CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 octobre 2012

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s87F05BA2 { margin-top:12pt; 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 } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; 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 } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s241FB5A4 { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC8702D41 { width:154.61pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block }   SECOND SECTION DECISION Application no. 14910/09 Mehmet Lütfi KOÇAK against Turkey The European Court of Human Rights (Second Section), sitting on 2   October 2012 as a Chamber composed of:   Ineta Ziemele, President,   Danutė Jočienė,   Dragoljub Popović,   Işıl Karakaş,   Guido Raimondi,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having regard to the above application lodged on 16 February 2009, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Mehmet Lütfi Koçak, is a Turkish national who was born in 1982 and lives in Mersin. He was represented before the Court by Mr A. Erkol, a lawyer practising in Mersin. 2.     The facts of the case, as submitted by the applicant and as they appear from the case file, may be summarised as follows. 3.     On 27 September 2002 the applicant was operated on in Adana Numune Hospital. In the consultation and examination form it was noted that the applicant was complaining of weakness in the right leg as well as occasional urinary incontinence and that he had tethered cord syndrome, a disorder of the spinal column. 4.     On 30 September 2002 his catheter was removed. However, as he was not able to pass urine it was reinserted. 5.     He was discharged from the hospital on 7 October 2002. 6.     He was admitted to the hospital once again on 12   November 2002 for inability to pass urine. He was discharged on 21 November 2002. In the discharge summary form it was noted that the applicant had a permanent catheter. He was diagnosed with neurogenic bladder and prescribed with the use of a catheter six times a day. 7.     On 22 June 2004 the applicant obtained a medical report from the health board of the Hospital of the Mersin University School of Medicine. It reads as follows: “The applicant who came to our hospital on 17 June 2004...was examined, treated and given recommendations at the Urology Department. For your information. Admission-Discharge Dates: 17/6/2004 Diagnosis: Neurogenic bladder (“urinary dysfunction”) Other issues: The catheterisation of the patient with...type of catheter six times a day for a period of one year is convenient.” 8.     On 13 September 2004 he applied to the Ministry of Health seeking compensation and lodged a criminal complaint against the doctor concerned for breach of duty. 9.     On the basis of a medical expert opinion given by two spinal surgeons on 7 October 2004, the Ministry of Health rejected the applicant’s request on 19 October 2004. 10.     On 1 November 2004 he initiated compensation proceedings against the administration. 11.     On 6 January 2005 the Governorship of Adana did not grant the permission sought for the prosecution of the doctor concerned, basing its decision on a preliminary investigation report. It was observed that the patient’s symptoms had existed prior to the surgery and that they consisted of the development of his progressive neurological disease, namely tethered cord spinal syndrome. On 7 April 2005 the public prosecutor terminated the investigation for this reason. 12.     Before the Adana Administrative Court the administration claimed that the civil action was time-barred; that in any case the applicant’s complaints had pre-dated the impugned operation; that the applicant had been operated on 27 September 2002 for tethered spinal cord syndrome, and that the medical expert evidence had confirmed that the doctor concerned had not been negligent. 13.     The Adana Administrative Court noted that on 25 September 2002 the applicant had been diagnosed with tethered spinal cord syndrome, the symptoms of which included loss of bladder control. Having observed that the applicant had been hospitalised for urinary incontinence on 12   November 2002, it stated: “...even assuming that at the time of the diagnosis he had not been suffering from this symptom, since he was admitted to the Urology Department on 12 November 2002 for inability to pass urine without the use of a catheter it should be held that he should have been aware of his condition by that date at the latest.” 14.     The first-instance court concluded that for the purposes of section   13 of the Administrative Procedure Act the one-year time-limit had started running on 12 November 2002 and that the case lodged on 1   November 2004 was therefore time-barred. It declared the case inadmissible on 22   June 2006. 15.     The applicant appealed against the decision. 16.     The public prosecutor at the Supreme Administrative Court pointed out that the time should be calculated from the date on which the person concerned had become aware of the damage. He referred to paragraph 1 of section 13 of the Administrative Procedure Act, which stipulates that individuals whose rights have been violated by an administrative action should apply to the administration concerned for redress within one year of the date on which they were notified or otherwise became aware of the administrative action, and in any case within five years of the date of the action. He proposed that the judgment of the first-instance court should be quashed, holding that the applicant had become aware on 22 June 2004 that his neurogenic bladder might have been connected to the surgical operation. 17.     The Supreme Administrative Court upheld the decision of the first ‑ instance court on 27 October 2008. The final decision was served on the applicant on 5 January 2009. COMPLAINTS 18.     The applicant complained under Articles 6 and 13 of the Convention that he had become aware of the damage incurred on account of the medical negligence and malpractice on 22 June 2004. He argued that the Supreme Administrative Court had not followed its established case-law concerning the statutory time-limits laid down in section 13 of the Administrative Procedure Act, and that the time had started running on 22 June 2004, the date on which he had become aware that the surgical operation had been carried out negligently. 19.     He further claimed that the Supreme Administrative Court had failed to provide sufficient reasoning. THE LAW A.     Concerning the applicant’s right of access to court 20.     The Court reiterates that the “right to court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired. Such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, Brualla Gómez de la Torre v. Spain , 19 December 1997, § 33, Reports of Judgments and Decisions 1997 ‑ VIII). 21.     The Court considers that the rules governing the formal steps to be taken and the time-limits to be complied with in bringing a case are aimed at ensuring the proper administration of justice, and compliance, in particular, with the principle of legal certainty. Litigants should expect those rules to be applied (see, Miragall Escolano and Others v. Spain , nos.   38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 33, ECHR 2000 ‑ I). 22.     Turning to the particular circumstances of the present case, first of all the Court observes that, contrary to the applicant’s allegations, there is no dispute as to the interpretation of the domestic law. The domestic courts’ findings do not seem to contradict the rule that the time begins to run on the date on which the victim became aware of the damage sustained for the purposes of the prescription period for bringing an administrative action under section 13 of the Administrative Procedure Act. The essence of the applicant’s allegation is that the domestic courts wrongly held that he should have been aware of his condition before the medical report of the health board was obtained on 22 June 2004. All the same, since the domestic courts’ assessment of the facts prevented the applicant’s claim from being examined on the merits, it should be examined whether it amounted to an arbitrary or disproportionate interference with the applicant’s right to access to court. 23.     According to the findings of the first-instance court, the applicant should have become aware of his disorder at the latest when he was admitted to the Urology Department on 12 November 2002, well before the medical report of the health board was issued on 22   June 2004. By upholding the decision of the first-instance court, the Supreme Administrative Court endorsed the findings of the former. 24.     In this connection, the Court notes that the medical report relied on by the applicant indicated a diagnosis of neurogenic bladder, prescribed the use of a specific type of catheter and gave instructions about its administration. Regard being had to the fact that the applicant had already been suffering from bladder dysfunction, this medical report, as such, could not have revealed any new fact which would have started the time running afresh for the purposes of the one-year limitation period. Nor does it allow a link to be established between the surgical operation the applicant had had and the dysfunction complained of. 25.     Although it is not possible for the Court to determine the exact date at the latest by which the applicant should have been aware of his condition, it finds no element in the case file which might suggest that the domestic courts’ assessment of the facts was arbitrary or unreasonable in the circumstances and entailed a breach of the applicant’s rights guaranteed by the Convention. 26.     In view of the foregoing, the Court concludes that the applicant was not unduly deprived of his right of access to court, and that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. B.     Concerning the applicant’s right to a reasoned judgment 27.     The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, García Ruiz v. Spain [GC], no. 30544/96, §   26, ECHR   1999 ‑ I). 28.     In the present case, the Court observes that the decision of the first-instance court was fully reasoned and provided a specific and express reply to the applicant’s submissions. By upholding that decision, the Supreme Administrative Court indicated its agreement with the reasoning of the first ‑ instance court, which was sufficient in the circumstances. 29.     Therefore, this part of the application must also be declared inadmissible as manifestly ill-founded within the meaning of Article   35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Françoise Elens-Passos   Ineta Ziemele   Deputy Registrar   President