SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights ( Second Section) , sitting on 13 November 2001 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 introduced on 2 August 1999 and registered on 4 January 2000,

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 İzmir. They are represented before the Court by Mr Cengiz, a lawyer practising in İzmir.

A. The circumstances of the case

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

In 1987 the applicants’ daughter, C.Ç, was severely injured in an accident. Her hair was burned and a 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 of the operation. However, after the operation, the applicants’ daughter caught an infection.

On 13 January 1992 the doctors performed 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 performed the surgery and claimed compensation for pecuniary and non-pecuniary loss sustained as a result of wrong treatment.

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 wrong treatment.

On 27 January 1995 the Izmir Administrative Court held a hearing and heard the applicants’ representative.

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

In August 1996 the applicants lodged an appeal with the Supreme Administrative Court (Danıştay) . The applicants alleged that the Administrative Court had rejected their claim for compensation relying on the report drawn up by three experts who were working at 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.

COMPLAINTS

1. The applicants complain under Article 6 of the Convention that, despite their requests, the Supreme Administrative Court dismissed their appeal without holding a hearing and examining the merits of the case. The applicants allege that their right to a fair hearing within the meaning of Article 6 § 1 was thereby violated.

2. The applicants further complain under Article 6 § 1 of the Convention about the length of the proceedings.

THE LAW

1. The applicants complain under Article 6 of the Convention that, despite their requests, the Supreme Administrative Court dismissed their appeal without holding a hearing and examining the merits of the case. The applicants allege that their right to a fair hearing within the meaning of Article 6 § 1 was thereby violated.

The Court recalls that, according to its case-law, it is not for the Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( García Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I). In the present case there is no indication that the applicants, represented by their lawyer, could not duly put forward their arguments or that the proceedings were otherwise unfair. As to the applicants’ complaints about the Supreme Administrative Court’s failure to hold a hearing, the Court recalls that, provided that a public hearing has been held at first instance, leave to appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellants were not given an opportunity of being heard in person by the appeal court (see for instance the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36). In the present case a public hearing at which both parties were heard was held at first instance. There were no special features of the proceedings which would have required the Supreme Administrative Court to hear the applicants. The Supreme Administrative Court only had jurisdiction to deal with points of law and, as regards the applicants’ appeal, could easily deal with the matters raised on the basis of the case file and their written submissions.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants further complain under Article 6 § 1 of the Convention about the length of the proceedings.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 of para. 2 (b) of the Rules of Procedure, to give notice of them to the respondent government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning the length of the proceedings in question;

Declares inadmissible the remainder of the application.

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