KAYA proti Turecku

SECOND SECTION

DECISION

Application no. 38477/10
Rafet KAYA and Elmas KAYA
against Turkey

The European Court of Human Rights (Second Section), sitting on 26 May 2020 as a Committee composed of:

Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 4 May 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Rafet Kaya and Ms Elmas Kaya, are Turkish nationals, who were born in 1958 and 1965, respectively, and live in Niğde. They were represented before the Court by Mr A. Altın, a lawyer practising in Niğde.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The accident and the birth of the applicants’ son

4. On 1 February 1999 the second applicant, who was pregnant at the time, was walking along the street with her husband, the first applicant, when a telephone pole fell on her.

5. Following the accident, she was first taken to the Niğde State Hospital and then transferred to the Erciyes University Hospital. According to the medical reports issued on the same day, the second applicant had fractures on her legs. During her stay at the hospital, she underwent surgery due to the fractures on her legs. On 11 March 1999 the second applicant was discharged from the hospital. According to the applicants’ allegations, following the accident the second applicant suffered from genital bleeding and she was given medication to delay the birth of her baby. The case file does not contain any medical report in support of this contention.

6. On 24 March 1999 the second applicant gave birth by C-section to a twenty-six weeks old premature baby, Muhammet, who stayed in an incubator for a period of three months. When Muhammet was two years old, the applicants noticed that he was experiencing difficulties in walking. According to medical reports, the boy was diagnosed with spastic diplegy[1] and mental retardation. On 16 August 2007 the Niğde Public Hospital issued a medical report, stating that the applicants’ son had a 40% level of disability which prevented him from walking without support.

2. Criminal proceedings

7. On 1 February 1999 police officers started investigating the incident and interviewed several witnesses. On 5 February 1999, upon the request of the prosecutor’s office, an expert issued a report in which it was stated that the telephone pole had not been inserted into the ground properly. It was therefore concluded that the Turkish Telecommunications Company (hereinafter the “TTC”) was fully responsible for the accident. On 24 August 1999 the Niğde public prosecutor filed an indictment with the Criminal Court, charging fourteen employees of the TTC with the offence of causing injuries by negligence or recklessness. Relying on the expert report, the public prosecutor alleged that the employees of the TTC had been fully responsible for the fall of the telephone pole because they had failed to act with due diligence. The second applicant intervened in the criminal proceedings as a civil party. On 16 March 2005 the Niğde Criminal Court decided to dismiss the case on the ground that the prosecution of the offence had become time-barred.

3. Compensation proceedings initiated in respect of the injuries caused to the second applicant

8. On 19 July 1999 the applicants filed a compensation claim before the Niğde Civil Court of First Instance against the TTC for the injuries suffered by the second applicant as a result of the accident.

9. On 13 November 2001, at the request of the Niğde Civil Court of First Instance, a university professor and two electronics engineers, submitted an expert report in which it was concluded that the TTC was 100 % responsible for the accident. It was also stated that the telephone pole had not been properly fixed to the ground due to the failure to comply with the requisite technical standards.

10. On 14 December 2001 the Niğde Civil Court of First Instance partially accepted the applicants’ claim. In its judgment, the Niğde Court relied on the expert report and found it established that the TTC was fully responsible for the accident as the telephone pole had not been properly fixed to the ground. The court awarded 5,000,000,000 Turkish liras (TRL) (approximately 3,860 euros (EUR)) in respect of non-pecuniary damage, with statutory interest running from the date of the incident. Finally, it added that the applicants had the possibility of initiating separate compensation proceedings for the loss of earnings of the second applicant.

11. On 3 June 2002 and 5 November 2002, respectively, the Court of Cassation dismissed the applicants’ appeal and rectification requests.

4. Compensation claim in respect of the loss of earnings by the second applicant

12. On 3 July 2001 the second applicant brought proceedings before the Niğde Civil Court of First Instance against the TTC, this time claiming compensation for her loss of earnings stemming from the accident. On 15 January 2003, at the request of the Niğde Civil Court of First Instance, a committee of experts at the Forensic Medicine Institute issued a medical report in which the loss of Elmas Kaya’s future earning capacity was determined as 8.2%. On 3 December 2003 another expert report assessed Elmas Kaya’s pecuniary damage as amounting to TRL 17,036,738,148 (approximately EUR 9,630). On 12 January 2004 the Niğde Civil Court of First Instance, relying on the two above-mentioned expert reports, awarded her the amount of TRL 17,036,738,148 in respect of loss of her earnings, with statutory interest running from the date of the incident. On 5 April 2004 the Court of Cassation upheld this judgment.

5. Compensation claim initiated in respect of the damages caused to the applicants’ son

13. On 16 June 2005 the applicants initiated compensation proceedings against the TTC for the disability caused to their son Muhammet, which they claimed to be the consequence of the fall of the telephone pole on the second applicant during her pregnancy. They requested 6,000 Turkish liras[2] (“TRY”, (approximately EUR 3,640)) in respect of pecuniary damage with statutory interest running from the date of the incident.

14. On 4 December 2006, at the request of Niğde Civil Court of First Instance, a committee of the Forensic Medicine Institute issued an expert report in order to answer the question of whether the premature birth might have been the cause of Muhammet’s disability. The experts’ report took into account, among many other things, the following:

– the medical reports that were issued on the day of the accident, which stated that the second applicant suffered from injuries to her legs, that there was no abdominal sensitivity or tenderness, that there was a live foetus in the uterus and the bowel sounds were normal;

– the second applicant had previously two miscarriages in 1997 and 1998 respectively;

– the second applicant was admitted to the hospital on 24 March 1999 due to premature rupture of the membranes and a total placenta praevia[3] and gave birth by C-section to a premature baby of 26 weeks;

– the premature baby had bruises on his legs;

– the medical file of the baby covering the period between 24 March 1999 and 19 June 1999 prepared by the Erciyes University Hospital which stated, inter alia, that the new-born baby’s state of health had not been satisfactory;

– the medical report, dated 30 January 2003, indicated that the applicants’ son was diagnosed with spastic diplegy and mental retardation.

15. The report further noted that the second applicant had been examined by the Forensic Medicine Institute on 21 April 2006. It was observed that during the examination, the second applicant had stated that following the accident, her genital bleeding had started and that the delivery had been delayed until March with medical aid.

16. Taking all these elements into consideration, the experts unanimously concluded that the condition of Muhammet Kaya could be the result of his premature birth that had been caused due to the premature rupture of the membranes and total placenta praevia. It was nevertheless explained that the medical reports pertaining to the examination of Elmas Kaya and of the foetus immediately issued immediately after the accident, had not revealed any pathological findings which indicated that there was a potential risk of premature birth. Following the accident, the second applicant had been treated only for her leg injuries. It was therefore concluded that there was no causal link between the trauma and the premature birth, and consequently the current medical condition of the applicants’ son.

17. At the request of the Niğde Civil Court of First Instance the Forensic Medicine Institute, on 10 May 2007 the General Assembly of the Forensic Medicine Institute, composed of forty-three board certified doctors, issued a second report. The doctors, who relied on the same elements referred to above, namely the fact that the second applicant had two miscarriages in the past, that the reason of the premature birth was premature rupture of the membranes and total placenta praevia, stated that the problems of the applicants’ son could have been caused due to his premature birth. However, noting that the reports pertaining to the examination of Elmas Kaya and of the foetus immediately after the accident had not revealed any pathological findings which had the potential to cause a premature birth, and that she had been solely treated for the leg injuries, there was no causal link between the trauma, the premature birth that happened almost one and a half month (namely 51 days) after the accident, and the current medical problems.

18. On 20 September 2007 the Niğde Civil Court of First Instance rejected the compensation claim brought by the applicants. Referring to the expert reports issued by the Forensic Medicine Institute on 4 December 2006 and 10 May 2007, the Niğde court decided that there was no causal link between the fall of the telephone pole on Elmas Kaya, the premature birth of her son Muhammet and his disability.

19. On 25 February 2008 the Court of Cassation upheld the judgment.

20. The applicants requested a rectification of the judgment of 20 September 2007.

21. On 4 June 2008 the Court of Cassation accepted the applicants’ rectification request and quashed the lower court’s decision on the ground that it considered that it was necessary to obtain a new expert report from the General Assembly of the Forensic Medicine Institute. In its judgment, the Court of Cassation noted that, although it had been indicated in the reports that genital bleeding of the applicant had started after the accident and that the birth had been delayed with the aid of medication, in the same reports it was concluded that there was no link between the incident, the premature birth and the child’s disability. The Court of Cassation therefore considered that a new medical report should be issued to clarify the circumstances.

22. The case was accordingly remitted to the Niğde Civil Court of First Instance.

23. On 27 November 2008 a new expert report was prepared by the General Assembly of the Forensic Medicine Institute. The General Assembly unanimously concluded in its report that the problems could be an expected result of birth due to premature rupture of the membranes and a total placenta praevia. It further stated that the reports taken immediately after the accident had not revealed any pathological findings which were likely to cause a premature birth. It was added that there was therefore no causal link between the trauma, the premature birth after the accident and the current medical problems. In reply to the request of the Court of Cassation for further clarification, the report pointed out that it was the second applicant, during her examination on 21 April 2006 before the Forensic Medicine Institute, who had claimed that her genital bleeding had started after the accident (see paragraph 15 above). The report further underlined the fact that there were no medical reports in support of this allegation. From the medical reports in the file, it was clear that the second applicant was solely treated for her leg injuries.

24. Subsequently, on 30 January 2009 a brain MRI scan was conducted on the applicants’ son. According to the results of the test, signed by two doctors, it was reported that the conditions of the child was compatible with periventricular leukomalacia. The copy of the report, dated 2 February 2009, which as submitted to the Court, included a handwritten note which stated that “the nervous system controlling the walking functions had been damaged due to the impact, cell death occurred (cells were obliterated) in the system controlling the walking functions, mental retardation, behavioural disorder, spastic diplegic palsy, the same diagnosis has been present in the file since 2001.” The Government submitted the original copy of this medical report, as submitted in the domestic court proceedings, which did not bear the handwritten note.

25. On 24 February 2009 the Niğde Court of First Instance rejected the compensation claim of the applicants on the basis of the three above-mentioned expert reports, and held that there was no causal link between the fall of the telephone pole, the premature birth and Muhammet’s disability.

26. On 10 April 2009 the applicants appealed against the judgment of the Niğde Court of First Instance.

27. On 13 July and 2 December 2009, respectively, the Court of Cassation dismissed the applicants’ appeal and rectification requests.

COMPLAINTS

28. Relying on Article 2 of the Convention the applicants complained about the dismissal of their compensation claims resulting from their son’s partial disability. They claimed that their son’s right to health and physical integrity had not been protected. They maintained that their son’s disability was linked to the accident.

29. Furthermore, relying on Article 6 of the Convention, the applicants alleged that the medical reports prepared by the Forensic Medicine Institute and the domestic court decisions lacked adequate reasoning.

THE LAW

A. Preliminary objection

30. At the outset, the Government raised a preliminary objection arguing that the application should be considered inadmissible as an abuse of the right of application under Article 35 of the Convention. They claimed that the handwritten note on the medical report of 2 February 2009, which stated that “the nervous system controlling the walking functions had been damaged due to the impact, cell death occurred (cells were obliterated) in the system controlling the walking functions, mental retardation, behavioural disorder, spastic diplegic palsy, the same diagnosis has been present in the file since 2001.” was added subsequently and the original copy which was submitted before the national courts did not bear the handwritten note. Accordingly, they provided the Court with a copy of the original doctor report, which did not bear the handwritten note.

31. The applicants did not comment on this issue.

32. The Court finds that it is not necessary to examine the preliminary objection raised by the Government, since the application is in any event inadmissible for the reasons stated below.

B. Article 2 of the Convention

33. The applicants complained that the domestic courts had failed to establish the link between the disability of their son and the accident which had occurred during the pregnancy of the second applicant. They relied on Articles 2 and 6 of the Convention.

34. The Government contested the allegations, stating that there was no causal link between the premature birth of the applicants’ son and the accident. They further maintained that the domestic courts had conducted a thorough examination of the case, and based on expert reports, they had adequately dealt with the applicant’s case. The Government therefore argued that the domestic authorities had fulfilled their obligations raised under Article 2 of the Convention.

35. The Court notes at the outset that the Government did not challenge the applicability of Article 2 in the present case. Bearing in mind the fact that the applicants’ son had been diagnosed with spastic diplegy and mental retardation, and that it was established by the medical reports that he suffered from 40% disability, the Court notes that the applicants’ complaints fall to be examined under Article 2 of the Convention, alone, which in so far as relevant reads:

“ 1. Everyone’s right to life shall be protected by law. (...)”

36. The Court recalls that the basic principles concerning a State’s positive obligation to protect the right to life under Article 2, and to have in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim were set out by the Grand Chamber in the case of Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 157- 171, 25 June 2019).

37. In the present case, the Court notes that in previous sets of civil proceedings, which are not the subject of the present application (see paragraphs 7-12 above), the domestic courts found it established that the Turkish Telecommunications Company had been fully responsible for the accident because the telephone pole, which fell on the second applicant, had not been properly fixed to the ground due to non-compliance with the requisite technical standards. The second applicant was further awarded pecuniary and non-pecuniary compensation. There is also no dispute between the Parties that the applicant was pregnant at the time of the accident. Based on the submissions of the parties and the medical evidence in the file, it is also undisputed that the disability of the applicants’ son had been the result of his premature birth. The dispute between the Parties is whether the premature birth of the applicants’ son had been caused by the accident.

38. The Court observes that the applicants initiated civil proceedings against the Turkish Telecommunication Company and requested compensation for the disability caused to their son Muhammet, which they claimed to be the consequence of the fall of the telephone pole on the second applicant during her pregnancy. During the domestic proceedings, the applicants were able to put forward their arguments before two levels of jurisdiction and they were able to file objections against the medical reports. Furthermore, in the Court’s view, the domestic courts’ decisions in dismissing their case cannot be said to be taken hastily or arbitrarily. The case was examined thoroughly before two levels of jurisdiction and the decisions were based on medical reports that were issued by competent medical authorities, making an overall medical assessment of all the surrounding circumstances concerning the premature birth of the applicants’ son. The Court notes in this respect that upon the request of the Court of Cassation, a third and final medical report was further prepared by the Forensic Medical Institute on 27 November 2008 in order to clarify the circumstances. Based on the medical reports in the file, the domestic courts noted, in particular, that following the second applicants’ admission to the hospital after the accident on 1 February 1999, there was no pathological findings which had a potential to cause a premature birth and that she had been solely treated for leg injuries until 11 March 1999, the day on which she was discharged from the hospital. The domestic courts then concluded that the reason of the premature birth, which occurred on 24 March 1999, namely fifty one days after the accident, was the premature rupture of the membranes and total placenta praevia, and that the bruises observed on baby when he was born were the result of subcutaneous bleeding due to insufficient development of the coagulation system and they could in no way be linked to the accident of 1 February 1999.

39. The Court considers that in view of the foregoing, the medical reports and court decisions provided clear explanations as to why the courts considered that there was no causal link between the accident and the disability of the applicants’ son and it cannot be said that the legal system, as applied in the present case, failed to adequately deal with the applicants’ case.

40. It follows that the application is inadmissible as a whole as manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 June 2020.

Hasan Bakırcı Valeriu Griţco
Deputy Registrar President

[1] A form of cerebral palsy (a group of permanent movement disorders that appear in early childhood) manifested as an especially high and constant "tightness" or "stiffness" in the muscles of the lower extremities of the human body, usually those of the legs, hips and pelvis

[2] On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL) TRY 1 = TRL 1,000,000

[3] An obstetric complication in which the placenta partially or wholly blocks the neck of the uterus.