PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE SAJÓ

Little Yiğit ' s fate is heartbreaking: as a newborn baby, he was infected with the HIV virus because of the gross negligence of the authorities. The consequences unfold as if in a Greek tragedy. His fate puts our humanity to the test. This Court is a human rights court, with special humanitarian responsibilities. It has to be human, it has to serve rights, and it has to operate as a court. In the present case I would have opted for a different balance among these three considerations, and would have opted for more judicial “formalism”, which – to my mind – would have been equally able to reflect human sensibility and rights protection (in line with the established case-law and the Convention).

On 19 December 1997 the applicants initiated compensation proceedings against the Kızılay ( Turkish Red Crescent ) and the Ministry of Health. They requested non-pecuniary damages for the infection of the first applicant, YiÄŸit. On 24 February 1999 the Kızılay paid a total amount of TRL 54,930,703,000 to the applicants, to cover the non ‑ pecuniary damage awarded by the court and the statutory interest applied to that sum.

On 13 October 1998 the applicants initiated proceedings against the Ministry of Health, requesting non-pecuniary damages . Having been found negligent, on 30 April 2008 the Min istry of Health paid 159,369.49 new Turkish Liras to the applicants.

According to the jurisprudence of the Court, the present facts (the continuous threat to life) fall under Article 2 of the Convention. With regard to the second proceedings it cannot be said that the administrative courts complied with the requirements of promptness and reasonable expedition that are required in the context of the protection of life. The judgment is not specific in this regard but this is clearly a procedural violation (see G.N. and Others v. Italy , no. 43134/05, § 102, 1 December 2009 ).

Contrary to G.N. v. Italy , the present judgment goes into an evaluation of the redress provided. It finds that the non-pecuniary damage awards received by the applicants covered only one year ' s treatment and medication for the first applicant (see paragraph 71): “Thus the family was left in debt and poverty and unable to meet the high costs of the continued treatment and medication amounting to a monthly cost of almost EUR 6,800, which was not contested by the Government” and therefore concludes that the redress offered to the applicants was far from satisfactory for the purposes of the positive obligation [2] under Article 2 of the Convention (see paragraph 72 ). It would appear that, according to the judgment, this lack of redress amounts to a substantive violation of Article 2 of the Convention, given the conclusion that there is a “general” violat ion of Article 2 (see paragraph 77). Here, with all due respect, I have to disagree.

I admit that such a substantive violation might have occurred had the State failed to provide any of the necessary treatment for a life-threatening medical condition caused by its entities, as the applicants alleged. But in that case the issue would not have been the adequacy of the redress for material damage; moreover, allegations do at least have to be substantiated.

While the judgment finds a substantive violation of Article 2 for the non-payment of compensation for material damage, the claim made in the guise of just satisfaction, that is, after the original complaint, and referring to new developments, is a new one. The original application, as communicated to the Government by the Court, concerned the remedies offered in the different domestic proceedings. It did not concern the alleged pecuniary damage caused by lack of treatment, an event that might have occurred from a non-specified date after June 2007.

In response to the Government ' s observations, the applicant, represented by a lawyer, stated in his just-satisfaction claim of 3 October 2008 that the compensation for moral damages was too low to cover material damages and that the Government and Kızılay did not provide free treatment to the infected child because the Green Card [3] was cancelled after the pronouncement of the judgment awarding compensation. They did not produce evidence that the card had been cancelled and we are not provided with the reasons for cancelling it. Instead, the applicants claimed that the judgment awarding compensation (which duly dealt with their claim for non-pecuniary damages) covered only one year of treatment. They claimed that the necessary medication cost them EUR 5,469 plus TRL 3,000 per month (however, in the final summary of th eir demand they sought only TRL 328,140 for lifelong treatment [4] ) . In order to prove their claim they produced grossly inflated internet-based prices for the prescribed medication. [5]

The Government replied that all those claims were unsubstantiated; indeed, no single receipt for actual treatment related to costs was submitted. No invoice whatsoever related to anything at all. Nevertheless, the judgment considers that there is actual material damage in respect of medication and treatment. To my mind, compensation for material damage is paid only where damage (loss) actually occurs. If the treatment has not taken place, there is no damage in that regard. It might be the case that the applicant suffered additional non-pecuniary damage (as he might have suffered without treatment, or his life expectancy might have been reduced, etc.) but that is a different matter. More importantly, these claims (like all the other claims which were made, such as loss of future earnings etc.) are to be recovered in domestic proceedings. The applicants admitted that such a remedy was available in the domestic system. This is a typical case of non-exhaustion of domestic remedies, both in respect of the original pecuniary damages claims related to the original infection and its consequences, and with regard to the situation arising from the lack of treatment beginning around mid-2007.

As if the alleged (never substantiated) material damage would have occurred as a result of the original infection, and as if no new facts were to intervene, the judgment awards 300,000 euros for damage incurred, “having regard to the documents in its possession and to the fact that the authorities refused to pay the cost of treatment and medication.”

It seems to me that while free medical treatment was provided as long as the applicant had a Green Card, after the alleged revocation of the card, sometime after June 2007, a new situation arose. It is possible that the child was without treatment after that date, though this is not clear from the just satisfaction claim.

I find it procedurally unfair to assume that the Government should have expressly raised an objection of non-exhaustion of domestic remedies in respect of the material damages in the context of the Article 41 proceedings. [6]

According to the Communication served on the Government, the applicants complained only that in and through the proceedings that they had launched in the domestic courts (which were partly pending at the time of communication) the Ministry was not held liable and hence there was a violation of the State ' s positive obligations under Article 2. The relevant Questions (3. and 4.) communicated to the Government concerned the promptness of the procedure. [7] In the domestic proceedings the applicants asked for non-pecuniary damages and this is what they were awarded (without adequate promptness.) A remedy was provided in the domestic system as requested, and it must be held to be an adequate one, as the judgment has nothing to say in this regard. For the Court, the substantive violation of Article 2 consists in the fact that the material damage resulting from lack of treatment was not compensated, and in this regard the Court finds that a specific amount of material damage was caused, to be compensated by EUR 300,000.

The applicants could have sought material damages in Turkey . They did not do so in the original proceedings. They argued that this would have caused additional delays in the domestic proceedings. This is pure speculation, though it might be reasonable. But to request a court order in the actual proceedings for the provision of lifelong treatment would not have caused additional delay. Even if one were to accept that it would have done, the applicants had ample opportunity to initiate separate proceedings, at least after 1999 when the responsibility of Kızılay had been definitively established, and after June 2007, with regard to the Ministry of Health. As to the new development, namely, that the child was deprived of free medical treatment, they could have appealed against the revocation of the Green Card, or have initiated proceedings against the two defendants for provision of the treatment or payment of the cost thereof. They claimed that Kızılay had promised it, which is again an allegation, and if it was a legally binding promise they could have asked for enforcement or execution. Although State liability had been clearly established, the specific remedy (of treatment) was never asked for, nor judicially recognized. Instead of making use of the available legal remedies, the applicants brought the treatment claim directly to the Court in the guise of a just-satisfaction claim.

In view of the applicants ' allegations in their just satisfaction claim, the proper approach would have been a) to ask for minimum substantiation (why was the Green Card cancelled?; is the child actually without treatment? etc.) and b) in the affirmative, apply an interim measure of its own motion that requires the Government to proceed with the treatment until the Court decides on the matter.

What I find stunning is that the applicants made no attempt to use the available domestic legal remedies, but brought their claim in the form of a just satisfaction claim. I fully understand that the parents, being in shock, asked for support from foundations and the President of the Republic, but their lawyer should have made use of domestic judicial remedies. There is no reason to assume that the domestic courts or other authorities would not have acted in the same spirit as the Court has in the judgment.

The exhaustion of domestic remedies is not only a Convention requirement that serves reasonable goals, but is one that in the present case would have served the interests of the applicants.

As the Court could have found an equitable legal “solution” to the lack of treatment, to the extent that there is a legal solution to a human tragedy of this nature, and without disregarding its subsidiary role (exhaustion of domestic remedies), I feel compelled to partly dissent.

[1] . The Ministry of Health provides a special card to people with a minimum level of income which gives free access to health care at the State and some university hospitals, and covers the cost of medicines for in-patients.

[2] . I am not sure that the case as decided is only about positive obligations. Where the State causes the loss of life or a permanent life-threatening situation, the issue is not one of positive obligation: in fact the State contributes to death, even if life is not deprived “intentionally”. By failing to provide the free treatment after 2007, the character of the violation changes.

[3] . The Ministry of Health provides a special card to people with a low level of income which gives free access to health care at the State and some university hospitals, and covers the cost of medicines for in-patients.

[4] . It is hard to determine what is covered by the EUR 3 00,000 pecuniary award of the Court, but in view of the claim for medical treatment it looks ultra petitum . The EUR 300,000 refers expressly to the refusal to pay the cost of treatment and medication (see paragraph 101). This is much more than the amount of the claim for lifelong treatment, and given that the Government are required to provide lifelong treatment in accordance with the judgment, the award must refer only to the period beginning on an unspecified date after June 2007 until perhaps the date of the submission of the claim (03.10. 2008). The amount is excessive. Even if the period that was taken into consideration lasted until the judgment was rendered (a period of about 30 months), the monthly award exceeds EUR 10,000, which is way above the unsubstantiated and grossly inflated price quotes submitted by the applicants. Once again, all these damages were awarded without the applicants having spent a documented penny; they were awarded for actions and expenditure not taken.

[5] . For example, in the case of Tripanavir they submit an internet-based pharmacy price for 120 tablets (250mg) where the monthly prescribed dose is one per day; i.e. the suggested price applies for four months but they present it as a monthly price. The quoted prices are also inflated in the sense that e.g. Fuzeon is available for U$ 2400 ( http://aids.about.com/od/hivmedicationfactsheets/a/drugcost.htm ) where the applicants claim that the monthly dose costs EUR 3,609.

[6] . In the context of the case, the Government should have been put on notice of this of the Court’s own motion . The alleged denial of treatment started “shortly” after June 2007. The resulting injury (which consists for the Court and myself primarily in the lack of treatment) as a violation of Article 2 of the Convention was brought up only in October 2008, that is, after six months. W hen a new complaint is raised for the first time during the proceedings before the Court, the running of the six-month period is not interrupted until this complaint is actually lodged (see Sarl Aborcas and Borowik v. France (dec.), no. 59423/00, 10 May 2005, and Loyen v. France (dec.), no. 46022/99, 27 April 2000). As a rule the Court rejects them in accordance with Article 35 §§ 1 and 4 of the Convention ( Hazırcı and Others v. Turkey, no. 57171/00, § 54, 29 November 2007).

[7] . Other questions concerned victim status and the adequacy of protection of life in the specific circumstances of a blood transfer, which was not a ground for finding a violation in the end.