SECOND SECTION

DECISION

Application no . 76939/11 Mustafa Murat ÅžAHÄ°N 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 4 November 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mustafa Murat Åžahin, is a Turkish national, who was born in 1979 and lives in Ankara. He was represented before the Court by Ms E. Onurluer AkÅŸin, a lawyer practicing in Ankara.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ’ s father, the patient, was admitted to the lung diseases department of the Ankara Atatürk Education and Research Hospital for his chronic lung disease.

On 24 January 2010 the patient was referred to radiology for an X-ray. A man employed by the cleaning company at the hospital escorted him to the room and the patient was kept waiting there despite the oxygen in his oxygen tank was running low. Due to the insufficient supply of oxygen, the patient fainted.

After five days, he died.

The applicant lodged a complaint against the medical staff concerned with the public prosecutor of Ankara for negligence.

On 14 December 2010 the Governorship decided not to grant permission for criminal prosecution. Based on the administrative investigation it was held that the medical staff had intervened in a timely manner; that the patient had been intubated following the respiratory arrest; that a cardiac arrest had developed after the intubation and that the patient had been referred to another equipped hospital by an ambulance since there had not been any available place in the intensive care unit.

As a result, the public prosecutor decided to discontinue the investigation in so far as the medical staff were concerned. With regard to the cleaning man, he gave a decision not to prosecute. This decision dated 30 December 2010 was upheld by the Assize Court of Sincan on 25 May 2011. The decision of the latter was served on the applicant on 14 July 2011.

The applicant initiated proceedings before the Ankara Administrative Court seeking the annulment of the administrative decision of the Governorship not to grant permission for criminal prosecution. His case was rejected and the Regional Administrative Court upheld this decision on 14 April 2011 on the basis of the administrative investigation carried out by the Governorship. The applicant was notified of this decision on 9 May 2011.

The applicant, together with other family members, made an administrative request for compensation. On 1 March 2011 the Ministry of Health rejected the request referring to the decision of the Governorship of Ankara dated 14 December 2010. According to the file, the applicant did not initiate proceedings in the administrative court following the refusal of the Ministry.

COMPLAINTS

The applicant complained that the person who had filled and placed the medical oxygen tank was not from the health-care personnel, that he had not been supervised by a doctor or nurse. He submitted that his father ’ s grievance and warning about his oxygen tank had not been taken into account and he had nevertheless been kept waiting. He alleged under Article 6 that his right of access to a court and right to an effective remedy had been violated in that the Governorship had not granted permission for criminal proceedings; that he had not been able to participate effectively in the administrative investigation and that the circumstances surrounding his father ’ s death had not been examined properly. He further argued that the requirement for a permission from the administration to sue a civil servant was in contravention of rule of law and separation of powers and that no permission would have been needed if medical staff concerned had been working in private hospitals.

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 alone.

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