Information Note on the Court’s case-law 221

August-September 2018

Yirdem and Others v. Turkey - 72781/12

Judgment 4.9.2018 [Section II]

Article 2

Article 2-1

Effective investigation

Failure to conduct within a reasonable time criminal and civil proceedings concerning a death suspected of resulting from medical negligence: violation

Facts – The applicants alleged that their relative had died in hospital followin g a number of instances of medical negligence. They claimed that the domestic courts had not been sufficiently prompt, reactive or diligent in dealing with the situation.

Law – Article 2

(a) Substantive aspect – Except in cases of manifest arbitrariness or error, it was not the Court’s function to call into question the findings of fact made by the domestic authorities. It followed that the examination of the circumstances leading to the death of the applicants’ relative and the alleged responsibility of the health-care professionals involved were matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of the events.

The applicants did not complain that their relative had been denied acces s to medical treatment in general or emergency treatment in particular, but complained that the medical treatment provided to him had been deficient because of the negligence of the doctors who had treated him.

No sufficient evidence had been adduced to d emonstrate that there had existed, at the material time, any systemic or structural dysfunction affecting the hospitals which the authorities knew or ought to have known about and in respect of which they had failed to undertake the necessary preventive me asures, and that such a deficiency had contributed decisively to the death of the applicants’ relative.

Nor had it been demonstrated that the alleged negligence by the health-care professionals had gone beyond a mere error or medical negligence or that those involved in the treatment of the applicants’ relative had failed, in breach of their professional obl igations, to provide emergency medical treatment to him despite being fully aware that his life was at risk if that treatment was not given.

The medical treatment provided to the applicants’ relative had been subjected to scrutiny at domestic level and no ne of the judicial or disciplinary bodies which had examined the applicants’ allegations had ultimately found any fault with his medical treatment.

In view of the foregoing considerations, the Court took the view that the present case concerned allegation s of medical negligence. In those circumstances the respondent State’s substantive positive obligations were limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for th e protection of patients’ lives. The relevant regulatory framework had not disclosed any shortcomings as regards the State’s obligation to protect the right to life of the applicants’ relative.

Conclusion : no violation (unanimously).

(b) Procedural aspect – The applicants had had recourse to two sets of proceedings, one criminal and the other civil, in order to assert their rights. The criminal proceedings had ended with the defendants being acquitted after proceedings lasting over nine years. The civil pr oceedings had been pending before the domestic courts since 2004.

In terms of the effectiveness of the criminal proceedings, there had been no such shortcomings as could call into question the overall adequacy of the investigation conducted by the domestic authorities. Moreover, the applicants had been granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in the proceedings.

However, the criminal proceedings had not been prompt and their ov erall duration – over nine years – had not been reasonable. Proceedings instituted in order to shed light on accusations of medical negligence should not last for so long before the domestic courts. The same was true of the proceedings for compensation bro ught by the applicants before the civil courts, which had been pending before the domestic courts for over thirteen years. There was nothing in the case file to suggest that such lengthy proceedings were justified by the circumstances of the case. The Civi l Court of General Jurisdiction had taken over nine years to conclude that the claim for damages against the hospital should have been lodged with the administrative courts and that it did not have jurisdiction to decide the case.

Such a lengthy time prol onged the ordeal of uncertainty not only for the claimants but also for the medical professionals concerned.

Those factors were sufficient in themselves to conclude that the proceedings at domestic level had been deficient. The domestic authorities had fai led to deal with the applicants’ claim arising out of their relative’s death with the level of diligence required by Article 2 of the Convention.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 jointly in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Lopes de Sousa Fernandes v. Portugal [GC], 56080/13, 19 December 2012, Information Note 213 ; and the Factsheet on Health )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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