CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 23 mars 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s21338552 { font-family:Arial; font-size:10.5pt } .s34B51DD { font-family:Arial; font-size:10.5pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 244 23.03.2010   Press release issued by the Registrar   Chamber judgment [1]   Oyal v. Turkey (application no. 4864/05)   TURKISH GOVERNMENT TO PROVIDE LIFETIME MEDICAL COVER TO TEENAGER INFECTED AS A NEW-BORN WITH HIV VIRUS DURING BLOOD TRANSFUSIONS   Violation of Article 2 (right to life) Violation of Article 6 § 1 (right to a fair hearing within a reasonable time) Violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights     Principal facts   The applicants, Yiğit Turhan Oyal, born on 6 May 1996, and his parents, Neşe Oyal and Nazif Oyal, are Turkish nationals, born in 1973 and 1961 respectively. They live in Izmir   (Turkey).   Yiğit was infected with the HIV virus when, born prematurely, he had to have a number of blood transfusions for an inguinal and umbilical hernia. His parents learnt of the infection when he was about four months old; they were also told that the virus could develop into the more severe Acquired Immune Deficiency Syndrome (AIDS).   In May 1997 the applicants brought criminal proceedings for medical negligence against the doctors involved in the blood transfusions, the Director General of the Turkish Red Cross in Izmir (the “Kızılay”, from where the transfused blood had been obtained) and the Minister of Health. Those proceedings were terminated on the ground that no fault could be attributed directly to those persons.   On 19 December 1997 the applicants brought civil proceedings against the Kızılay and the Ministry of Health; and, on 13 October 1998 administrative proceedings against the Ministry   of Health. Both the civil and administrative courts ruled that the Kızılay was at fault for supplying HIV-infected blood and that the Ministry of Health was to be held responsible for the negligence of its staff in the performance of their duties. Furthermore, the Ankara Civil Court of First Instance established that the HIV infected blood given to Yiğit had not been detected because the medical staff had not done the requisite test on the blood in question, considering that it would be too costly. That court found moreover that, prior to Yiğit’s   infection, 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 non-pecuniary damages plus statutory interest.   Following those judgments the special card (the “green card”), issued by the Ministry of Health to provide those on borderline incomes with access to free health care and medicine, was withdrawn from the applicants.   Despite promises made by the authorities to pay Yiğit’s medical expenses, both the Kızılay and the Ministry of Health rejected the applicants’ claims for healthcare and medication amounting to EUR 6,800 per month.   Yiğit’s father has been severely affected by the reactions of other children’s parents to his son’s condition and the school administration’s refusal to admit Yiğit to school. Due to ill ‑ health, he is currently unable to work. In serious economic difficulty, Yiğit’s family is trying to pay the medical expenses with the help of family friends.   Yiğit, although ultimately admitted to a public school, has no close friends and stammers. He has to have weekly psychotherapy.     Complaints, procedure and composition of the Court   Relying on Article   2 (right to life), the applicants alleged that the national authorities were responsible for Yiğit’s life-threatening condition as they had failed to sufficiently train, supervise and inspect the work of the medical staff involved in his blood transfusions. Further relying on Article   6   §   1 (right to a fair hearing within a reasonable time) and Article   13 (right to an effective remedy), they also complained about the excessive length of the administrative proceedings they had brought for compensation and that the compensation finally awarded did not even cover the costs of Yiğit’s medication.   The application was lodged with the European Court of Human Rights on 13   November   2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Vladimiro Zagrebelsky (Italy), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), judges , and also Sally Dollé , Section Registrar .     Decision of the Court   Article 2 The applicants had had access to civil and administrative courts which established liability for Yiğit’s infection with the HIV virus and awarded damages.   The Court found, however, that that redress had been far from satisfactory. The compensation awarded only covered one year’s healthcare and medication for Yiğit. The applicants’ claims to the Kızılay and the Ministry of Health rejected and their green card, strikingly, withdrawn, the family – already in debt and living in poverty – had been left to their own devices to meet the high costs (EUR 6,800 per month) of Yiğit’s continued treatment.   Even though the national courts had adopted a sensitive and positive approach in determining the responsibility of the Kızılay and the Ministry of Health and in ordering them to pay damages to the applicants, the Court considered that the most appropriate remedy in the circumstances would have been to have ordered, in addition to the payment of non-pecuniary damages, lifetime payment of Yiğit’s healthcare and medication expenses.   Also bearing in mind the excessive length – nine years, four months and 17 days – of the administrative proceedings, which were of consequence to the more general considerations of public health and safety and the prevention of similar errors, the Court held unanimously that there had been a violation of Article 2.   Article 6 § 1 and Article 13 The Court considered that the case had not been complex, the issues at stake – negligence and liability – already having been established during the civil proceedings. Given the gravity of the situation and what was at stake for the applicants, the courts should have acted with “exceptional diligence” in deciding upon the case. The Court therefore held unanimously that the length of the administrative proceedings had been excessive, in violation of Article 6 § 1. The Court, recalling that it had already found in a previous case that the Turkish legal system had not provided an effective remedy whereby the length of proceedings could be successfully challenged, further found, unanimously, that there had also been a violation of Article 13.   Article 41 (just satisfaction) The Court held, by six votes to one, that the applicants were to be paid EUR 300,000 in respect of pecuniary damage, EUR 78,000 in respect of non-pecuniary damage and EUR   3,000 for costs and expenses. In addition to that award, the Turkish Government was to provide free and full medical cover to Yiğit for the rest of his life.   Judge Sajó expressed a partly concurring and partly dissenting opinion which is annexed to the judgment.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court can be found on the Court’s Internet site ( http://www.echr.coe.int )   Press contacts Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.