Resolution of the ECHR of September 4, 2018 in the case of Yirdem and Others (v. Turkey) (application No. 72781/12).
The case was successfully considered an application about the excessive length of criminal and civil proceedings on the fact of death, allegedly resulting from negligence in the provision of medical care. The case was a violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms in its procedural and legal aspect.
THE CIRCUMSTANCES OF THE CASE
The applicants complained that their relative had died in hospital as a result of the negligence admitted in the provision of medical care. The applicants argued that the domestic courts had not responded to this situation with proper efficiency, speed and diligence.
QUESTIONS OF RIGHT
Regarding compliance with Article 2 of the Convention. (a) Substantive aspect. With the exception of cases of outright arbitrariness or error, the Court should not question the factual conclusions reached by the domestic authorities. Thus, it is necessary to examine the circumstances that led to the death of the applicants' relative, and the alleged responsibility of the medical staff who treated him, seeking to establish whether the existing mechanisms allowed them to ascertain the development of events.
The applicants did not insist that their relative be deprived of access to medical care in general or to emergency care, in particular, but claimed that it was ineffective because the doctors who treated him were negligent.
At the same time, there is no evidence that at the time of the described events there were any systemic or structural deficiencies in the operation of the hospitals, about which the authorities knew or should have known and for which they did not take the necessary preventive measures, as well as that these deficiencies contributed significantly to the death of the applicants' relative.
However, it has not been established that the actions allegedly committed by medical workers went beyond a simple medical error or medical negligence or that the persons involved in the patient did not provide him with urgent medical assistance in violation of their professional duties, although they knew for sure that such lack of assistance would put him life threatened.
The medical treatment provided to the applicants' relative was subject to verification at the domestic level, and no court found as a result any shortcomings in the process of providing him with medical assistance.
In view of the foregoing, the Court considers that the present case essentially concerned allegations of medical negligence. In such circumstances, the substantive positive obligations of the authorities of the respondent state were to develop an appropriate regulatory framework that obliges hospitals, whether private or public, to take appropriate measures to protect the lives of patients. At the same time, the current regulatory framework did not reveal any violation by the Turkish authorities of their obligation to protect the applicants' relative’s right to life.
The case did not violate the requirements of Article 2 of the Convention in its substantive aspect (adopted unanimously).
(b) The procedural aspect. The applicants turned to criminal and civil remedies to protect their rights. Criminal proceedings ended with the acquittal of the defendants according to the results of the proceedings, which lasted more than nine years. With regard to civil proceedings, the case has been pending before the domestic courts since 2004.
With regard to the effectiveness of criminal proceedings, there were no violations that could cast doubt on the overall adequacy of the investigation conducted by the Turkish authorities. Moreover, the applicants had sufficient access to the investigation materials to ensure their effective participation in the proceedings.
However, criminal proceedings were not conducted expeditiously, and its total duration of more than nine years was not reasonable. The domestic court proceedings initiated to clarify the circumstances of the case with respect to the medical negligence charge should not last for that long. The same applies to the claim filed by the applicants in civil courts for damages, which has been pending before the domestic courts for more than 13 years. Based on the materials of the case, such a duration does not appear to be justified by the circumstances of the case. In addition, the higher court spent more than nine years to conclude that the claim against the hospital for damages should have been brought to the administrative courts, and he did not have jurisdiction to decide the case.
Such delays contribute to the continuation of maintaining a sense of uncertainty, not only with the plaintiff, but also with relevant medical professionals.
These factors alone are sufficient to establish that the proceedings carried out within the framework of domestic legislation had drawbacks. The authorities of Turkey did not show the degree of zeal required by Article 2 of the Convention in examining the applicants ’case related to the death of their relative.
The case was a violation of Article 2 of the Convention in its procedural and legal aspect (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicants jointly EUR 10,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.