SECOND SECTION

DECISION

Application no . 44042/11 Serap ÇELİK 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 31 May 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Serap Çelik, is a Turkish national, who was born in 1976 and lives in İstanbul. She was represented before the Court by Mr M.E. Günay, a lawyer practising in Istanbul.

On 20 December 2008 while the applicant was being intubated for childbirth by caesarean section at the former Bakırköy Obstetrics and Paediatrics Education and Research Hospital, her oesophagus was perforated.

After the delivery, she could not breathe, eat, drink or talk and had to go through a number of surgical operations, an intensive and complicated treatment.

On 19 June 2009 the applicant lodged a criminal complaint against the anaesthetist for breach of duty, medical malpractice and causing injury by negligence. She also complained that her demand for a vaginal birth by spinal anaesthesia, specifically, the administration of epidural had been rejected and that she had not given an informed consent to caesarean delivery.

The Governorship of Istanbul did not grant permission sought for the prosecution of the anaesthetist concerned based on a report taken by another anaesthetist. According to the report, difficult intubation occurs with an incidence of 1.5-2.5 %; 10 % of these cases could be diagnosed prior to anaesthesia and the physiological changes associated with pregnancy might increase this rate. It was held that, albeit rarely, in cases of difficult intubation, the rupture of oesophagus might happen.

On 16 December 2010 the Supreme Administrative Court upheld the decision not to grant permission for prosecution of the doctor concerned.

COMPLAINTS

The applicant complained under Articles 1, 3 and 6 of the Convention that her right to access to a court, her right to a fair trial and her right to an effective investigation as well as an effective remedy in respect of the alleged medical malpractice were violated.

THE LAW

The Court, being master of the characterisation to be given in law to the facts of the case, considers that the applicant ’ s complaints fall to be examined under Article 8 of the Convention.

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 and 54, 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 doctor ’ s 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