Communicated on 3 October 2016

SECOND SECTION

Application no. 27743/07 Hakkı YILDIZ and Hamiyet YILDIZ against Turkey lodged on 22 June 2007

SUBJECT MATTER OF THE CASE

The application concerns the nerve damage suffered by the applicants ’ son following an injection he received at a State hospital, which left him paralysed on the left leg [1] . The applicants lodged a criminal complaint against the medical practitioners whom they held responsible for causing the injury through their negligence. They also brought an action for compensation before an administrative court against the Ministry of Health. The expert reports submitted by the Forensic Medicine Institute to the criminal and administrative case files found that the injury sustained by the applicants ’ son was a “complication” that could be experienced following injections. Accordingly, the criminal investigation was terminated with a decision not to prosecute, and the applicants ’ claim for compensation was dismissed by the administrative court.

The main legal issue in the instant case is whether the applicants had available to them an effective judicial system that enabled them to establish any liability on the part of the medical practitioner or establishment concerned for the injury sustained by their son and to obtain appropriate civil redress, as required under Article 8.

QUESTIONS tO THE PARTIES

1. In the light of all the circumstances of the case, was the applicants ’ son a victim of a violation of Article 8 of the Convention on account of the alleged infringement of his right to physical integrity?

2. Did the respondent State comply with its positive obligations under Article 8 of the Convention by providing the applicants with an effective remedy to establish any liability for the physical injury allegedly sustained by their son following the injection he received at the Baltaliman ı Metin Sabanc ı Bone Diseases Education and Research Hospital and to obtain appropriate redress (see, amongst other authorities, Trocellier v. France ( dec. ), no. 75725/01, § 4, ECHR 2006 ‑ XIV, and S.B. v. Romania , no. 24453/04, §§ 65-66, 23 September 2014 )? In particular:

i . Did the applicants have the possibility of obtaining an effective medical expert examination concerning the causes of the injury sustained by their son (see, for instance, Eugenia Lazăr v. Romania , no. 32146/05, §§ 83 ‑ 85, 16 February 2010, and AltuÄŸ and Others v. Turkey , no. 32086/07, §§ 78-82, 30 June 2015 )?

ii. Did the applicants object to the medical expert reports delivered by the Forensic Medicine Institute?

The Government are requested to provide information as to the procedure for lodging an objection against a medical expert report, in the context of both criminal and administrative proceedings .

iii. Did the expert reports delivered by the Forensic Medicine Institute subject all relevant medical issues to careful scientific scrutiny and sufficiently detail the reasons for the conclusions reached ( see, for instance, Vasileva v. Bulgaria, no. 23796/10, § 66, 17 March 2016 )? In particular:

- Did the reports in question establish the cause for the sciatic nerve damage experienced by the applicants ’ son and discuss the possible reasons that could trigger such “complication”?

- Did the reports explore whether the nerve damage was caused by maladministration of the injection, having particular regard to the site of the injection and the angle with which the needle was introduced?

- On what factual basis did the expert reports conclude that the suspect nurse S. Ü . bore no fault for the injury sustained by the applicants ’ son? Did the Forensic Medicine Institute examine whether S. Ü . had received the necessary training for the prevention of sciatic injection neuropathy?

iv. Was the relevant medical evidence properly scrutinized by the domestic judicial authorities and courts (see, for instance, Vasileva , cited above)? Was it open to the relevant judicial authorities to seek additional expert report, ex officio , if they considered the reports submitted by the Forensic Medicine Institute to be inadequate to establish the circumstances of the applicants ’ son ’ s injury?

v. Were the criminal and administrative proceedings initiated by the applicants conducted with reasonable expedition (see, for instance, Byrzykowski v. Poland , no. 11562/05, § 117, 27 June 2006; Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009; and Oyal v. Turkey , no. 4864/05 , §§ 74-76, 23 March 2010 )?

The Government are requested to provide the Court with a copy of the case files pertaining to the criminal and administrative proceedings initiated by the applicants in relation to their son ’ s injury, including all medical expert reports and all statements taken from the victim and the suspects.

[1] . S ee Alkan v. Turkey (43185/11) for a similar case communicated on 26 November 2013 (document #4536360 ) .