularly the hysterectomy.

The applicants called into question the composition of the board of specialists that had drawn up the expert report, its findings and reasoning. In connection with this, the applicants claimed that the investigation carried out had been ineffective and inadequate and that crucial questions had not been dealt with. They further pointed to the reference made in the decision of the Siverek Assize Court as an indication that their arguments had not been properly examined. In particular, they submitted that the Ministry of Health had failed to exercise control over health services and to fulfil its regulatory functions. They argued that the applicant ’ s doctor had already performed seven surgical operations on the same day.

The applicants asserted that since the authorities had not taken any step to establish the liability of the doctor, civil remedies had no reasonable prospects of success.

THE LAW

The Court, being master of the characterisation to be given in law to the facts of the case, considers that the applicants ’ complaints fall to be examined under Article 8 of the Convention alone. The complaints made under Articles 6 and 13 are absorbed by those to be examined under that article.

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 of the Convention. In this connection, the Court points out that the principles established by the 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).

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 made (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 ).

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.

Turning to the circumstances of the present case, the Court observes that the applicants have 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 doctor ’ s liability and to the payment of damages. In this connection, the Court notes that contrary to the applicants ’ allegations, 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.

Stanley Naismith Guido Raimondi Registrar President