CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 septembre 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 } .s36109428 { width:18.7pt; 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 } .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 } .s29100277 { font-family:Arial; font-weight:bold } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sE950BED4 { width:22.54pt; display:inline-block } .s77B2B6EE { width:157.09pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 8163/07 by Serap ALHAN against Turkey The European Court of Human Rights (Second Section), sitting on 14   September 2010 as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Dragoljub Popović,   Nona Tsotsoria,   Işıl Karakaş,   Kristina Pardalos,   Guido Raimondi, judges, and Stanley Naismith, Section Registrar, Having regard to the above application lodged on 1 February 2007, Having deliberated, decides as follows: THE FACTS The applicant, Ms Serap Alhan, is a Turkish national who was born in 1948 and lives in Ankara. The facts of the case, as submitted by the applicant, may be summarised as follows. On 12 January 2000 the applicant had a mole excision operation at the Medical Faculty of Osmangazi University (“the hospital”) in Eskişehir. During the operation no blood transfusion was carried out. Medical tests carried out between 21 and 24 March 2000 indicated that the applicant was infected with the hepatitis C virus (“HCV”) although the previous test results, dated 16 February 2000, had been clear. On 24 August 2000 the applicant instituted compensation proceedings before the Eskişehir Administrative Court claiming that she had contracted HCV from the surgical instruments used during her operation which had not been properly sterilised. She added that she had had a very simple operation and even insufficient sterilisation of the operating theatre could have been enough to enable transmission of the virus. In a letter submitted to the hospital administration on 29   September 2000, Doctor Y.A., head of the microbiology department of the same hospital, stated that HCV could be contracted through contact with an infected person's blood, sexual intercourse, from mother to child or by accidental pricking through contaminated sharp objects. Noting that no blood transfusion had been carried out during the applicant's operation and that the instruments used during the operation − scalpel, operation needle and thread − had all been one-time use, disposable, sterile products, Doctor Y.A. stated that the applicant could not have contracted HCV during the operation. He added that HCV was not airborne so the applicant could not have been contaminated from the operating theatre either. In any event, further detailed tests were needed to verify the initial results. According to Doctor Y.A., the source of the HCV infection could not be identified in 40% of hepatitis C cases. Finally Doctor Y.A. drew attention to the applicant's medical history and noted that she had received medical treatment by penicillin injections for a period of twenty years between the ages of 15 and 35, at a time when disposable syringes had not been in use in Turkey. On 13 November 2000 the applicant objected to the hospital's submissions. She pointed out a general internal notice in which the hospital staff had been warned not to wear their operation clothes outside the operating theatres. The applicant requested the court to seek advice from the Forensic Medicine Institute. Eskişehir Administrative Court requested an expert report from the Medical Faculty of the Gazi University in Ankara. According to a report dated 20 July 2001 drawn up by three doctors of the aforementioned university, no blood transfusion had been carried out during the applicant's operation, the incubation period could not be used as a means of establishing a causal link between the applicant's illness and her operation and the practice of sterilisation against infection at the hospital met the prescribed standard. Therefore there was not enough evidence to prove that the disease had been transmitted to the applicant during the operation. Furthermore, the tests carried out indicated that the applicant was suffering from acute hepatitis C which had not developed into chronic hepatitis   C. The applicant objected to this expert report mainly with regard to the question of the capability and impartiality of the doctors who had prepared the report. She made a further request to the court to seek advice on the matter from the Forensic Medicine Institute. On 6 November 2001 Eskişehir Administrative Court found the applicant's objection groundless and refused her compensation request on the ground that the requisite causal link between her operation and her illness needed for holding the hospital responsible for the applicant's illness could not be established. On 21 December 2001 the applicant appealed. On 30 January 2004 the Supreme Administrative Court upheld the first instance court's decision. On 1 August 2004 the applicant requested rectification. On 17 August 2004 Eskişehir Administrative Court issued an interim decision and noted a procedural shortcoming with the applicant's rectification (which needed to be corrected within fifteen days). On 7 October 2004 the court decided not to put the applicant's rectification request into action owing to another procedural shortcoming. On 1 November 2004 the applicant objected to this decision. On 11 May 2006 the Supreme Administrative Court allowed the applicant's objection regarding the procedural shortcomings, and dismissed her rectification request. The applicant was notified of the decision on 28   August 2006. COMPLAINTS The applicant alleges that the length of the administrative proceedings exceeded the reasonable time requirement and so was in breach of Article 6 of the Convention. She further complains about the conduct and outcome of the proceedings. The applicant claims under the same Article that the hospital was responsible for her contamination with HCV, which violated her right to life. THE LAW The applicant complained under Article 6 § 1 of the Convention that the length of the administrative proceedings had been unreasonably long. The Court observes that the administrative proceedings lasted for over five years and eight months. It considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government. The applicant further complained under Article 6 § 1 of the Convention that her right to life had been infringed since she had been infected with a lethal disease during her operation and had since been living with the fear of death. In this connection she complained about the conduct and outcome of the administrative proceedings, alleging that the domestic courts rejected all her objections including that concerning the expert report, and incorrectly dismissed her compensation claims. The Court considers that this aspect of the applicant's complaints should be examined under Article   2 of the Convention. With regard to the applicability of Article 2 the Court reiterates that the first sentence of that Article requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Vo v. France [GC], no. 53924/00, §   88, ECHR 2004-III). Moreover, the State's positive obligations under Article 2 require an effective independent judicial system so that the cause of death of patients in the care of the medical profession can be determined and those responsible made accountable (see Calvelli and Ciglio v. Italy, [GC], no.   32967/96, §   49, ECHR 2002-I). An event, however, which does not result in death may, only in exceptional circumstances, disclose a violation of Article 2 of the Convention. Those may be found in a lethal disease ( Colak and Tsakiridis v.   Germany , nos. 77144/01 and 35493/05, § 29, 5 March 2009). Turning back to the present case, the Court notes that the two medical reports in the case-file indicate that HCV was found in the applicant's blood but further tests were required to verify the initial results and check that the applicant's situation had not developed into chronic hepatitis C. The Court observes that the applicant did not challenge this aspect of the expert reports. Medical documents and the two reports in the case-file date from the year 2000 and the applicant has not presented any further test results either to the domestic courts or to the Court regarding any subsequent developments in her medical condition. Under the circumstances, the Court is not convinced that the applicant's medical condition falls within the scope of Article   2. However, even assuming that the present case does raise an issue as to the applicant's right to life, this complaint is inadmissible for the following reasons. At the outset the Court considers that it is not its function under Article   2 of the Convention to gainsay the doctors' assessment. There are two medical assessments in the case-file, one made by Doctor Y.A. of the hospital where the applicant underwent the operation and the other by three doctors of the Medical Faculty of the Gazi University in Ankara. These assessments were made against the background of the applicant's health at the time of her compensation claim and present the doctors' opinions regarding the lack of a proven causal connection between the hospital's negligence and the applicant's medical condition. However, the applicant's illness and the alleged responsibility of the health professionals involved are matters which must also be addressed from the angle of the adequacy of the mechanisms in place (see Powell v.   the United Kingdom (dec.), no.   45305/99, ECHR 2000-V ) . Having specific regard to the sphere of medical negligence, the Court reiterates that the positive obligations set out in Article 2 may be fulfilled if the legal system affords victims a remedy in the civil courts, either separately or in conjunction with a remedy in the criminal courts, enabling any liability of the physicians concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Calvelli and Ciglio, cited above, §   51). The Court notes that the Turkish legal system provides for remedies which, in general, do meet the requirements of Article 2 as they afford parties injured through medical negligence a mechanism with which to establish the criminal, disciplinary or civil responsibility of the medical staff (see Sevim Güngör v.   Turkey (dec.), no. 75173/01, 14 April 2009). In the instant case the applicant chose to institute administrative proceedings against the competent administrative authority. In this respect the Court observes that, in its dismissal of the applicant's claims, the administrative court based its decision on the expert report prepared by the three doctors and held that the requisite causal link between the applicant's operation and her illness, needed to hold the hospital responsible for the applicant's contamination with HCV, had not been established. The Court further notes that there is no indication that the judges sitting on the administrative courts lacked independence and impartiality. On the issue of whether these courts should have asked for a medical report from the Forensic Medicine Institute, the Court reiterates that the domestic courts are best placed for assessing the relevance of the evidence in the case and for interpreting and applying the rules of substantive and procedural law (see Gurepka v. Ukraine , no.   61406/00, §   45, 6 September 2005). The unfavourable outcome for the applicant does not suffice to find the respondent State liable under its positive obligations arising from Article 2 of the Convention. In the light of the above, the Court considers that the domestic courts did have sufficient regard to the applicant's right to life and that there is no indication, in the circumstances of the present case, that there was any failure by the respondent State to provide a mechanism with which to establish whether the civil responsibility for the applicant contracting HCV fell on the medical staff involved in the applicant's operation. It follows, therefore, that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Decides to adjourn the examination of the applicant's complaints concerning the length of administrative proceedings; Declares the remainder of the application inadmissible.     Stanley Naismith   Françoise Tulkens   Registrar   President