Communicated on 23 November 2015

SECOND SECTION

Application no. 38477/10 Rafet KAYA and Elmas KAYA against Turkey lodged on 4 May 2010

STATEMENT OF FACTS

The applicants, Mr Rafet Kaya and Ms Elmas Kaya, are Turkish nationals, who were born in 1958 and 1965 respectively and live in Ni ÄŸ de .

A. The circumstances of the case

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

On 1 February 1999 the second applicant, who was pregnant at the time, was walking in the street with her husband, the first applicant, when a telephone pole fell on her. She was in a life-threatening condition and immediately taken to the Erciyes University Hospital, where it was assessed that her legs had been broken. According to her submissions, she was given medication in order to delay the birth of her baby as she experienced genital bleeding and started losing her amniotic liquid. During her time at the hospital she underwent leg surgery and received treatment in relation to her fractures.

On 11 March 1999 she was discharged from hospital and on 24 March 1999 she gave birth by caesarean section to a twenty-six week old premature baby, Muhammet , who stayed in an incubator for a period of three months.

When Muhammet was two years old, the applicants realised that he was experiencing difficulties in walking.

On 16 August 2007 the Ni ÄŸ de Public Hospital issued a medical report, stating that Muhammet had a 40% level of disability which prevented him from walking without support.

On 2 February 2009 the Erciyes University Hospital prepared a medical report indicating that Muhammet was diagnosed with spastic diplegy [1] and mental retardation. It added, inter alia , that the nervous system controlling his walking functions had been damaged by the impact of the telephone pole.

1. Criminal proceedings initiated against employees of the Turkish Telecommunications Company

On 1 February 1999 police officers started investigating the incident and interviewed numerous witnesses.

On 5 February 1999, upon the request of the prosecutor ’ s office, an expert issued a report in which it was stated that the telephone pole had not been inserted into the ground properly and it was concluded that the Turkish Telecommunications Company (hereinafter the “TTC”) was fully responsible for the accident.

On the same day, upon the request of the police, a doctor issued a forensic report indicating, inter alia , that Elmas Kaya ’ s injuries had been life-threatening.

On 24 August 1999 the Ni ÄŸ de public prosecutor filed an indictment with the Criminal Court of First Instance, charging fourteen employees of the TTC with the offence of causing injuries by negligence or recklessness. Relying on the expert report dated 5 February 1999 referred to above and the reconstruction of the events at the scene of the incident, t he public prosecutor concluded that the employees of the TTC had been 100% responsible for the fall of the telephone pole because they had failed to act with due diligence.

On 10 February 2000 the second applicant submitted a petition to the Ni ÄŸ de Criminal Court of First Instance and requested to intervene in the proceedings as an intervening party. The criminal court accepted her request.

On 22 December 2000, Law no. 4616 entered into force while the criminal proceedings were continuing before the Ni ÄŸ de Criminal Court of First Instance , . Law no. 4616 provides for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999, without reaching a definitive finding as to guilt.

On 31 December 2000 the Ni ÄŸ de Criminal Court of First Instance suspended the proceedings in accordance with Law no. 4616 and placed the accused on probation for five years.

On 16 March 2005 the Ni ÄŸ de Criminal Court of First Instance decided to strike the case out on the ground that the prosecution of the offence had become time-barred.

2. Compensation claim initiated in respect of the injuries caused to the second applicant

In the meantime, on 19 July 1999 the applicants filed a compensation claim before the Ni ğ de Civil Court of First Instance against the TTC for the injuries suffered by the second applicant as a result of the accident. They requested a total amount of 10,100,000,000 Turkish liras (TRL); approximately EUR 22,980 euros (EUR) [2] at the time. TRL 10,000,000,000 (approximately EUR 22,750) of that sum was requested in respect of non-pecuniary damage and TRL 100,000,000 ( approximately EUR 230) for pecuniary damage. The applicants reserved their right to claim compensation both for the loss of the second applicant ’ s earnings as well as for the damage caused to their son, Muhammet .

On an unspecified date, the applicants renounced their pecuniary compensation claim for the injuries sustained as a result of the accident.

On an unspecified date, the Ni ÄŸ de Civil Court of First Instance adjourned the compensation proceedings pending the outcome of the criminal proceedings .

On 23 May 2000, upon a request from the Ni ÄŸ de Civil Court of First Instance, an additional expert report was prepared by an electronics and communication engineer in which it was stated that the telephone pole had fallen as a result of a pulling force applied to it, that the person or persons who had exerted such a pulling force were fully responsible and that the plaintiff and the defendant could not be faulted.

On 2 May 2001, upon another request from the Ni ÄŸ de Civil Court of First Instance, another electronics and communication engineer issued a technical expert report, stating that the telephone pole had fallen with the impact of wind after its foundations had been destabilised as a result of the pulling force exerted on the cables linking it to the adjacent poles.

On 19 July 2001, acting on another request from the Ni ÄŸ de Civil Court of First Instance, two electronics engineers submitted an expert report indicating that they were not able to evaluate the share of responsibility regarding the accident, and that the fall of the telephone pole was due to weather conditions or an improper installation of the pole.

On 13 November 2001 a university professor and two electronics engineers, at the request of the Ni ÄŸ de Civil Court of First Instance, submitted an expert report in which it was concluded that the TTC was 100 % responsible for the accident. It was also stated that the telephone pole had not been properly fixed to the ground as a result of a lack of compliance with the applicable technical standards.

On 14 December 2001 the Ni ğ de Civil Court of First Instance partially accepted the applicants ’ claim. In its judgment, the Ni ğ de court referred to the expert reports mentioned above, and preferred to rely finally on the conclusions of the above-mentioned report dated 13 November 2001 according to which the TTC had been fully responsible for the fall of the pole. The Ni ğ de court awarded the amount of TRL 5,000,000,000 ( approximately EUR 3 860) as compensation for non-pecuniary damage, with statutory interest running from the date of the incident. It dismissed the claim for compensation for pecuniary damages, indicating that the applicants had renounced their claim in that regard. Finally, it added that the applicants had the possibility of initiating separate compensation proceedings for the loss of earnings of the second applicant.

On 3 June 2002 the Court of Cassation upheld the Niğde court ’ s judgment . The applicants ’ request for rectification of that decision was rejected by the Court of Cassation on 5 November 2002.

3. Compensation claim in respect of the loss of earnings of the second applicant since the accident

On 3 July 2001 the second applicant brought proceedings before the Ni ÄŸ de Civil Court of First Instance against the TTC and claimed compensation for her loss of earnings stemming from the accident. She requested TRL 20,000,000,000 (approximately EUR 18,444).

On 15 January 2003, at the request of the Ni ğ de Civil Court of First Instance, a committee of experts at the Forensic Medicine Institute issued a medical report in which the loss of Elmas Kaya ’ s future earning capacity was determined as 8.2%.

On 3 December 2003 an expert report assessed Elmas Kaya ’ s pecuniary damage for the loss of earnings as TRL 17,036,738,148 (approximately EUR 9,630).

On 12 January 2004 the Ni ğ de Civil Court of First Instance, relying on the two above-mentioned expert reports, partially accepted Elmas Kaya ’ s claim and awarded her the amount of TRL 17,036,738,148 in respect of loss of her earnings, with statutory interest running from the date of the incident.

On 5 April 2004 the Court of Cassation upheld the lower court ’ s judgment.

4. Compensation claim initiated in respect of the damages caused to the applicants ’ son

On 16 June 2005 the applicants initiated a pecuniary compensation claim against the TTC for the disability caused to their son Muhammet , which they claimed to be the consequence of the fall of the telephone pole on the second applicant during her pregnancy. They requested 6000 Turkish liras [3] (“TRY”, approximately EUR 3,640) with statutory interest running from the date of the incident.

On 4 December 2006, at the request of Ni ğ de Civil Court of First Instance, a committee of the Forensic Medicine Institute issued an expert report in order to answer the question of whether the premature birth might have been the cause of Muhammet ’ s disability. The expert report took into account, among many other things, the following:

– the medical file of Elmas Kaya covering the period between 24 March 1999 and 27 March 1999 issued at the Erciyes University Hospital which indicated that she had been hospitalised for a premature rupture of the membranes and a total placenta praevia [4] ;

– the medical file of the baby covering the period between 24 March 1999 and 19 June 1999 prepared by the Erciyes University Hospital which stated, inter alia , that the new-born baby ’ s state of health had not been satisfactory and mentioned the presence of ecchymoses on different parts of the baby ’ s legs;

– a medical examination conducted on 21 April 2006 according to which the delivery had been expected in August 1999 (sic) [5] ; it was further indicated in the report that Elmas Kaya had sustained fractures to her legs as a result of the fall of the telephone pole, that her genital bleeding had started and that the delivery had been delayed until March with the aid of medication.

The expert report unanimously concluded that the said clinical findings could have come about as a result of birth involving a premature rupture of the membranes and a total placenta praevia. It was added in the report that the reports pertaining to the examination of Elmas Kaya and of the foetus dated 1 February 1999 and 2 February 1999 had not revealed any pathological findings which had the potential to cause these problems and that there was therefore no causal link between the trauma, the premature birth after the accident and the current medical problems.

On 10 May 2007 the General Assembly of the Forensic Medicine Institute, composed of forty-three doctors, rendered an expert report in which references were made to the medical documents mentioned in the preceding paragraphs. It was unanimously concluded in their report that the problems could have been caused as a result of birth involving a premature rupture of the membranes and a total placenta praevia. It was added in this regard that the reports pertaining to the examination of Elmas Kaya and of the foetus dated 1 February 1999 and 2 February 1999 had not revealed any pathological findings which had the potential to cause these problems and that there was therefore no causal link between the trauma, the premature birth after the accident and the current medical problems.

On 20 September 2007 the Ni ÄŸde Civil Court of First Instance rejected the compensation claim brought by the applicants. Referring to the expert reports issued by the Forensic Medicine Institute on 4 December 2006 and 10 May 2007, the Ni ÄŸde court decided that there was no causal link between the fall of the telephone pole on Elmas Kaya, the premature birth of her son Muhammet and his disability.

On 25 February 2008 the Court of Cassation upheld the Ni ğde court ’ s judgment .

On an unspecified date the applicants requested a rectification of the judgment of 20 September 2007.

On 4 June 2008 the Court of Cassation accepted the request and quashed the lower court ’ s decision on the ground that it was necessary to obtain a new expert report from the General Assembly of the Forensic Medicine Institute.

In its judgment, the Court of Cassation referred to the conclusions of the Forensic Medicine Institute ’ s expert reports and highlighted their contradictory content. The Court of Cassation noted in this regard that, although it had been indicated in the reports that the genital bleeding of the applicant had started after the accident and that the birth had been delayed with the aid of medication, it had also been concluded in the same reports that there was no link between the incident, the premature birth and the child ’ s disability.

After considering the fact that Elmas Kaya had given birth fifty-one days after the incident in question, and that she had never experienced a premature birth before, the Court of Cassation stated that the third expert report dated 4 December 2006 had not provided clarifications or sufficient information as to the reason for the early birth and the disability.

On 27 November 2008 a new expert report was prepared by the General Assembly of the Forensic Medicine Institute, composed of forty-three doctors . The General Assembly unanimously concluded in its report that the problems could be an expected result of birth involving a premature rupture of the membranes and a total placenta praevia. It further stated that the reports pertaining to the examination of Elmas Kaya and of the foetus dated 1 February 1999 and 2 February 1999 had not revealed any pathological findings which were likely to cause those problems. It added that there was therefore no causal link between the trauma, the premature birth after the accident and the current medical problems. It was finally stated in the report that the information included in the medical examination report of 21 April 2006 had been supplied by the applicant herself and that there were no medical records capable of supporting it.

On 24 February 2009 the Ni ğde Court of First Instance rejected the compensation claim of the applicants on the basis of the three above-mentioned expert reports, and held that there was no causal link between the fall of the telephone pole, the premature birth and Muhammet ’ s disability.

On 10 April 2009 the applicants appealed against the judgment of the Ni ğde Court of First Instance. They stated in their appeal petition that Elmas Kaya ’ s genital bleeding had started on the date of the accident and that she had been given medication to delay the birth.

On 13 July 2009 the Court of Cassation upheld the lower court ’ s judgment . The applicants ’ request for rectification of that decision was rejected by the Court of Cassation on 2 December 2009.

B. Relevant domestic law

Law no. 4616, in so far as relevant, provides as follows:

“4. In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years:

– where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended;

– where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended.

If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached.

In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated.

...”

COMPLAINTS

Relying on Article 2 of the Convention the applicants complain about the dismissal by the national courts of their compensation claim in respect of the damages resulting from their son Muhammet ’ s partial disability. They claim that his right to health and his physical integrity were not protected. They argue that their son ’ s disability was linked to the fact that as a result of the accident he could not complete his development in the womb.

Furthermore, relying on Article 6 of the Convention, the applicants allege that neither the medical reports prepared by the Forensic Medicine Institute nor the internal decisions were adequately reasoned. They maintain in this regard that the national courts did not take into consideration the medical reports that they had submitted to them.

QUESTIONS TO THE PARTIES

Have the applicants ’ son ’ s right to life, ensured by Article 2 of the Convention, and/or his right to physical integrity protected in Article 8 of the Convention been violated in the present case?

To that end, and bearing in mind the State ’ s wide margin of appreciation in the choice of means to comply with its positive obligations and other principles governing the State ’ s liability for breach of positive obligations developed by the Court ’ s case-law ( Öneryıldız v. Turkey , [GC], no. 48939/99, 30 November 2004; and Budayeva and Others v. Russia , nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, ECHR 2008 (extracts)):

C ould the expert opinions submitted by the Forensic Medicine Institute respectively on 4 December 2006, 10 May 2007 and 27 November 2008 be considered to be capable of leading to a determination of the applicants ’ allegations, regard being had to the issues listed below?

– The absence in the expert opinions of any medical explanation as to the possible reasons for a premature birth;

– The absence of any explanation regarding the possible causes of the presence of echymoses (mentioned in all three above-mentioned medical reports) on the body of the newborn Muhammet ;

– The contested fact that the genital bleeding had started after the accident and that the second applicant had been given birth-delaying medication;

– The existence of a medical report dated 2 February 2009 issued by the Erciyes University Hospital which indicated that the nervous system controlling the walking functions had been damaged by the impact of the telephone pole; and

– The participation of only two obstetricians out of the forty-three doctors forming the General Assembly of the Forensic Medicine Institute in the drawing up of the expert report dated 4 June 2008 (see mutatis mutandis , Gülay Çetin v. Turkey , no. 44084/10 , § 123, 5 March 2013) .

The Government are requested to submit all the medical records of the second applicant, including the medical report dated 21 April 2006 and copies of the medical prescription issued in the immediate aftermath of the accident.

[1] . A form of cerebral palsy (a group of permanent movement disorders that appear in early childhood) manifested as an especially high and constant "tightness" or "stiffness" in the muscles of the lower extremities of the human body, usually those of the legs, hips and pelvis.

[2] . All conversions into euros in this report have been made on the basis of the rate of exchange at the material time.

[3] . On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000

[4] . An obstetric complication in which the placenta partially or wholly blocks the neck of the uterus .

[5] 7. It appears that there has been a mistake in the text as the delivery was expected in June 1999 and not August as it had been stated.