Communicated on 16 June 2016

SECOND SECTION

Application no. 10491/12 Ä°brahim KESKÄ°N against Turkey lodged on 16 January 2012

STATEMENT OF FACTS

1. The applicant, Mr Ä°brahim Keskin , is a Turkish national who was born in 1972 and lives in Sivas.

The circumstances of the case

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

3. Dr F.G. was responsible for the care of the applicant ’ s wife, Arife Keskin , during her pregnancy. It appears that she was examined on a fairly regular basis and that her pregnancy developed normally.

4. At an examination performed on 12 January 2001, around the forty ‑ first week of her pregnancy, Dr F.G. found Arife Keskin to be physically able for vaginal delivery and noted that the baby was of normal size. Moreover, the non ‑ stress test performed on the baby showed that she was not under stress.

5. On 17 January 2001 Arife Keskin was examined once again by Dr F.G., who recommended that she go to the hospital the next day for her delivery as her pregnancy was post-term.

6. On 18 January 2001 Arife Keskin was admitted to the Social Security Institution ( Sosyal Sigortalar Kurumu – “the SSK”) Hospital in Sivas for delivery. It appears that the applicant was first given medication at the accident and emergency unit to induce labour. Later that day baby M.K. was delivered by natural birth by a midwife, K.A., following what the applicant ’ s wife described as a difficult labour. The birthweight of baby M.K. was 4,000 grams.

7. Shortly after the birth, some family members noted a problem with the baby ’ s right arm, which appeared numb. It is not clear from the information in the case file whether a medical opinion was sought regarding the baby ’ s arm at that point.

8. On 19 January 2001 the applicant ’ s wife and baby were discharged from hospital.

9. When the symptoms in the baby ’ s arm persisted, she was taken to a number of paediatricians and orthopaedists for examination, who suggested that she might have sustained an injury during the delivery process. On 19 February 2001 an electromyogram (“EMG”) [1] was performed on baby M.K. ’ s right arm, which showed that she was suffering from an injury of the brachial plexus [2] .

10. On an unspecified date, a biopsy was performed on the baby ’ s right arm at Ankara SSK Children Hospital, which revealed a traumatic neuroma [3] .

11. On 2 April 2001 an operation was performed on the baby ’ s right arm at Ç ankaya Private Hospital. It appears that over the next few years, she underwent three more operations.

12. By a report delivered by the Cumhuriyet University Hospital ( Cumhuriyet Üniversitesi Sağlık Hizmetleri Uygulama ve Araştırma Hastanesi Engelli Sağlık Kurulu ) on 12 September 2014, M.K. was declared 60 % disabled on account of the brachial plexus injury on her right arm.

1. Criminal proceedings

13. On 18 June 2001 the applicant brought a criminal complaint against K.A. (the midwife who delivered the baby) for failure to show the requisite care and diligence during the birth of his daughter. He alleged in particular that the nerve damage on his baby ’ s arm had been caused on account of K.A. handling the baby by the arm, rather than the head, during the delivery process.

14. On 10 September 2001 the Sivas public prosecutor interrogated Dr A.Ö., who was the duty gynaecologist at the SSK at the time of the delivery of baby M.K. The doctor stated that he had no knowledge of the incident as he had not been called by the midwives to attend the delivery.

15. On 17 September 2001 the Sivas public prosecutor interrogated K.A., who denied all accusations against her and said that the baby had been healthy at birth.

16. On 28 September 2001 the Sivas public prosecutor issued a bill of indictment against A.Ö. and K.A. for inflicting bodily harm on baby M.K. owing to lack of prudence and care in the performance of their duties under Article 459 (2) of the Turkish Criminal Code (Law no. 765), as in force at the material time.

17. On 13 March 2002 the Sivas Criminal Court of First Instance (“the Sivas Criminal Court”) held its first hearing, during which it heard evidence from the defendants A.Ö. and K.A., who largely reiterated their earlier statements to the public prosecutor, followed by the statements of the applicant and his wife.

18. At the second hearing held on 8 May 2002 the Sivas Criminal Court heard evidence from two witnesses: N.E., an orderly who had assisted K.A. during the delivery of baby M.K., and D.A., Arife Keskin ’ s sister, who had accompanied her to the hospital. N.E. told the court that she had no recollection of the delivery in question. D.A. recounted the events as presented in paragraphs 3 to 12 above.

19. At the third hearing held on 5 June 2002 the Sivas Criminal Court heard evidence from A.K. and M.A., paediatricians whom the applicant had consulted in relation to his baby ’ s condition. They both stated that while the nerve damage sustained by the baby could be related to a complication experienced during delivery, this did not mean that the complication had occurred as a result of an omission or error on the part of the medical professionals who had attended the delivery.

20. At the fifth hearing held on 16 July 2002 the Sivas Criminal Court heard evidence from Ş.T., an orthopaedist who had examined baby M.K. Ş.T. confirmed that the nerve injury sustained by the baby was a complication that could occur in deliveries of overweight babies and that it depended also on the size of the mother ’ s birth canal. It would not, however, be possible to pinpoint the exact cause of the injury or to establish whether the attending medical professional bore any responsibility for it. At the end of the hearing, the Sivas Criminal Court asked the Forensic Medicine Institute to prepare an expert report examining the defendants ’ culpability in relation to the nerve damage sustained by baby M.K.

21. On 6 September 2002 the Forensic Medicine Institute requested information regarding the medical examinations and tests that Arife Keskin had undergone during her pregnancy, as well as information on the medical procedures followed upon her admittance to the SSK Hospital and the record of the delivery itself. They also asked to examine baby M.K. personally and asked for an EMG of her injured arm.

22. On 5 February 2003 the Forensic Medicine Institute examined baby M.K. and noted limited movement in her right arm.

23. On 19 February and 16 June 2003 the Forensic Medicine Institute repeated their request for medical information regarding Arife Keskin ’ s pregnancy and delivery, as some of the information and documents previously requested had not been furnished. They also requested detailed information regarding the paediatric examination carried out on baby M.K. following her birth.

24. On 3 December 2003 the Sivas SSK Hospital informed the Sivas public prosecutor that newborn babies were only examined by paediatricians in the event of specific problems, and there were no records of baby M.K. having been examined by one after her birth.

25. On 16 February 2004 the Forensic Medicine Institute repeated their request for an EMG test to be performed on baby M.K. ’ s arm. They also asked to examine her a second time.

26. The EMG test was carried out on 9 April 2004.

27. On 30 April 2004 the Forensic Medicine Institute subjected baby M.K. to another medical examination. They noted that the monoparesis [4] of her right upper limb continued and that she had limited movement of her right shoulder, but normal movement in her elbow and wrist. They also noted muscular atrophy in her right hand.

28. On 25 June 2004 the Forensic Medicine Institute issued their report (“the first expert report”). Having regard to all the evidence in the case file, and to the baby ’ s birth weight, they concluded that the nerves of the brachial plexus had been injured during M.K. ’ s difficult delivery, for which the midwife, K.A., bore two-eights of the responsibility. Dr A. Ö ., on the other hand, did not have any responsibility in relation to the baby ’ s injury, as he had not been called to attend the delivery by the midwife.

29. Between 16 July 2002 – the date on which the Sivas Criminal Court requested an expert report from the Forensic Medicine Institute – and 25 June 2004 – the date on which the Forensic Medicine Institute issued its report – the Sivas Criminal Court held eleven hearings, all of which were adjourned pending the Forensic Medicine Institute ’ s report on the case.

30. On 28 October 2004 K.A. objected to the Forensic Medicine Institute ’ s report and requested the referral of the file to the Supreme Health Council ( Yüksek Sağlık Şurası ) for a new medical report . She stated that brachial plexus injury was a condition that could be observed in difficult deliveries of post-term babies over 3,500 grams. She had, however, not been given prior information regarding Arife Keskin ’ s pregnancy history or of the expected birth weight of the baby. She could, therefore, not be held liable for any injuries sustained by the baby as a result of the vaginal delivery.

31. On an unspecified date the applicant and his wife also objected to the Forensic Medicine Institute ’ s report, arguing that K.A. ’ s share of the responsibility for their daughter ’ s injury was greater than two-eighths.

32. At the eighteenth hearing held on 2 November 2004 the Sivas Criminal Court dismissed the request for the referral of the file to the Supreme Health Council for a fresh medical report, holding that the findings of the Forensic Medicine Institute had been sufficient, and delivered its judgment on the case. Relying on the evidence in the case file, and in particular on the report issued by the Forensic Medicine Institute, the criminal court convicted K.A. as charged and sentenced her to a judicial fine of 115,069,000 Turkish liras (TRL) [5] , which was suspended pursuant to section 6 of the Execution of Sentences Act (Law no. 647), as in force at the material time. The criminal court acquitted Dr A.Ö.

33. On 9 November 2004 the applicant and his wife appealed against the judgment of the Sivas Criminal Court, arguing that K.A. bore greater responsibility for the nerve injury sustained by their daughter than the proportion stated by the first-instance court.

34. On 26 November 2004 K.A. also appealed against the judgment of the Sivas Criminal Court, claiming in particular that she had not been aware that Arife Keskin was post-term and that the baby had been overweight when she entered labour . She stated, in addition, that it appeared from Arife Keskin ’ s patient file that she had not been under the special care of a doctor in relation to her delivery, and that it had rather been left to take its “ordinary course”. In K.A. ’ s opinion, having regard to the baby ’ s weight and the gestation period, the delivery should have been carried out by a specialist doctor, and possibly via caesarean section, a decision which should have been made when she had been admitted to the accident and emergency unit.

35. On 20 November 2005 the public prosecutor ’ s office attached to the Court of Cassation sent the case to the Ankara Assize Court for the re ‑ evaluation of K.A. ’ s sentence in the light of the new Criminal Code (Law no. 5237) which had entered into force on 1 June 2005.

36. On 16 February 2006 the Sivas Criminal Court convicted K.A. once again under section 459 (2) of the former Turkish Criminal Code, which was more favourable to the defendant than the corresponding provision under the new Criminal Code.

37. It appears that the parties appealed this judgment on the same grounds as noted in paragraphs 33 and 34 above.

38. On 17 September 2007 the Court of Cassation quashed the judgment of the first-instance court mainly on two grounds: ( i ) the opinion of the Supreme Health Council had not been sought before reaching a verdict, although, pursuant to section 75 of Law no. 1219, this was obligatory when the medical liability of health professionals was concerned; and (ii) it remained to be determined whether the procedure of suspension of pronouncement of judgments ( hükmün açıklanmasının geri bırakılması ) provided in section 231 of the Code of Criminal Procedure (Law no. 5271), as amended on 6 December 2006, was applicable in the circumstances.

39. On 29 January 2008 the Sivas Criminal Court sent the case file to the Supreme Health Council for an expert report on K.A. ’ s responsibility in relation to the nerve damage sustained by baby M.K. during her birth.

40. By a letter dated 7 March 2008 the Ministry of Health informed the Sivas Criminal Court that there were 408 files requiring an opinion of the Supreme Health Council pending and that baby M.K. ’ s file would only be examined after those files.

41. At its meeting held on 7-9 April 2008 the Supreme Health Council examined the file of baby M.K. and decided that K.A. did not bear any responsibility for her nerve damage. They stated in this connection that there had not been any indications requiring the performance of a caesarean section in the instant case, and that baby M.K. ’ s weight had not been an obstacle to her natural delivery. The nerve damage sustained by the baby had rather been the result of a birth complication (“the second expert report”).

42. In view of the apparent contradictions between the first and second expert reports, on 18 November 2008 the Sivas Criminal Court decided to obtain a third report from medical experts to be appointed by the Ankara Civil Court of First Instance.

43. On 27 April 2009 the Ankara Civil Court of First Instance appointed three doctors of obstetrics and gynecology as experts.

44. On 5 May 2009 the experts issued their report and found K.A. to be free of any fault for the same reasons relied on by the Supreme Health Council. They added that the weight of a baby would only be considered an indication for caesarean section if it was over 4,500 grams (“the third expert report”).

45. On 18 June 2009 the Sivas Criminal Court decided to discontinue the proceedings on the grounds that the prosecution of the offence in question had become time-barred.

2. Civil proceedings

46. On 23 December 2004 the applicant brought compensation proceedings against the SSK and K.A. before the Sivas Civil Court of First Instance (“the Sivas Civil Court”) for the nerve damage sustained by his daughter during her birth.

47. On 19 February 2005, in accordance with Law no. 5283, hospitals attached to the SSK were transferred to the Ministry of Health (“the Ministry”). Pursuant to section 4(c) of that Law, any pending lawsuits against the SSK in relation to health services offered in its hospitals were thenceforth to be pursued against the Ministry of Health. On 9 June 2005 the applicant requested the change of the defendant party accordingly.

48. On an unspecified date the Ministry objected to the Sivas Civil Court ’ s jurisdiction to hear the case against it, which, they argued, should have instead been brought before the administrative courts.

49. On 20 September 2005 the Sivas Civil Court dismissed the Ministry ’ s objection, holding that the dispute in question concerned a private-law matter arising from the alleged fault and negligence of an individual, rather than a fault relating to the services offered by the administration ( hizmet kusuru ), which brought the case within its jurisdiction.

50. It appears that from September 2005 until the conclusion of the criminal proceedings in June 2009, the Sivas Civil Court held sixteen hearings, all of which were adjourned pending a decision in the criminal case.

51. On 1 October 2009, relying on the second and third expert reports submitted to the criminal case file by the Supreme Health Council and three experts of obstetrics and gynecology, the Sivas Civil Court found that there was no evidence to prove that K.A. bore any responsibility for the nerve damage suffered by baby M.K. It therefore rejected the compensation claim against both K.A. and the Ministry.

52. On 25 November 2009 the applicant appealed against the judgment of the Sivas Civil Court, arguing in particular that the civil court had followed the findings in the criminal proceedings, whereas it should have made its own independent assessment of the defendants ’ responsibility in the case. The applicant was also sceptical about the report of the Supreme Health Council, which in his opinion had been issued too hastily.

53. On 23 December 2010 the Court of Cassation dismissed the applicant ’ s appeal. Nevertheless, it quashed the judgment, holding that the Sivas Civil Court had no jurisdiction to hear claims against the Ministry, against whom claims should have been brought before the administrative courts. On 7 April 2011 the Court of Cassation rejected the Ministry ’ s rectification request.

54. On 16 June 2011 the Sivas Civil Court dismissed the case against the Ministry for lack of jurisdiction ( görevsizlik kararı ). It also rejected the claim against K.A. for the reasons elaborated in its judgment dated 1 October 2009.

55. On 18 July 2011 the applicant appealed against the judgment of the Sivas Civil Court, relying mainly on the arguments raised in his previous appeal. He requested in addition that the court order a new expert report regarding K.A. ’ s responsibility for his daughter ’ s injury.

56. On 14 November 2011 the Court of Cassation rejected the applicant ’ s appeal and upheld the judgment of the Sivas Civil Court.

COMPLAINTS

57. The applicant complains under Article 8 of the Convention that his daughter was denied the right to live a healthy life on account of medical errors on the part of the Sivas SSK Hospital medical staff. He further claims, under Article 6 of the Convention, that the legal proceedings initiated before the domestic courts into his daughter ’ s injury infringed his right to a fair trial.

QUESTIONS TO THE PARTIES

1. Did the respondent State comply with its positive obligations under Article 8 of the Convention in respect of the right to physical integrity in the instant case by providing the applicant with a remedy to establish any liability on the part of the medical practitioners concerned for the physical injury allegedly sustained by his daughter at the time of her birth 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 . Were the relevant judicial proceedings concluded within a reasonable time, considering the interest at stake in the instant case (see, for instance, Codarcea v. Romania , no. 31675/04, § 106, 2 June 2009 )?

ii. Did the applicant have the possibility of obtaining an effective medical expert examination of the relevant issues (see, for instance, Eugenia Lazăr v. Romania , no. 32146/05, §§ 83- 85, 16 February 2010, and Altuğ and Others v. Turkey , no. 32086/07, §§ 78-82, 30 June 2015 )? In particular, did the third expert report submitted by three experts of obstetrics and gynecology to the criminal case file effectively address the contradictions between the first and second reports as intended, by subjecting all relevant points to careful scientific scrutiny and sufficiently detailing the reasons for the conclusions reached ( see, for instance, Vasileva v. Bulgaria, no. 23796/10, § 66, 17 March 2016 )?

iii. Was the relevant medical evidence properly scrutinized by the domestic courts (see, for instance, Vasileva , cited above)?

2. Was the applicant ’ s right to a fair trial under Article 6 § 1 of the Convention, including the right to a trial within a reasonable time, respected in the instant case?

[1] . A test that is used to record the electrical activity of muscles.

[2] . The network of nerves that conducts signals from spine to the shoulder, arm and hand.

[3] . A tumor formed of nerve tissue resulting from trauma to a nerve.

[4] . Partial motor paralysis affecting one limb.

[5] . Approximately 60 euros (EUR) at the material time.