SECOND SECTION

DECISION

Application no . 16571/08 Rahime AKAT 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 25 March 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Rahime Akat , is a Turkish national, who was born in 1970 and lives in Ä°stanbul.

On 27 October 2002 she gave birth to h er son, G.A. He was kept under intensive care following the delivery. The baby had traces of slots on his ears and traces of surgical intervention on the head. His head was swollen. He got physically and mentally disabled.

The applicant lodged a criminal complaint with the Kartal Public Prosecutor.

On 3 April 2006 the Governorship of Istanbul decided not to grant permission sought for prosecution relying on the preliminary investigation report. According to the expert opinion, the health care professionals did not fail to intervene and subarachnoid haemorrhage , a complication, developed as a result of the use of vacuum extraction in delivery.

The applicant applied to the Istanbul Regional Administrative Court seeking the annulment of the governorship ’ s decision. She challenged the expert opinion, pointing out, among others, that vacuum extraction was for a vaginal delivery whereas she had had a caesarean section.

On 20 July 2006 the Istanbul Regional Administrative Court admitted the applicant ’ s objection and annulled the administrative decision.

The public prosecutor obtained fresh expert evidence. According to the expert opinion, “SAK” (subarachnoid haemorrhage ) is a complication associated with vacuum extraction used to facilitate the delivery. Foetal distress might have resulted either from the labour that had lasted too long or any other reason related to the pregnancy or the mother. No medical distinction between them could be made. There is a causal link between the mental retardation and these medical complications. The healthcare professionals could not be held responsible for the outcome. Other allegations concerning the medical intervention made during the childbirth were found either unsubstantiated or irrelevant.

On 14 May 2007 the public prosecutor gave a decision of non-prosecution based on the expert evidence.

On 10 October 2007 the Kadıköy Assize Court dismissed the applicant ’ s objection against this decision.

COMPLAINTS

The applicant complained that the right to life and right to a fair trial had been violated in her case. She submitted that she had been forced to a vaginal birth without any in-depth examination of her condition and only after the baby had been in the birth channel, the doctor had decided to progress with a caesarean section. She alleged that the health care professionals ’ negligence both before and during the childbirth had caused h er son to be severely handicapped for life. She also complained that the investigation into the circumstances had been partial and ineffective. She further argued that due to the decision of non-prosecution, she could not issue compensation proceedings against the doctors and midwife concerned. According to the applicant, civil proceedings are bound to fail and the purpose is not only to get compensation but also to establish the responsibility of the health care professionals concerned who continue to practice.

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 8 of the Convention alone.

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 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 as far as understood from the case file 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.

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 Registrar President