JOINT CONCURRING OPINION OF JUDGES LEMMENS, SPANO AND KJØLBRO

1. We voted for finding a violation of Article 2 of the Convention, but we write separately as we only concur partly with the reasoning of the judgment.

2. We fully concur that there has been a violation of the substantive limb of Article 2 of the Convention. Thus, we agree that the combined effect of sending the applicants’ new born child in need of urgent medical treatment from one hospital to another back and forth for four and a half hour without any prior communication or coordination between the hospitals in question and without providing the child with any examination and medical assistance did put the life of the child at risk. The authorities knew or ought to have known, that the life of the child was put at risk by the acts and omissions of the health care personnel involved. In the specific circumstances of the case, the acts and omissions go beyond mere error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient (see, inter alia, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V, and Eugenia Lazăr v. Romania , no. 32146/05, § 68, 16 February 2010). The Court should, in our view, have limited its finding of a violation of Article 2 of the Convention to this aspect alone.

3. This case is not about a structural problem in the Turkish health care system revealing a dysfunctional system, but a tragic incident resulting from acts and omissions in the treatment of the applicants’ child (see paragraphs 80, 82 and 85).

4. Nor do we find basis for criticising the limited number of places for patients, the number or quality of incubators or the failure to compare the urgency of the situation of the applicant’s child with that of other children hospitalised (see paragraphs 80 and 81). In general, Article 2 of the Convention cannot be interpreted as requiring a certain standard, level or quality of treatment and equipment in public hospitals. The capacity to provide treatment as well as the level of treatment and the quality of equipment is an area where States have to make difficult decisions taking into account a number of factors, including prioritisation of needs as well as the reality of limited financial resources.

5. Nor do we find sufficient basis for saying, that it raises a problem under Article 2 that the domestic authorities in the specific circumstances of the case did not find basis for pressing criminal charges and instituting criminal proceedings against individuals (see paragraph 83). Compliance with the procedural requirements under Article 2 is not a matter of result, but means.

6. Finally, we do not find basis for criticizing the scope of the investigation performed. The applicants lodged a criminal complaint against individuals alleging that they were responsible for the death of their child. As a consequence, a criminal as well as an administrative investigation was performed. On the basis of the domestic investigation the Court has been able to assess the facts of the case finding a violation of the substantive limb of Article 2 of the Convention. In our view, there is not sufficient basis for finding that the investigation was incomplete and insufficient, as it did not assessed the functioning of relevant rules on reception of patients or coordination between hospitals or the reasons for shortage of equipment or number of incubators (see paragraphs 84-87). These elements fall outside the scope and the purpose of the domestic investigation.

1. A birth is considered to occur “at term” when the pregnancy lasts 41.5 weeks.