SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53672/00 by Ayhan ÇAKMAK and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 23 September 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr R. Türmen , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen, judges , and Mr T .L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 2 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ayhan Çakmak and Süreyya Çakmak, are Turkish nationals, born in 1952 and 1959 respectively and living in Izmir. They are represented before the Court by Orhan Kemal Cengiz, a lawyer practising in Izmir.

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

In 1987 the applicants’ daughter, C.Ç, was severely injured in an accident. Her hair was burned and part of her scalp was damaged.

On 24 November 1992 C.Ç underwent surgery at the Ege University Plastic Surgery Department (Ege Üniversitesi Plastik Cerrahi Departmanı) . Prior to the operation, the doctors informed the applicants about the risks involved. Following the operation, the applicants’ daughter caught an infection.

On 13 January 1992 the doctors carried out a second operation on C.Ç following a deterioration of her health. However, her medical situation did not improve.

On 24 November 1993 the applicants brought an action before the Izmir Court of First Instance against the doctors who carried out the operation and claimed compensation for pecuniary and non-pecuniary loss sustained as a result of medical malpractice.

On 28 December 1993 the Izmir Court of First Instance issued a decision of non-jurisdiction (görevsizlik kararı) on the ground that it was not competent to examine the acts of civil servants carried out in the exercise of their duties.

On 16 February 1994 the applicants brought an action before the Izmir Administrative Court against the Ege University Medical Department and claimed compensation for medical malpractice.

On 6 April 1994 the representative of the Ege University submitted a reply to the applicants’ complaints.

On 8 July 1994 the applicants submitted their response to the reply of the Ege University.

On 27 January 1995 the Izmir Administrative Court gave an interim decision ordering that all the files concerning the operation on the applicants’ daughter be submitted by the defendant.

On 20 March 1995 the doctors of the Ege University Plastic Surgery Department submitted their observations on the applicants’ claims.

On 7 April 1995 the Rector of the Ege University submitted 37 documents concerning the operation carried out on the applicants’ daughter.

On 7 November 1995 the Izmir Administrative Court gave the case-file to experts which it had appointed to study the file and requested that they submit their report within 30 days.

On 23 November 1995 the experts submitted their report.

On 18 March 1996 the Izmir Administrative Court, relying on the conclusion contained in the experts’ report, held that there was no indication of any breach or omission on the part of the Medical Department in the treatment given to C.Ç, and dismissed the applicants’ claim.

On 5 September 1996 the applicants lodged an appeal with the Supreme Administrative Court (Danıştay) . The applicants alleged that the Izmir Administrative Court rejected their claim for compensation on the basis of the report drawn up by three experts who were working in the same department as the doctors who had performed the operation. In their appeal, the applicants requested the Supreme Administrative Court to examine the merits of the case at a hearing.

On 28 October 1998 the Supreme Administrative Court, without holding a hearing, rejected the applicants’ appeal.

On 3 February 1999 the applicants were notified of the Supreme Administrative Court’s decision.

THE LAW

The applicants’ complaint relates to the length of the proceedings, which began on 16 February 1994 and ended on 28 October 1998 with the Supreme Administrative Court’s decision to refuse the applicants’ appeal. They therefore lasted 4 years and 8 months.

According to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government contest that argument.

As to the complexity of the case, the Government submit that the case was complicated as it raised a number of medical issues which needed to be clarified by medical experts in order to asses whether there was negligence on the part of the doctors.

As to the conduct of the domestic authorities, the Government submit that there was no delay either on the part of the administration or of the judicial authorities.

As to the applicants’ behaviour, the Government did not submit any observations on whether the applicants were in any way responsible for the prolongation of the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa              Deputy Registrar President