CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 mai 2010

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s87677B31 { margin-top:12pt; margin-left:9.35pt; margin-bottom:0pt; text-indent:4.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s750BEB { margin-top:12pt; margin-left:9.35pt; margin-bottom:0pt; text-indent:4.85pt; text-align:justify; page-break-after:avoid } .s77170A8 { margin-top:36pt; margin-left:9.35pt; margin-bottom:0pt; text-indent:4.85pt; page-break-inside:avoid; page-break-after:avoid } .s314092A3 { width:126.08pt; text-indent:0pt; display:inline-block } .s74E6E0B9 { width:18.7pt; text-indent:0pt; display:inline-block } .sC92930E6 { width:176.92pt; text-indent:0pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 28870/05 by Şerif GECEKUŞU against Turkey The European Court of Human Rights (Second Section), sitting on 25   May 2010 as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Danutė Jočienė,   András Sajó,   Nona Tsotsoria,   Işıl Karakaş,   Kristina Pardalos, judges, and Françoise Elens-Passos, Deputy Section Registrar , Having regard to the above application lodged on 18 July 2005, Having deliberated, decides as follows: THE FACTS The applicant, Mr Şerif Gecekuşu, is a Turkish national who was born in 1953 and lives in Gaziantep. He is represented before the Court by Ms   G.   Satıcı, a lawyer practising in Gaziantep. The respondent Government are represented by their Agent. A.     The circumstances of the case It is common ground between the parties that the applicant had a heart attack on 13 May 2003 and subsequently, on 20 May 2003, he underwent bypass surgery at Gaziantep University Hospital. Following the surgery, the applicant developed a complication (optic neuropathy) and gradually lost his eyesight. The two parties have divergent versions as to the treatment administered to the applicant after the surgery. 1.     Events prior to the applicant losing his eyesight (a)     The applicant's submissions On 22 May 2003, two days after his bypass surgery, the applicant informed his heart surgeons, Dr E.B. and Dr H.Ü, that his vision had deteriorated. As the doctors took no action, the applicant, on his own initiative, contacted an ophthalmologist from another hospital, Dr   K.G., who prescribed a certain type of medication. The heart surgeons refused to use the medication prescribed by the ophthalmologist, as they considered that it would be fatal to the applicant's condition because it had to be administered as a serum. Instead, the heart surgeons used steroids to treat the applicant and he gradually lost his eyesight. (b)     The Government's submissions On 22 May 2003, when the applicant informed his heart surgeon about the deterioration of his vision, Dr H.Ü transferred the applicant to the ophthalmology clinic of Gaziantep University Hospital for consultation. Dr   H.Ü further requested a consultation at the neurology department. On the same day Dr K.G., an ophthalmologist at the ophthalmology clinic of Gaziantep University Hospital, examined the applicant and ran a number of tests, as a result of which the applicant was diagnosed as having optic neuropathy. The medication, namely methyl prednizolon-prednol, prescribed by Dr KG., was immediately administered to the applicant, from 22   May 2003 to 29 May 2003. Nevertheless, the applicant gradually lost his eyesight. 2.     The domestic proceedings initiated by the applicant after he lost his eyesight On 14 November 2003 the applicant lodged a complaint with the Gaziantep public prosecutor against the cardiology department of Gaziantep University Hospital, alleging that the doctors had failed to secure his consent before deciding not to administer the treatment prescribed by the ophthalmologist which, according to the applicant, would have prevented the loss of his eyesight. On 10 March 2004 the public prosecutor considered that he lacked jurisdiction to examine the complaints against the doctors and transferred the case file to the Chancellor of Gaziantep University, pursuant to Law no.   2547. A rapporteur was appointed and an investigation was commenced into the allegations. During the investigation, statements from Dr K.G., the ophthalmologist who had examined the applicant on 22 May 2003, were taken. Dr   K.G. explained that the applicant had been transferred to him by the cardiology department. The applicant was subsequently diagnosed with optic neuropathy, which was a very rare complication and the standard treatment of methyl prednizolon-prednol was recommended in the applicant's case. The investigator also took statements from the two heart surgeons, Dr H.Ü and Dr E.B., who had operated on the applicant. Both doctors stated that the medication prescribed by the ophthalmologist was immediately given to the applicant, as evidenced by the medical intake reports. The applicant was also interviewed during the investigation and repeated his allegations against the doctors. Furthermore, an expert report was obtained from three medical professors at Çukurova University Hospital, namely two eye doctors and a heart surgeon. The experts concluded that the applicant had developed a complication after his bypass surgery, in the form of optic neuropathy, which occurred with an estimated incidence of 0.1%. The experts established that the heart surgeons had immediately consulted eye doctors and neurologists, and that the medication prescribed by the ophthalmologist had immediately been administered to the applicant in an attempt to prevent the loss of his eyesight. As a result, the experts concluded that no fault could be attributed to the accused doctors. On 4 March 2005, on the basis of the statements and the expert report, the Gaziantep University authorities decided that no fault could be attributed to the doctors and that there was therefore no need to initiate criminal proceedings against them. This decision was served on the applicant's lawyer, who lodged an objection with the Supreme Administrative Court. On 28 April 2005 the Supreme Administrative Court, taking into account the investigation file and the decision dated 4 March 2005, dismissed the objection lodged by the applicant's lawyer, on the ground that there was insufficient evidence to commit the doctors for trial. B.     Relevant domestic law The relevant domestic law applicable at the time of the events was as follows. 1.     The Constitution Article 17 of the Constitution provides that everyone has the right to life. 2.     Criminal law The relevant provision of the Criminal Code, at the material time, read as follows: Article 455 § 1 “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.” Under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, is informed of a situation which gives rise to a suspicion that an offence has been committed, must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, the public prosecutor's jurisdiction is restricted ratione personae at the preliminary investigation stage if the suspected offender falls into one of the categories enumerated in section   53 of the Higher Education Act (Law no. 2547). In such cases, it is for the competent authority (depending on the suspect's status) to conduct the preliminary investigation and consequently to decide whether criminal proceedings should be opened. The decision given by the relevant authority can be challenged before the Supreme Administrative Court. A decision not to prosecute is automatically reviewed by that court. 3.     Administrative and civil law With regard to civil and administrative liability arising out of criminal offences, section 13 of the Administrative Procedure Act (Law no.   2577) provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. Under the Code of Obligations, anyone who has suffered damage as a result of a tort or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant's guilt (Article 53). COMPLAINTS 1.     The applicant complained under Article 2 of the Convention that he had lost his eyesight as a result of negligence by the doctors. He also alleged a breach of the procedural aspect of Article 2 in that his complaints had not been investigated properly by the domestic authorities. 2.     Relying on Article 6 of the Convention, the applicant maintained that his right of access to a court had been breached. 3.     Finally, invoking Article 13 of the Convention, the applicant complained that he had not had an effective remedy under domestic law. THE LAW The applicant complained that following the bypass operation, he had lost his eyesight because of medical negligence by the doctors. In respect of his complaints, he invoked Articles 2, 6 and 13 of the Convention. The Government stated in the first place that the application should be rejected for non-exhaustion of domestic remedies as the applicant had failed to initiate compensation proceedings against the doctors. They further denied the allegations of the applicant, stating that following the surgery the applicant had developed a very rare complication and that no fault could be attributed to the doctors. They further asserted that a thorough domestic investigation had been conducted into the incident, which had established that the applicant's allegations were unsubstantiated. The Court considers that it is more appropriate to deal with the applicant's complaints under Article 8 of the Convention, which guarantees the right to respect for private life. As regards the preliminary objection raised by the Government, the Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies pursuant to Article 35 § 1 of the Convention, since the application is in any event inadmissible for the following reasons. As to the merits, the Court points out that people's physical and psychological integrity, their involvement in the choice of medical care administered to them and their consent in this respect, as well as their access to information enabling them to assess the health risks to which they are exposed, fall within the ambit of Article 8 of the Convention (see Trocellier v.   France (dec.), no. 75725/01, 5 October 2006). The Court further notes that, in addition to the primarily negative undertakings contained in Article 8, as in other provisions of the Convention there may be positive obligations inherent in an effective respect for the rights guaranteed (see Roche v. the United Kingdom [GC], no.   32555/96, § 157, ECHR 2005 ‑ X). The Court has also held, in connection with the right to life enshrined in Article   2, that Contracting States are required to set up an effective independent judicial system 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. It has held that, in the specific sphere of medical negligence, access to proceedings for “civil” liability is sufficient in principle. The Court further underlines that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It considers it reasonable to infer from this that the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of the planned medical procedure on their patients' physical integrity and to inform patients of these beforehand, in such a way that the latter are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if, as in the instant case, those doctors work in a public hospital, the State Party concerned may be directly liable under Article   8 for this lack of information (see Trocellier , cited above). As to the application of the above-cited principles to the present case, the Court observes that, following the bypass surgery, the applicant developed a very rare, unforeseeable complication and, as a result, he lost his eyesight. There is no dispute between the parties on this issue. The dispute is as to whether or not the loss of his eyesight could have been prevented. According to the applicant, the heart surgeon had decided against using the medication that had been prescribed by the ophthalmologist. Therefore, in his view, it was because of the medical negligence of the heart surgeon that he had lost his eyesight. The Government, however, denied these allegations, referring to the applicant's medication intake reports and to the outcome of the domestic investigation conducted by the authorities. The Court notes in the first place that, in cases concerning medical negligence, the Turkish legal system affords the injured parties the right to bring both criminal and civil proceedings (see Sevim Güngör v. Turkey (dec.), no.   75173/01; 14 April 2009). However, this provision will not be satisfied if the protection afforded by domestic authorities exists only in theory; above all, it must also operate effectively in practice. In the present case, the applicant chose to initiate criminal proceedings by way of lodging a formal complaint with the public prosecutor's office against the heart surgeons, whom he held responsible for the loss of his eyesight. However, due to the restriction in domestic law on the public prosecutor's jurisdiction at the preliminary investigation stage, the inquiry into the applicant's complaints, with possible criminal or disciplinary ramifications, was conducted by the Chancellor of Gaziantep University. During this investigation, statements from the applicant, the accused doctors and other medical staff involved in the treatment of the applicant were taken. The rapporteur appointed to investigate the incident further examined the medical evidence, including the medication intake report and the prescriptions written by the doctors. It concluded that no fault could be attributed to the doctors for the loss of the applicant's eyesight. Furthermore, an experts' report was requested from Çukurova University. The three experts who prepared the report endorsed the findings of the investigator by concluding that optic neuropathy was a very rare complication and that its occurrence was not related to a surgical mistake. It was further established that the treatment advised by the ophthalmologist was immediately administered by the heart surgeons. The applicant, represented by a lawyer, lodged an objection against this decision with a judicial body, namely the Supreme Administrative Court. The objection was dismissed. The Court observes that this investigation was initiated promptly and the doctors whose actions had been criticised by the applicant were interviewed. Moreover, the applicant was able to take part in the proceedings to the extent necessary to safeguard his legitimate interests. The Court acknowledges that the applicant is critical of the outcome of this investigation. However, from the viewpoint of exposing both the course of events at the hospital and the decisions taken by the doctors to public scrutiny, it does not find any serious defects in the authorities' conduct. On the basis of the submissions of the Government and the documents in the case file, the Court finds it established that the complication which occurred after the operation was very rare and could not have been foreseen. Furthermore, it is also clear from the Government's submissions that, once the applicant was diagnosed with optic neuropathy, he was immediately sent to the ophthalmology department for a consultation and the medication prescribed by the eye doctor was given to the applicant without delay, contrary to the applicant's allegations set out in the application form. Having regard to the case file as a whole and in particular in view of the submissions of the Government, the Court is convinced that the applicant had given his consent for the bypass surgery and for the administration of the medicine prescribed by doctor K.G. The Court therefore finds that the applicant's allegations are unsubstantiated and, therefore, the application should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Françoise Elens-Passos   Françoise Tulkens   Deputy Registrar   President