SECOND SECTION

DECISION

Application no . 10077/12 Besir BUZBAY 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 26 December 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Beşir Buzbay, is a Turkish national, who was born in 1943 and lives in Mardin. He was represented before the Court by Ms M. Nergiz, a lawyer practising in Diyarbakır.

The facts of the case, as submitted by the applicant and appearing from the case file, may be summarised as follows.

On 28 December 2008, the applicant ’ s wife was admitted to the Urology Department of the Dicle University Education and Research Hospital.

On 31 December 2008 / 2 January 2009 the applicant ’ s wife, who had been diagnosed with kidney stone, was operated on at the Dicle University Hospital.

After the operation, she was taken to a room, which, according to the applicant, was not equipped. The applicant alleges that there was no available place in the intensive care unit and that his wife ’ s condition was not checked that night.

The following day in the morning doctors examined the patient who had not waked up after the anaesthesia. She was referred to the Neurology Department. The applicant was allegedly told that the condition of his wife was desperate and that it was bad luck.

She stayed in the hospital for three months in a state of paralysis and then she was discharged.

The applicant brought his wife to the Ege University Hospital where she received a treatment for a while.

After having been discharged, on 10 June 2011 she died at the age of 44.

The applicant lodged a criminal complaint against the medical staff concerned with the public prosecutor of Diyarbakır. He referred the file to the President of the Dicle University for lack of jurisdiction.

The Dicle University appointed an investigation commission composed of two doctors and sought expert evidence from the Çukurova University, Faculty of Medicine. The latter submitted that ther e was a risk of cerebrovascular thromboembolism after all surgical operations and general anaesthesia and that there was no finding suggesting medical malpractice or negligence on the part of the doctors and the nurse concerned either during or after the surgery. The investigation commission concluded that thromboembolism was a common complication associated with surgery.

With its decision dated 23 March 2011, the Dicle University Investigation Board decided not to grant permission for criminal prosecution on the basis of the administrative investigation carried out in respect of the applicant ’ s complaints.

The applicant filed an objection against this administrative decision.

On 29 September 2011 the Supreme Administrative Court upheld the impugned administrative decision.

The final decision was served on the applicant on 24 October 2011.

COMPLAINTS

The applicant complained under Article 2 of the Convention that his wife had died due to the malpractice and negligence of the medical personnel and that the criminal proceedings had been barred by an administrative decision. He alleged that the domestic authorities had failed to provide a plausible explanation for her death and had contented with giving information about general risk factors and complications. According to the applicant, the administration protected its medical staff who had caused death by negligence. In this connection, he relied on Articles 6 and 13 of the Convention as well.

Relying on Articles 6 and 13, the applicant argued that the non-judiciary investigatory authorities had not been impartial or independent. He further contended that the expert evidence obtained during the investigation had not been sufficient and reliable. He also complained that a number of questions, crucial for the determination of his case, had not been dealt with during the investigation. The applicant maintained that he had not had an effective remedy in domestic law since the domestic authorities had given a decision not to prosecute.

THE LAW

The Court, first of all, observes that Article 6 § 1 of the Convention is not applicable to the proceedings in issue (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). Therefore, this complaint should be declared inadmissible ratione materiae in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court, being master of the characterisation to be given in law to the facts of the case, considers that the remainder 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 this part of 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