SECOND SECTION

DECISION

Application no . 3143/12 Mübeyen POLAT 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 11 January 2012 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs. Mübeyen Polat , is a Turkish national, who was born in 1952 and lives in Elaz ığ . She was represented before the Court by Mr M. Özbayrak and Mr G. Özbayrak , lawyers practising in Ankara .

The facts of the case, as submitted by the applicant and appearing from the case file , may be summarised as follows.

On 12 September 2002 P ı nar Balo ğ lu, the applicant ’ s daughter, consulted a physician at the Ankara Bay ı nd ı r Hospital as she had been suffering from stomach pain.

On 13 September 2002 on suspicion of stomach cancer and/or gastro ‑ intestinal bleeding, she was admitted to the Ankara Bay ı nd ı r Hospital for an upper gastro-intestinal endoscopy and biopsy. She was diagnosed with "giant stomach ulcer (CA?)".

On 14 September 2002 further examinations, including a tomography, were carried out and the patient was discharged.

On 18 September 2002 she was diagnosed with gastritis. According to the witness statement of the physician concerned another endoscopy was recommended.

On 25 November 2002, on 25 December 2002 she was referred to the Ankara G ü ven Hospital with the diagnoses of ulcer of duodenum bulbus and pyloric stenosis. Anti-ulcer treatment was continued.

The biopsy results dated 26 December 2002 showed gastric activity (+) and HP (helicobacter pylori) (+).

On 21 April 2003 an endoscopic biopsy was performed, which pointed to chronic gastritis (+) ulcerative activity (+) HP (+).

On the same day, the applicant ’ s daughter consulted another specialist physician.

On 12 May 2003 the physician who examined her at the Ankara University, School of Medicine, Ä°bn-i Sina Hospital, made the diagnosis of stomach cancer on the same day and decided to operate on her. During the operation, it turned out that the cancer had been in an advanced stage and spread. On 15 May 2003 she was discharged.

Subsequently, she was admitted to hospital several times.

On 10 August 2004 the applicant ’ s daughter died of cardiopulmonary arrest associated with stomach cancer at the age of 29.

On 9 February 2005 the applicant lodged a criminal complaint with the public prosecutor of Ankara against five physicians who had been involved in her daughter ’ s medical examinations and treatment prior to the diagnosis of cancer as well as the presidents of the Kavakl ı dere Hospital and the Bay ı nd ı r Hospital.

The Forensic Medicine Institute concluded that the physicians involved in the patient ’ s treatment prior to the diagnosis of cancer had not been at fault. The expert witnesses observed that since the tomography dated 14 September 2002 could not be found, they could not form an opinion about whether the radiologist E.B. was negligent. They made microscopic analyses of the samples collected during three biopsy procedures, and detected no finding suggesting malignity. They, accordingly, held that the impugned biopsy reports had not been deficient.

On 27 January 2011 the public pr osecutor gave a decision of non ‑ prosecution.

On 14 October 2011, on objection filed by the applicant, the Sincan Assize Court upheld the decision of non-prosecution.

COMPLAINTS

T he applicant submitted t hat her daughter had died as a result of medical negligence of the physicians who had failed to diagnose her stomach cancer in a timely manner. She pointed out that when it had been diagnosed, the cancer had been in an advanced stage. The applicant complained that the loss of her daughter had gone unpunished; that the investigation carried out had been ineffective and inadequate and that it had lasted too long. In this connection, she complained of delays in the investigation and expert opinion issued by the Forensic Medicine Institute, which, according to the applicant, had been partial. In particular, she argued that the decision of non-prosecution had been given without proper examination.

THE LAW

The Court, first of all, notes that Article 6 § 1 of the Convention is not applicable to the proceedings in issue ( Beyazgül v. Turkey , no. 27849/03 , §§ 30-44, 22 September 2009 ).

The Court, being master of the characterisation to be given in law to the facts of the case, cons iders that all of the applicant ’ s complaints fall to be examined under Artic le 2 of the Convention . In this context, it reiterates that i n 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 Co urt 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 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 Registrar President