SECOND SECTION

DECISION

Application no . 55969/08 Güler BUĞDAY 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 17 November 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Güler Buğday , is a Turkish national who was born in 1947 and lives in Bursa. She was represented before the Court by Mr Ü. Emek Bursalı and Mr. F. Şengür , lawyers practising in Bursa.

On 10 March 2007 the applicant ’ s husband who had been diagnosed with intestinal obstruction was operated on at the Hospital of the Uludağ University ’ s Medical Faculty.

After the operation he started developing complications and was transferred to the reanimation unit. His relatives subsequently took him to the Bursa State Hospital as they considered that the patient had derived no benefit from the treatment administered at the University Hospital.

On 17 May 2007 the applicant ’ s husband died. On the same day, the applicant lodged a criminal complaint with the public prosecutor against two doctors, a research assistant and those in charge of the hospital management, for having caused her husband ’ s death. At the request of the public prose cutor an autopsy was conducted.

On 1 June 2007 the public prosecutor referred the case to the UludaÄŸ University to obtain permission for investigation.

On 10 January 2008 a panel of academics at the Uludağ University, acting on an expert report, declined to grant the permission sought by the prosecutor. It was pointed out in the expert report that the tumors removed from the patient ’ s intestine, liver and lungs had turned out to be cancerous and that such a systemic disease had increased the risk of complications including pneumonia. It was held that the treatment administered had been adequate and sufficient and that no negligence could be attributed to the health personnel concerned.

The applicant initiated administrative proceedings seeking the annulment of this decision.

On 5 March 2008 the Supreme Administrative Court upheld the administrative decision considering that there was insufficient evidence to support the allegations of medical malpractice and negligence. On 21 May 2008 the final decision was served on the applicant.

COMPLAINTS

The applicant complained under Articles 2, 6 and 13 of the Convention that her husband ’ s right to life had not been protected. She argued that the requirement of an administrative permission to initiate a criminal prosecution against the medical personnel, in itself, was incompatible with Article 2 of the Convention. She maintained that the doctors had not showed diligence in the treatment of her husband, that they had administered inadequate treatment and that after the operation they had provided contradictory information. She also alleged that the administrative investigation into the death of her husband and the proceedings before the Supreme Administrative Court had not been effective or fair. In particular, she submitted that the panel, which consisted of academic personnel, could not be deemed to be independent and impartial; that the panel had failed to collect all evidence and that she had not been able to participate effectively in those proceedings. The applicant further called into question the reasoning given by the Supreme Administrative Court.

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 2 of the Convention. It considers that the complaints submitted under Articles 6 and 13 are absorbed by those to be dealt with under the mentioned article.

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 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.

Atilla Nalbant Peer Lorenzen Acting Deputy Registrar President