Death of a student. Ineffective research. Termination of a criminal offense and non-attribution of any liability to anyone for his death!
JUDGMENT
Nihat Soylu v. Turkey 11.12.2018 (no. 48532/11)
SUMMARY
Homocide. Insufficient research. Student had an accident at school. There were delays in the medical treatment of his injury and his transfer from a public hospital to another public hospital. The student was examined but eventually died. The appointed experts considered that there was a convergent negligence on several persons. Eventually, while all the procedures were running, there was no result. In the criminal proceedings the offense was written off, in the civil court after 13 years it was judged that the administrative courts were competent rather than the political and at disciplinary level a warning and a reprimand was imposed on only two people. The ECtHR found a violation of the right to life in its procedural aspect due to ineffective investigation.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Nihat Soylu, is a Turkish national who was born in 1953 and lives in Istanbul.
The case concerned the death of the applicant’s son following an accident at school.
On 22 June 1999 a pole that was not secured to the ground fell on Mr Soylu’s son at his primary
school. The child was taken to a dispensary where he remained under observation before being sent
home. At around 10 p.m., seeing that the child was not well, Mr Soylu took him to Atatürk Public
Hospital in Sinop, where a doctor requested a consultation with a general surgeon. The duty surgeon
examined the patient at 8.30 a.m. the following morning, diagnosed a perforation of the internal
organs and prescribed surgery. He referred the child to the SSK Hospital in Sinop. At 9.30 a.m. the
child was examined in the emergency department of that hospital and was referred to the SSK
Hospital in Samsun. From there, he was transferred to Ondokuz Mayıs University Hospital in Samsun,
where he underwent emergency surgery at 4 p.m. He died the following day.
On 30 June 1999 Mr Soylu lodged a criminal complaint for manslaughter against the doctor in the
dispensary, the doctors at Atatürk Public Hospital and the doctor at the SSK Hospital in Sinop. On
21 March 2007 the Criminal Court struck the case out of its list on the grounds that the prosecution
was time-barred. In the meantime, on 9 March 2000, Mr Soylu and his wife brought an action for
damages in the Sinop District Court. The court awarded them 2,000 Turkish lira (TRY) in respect of
non-pecuniary damage and TRY 15,205 for pecuniary damage, together with default interest. The
Court of Cassation quashed the judgment on the grounds that the dispute came within the jurisdiction of the administrative courts. Adhering to the Court of Cassation judgment, the District Court dismissed the applicant’s action.
The applicant complained of the ineffectiveness of the domestic remedies and of the length of the
criminal proceedings and the proceedings for compensation. He did not rely expressly on any
particular provision of the Convention. The Court examined his complaints under Article 2 (right to
life – procedural limb).
THE DECISION OF THE COURT
The Court reiterates that a grievance has two elements: factual allegations and legal arguments. According to the principle of Jura Novit Curia, it is not bound by the legal grounds put forward by the applicants under the Convention and its Protocols, and it can decide on the legal characterization of the facts of a grievance. examining it in the field of articles or provisions of the Convention other than those relied on by the applicants.
In the present case, the Court notes that the applicant complains in substance of the ineffectiveness of the remedies by which he sought to establish responsibility for the death of his son and to obtain appropriate compensation. It considers that this grievance falls within the scope of Article 2 of the Convention taken under its procedural limb. Therefore, it will limit its examination to the alleged violation of this provision.
In the present case, it notes that the applicant has made use of several legal remedies provided for in domestic law. The question is therefore whether, in the concrete circumstances of the case, in view of the fundamental importance of the right to life guaranteed by Article 2 of the Convention and the particular weight attached by the Court to the the procedural obligation flowing from this provision, the Turkish legal system as a whole allowed the case to be dealt with properly.
With regard to criminal proceedings, the Court notes that it did not establish the responsibility for the death of the applicant’s son since it resulted in the prescription of the public action. This procedure can not therefore be considered to have been effective.
With regard to civil proceedings, the Court observes that the death of the applicant’s son occurred on 23 June 1999 and that the compensation proceedings were instituted before the civil courts on 9 March 2000, which resulted in by a decision considering that the litigation did not fall within the jurisdiction of the judicial courts on June 5, 2013, more than thirteen years later. It considers that the fact that a procedure for the purpose of elucidating negligence charges has lasted so long in domestic law is difficult to reconcile with the requirements of Article 2 of the Convention. It considers that such delays are likely to prolong a difficult uncertainty not only for the plaintiff but also for the health professionals concerned. According to her, it is up to the State to arrange its judicial system in such a way as to enable its courts to meet the requirements of the Convention and in particular those enshrined in the obligations under Article 2.
With regard to the disciplinary proceedings, the Court notes that only two persons, KC, the Atatürk Hospital’s specialist doctor on duty, and RK, the primary school physical education teacher, were finally punished. (respectively a warning and a reprimand) even though the expert reports and the IMT held the responsibility of a larger number of people.
Moreover, the Court observes that the applicant does not appear to have been involved in this procedure, that the penalties imposed remained modest and that they did not take into account the fact that the alleged acts were prejudicial to life.
Consequently, the Court considers that these disciplinary proceedings can not therefore be regarded as effective within the meaning of Article 2 of the Convention, given, on the one hand, that they have not made it possible to establish all the responsibilities and, on the other hand, that the sanctions to which they have resulted are not in themselves sufficient to constitute an adequate remedy.
Lastly, the Court observes that, at the end of the civil proceedings, the applicant also had the power, under the jurisdiction of the courts, to bring an action for damages before the administrative courts, what he did not do. Nevertheless, it should be noted that the civil courts did not find that they lacked jurisdiction within a reasonable time. Indeed, they reached this conclusion more than thirteen years after the introduction of the proceeding. The TGI initially found itself competent, despite the exception raised by the administration, and gave the applicant the right to succeed in the first instance after ten years of proceedings, after having decided to await the outcome of the criminal procedure. In the light of those considerations, it is unreasonable to criticize the applicant for not continuing the proceedings by bringing an action before the administrative courts.
The Court therefore considers that, in the face of a defensible complaint in which the applicant alleged that medical negligence was the cause of his son’s death, the national system as a whole did not bring adequate and prompt response in accordance with the obligation imposed by Article 2 of the Convention on the State. Accordingly, there has been a violation of the procedural aspect of this provision.
Violation of Article 2 (investigation)
Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 3,000 (costs and expenses)(echrcaselaw.com editing).
