SECOND SECTION

DECISION

Application no . 22198/10 Yasin TAÅžDEMÄ°R 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 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yasin TaÅŸdemir, is a Turkish national, who was born in 1977 and lives in Istanbul.

On 21 May 2008 the applicant ’ s son was admitted to the emergency service of the Istanbul University Faculty of Medicine at around 2 p.m. for loss of consciousness.

Subsequently, the child was placed in the intensive care unit.

On 22 May 2008 the physicians from the department of neurosurgery examined the child.

Following the MRI scan done at 11 p.m. the applicant was told that there was nothing to do for his son.

On 3 June 2006 the administration of the Istanbul University decided not to grant permission sought for the prosecution of the healthcare professionals concerned on the grounds that no negligence can be attributed to them in the treatment of the child at the emergency service. As far as understood from the witness statement of a physician involved, the applicant ’ s son had a rare disease.

On 29 September 2009 the applicant ’ s objection filed against this decision was dismissed by the Supreme Administrative Court.

The applicant ’ s son has been diagnosed with grave mental retardation, epilepsy and physical disability. His disability was calculated as 100 %.

COMPLAINTS

The applicant relied on Articles 2, 3 and 13 of the Convention in respect of his son and himself. He basically alleged that the healthcare professionals had not showed diligence in carrying out the examinations and delayed in dealing with his son ’ s condition. He also called into question the investigation conducted by the Istanbul University.

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