CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 septembre 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s8BD2CFA4 { width:35.21pt; display:inline-block } .sC474A5FB { width:236.12pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 25327/02 by Nesrin YILDIRIM against Turkey The European Court of Human Rights (Second Section), sitting on 11   September 2007 as a Chamber composed of:   Mrs   F. Tulkens , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 5 June 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Nesrin Yıldırım, is a Turkish national who was born in 1964 and lives in İzmir. She was represented before the Court by Mr   A.   Gültekin, a lawyer practising in İzmir. The Turkish Government (“the   Government”) did not appoint an agent to represent them. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 28 December 1999, during the night, the applicant went into labour and was taken to the İzmir Atatürk Training and Research Hospital. Just after her arrival at the hospital at 5:30 a.m., the doctor at the hospital examined her and informed her that the baby was suffering from a high degree of asphyxia. Thus, she had to undergo a caesarean operation. Meanwhile, her relatives carried out the necessary formalities for her stay at the hospital. The operation started at 5.45 a.m. and the baby was born at 6.07 a.m. According to the birth card, the baby’s weight was 4 kg and his height was 53 cm. When the baby was born, he was not breathing. The team of anaesthetists carried out the necessary reanimation process on the body by way of intubation but, despite many attempts, he could not be revived. The relevant hospital document showed that the baby had been suffering from respiratory distress and had consumed his faeces whilst in the mother’s womb. The reason for death was foetal distress. Approximately five hours after the birth, a nurse had appeared outside the operating theatre holding the corpse of a baby wrapped in a cloth and had told the applicant’s husband that his baby had died. The corpse was taken to the hospital morgue. On 30 December 1999, according to a document prepared that day, the applicant was discharged from the hospital of her own free will. The authorities submitted that, upon leaving the hospital, neither the applicant nor her husband expressed their intention to take the corpse from the morgue for burial. Neither did the applicant pay the hospital expenses which were assessed at 81,950,000 Turkish liras ([TRL]; approximately 150 euros [EUR] at the material time). On 7 January 2000 the hospital authorities wrote to the Directorate of Graveyards, requesting that they carry out the burial procedure. On an unspecified date, the applicant and her husband allegedly requested the hospital authorities to hand over the corpse of the baby. In response, the authorities told them that they had waited until they had had four or five corpses of babies before burying them all. On an unspecified date, the applicant and her husband applied to the General Secretariat of the President’s Office ( Cumhurbaşkanlığı Genel Sekreterliği ), asking for information. On 5 June 2001 the applicant’s representative filed a complaint with the Izmir Public Prosecutor’s Office, requesting a preliminary investigation into the incident. On 8 June 2001 the Izmir public prosecutor wrote a letter to the Konak District Governorship’s Office, seeking permission for the prosecution of the responsible medical staff of the hospital according to Law no. 3483 (the Law on the Prosecution of Civil Servants and Public Officials). On 12 June 2001 the Konak District Governorship instituted an investigation. On 29 June 2001 a medical expert was appointed to prepare a preliminary report. After collecting all the necessary evidence, such as the patient’s files and the statements of all relevant persons, the expert concluded as follows: There had been six doctors, one anaesthetist and a midwife from the obstetrics department who had taken part in the medical procedure. A doctor named Selçuk, who was mentioned by the applicant, had never worked at that particular obstetrics department. There had been no other stillbirth case on the same date and none of the babies born that day had been exceptionally big, as alleged by the applicant. The applicant’s neighbours had also been heard as witnesses. Ö.B. stated that he had driven the couple to the hospital at the request of the applicant’s husband. Later that day, he had returned to the hospital where the applicant’s husband had told him that the baby had died and that he had seen its purple foot, but that his wife was well. Then the applicant’s husband and Ö.B went to see the doctor, who told them that they could take the corpse whenever they wished. However, the applicant’s husband had asked if the hospital authorities could carry out the burial as, financially, he was unable to do so at that stage. The doctor had said to the applicant’s husband that the hospital could bury the corpse when there were a few more unclaimed babies who had died. The husband had accepted this. Ö.B. added that three days later the applicant had “escaped” from the hospital to avoid paying the medical expenses and that she and her husband had stayed at home with the curtains closed for a while. The witness statement of Ms I.O., who was Ö.B.’s partner, was the same.   Consequently, the preliminary report of the medical expert established that the applicant and her husband had not taken delivery of the corpse, knowingly and willingly, in order to avoid the hospital and burial expenses. The corpse had been kept in the hospital morgue for longer than the statutory period; however no claim had been made. It was then buried in the Karşıyaka Doğancay Cemetery by the authorities. Therefore, the medical staff had not committed any offence, as alleged by the applicant; nor had they been at fault during the entire incident. On 3 July 2001 the Secretariat of the President’s Office forwarded the applicant’s petition to the Ministry of Health. On 23 July 2001 the applicant and her husband filed an additional petition with the Izmir Public Prosecutor’s Office. They claimed that they had doubts about the death of their baby, as the corpse had not been handed over to them. They requested that the grave be opened and that a DNA examination be conducted. On 27   July 2001 the Ministry of Health sent a letter to the Izmir Governorship, accompanied by the applicant’s petition to the President’s Office, requesting an investigation into the applicant’s allegation. On 3 August 2001 the Konak District Governorship, after having examined the abovementioned expert report and the file, decided that no prosecution should be brought against the medical staff of the Obstetrics Department of Atatürk Hospital. The decision concluded that, on 28   December 1999, the applicant had been given a general anaesthetic in the course of a caesarean operation. After the delivery, the medical team had carried out the necessary reanimation process on the baby, which had been unsuccessful. It further stated that there was no other stillbirth case on that day; nor had a live baby been swapped with a stillborn. The family had refused to take the corpse in order to avoid the hospital expenses. The applicant challenged this decision before the İzmir Regional Administrative Court. On 28 November 2001 the Regional Administrative Court rejected the applicant’s appeal and upheld the decision of the District Governorship. On 2 January 2002 the applicant’s representative was notified of this decision. COMPLAINTS   1. The applicant alleged, under Articles 1 and 2 of the Convention, that her baby had been alive when she had gone into labour and therefore she had suspected that her baby had been swapped for a stillborn. She complained that the authorities had failed to conduct a proper investigation into this incident. 2. She maintained under Articles 8 and 9 of the Convention that the hospital authorities had not given her the corpse of the baby and had buried it without the parents’ consent. THE LAW 1. The applicant complained under Articles 1 and 2 of the Convention that her baby had been swapped for a stillborn just after the birth and that the authorities had failed to conduct a proper investigation into this event. The relevant part of Article 2 reads as follows: “Everyone’s right to life shall be protected by law...” The Government submitted that the medical reports had shown that the applicant’s baby had been suffering from respiratory distress and had consumed its faeces whilst in the applicant’s womb. Thus the reason for the death had been foetal distress. They added that there had been an effective and sufficient investigation into the applicant’s allegations. The applicant refuted these arguments. She maintained that the hospital had not asked her for any payment, but instead had requested that she leave the hospital. She also maintained that, when they asked about the baby, she and her husband had been exposed to threats from the hospital authorities. This suspicion had been reinforced when their request that the grave be opened and a DNA test performed had not been answered. The Court finds that, even assuming that Article 2 of the Convention is applicable to the present case (see, mutatis mutandis , Calvelli and Ciglio   v.   Italy [GC], no.   32967/96, §§ 49-50, ECHR 2002 ‑ I) and that the applicant exhausted domestic remedies, these complaints must be rejected for the following reasons. The Court observes that the authorities investigated the applicant’s allegations and a medical expert was appointed. The expert took statements from all of the medical staff involved, as well as from the applicant, her husband and their neighbours. Subsequently, the expert had concluded that the baby had died from a high degree of asphyxia. The medical staff had carried out all necessary procedures to try to save the baby, albeit unsuccessfully. He considered that there were no grounds to prosecute the medical staff, who had not been at fault or negligent in performing their duties. This report was assessed by the District Governor. He likewise decided that prosecution of the medical staff would be groundless. This decision was also upheld by the Regional Administrative Court. The Court finds no evidence in the case file which could cast doubt on the foregoing conclusions of the domestic authorities. Therefore, the applicant’s allegations that her baby had been swapped for a stillborn, an incident into which the authorities had failed to carry out an effective investigation, are wholly unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. The applicant further alleged, under Articles 8 and 9 of the Convention, that the hospital authorities had not handed over the corpse of her baby to her. This had prevented her from carrying out her religious duties on his grave. The Court will examine these complaints solely from the standpoint of Article 8 of the Convention, the relevant part of which provides as follows: “1.     Everyone has the right to respect for his private and family life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court accepts that an issue of a potential interference with the right to respect for family life arises in the present case (cf.http://insite.dhcour.coe.int/link/tikitlink.asp?doc=&lib=court mutatis mutandis Pannullo and Forte v. France , no 37794/97, §§ 35-40). However, the Court is faced with a similar factual dispute to that which it has examined above in the context of the applicant’s Article 2 complaint. The Government maintained that the applicant and her husband did not claim the baby’s body and, therefore, it was left to the authorities to perform the necessary burial, as the applicant’s husband had well understood. The applicant has not submitted any convincing evidence to challenge this version of the facts. Consequently, the Court finds that her Article 8 complaint is also wholly unsubstantiated. It too must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. In these circumstances, it is appropriate to discontinue the application of Article 29 § 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   S. Dollé   F. Tulkens   Registrar   President