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OYAL v. TURKEY - 4864/05 [2010] ECHR 369 (23 March 2010)
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[2010] ECHR 369
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SECOND SECTION
CASE OF OYAL
v. TURKEY
(Application
no. 4864/05)
JUDGMENT
STRASBOURG
23 March 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Oyal
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş, judges,
and
Sally
Dollé,
Section Registrar,
Having
deliberated in private on 2 March 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4864/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Turkish nationals, Mr Yiğit Turhan
Oyal, Ms Neşe Oyal and Mr Nazif Oyal (“the
applicants”), on 13 November 2004.
The
applicants, who had been granted legal aid, were represented by Mr
M.E. Keleş and Ms M. Keleş, lawyers practising in Izmir.
The Turkish Government (“the Government”) were
represented by their Agent.
The
applicants alleged that the infection of the first applicant, a
new born baby at the relevant time, with the HIV virus during
blood transfusions at a State hospital, had given rise to a violation
of Articles 2, 6 and 13 of the Convention.
On
6 March 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1996, 1973 and 1961, respectively, and live
in Izmir.
A. Infection
of the first applicant with the HIV virus
The
first applicant was born prematurely on 6 May 1996 at the Dr Behçet
Uz Children's Hospital in Izmir.
On
7 May 1996 he was diagnosed with an “inguinal and umbilical
hernia” by doctors working in the same hospital.
On
an unspecified date in May or June 1996, the third applicant, who is
the first applicant's father, purchased a unit of red blood cells and
a unit of plasma from the Izmir Directorate of the Kızılay
(the Turkish Red Cross, hereinafter “the Kızılay”).
A number of blood and plasma transfusions were carried out on 19 May
1996, 24 May 1996, 26 May 1996, 29 May 1996 and 6 and 7 June
1996. The first applicant was discharged from the hospital on 17 June
1996.
Approximately
four months after the blood transfusion, the second and third
applicants learned that the first applicant had been infected with
the HIV virus which could develop into the more severe Acquired
Immune Deficiency Syndrome (AIDS).
According
to the information given by the Government, on 31 October 1996 a
donor (no. 1294, code MUALAB-43) donated blood to the Kızılay.
Subsequent to screening and tests carried out on the donated blood
(serial no. 210619), HIV was found and the blood in question was
destroyed. Following two more tests, it became certain that donor
no. 1294 had been infected with HIV. The authorities conducted
an investigation with a view to determining whether donor no. 1294
had donated blood previously. It appeared that the unit of plasma
(serial no. 202367) used for the first applicant's treatment had been
given by donor no. 1294. The first applicant was admitted to the
Hacettepe University Hospital for treatment. The costs of treatment
were paid by the Izmir Social Solidarity and Mutual Aid
Foundation.
B. Criminal
Proceedings
1. Proceedings
against the Kızılay
On
7 May 1997 the applicants filed a complaint with the Public
Prosecutor's office in Izmir. They claimed that the Kızılay
had provided contaminated blood and the Ministry of Health had been
negligent in conducting the requisite screening and testing in
accordance with the relevant domestic legislation. They requested
that criminal proceedings be initiated against the doctors and
laboratory personnel involved in the transfusion process, as well as
against the Director of the Izmir Health Department (İzmir
İl Sağlık Müdürü)
and the Director of the Kızılay Izmir Branch.
On
2 October 1997 the Audit Department of the Ministry of Health
prepared a report in which it stated that the unit of plasma used for
the first applicant's treatment had been screened and tested for the
HIV virus. However at that stage the HIV antibodies had not yet been
produced in the unit of plasma donated by donor no. 1294. The report
further noted that all around the world the HIV infection had been
screened by Anti-HIV (ELISA) tests on the recommendation of the World
Health Organisation. Therefore, it had been scientifically impossible
to diagnose the HIV contained in the unit of plasma in question by
the routine tests. Thus, relying on the statements given by health
personnel and expert reports, the report concluded that there was no
negligence attributable to the health personnel involved in the
incident or to any other authority.
Notwithstanding,
the Audit Department advised that (1) a circular be issued to
relevant departments; (2) the health personnel be reminded to ensure
that questionnaires were properly filled in by blood donors;
(3) questions be asked about the sexual history of the donors
and (4) donations be refused in doubtful cases. The Audit
Department added that health personnel's attention should be drawn to
the need to wait for a sufficient period of time before delivering
blood in case antibodies had not yet been produced. In this
connection, on 3 January 1998 circular no. 141 and its
attachments were communicated to all blood centres and stations in
order to prevent infections resulting from blood transfusions.
On
2 July 1998 the Izmir Administrative Council decided that no
investigation could be conducted into the doctors who had been
involved in the blood transfusion process on the ground that the
children's hospital where the transfusions had taken place was not
equipped with facilities for the ELISA test. Therefore the doctors
had not been at fault in the incident.
2. Proceedings
against the Ministry of Health
On
7 May 1997 the applicants filed a complaint with the Public
Prosecutor's office in Izmir, this time against the Minister of
Health and the Director General of the Kızılay.
On
23 May 1997 the Public Prosecutor issued a decision of
non prosecution. He reasoned that an investigation into the
actions of a minister could only be conducted in accordance with
Article 100 of the Turkish Constitution, which requires a motion to
be brought in parliament. Therefore the Public Prosecutor concluded
that he lacked jurisdiction ratione
materiae and ratione
personae in this matter. As regards the
Director General of the Kızılay, the Public Prosecutor
noted that he was in Ankara whereas the incident had taken place in
Izmir and that there was no fault directly attributable to him,
bearing in mind particularly that he had not been involved in selling
the infected blood.
On
8 September 1997 the applicants filed an objection with the Kırıkkale
Assize Court against the Public Prosecutor's decision.
On
14 October 1997 the Kırıkkale Assize Court dismissed the
applicants' objection for non-compliance with the fifteen-day
statutory time-limit to lodge their objection.
C. Civil
proceedings
On
19 December 1997 the applicants initiated compensation proceedings
against the Kızılay and the Ministry of Health. They
requested non-pecuniary damage for the infection of the first
applicant with HIV as a result of medical negligence on the part of
the defendants.
On
13 July 1998 the Ankara Civil Court of First Instance issued a
decision of non-jurisdiction in respect of the case brought against
the Ministry of Health. It stated that these complaints must be
brought before the competent administrative tribunal.
As
regards the case instituted against the Kızılay, the court
held that it was strictly liable for the incident as it had been
established through a witness statement that the test which gave
clear results on the presence of the HIV virus could not be carried
out due to its high costs and that the health questionnaire system
had not been in full practice at the time of the incident (see
paragraph 13 above). It thus awarded the applicants
30,000,000,000 Turkish lira (TRL) plus interest at the statutory
rate running from 17 June 1996, the date of the incident. The court
held, in particular:
“...As briefly mentioned above,
Yiğit Turhan Oyal suffers from AIDS after receiving HIV virus
infected blood supplied by the Izmir the Kızılay District
Office. The Kızılay District Office is at fault for the
infection of the child. This appeared from the sworn statements given
on 8 June 1998 by Prof. Dr. Hakkı Bahar, who works at the Dokuz
Eylül University School of Medicine, Department of Biology and
Clinical Microbiology. Hakkı Bahar, who is a specialist on this
subject, is the only witness of the Red Crescent Directorate General
and holds an academic title of “professor”. In his
statements, he submitted that AIDS was a disease which could be
detected with certainty by a special test but that, because it was
very expensive, it was not employed. Bearing in mind that it was
possible to detect HIV with sufficient certainty and that the Kızılay
did not employ the test in question, because it was costly, then it
should be held responsible for the infection of [the child]. The
Kızılay has to bear the consequences of this [negligence].
It cannot escape this [responsibility]. Either it has to employ the
test which determines with certainty AIDS, or it fails to do the test
and assumes responsibility for providing blood which was infected
with AIDS.
Moreover, the Kızılay is at
fault for the following reason: As is clear from the statements of
the doctors indicated by the Red Crescent and, following the
contamination of the plaintiffs' child, the Ministry of Health issued
a circular on 3 January 1997 and required the questioning of
donors. It thus follows that this circular had to be issued because
no such questioning took place at all previously or was not done
properly.
Even assuming for
a moment that the the Kızılay was not at fault in this
incident, it still has strict liability (kusursuz
sorumluluk). This is the very
requirement of justice.
Yiğit Turhan Oyal was infected
with HIV at a very young age because of the blood given by the the
Kızılay. He caught AIDS, which is, together with cancer,
one of the most dangerous diseases of our age. It is unnecessary to
explain how evil and fatal this disease is. It is highly unlikely
that little Yiğit will survive this disease; most probably he
will lose his life. Even if he survives, he will live with this
disease throughout his lifetime and everybody will avoid him.
Strictly speaking, by having been infected with this disease, Yiğit
has become a social outcast. He should not have sexual intercourse
and should not get married during his lifetime. It is impossible for
a living person to endure this. Furthermore, Yiğit should be
taken care of very well. It is impossible to put into words how
father Nazif Oyal and mother Neşe Oyal suffer from sorrow
because of Yiğit's infection with this disease. In view of the
foregoing, the court considers that the award of TRL 10,000,000,000
for each plaintiff in respect of non-pecuniary damages appears to be
low. In fact, the sorrow and pain suffered by the plaintiffs cannot
be compensated even if quadrillions were awarded. As noted above, the
amount of compensation awarded is an insignificant one and merely
aims at lessening their pain to some extent. Having regard to the
fact that today compensation of three to five billion Turkish liras
is awarded in a defamation case and that the amount in question would
not even suffice to buy a car by the current prices of the day, it is
obvious that the increase of awards is inevitable. It is considered
that today is the time to increase compensation to a satisfactory
level. For this reason, the determination of the amount in this case,
albeit insignificant, was in line with this view.
Notwithstanding the above, I should
like to stress the following: the fact that an aid organisation like
the Kızılay ... chose to pursue all avenues with full
strength in order to avoid compensating Yiğit, instead of
redressing his suffering, is thought provoking...”
On
9 February 1999 the Court of Cassation upheld the judgment and stated
the following:
“... The case concerns the
payment of damages incurred as a result of the tortious act of the
defendant. In order to hold the defendant liable for the alleged act,
it should be established that the defendant was at fault, that the
plaintiff incurred damage as a result of the tortious act and that
there was a causal link between the act and the damage suffered.
There is no dispute between the parties that the damage in question
occurred as a result of the blood used by [Yiğit] and that such
an act is unlawful. Again, it is also undisputed that the plaintiffs
purchased the blood, which was used for the treatment of Yiğit,
from the the Kızılay Izmir District office and that the
blood was infected HIV positive.
The focal
point of the dispute is whether the Kızılay Directorate
General is at fault... It is a known fact that a foundation such as
the Kızılay has a noteworthy prominence in meeting the need
for blood and is worthy of credence on account of this vocation. In
other words, there is an assumption that the blood obtained from the
defendant meets expectations. However, it appeared that the blood
obtained and used [in the present case] was unclean and so malignant
that there was no possibility of purifying it. The fact that the
[donor] was the bearer of the known virus cannot absolve the
defendant from liability. The defendant should have subjected such an
important and vital substance to all necessary tests and screening
using the necessary technology in accordance with the purpose of its
use and the importance of that substance. Nevertheless it appears
that the blood in question was not subjected to the requisite tests
available in today's technology. Furthermore, bearing in mind the
particular circumstances of the case, witness statements have no
bearing on the establishment of the lack of fault on the part of the
defendant. In other words, it cannot be concluded by witness
statements that the defendant was not at fault. In the instant case,
it was not alleged that the defendant acted deliberately. Nor was it
implied. The defendant did not wish such an outcome in the present
case. However, the defendant did not display due attention and
diligence in order to avoid the impugned result.
Turning to the defendant's contention
that the amount awarded in respect of non pecuniary damage was
excessive, ... [I]t should be noted that the present and future life
of the child, his mother and father have become dramatically
insufferable. All segments of society will now avoid having any kind
of social or physical contact with these people. Thus, it is apparent
that the physical, social and personal values of all the plaintiffs,
especially those of the child, shall be under attack during their
lives. Having regard to the foregoing and particularly to the rule
under Article 49 of the Code of Obligations which stipulates
'...parties' social and economic conditions should also be taken into
account...', as well as to the current purchase value of money, the
court concludes that the amount awarded in respect of non-pecuniary
damage was not excessive. In this connection, when determining an
amount for non-pecuniary damage, the amount in question should be
satisfactory for the suffering party and should have a dissuasive
effect for the harming party. Therefore, the defendant's objections
on this part of the case must be dismissed...”
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.
D. Administrative
proceedings
On
13 October 1998 the applicants initiated proceedings against the
Ministry of Health, requesting non-pecuniary damage.
On
20 November 1998 the Izmir Administrative Court rejected the case on
the ground that the judgment of the Izmir First Instance Court which
had issued a non-jurisdiction decision in respect of the proceedings
concerning the Ministry of Health had been pending before the Court
of Cassation. On 8 February 1999 the applicants appealed against this
decision.
On
7 May 2001 the Supreme Administrative Court quashed the decision and
remitted the case to the Izmir Administrative Court for examination
on the ground that the proceedings concerning the Ministry of Health
must have been considered to have become final, given that the
Ministry of Health had not appealed against the Izmir First Instance
Court's judgment.
On
14 July 2003 the Izmir Administrative Court refused the applicants'
compensation claims. Referring to the Izmir First Instance Court's
judgment, the Izmir Administrative Court reiterated that the Kızılay
and the Ministry of Health were both liable for the first applicant's
HIV infection. The court added, however, that the purpose of awarding
non pecuniary damage was not to provide full restitution and the
award of non-pecuniary damage twice for the same incident would have
resulted in unjust enrichment.
On
3 October 2003 the applicants appealed.
On
31 March 2006 the Supreme Administrative Court quashed the judgment
of 14 July 2003, holding that there was no provision in domestic law
which could have prevented the administration from being held liable
jointly with other real or corporate bodies.
On
13 March 2007 the Supreme Administrative Court dismissed the Ministry
of Health's rectification request against the above decision.
In
a judgment dated 7 June 2007, the Izmir Administrative Court held
that the Ministry of Health personnel had been negligent in the
performance of their duties. The court thus awarded the applicants
TRL 30,000 plus interest at the statutory rate running from the
date on which the proceedings had been initiated, namely 19 December
1997. Both the applicants and the Ministry of Health appealed against
the judgment. The applicants challenged the failure of the court to
order the defendant to pay the legal fees, whereas the Ministry of
Health challenged the outcome of the case.
On
26 December 2007 the Supreme Administrative Court dismissed the
Ministry of Interior's appeal but partly quashed the judgment insofar
as it concerned the fees. The parties did not inform the Court about
the outcome of these proceedings.
On
30 April 2008 the Ministry of Health paid 159,369.49 New Turkish
Liras to the applicants.
E. Award
of a scholarship
On
16 February 2005 the newly appointed Administrative Board of the
Kızılay presented their apologies to the applicants and
decided to give a scholarship to the first applicant in order to
contribute towards his educational costs. A delegation of board
members visited the applicants and told them that the medical
expenses of the first applicant would also be paid by the Kızılay.
F. Current
condition of the first applicant and his family
35. According
to the information given by the applicants, the Kızılay
rejected the applicants' claim for treatment and medical costs which
amounted to TRL 3,000 (approximately EUR 1,340) and EUR 5,469,
respectively, per month. The Ministry of Health also rejected their
request for payment of these expenses.
36. The
green card
issued by the Governorship of Izmir was cancelled right after the
announcement of the judgments ordering the administration to pay
compensation to the applicants.
37. The
compensation awarded by the civil and administrative courts covered
only one year's medical treatment expenses and did not suffice to pay
the costs of medication used by the first applicant.
38. The
first applicant was not admitted to any school because of his
condition and reactions from families of other pupils. He thus
started his education at a hospital. Following public pressure and
negotiations with the National Education Directorate, he was
ultimately admitted to a public school. Yet he has no close friends
and suffers from stammering. Every week he sees a psychologist. Upon
the latter's advice, he attends drama and painting courses.
39. The
third applicant's (the father) health has been severely affected as a
result of reactions from parents of other children and the school
administration's refusal to admit his son to school. Currently he is
unable to work and provide any income for the family.
40. The
family is in serious economic difficulty and is trying to pay the
first applicant's medical expenses with the help of family friends.
Meanwhile, although some health associations offered help, they
wanted to test some medications on the first applicant, which the
family refused.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
41 Article
4 of the Law on Blood and Blood Products (Law no. 2857 dated 25
June 1983) provides:
“The powers and duties of the
Ministry of Health and Social Welfare ... are as follows:
...
(c) Inspection
and supervision of real and corporate entities which deal with blood
and blood products...”
Article
23 of the Regulation on the Blood and Blood Products (dated
25 November 1983) reads:
“The
following blood screening tests shall be conducted; blood type, Rh,
compatibility and cross-match, VDRL tests, Hepatitis B, malaria
parasite...”
Common
provisions in the Law on Blood and Blood Productions and the
Regulation on Blood and Blood Products are as follows:
Article 7 and Article 38 respectively
“All entities which deal with blood and blood
products shall be inspected by the Ministry of Health and Social
Welfare at least twice a year. Defects found during inspections shall
immediately be remedied by the relevant entities. In the event the
same defects are found to exist during the following inspection, the
respondent individuals shall be subject to administrative and
criminal proceedings.”
On
18 August 1983 the Ministry of Health sent a letter to all governors,
for distribution to hospitals, blood centres and public institutions,
informing them about AIDS and the measures to be taken to prevent the
spread of this disease. The Ministry stressed that particular
vigilance must be shown when choosing blood donors. In particular, it
required that blood donors be subjected to a medical examination
prior to giving blood and that their blood be refused in case any
symptoms of HIV AIDS were detected.
By
a letter dated 21 November 1985, the Ministry of Health informed the
governors that all HIV AIDS cases must be reported to the health
authorities. It noted that persons suspected of having HIV AIDS must
be medically examined, and their blood, bodily fluids and all other
relevant substances subjected to the requisite tests.
On
4 February 1987 the Ministry of Health issued a circular to all
governors (circular no. 1141), for distribution to public and private
hospitals and clinics as well as to the Kızılay, for
prevention of the spread of the HIV AIDS disease. The Ministry noted
in this circular that HIV AIDS could only be transmitted through
sexual intercourse, blood transfusion or multiple use of a syringe.
In this connection, the Ministry stated that the anti
titre test was the most effective way
of diagnosing HIV AIDS. This could only be done by the ELISA method.
It stressed that, prior to blood transfusions, the requisite ELISA
tests must be carried out. To that end, all hospitals should be
equipped with facilities for carrying out ELISA tests on blood given
by donors. The hospitals which did not have such facilities should
send blood samples to the hospitals which had blood centres.
By
a circular dated 1 April 1992, the Ministry of Health required all
blood centres and stations to conduct VDRL, HBsAg, AIDS and malaria
tests on all blood and blood products. It stressed that no blood
transfusions should be carried out if the aforementioned tests had
not been conducted.
III. COUNCIL
OF EUROPE
Between
1980 and 1988, the Committee of Ministers of the Council of Europe
adopted a number of recommendations aimed at ensuring the adoption of
common rules in the health field. In the below-mentioned
Recommendations, the Committee of Ministers drew Member States'
attention to the growing importance of a new and severe health
hazard, namely AIDS, which was caused by an infectious agent
transmissible by blood and blood products, and invited them to adopt
a number of measures to prevent the spread of this infectious
disease. These Recommendations were as follows:
– Recommendation
No. R (80) 5, dated 30 April 1980, on blood products for the
treatment of haemophiliacs;
– Recommendation
No. R (81) 14, dated 11 September 1981, on preventing the
transmission of infectious diseases in the international transfer of
blood, its components and derivatives;
– Recommendation
No. R (84) 6 on the prevention of the transmission of malaria by
blood transfusion;
– Recommendation
No. R (83) on preventing the possible transmission of AIDS from
affected blood donors to patients receiving blood and blood products;
– Recommendation
985 (1984) on the supply and utilisation of human blood and blood
products; and
– Recommendation
No. R (85) 12 on the screening of blood donors for the presence of
AIDS Markers.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained that the State authorities had failed in their
positive obligation to protect the right to life of the first
applicant as a result of his infection with the HIV virus by blood
supplied by the Kızılay, and that no effective
investigation had been conducted into their criminal complaints. They
invoked Article 2 of the Convention, which reads as follows:
“1. Everyone's right
to life shall be protected by law...”
The
Government contested that argument.
A. Admissibility
The
Government submitted that Article 2 of the Convention did not apply
in the circumstances of the present case. They maintained that the
applicants were no longer victims of a violation of the
aforementioned provision following the redress provided by the
authorities, within the meaning of Article 34 of the Convention. They
further noted that in the case of D. v.
the United Kingdom (application no.
30240/96, 2 May 1997, Reports of
Judgments and Decisions 1997 III),
which concerned the attempted expulsion of an AIDS sufferer to St.
Kitts where he would have been deprived of the medical treatment he
was receiving in the United Kingdom, the Court had examined the
complaints of the applicant under Article 3 of the Convention
rather than Article 2.
The
applicants claimed that Article 2 of the Convention covered not only
incidents which resulted in the death of the victim, but also cases
where the victim suffered life-threatening, serious injury. Bearing
in mind that the first applicant's disease was not curable, the State
was responsible for violation of the right to life of the first
applicant. They thus claimed that Article 2 of the Convention
applied in the present case.
The
Court reiterates that Article 2 does not solely concern deaths
resulting from the use of unjustified force by agents of the State
but also, in the first sentence of its first paragraph, lays down a
positive obligation on States to take appropriate steps to safeguard
the lives of those within their jurisdiction (see, for example,
L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports
1998 III,
and Paul and Audrey Edwards v. the
United Kingdom, no. 46477/99, §
54, ECHR 2002-II).
Those
principles apply in the public-health sphere too. The aforementioned
positive obligations therefore require States to make regulations
compelling hospitals, whether public or private, to adopt appropriate
measures for the protection of their patients' lives. They also
require an effective independent judicial system to be set up so that
the cause of death of patients in the care of the medical profession,
whether in the public or the private sector, can be determined and
those responsible made accountable (see, among authorities, Calvelli
and Ciglio v. Italy [GC], no. 32967/96,
§ 49, ECHR 2002 I, and Powell
v. the United Kingdom (dec.), no.
45305/99, ECHR 2000 V).
Furthermore,
on a number of occasions the Court has examined complaints raised
under Article 2 of the Convention where the victims had suffered
serious injuries as a result of illegal acts perpetrated against them
and has accepted that the aforementioned provision could apply in
exceptional circumstances even if the victims had not died (see Osman
v. the United Kingdom, 28 October
1998, Reports
1998 VIII; Yaşa
v. Turkey, 2 September 1998,
Reports
1998 VI; Makaratzis v. Greece [GC],
no. 50385/99, § 51, ECHR 2004 XI; and G.N.
and Others v. Italy, no. 43134/05,
§ 69, 1 December 2009).
Likewise,
in the above-cited L.C.B.
case, where the applicant had suffered from leukaemia diminishing her
chances of survival, and in the case of Karchen
and Others v. France ((dec.), no.
5722/04, 4 March 2008), where the first applicant had been infected
with the HIV virus which put his life in danger, the Court held that
Article 2 of the Convention was applicable.
In
view of the foregoing, the Court sees no reason to depart from its
established case-law and considers that Article 2 of the Convention
applies in the circumstances of the present case.
As
regards the Government's reference to the case of D.
v. the United Kingdom (cited above),
where the applicant's complaints under Article 2 had been
examined under Article 3 of the Convention, the Court notes that the
circumstances of that case are fundamentally different from the
present case. In the case of D.
the Court examined the respondent Government's responsibility
stemming from the attempted expulsion of the applicant to a third
country, where he would be deprived of the medical treatment he had
been receiving in the United Kingdom, from the standpoint of Article
3 of the Convention in accordance with its established practice in
expulsion cases (see, among many others, Mamatkulov
and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, §§ 56-78, ECHR 2005 I). In the
instant case, however, the applicants' complaints must be examined
under Article 2 of the Convention since they pertain to the alleged
failure of the State authorities to fulfil their positive obligation
to protect life by not taking preventive measures against the spread
of HIV through blood transfusions and by not conducting an effective
investigation against those responsible for the infection of the
first applicant.
Turning
to the Government's submission concerning the victim status of the
applicants, the Court notes that this question is inextricably linked
to the merits of the case, as it needs to be ascertained whether the
national authorities responded to the applicants' grievances in
accordance with their positive obligation under Article 2.
Accordingly, the Court joins this question
to the merits and will examine it under Article 2 of the Convention
(see Codarcea v. Romania,
no. 31675/04, § 100, 2 June 2009).
Finally,
the Court notes that the Government implicitly recognised the locus
standi of the second and third
applicants in accordance with the rulings of the national courts
which accepted their standing under Turkish law as parents of the
first applicant and delivered judgments favourable to them (see, a
contrario, Karchen
and Others, cited above).
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The
parties' submissions
(a) The
applicants
The
applicants alleged that the national authorities had not protected
the right to life of the first applicant as a result of their failure
to give sufficient training to the health personnel concerned and to
supervise and inspect their work. In this connection, they noted that
the health personnel at the Kızılay had shown gross
negligence by not requiring the blood donors to fill out
questionnaires and by not screening their blood with sufficient care.
The health personnel at the hospital, where the blood transfusion had
been conducted, also failed to do the necessary tests on the blood
given to the first applicant, considering that the test in question
was very expensive.
The
applicants maintained that no meaningful investigation had been
carried out into their complaints, that the proceedings before the
administrative courts had lasted more than twelve years and that the
compensation awarded by the civil and administrative courts had not
even covered the costs of medication of the first applicant. They
emphasised that the family was in serious economic difficulty and
unable to cover all the expenses for medication and treatment of the
first applicant.
(b) The
Government
The
Government submitted that the legal remedies at the domestic level
had afforded appropriate redress for the applicants' complaints under
Article 2 of the Convention. They further asserted that the
national authorities had conducted an effective investigation into
the applicants' complaints. In their opinion, both the civil and
administrative courts had taken a protective approach towards the
applicants when establishing their victim status and granting them
redress for their grievances. The courts had awarded the applicants
sufficient compensation and these judgments had been executed by the
authorities. They added that, following the impugned incident, the
Kızılay had decided to give the first applicant a
scholarship in order to support his education.
As
regards the applicants' allegations that the criminal investigation
was ineffective, the Government contended that the Ankara Chief
Public Prosecutor's decision of non-prosecution in relation to the
President of the Kızılay and the Minister of Health was
compatible with the principle that the criminal liability should be
personal.
2. The
Court's assessment
(a) Applicable
principles
The
Court reiterates that, even if the Convention does not as such
guarantee a right to have criminal proceedings instituted against
third parties (see Perez v. France [GC],
no. 47287/99, § 70, ECHR 2004 I),
the effective judicial system required by Article 2 may, and under
certain circumstances must, include recourse to the criminal law.
However, if the infringement of the right to life or to personal
integrity is not caused intentionally, the positive obligation
imposed by Article 2 to set up an effective judicial system does
not necessarily require the provision of a criminal-law remedy in
every case. In the specific sphere of medical negligence, the
obligation may for instance also be satisfied if the legal system
affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any
liability of the doctors concerned to be established and any
appropriate civil redress, such as an order for damages. Disciplinary
measures may also be envisaged (see Calvelli
and Ciglio, cited above, § 51;
Lazarini and Giacci v. Italy (dec.),
no. 53749/00, 7 November 2002; Vo v.
France [GC], no. 53924/00, § 90,
ECHR 2004 VIII; and G.N. and
Others, cited above, § 82).
(b) Application
of the above principles in the present case
The
Court notes that the criminal investigation into the applicants'
complaints concerning negligence on the part of the health personnel
concerned, the Director General of the Kızılay and the
Minister of Health was terminated on the ground that there was no
fault directly attributable to these persons (see paragraphs 14 and
16 above).
In
view of the above-cited principles indicating that Article 2 of the
Convention does not necessarily require a criminal law remedy in
cases of unintentional infringement of the right to life or to
personal integrity, such as the present case involving medical
negligence, the Court must ascertain whether the Turkish legal system
afforded the applicants sufficient and appropriate civil redress in
order to satisfy the positive obligation under the aforementioned
provision.
In
this context, the Court notes that both the civil and administrative
courts ruled that the Kızılay was at fault for supplying
HIV-infected blood to the first applicant and that the Ministry of
Health was also responsible as a result of the negligence of its
personnel in the performance of their duties. Both institutions had
therefore been held liable for the damage caused to the applicants
(see paragraphs 21, 22 and 31 above). Furthermore, the Ankara Civil
Court of First Instance established that the HIV infected blood given
to the first applicant had not been detected by the health personnel
because they had not done the requisite test on the blood in
question, considering that it would be too costly. The court found
moreover that, prior to the impugned incident, there was no
regulation requiring blood donors to give information about their
sexual history which could help determine their eligibility to give
blood. On account of these deficiencies, and the defendants' failure
to comply with the already existing regulations, the civil and
administrative courts awarded the applicants TRL 54,930,703,000 and
159,369.49 New Turkish Liras, respectively, to cover
non-pecuniary damages and the statutory interest applied to those
sums.
It
thus appears that the applicants had access to the civil and
administrative courts which enabled the establishment of the
liability of those responsible for the infection of the first
applicant with the HIV virus and the award of civil redress, in an
order for damages. However, as it appears from the parties'
submissions, a crucial question in the instant case is whether the
redress in question was appropriate and sufficient.
In
this connection, the Court notes that the non-pecuniary damage awards
received by the applicants only covered one year's treatment and
medication for the first applicant (see paragraph 37 above). 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
(see paragraphs 35, 39 and 40 above). Despite the promises made
by the authorities to pay the medical expenses of the first
applicant, the applicants' requests to that effect were rejected by
the Kızılay and the Ministry of Health (Ibid.). It is
striking that the green card given to the applicants was withdrawn
immediately after the announcement of the judgments ordering the
defendants to pay compensation to the applicants (see paragraph 36
above). It follows that the applicants were left on their own to pay
the high costs of treatment and medication for the first applicant.
In
view of the above, while the Court acknowledges the sensitive and
positive approach adopted by the national courts in determining the
responsibility of the Kızılay and the Ministry of Health
and in ordering them to pay damages to the applicants, it considers
that the most appropriate remedy in the circumstances would have been
to have ordered the defendants, in addition to the payment of
non-pecuniary damages, to pay for the treatment and medication
expenses of the first applicant during his lifetime. The Court
concludes therefore that the redress offered to the applicants was
far from satisfactory for the purposes of the positive obligation
under Article 2 of the Convention.
Accordingly,
the Court considers that the applicants can still claim to be victims
of a violation of their rights under Article 2 within the meaning of
Article 34 of the Convention. It follows that the Government's
objection on this point must be dismissed (see paragraph 59 above).
74. As regards the complaint pertaining
to the length of the proceedings before the administrative courts,
the Court recalls that the requirements of Article 2 of the
Convention will not be satisfied if the protection afforded by
domestic law exists only in theory. It must also operate effectively
in practice, which requires a prompt
examination of the case without unnecessary delay (see Calvelli
and Ciglio, cited above, § 53;
Lazzarini and Ghiacci v. Italy
(dec.), no. 53749/00, 7 November 2002; Byrzykowski
v. Poland, no. 11562/05,
§ 117, 27 June 2006; and
G.N. and Others,
cited above, § 97).
On
that basis, the Court observes that, despite the due diligence shown
by the civil courts in the handling of the applicants' compensation
claims within a very short time (approximately one year and two
months), the administrative court proceedings aimed at determining
the liability of the Ministry of Health lasted nine years, four
months and seventeen days (see paragraphs 24-32 above). Having regard
to the latter delay, it cannot be said that the administrative courts
complied with the requirements of promptness and reasonable
expedition implicit in this context.
76. In that connection, the Court
recalls that, apart from the concern for the respect of the rights
inherent in Article 2
of the Convention in each individual case, more general
considerations also call for a prompt
examination of cases concerning medical negligence in a hospital
setting. Knowledge of the facts and of possible errors committed in
the course of medical care is essential to enable the institutions
and medical staff concerned to remedy the potential deficiencies and
prevent similar errors. The prompt
examination of such cases is therefore important for the safety of
users of all health services (see Šilih
v. Slovenia [GC], no. 71463/01,
§ 196, 9 April 2009).
In
view of the foregoing considerations, the Court concludes that there
has been a violation of Article 2 of the Convention.
Finally,
the Court is of the view that it is appropriate to further examine
the “reasonableness” of the length of the administrative
proceedings in question from the standpoint of Article 6 § 1 of
the Convention below.
II. ALLEGED VIOLATION OF ARTICLE 6 §
1 AND 13 OF THE CONVENTION
The
applicants complained that the length of the administrative court
proceedings had contravened the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention. They
also alleged under Article 13 of the Convention that there were no
effective remedies in domestic law to accelerate the proceedings.
Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article 13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contested that argument.
The
period to be taken into consideration began on 13 October 1998 and
ended on 30 April 2008. It thus lasted approximately nine years, four
months and seventeen days for two levels of jurisdiction.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicants alleged that the length of the proceedings before the
administrative courts was excessive. They further noted that the
Izmir Administrative Court's judgment had not been executed within a
reasonable time, although they had informed the authorities that the
compensation in question would be used for the treatment and
medication of the first applicant.
The
Government submitted that the alleged delay had been caused by the
difficulties pertaining to the jurisdictional questions, the nature
of the dispute and the applicants' appeal against the First Instance
Court's judgment in relation to the legal fees.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000 VII; X v. France,
31 March 1992, § 32, Series A no. 234 C; Vallée
v. France, 26 April 1994, §
34, Series A no. 289 A; Karakaya v.
France, 26 August 1994, § 30,
Series A no. 289 B; Pailot v.
France, 22 April 1998, § 61,
Reports 1998 II;
Richard v. France,
22 April 1998, § 57, Reports
1998 II; Leterme
v. France, 29 April 1998, § 64,
Reports 1998 III;
and Henra v. France,
29 April 1998, § 61, Reports
1998 II).
The
Court considers that the case was not at all complex as the
negligence and responsibility of the authorities in the infection of
the first applicant had already been established by the Ankara Civil
Court of First Instance and the Court of Cassation by judgments dated
13 July 1998 and 9 February 1999, respectively.
As
regards the conduct of the applicants, the Court observes that there
is no indication in the case file that the applicants noticeably
contributed to the length of the proceedings. The fact that they
exercised their right to lodge an appeal against the First Instance
Court's judgment in relation to the legal fees cannot be taken as a
factor which caused significant delay in the proceedings.
As
to the conduct of the authorities, the
Court notes that several periods appear to have been abnormally long.
In this connection, it observes that the administrative courts took
almost two and a half years to resolve the jurisdictional question
(see paragraphs 25 and 26 above). The Izmir Administrative Court
delivered its first judgment more than two years after the case had
been remitted to it for examination (see paragraphs 26 and 27
above). Finally, it took the Supreme Administrative Court two and a
half years to examine the appeal lodged by the applicants against the
First Instance Court's judgment of 14 July 2003 (see paragraphs 27-29
above).
Notwithstanding
the above findings, the Court observes that the
main issue in the present case was not whether there had been
unreasonable delays imputable to the administrative courts hearing
the applicants' case, but whether those courts had acted with
“exceptional diligence” in view of the first applicant's
condition and the gravity of the overall situation. Furthermore, what
was at stake in the proceedings complained of was of crucial
importance to the applicants in view of the disease from which the
first applicant is suffering (see X v.
France, Vallée,
Karakaya,
Pailot,
Richard,
Leterme
and Henra
judgments cited above, § 47, § 47, § 43, § 68,
§ 64, § 68, and § 68 respectively).
Having
regard to the foregoing, the Court considers that in the instant case
the length of the proceedings before the administrative courts was
excessive and failed to meet the “reasonable time”
requirement.
91. The applicants further complained
of a lack of an effective domestic remedy to accelerate the
proceedings. The Government disputed this complaint.
92. The Court recalls its earlier
finding that the Turkish legal system did not provide an effective
remedy whereby the length of the proceedings could be successfully
challenged (see Tendik and Others
v. Turkey, no. 23188/02, §§
34-39, 22 December 2005). It finds no
reason to reach a different conclusion in the instant case.
93. There has accordingly been a breach
of Articles 6 § 1 and 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
Lastly,
relying on Article 6 § 1 of the Convention the applicants
complained that they had been denied a fair hearing by an independent
and impartial tribunal. Under Article 13 of the Convention they
maintained that they had not had an effective remedy in respect of
their complaints under Article 2.
Having
examined the material submitted to it, the Court considers that there
is no appearance of a violation of these provisions.
It
follows that this part of the application is manifestly ill founded
and must be declared inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention
provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary
damage
The
applicants claimed TRL 1,913,248 (approximately EUR 852,128) in
respect of pecuniary damage. The applicants explained that this
amount consisted of the following items:
– EUR
328,140 for medication costs which had already been incurred by the
applicants up until September 2008;
– TRL
480,000 for the costs that had already been incurred and will be
incurred for forty years for the treatment of the first applicant.
This amount includes the travel and accommodation expenses of the
applicants who have to travel to Ankara every month for the
treatment;
– TRL
213,560 for the deprivation of future income of the first applicant;
– TRL
259,874 for the costs of employing a house keeper as the second
applicant has to work and is unable to do the household work;
– TRL
142,999 for the deprivation of income of the second applicant
(mother);
– TRL
262,361 for the deprivation of future income of the third applicant
(father) who is currently unable to work.
The
applicants submitted a detailed report about the medication consumed
by the first applicant and the price of each medicine. They also
furnished the Court with an expert report in support of the remaining
claims.
The
Government submitted that the applicants had failed to substantiate
their claims in respect of the pecuniary damage. In this connection
they emphasised that the domestic courts had already awarded the
applicants sufficient compensation for the damage incurred by them.
They thus asked the Court not to make any award under this head.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention. In view of its above conclusion, it finds that there is a
direct causal link between the violation found under Article 2 of the
Convention and the damage incurred by the applicants. Having regard
to the documents in its possession and to the fact that the
authorities refused to pay the costs of treatment and medication for
the first applicant, the Court considers it reasonable to award the
applicants, jointly, EUR 300,000 in respect of past pecuniary damage,
plus any tax that may be chargeable on that amount.
The
Court considers that, in addition to the award made above, the
Government must provide free and full medical cover for the first
applicant during his lifetime.
2. Non-pecuniary
damage
The
applicants claimed EUR 2,000,000 in respect of non pecuniary
damage. They noted that this amount consisted of the following:
EUR 1,000,000 for the first applicant and EUR 500,000 for each
of the second and third applicants.
The
Government submitted that the amount claimed was excessive and
unjustified. They further contended that any award to be made for
non pecuniary damage should not be a source of enrichment.
The
Court has found a violation of Articles 2, 6 and 13 of the Convention
on account of the authorities' failure to fulfil their positive
obligation to protect the right to life of the first applicant and of
the excessive length of the administrative court proceedings as well
as lack of an effective remedy to accelerate the proceedings. Bearing
in mind the emotional distress and anguish they endured, the Court
accepts that the applicants have suffered non-pecuniary damage which
cannot be compensated for solely by the findings of violations.
As
regards the Government's contention that the award to be made under
this head should not be a source of enrichment, the Court recalls the
considerations of the Ankara Civil Court of First Instance that the
sorrow and pain suffered by the [applicants] cannot be compensated
even if huge amounts were awarded (see paragraph 21 above).
In
view of the above, ruling on an equitable basis, the Court awards the
applicants, jointly, a total sum of EUR 78,000, plus any tax that may
be chargeable thereon.
B. Costs and expenses
The
applicants did not specify a sum in respect of the costs and expenses
that which have incurred. However, they submitted a schedule of legal
work carried out by their representative before the domestic courts
and for the presentation of their case to the European Court.
The
Government asked the Court to dismiss the applicants' claims for
costs and expenses.
The
Court has consistently held that costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred, and were reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see, for example, Beyeler
v. Italy (just satisfaction) [GC], no.
33202/96, § 27, 28 May 2002, and Sahin
v. Germany [GC],
no. 30943/96, § 105, ECHR
2003 VIII).
In
the present case, although the applicants did not claim a specific
sum, they submitted a time schedule indicating the time spent for the
preparation and submission of their application and asked the Court
to make an award under this head. Considering that the applicants
must have incurred costs and expenses for the presentation of their
case which involves complex issues of fact and legal questions, the
Court finds it reasonable to award EUR 3,000 to them, jointly, under
this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS,
THE COURT
1. Declares
unanimously admissible the complaints concerning the alleged
violation of the right to life, the excessive length of the
administrative court proceedings and lack of effective remedies in
domestic law to accelerate the proceedings, and the remainder of the
application inadmissible;
2. Holds
unanimously that there has been a violation of Article 2 of the
Convention;
3. Holds
unanimously that there has been a violation of Article 6 § 1 of
the Convention;
4. Holds
unanimously that there has been a violation of Article 13 of the
Convention;
5. Holds
by six votes to one
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
300,000 (three hundred thousand euros) plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
78,000 (seventy-eight thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(iii) EUR
3,000 (three thousand euros), plus any tax that may chargeable to the
applicants, for costs and expenses;
(b) that
the respondent Government must provide free and full medical cover
for the first applicant during his lifetime;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses
unanimously the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 23
March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Sally Dollé Françoise
Tulkens
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the
Rules of Court, the separate opinion of Judge Sajó is annexed
to this judgment.
F.T.
S.D.
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, Yiğit. 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 Ministry 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
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” violation
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
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 their demand they sought only
TRL 328,140 for lifelong
treatment).
In order to prove their claim they produced grossly inflated
internet-based prices for the prescribed medication.
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.
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.
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.
