EHRM, 23-03-2010, nr. 4864/05

The first applicant was born prematurely on 6 May 1996 at the Dr Behçet Uz Children's Hospital in Izmir.

On 7 May 1996 he was diagnosed with an ‘inguinal and umbilical hernia’ by doctors working in the same hospital.

On an unspecified date in May or June 1996, the third applicant, who is the first applicant's father, purchased a unit of red blood cells and a unit of plasma from the Izmir Directorate of the Kızılay (the Turkish Red Cross, hereinafter ‘the Kızılay’). A number of blood and plasma transfusions were carried out on 19 May 1996, 24 May 1996, 26 May 1996, 29 May 1996 and 6 and 7 June 1996. The first applicant was discharged from the hospital on 17 June 1996.

Approximately four months after the blood transfusion, the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome (AIDS).

According to the information given by the Government, on 31 October 1996 a donor (no. 1294, code MUALAB-43) donated blood to the Kızılay. Subsequent to screening and tests carried out on the donated blood (serial no. 210619), HIV was found and the blood in question was destroyed. Following two more tests, it became certain that donor no. 1294 had been infected with HIV. The authorities conducted an investigation with a view to determining whether donor no. 1294 had donated blood previously. It appeared that the unit of plasma (serial no. 202367) used for the first applicant's treatment had been given by donor no. 1294. The first applicant was admitted to the Hacettepe University Hospital for treatment. The costs of treatment were paid by the Izmir Social Solidarity and Mutual-Aid Foundation.

On 19 December 1997 the applicants initiated compensation proceedings against the Kızılay and the Ministry of Health. They requested non-pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants.

On 13 July 1998 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction in respect of the case brought against the Ministry of Health. It stated that these complaints must be brought before the competent administrative tribunal.

As regards the case instituted against the Kızılay, the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident (see paragraph 13 above). It thus awarded the applicants 30,000,000,000 Turkish lira (TRL) plus interest at the statutory rate running from 17 June 1996, the date of the incident. The court held, in particular:

On 9 February 1999 the Court of Cassation upheld the judgment and stated the following:

On 24 February 1999 the Kızılay paid a total amount of TRL 54,930,703,000 to the applicants, to cover the non-pecuniary damage awarded by the court and the statutory interest applied to that sum.

On 13 October 1998 the applicants initiated proceedings against the Ministry of Health, requesting non-pecuniary damage.

On 20 November 1998 the Izmir Administrative Court rejected the case on the ground that the judgment of the Izmir First Instance Court which had issued a non-jurisdiction decision in respect of the proceedings concerning the Ministry of Health had been pending before the Court of Cassation. On 8 February 1999 the applicants appealed against this decision.

On 7 May 2001 the Supreme Administrative Court quashed the decision and remitted the case to the Izmir Administrative Court for examination on the ground that the proceedings concerning the Ministry of Health must have been considered to have become final, given that the Ministry of Health had not appealed against the Izmir First Instance Court's judgment.

On 14 July 2003 the Izmir Administrative Court refused the applicants' compensation claims. Referring to the Izmir First Instance Court's judgment, the Izmir Administrative Court reiterated that the Kızılay and the Ministry of Health were both liable for the first applicant's HIV infection. The court added, however, that the purpose of awarding non-pecuniary damage was not to provide full restitution and the award of non-pecuniary damage twice for the same incident would have resulted in unjust enrichment.

On 3 October 2003 the applicants appealed.

On 31 March 2006 the Supreme Administrative Court quashed the judgment of 14 July 2003, holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies.

On 13 March 2007 the Supreme Administrative Court dismissed the Ministry of Health's rectification request against the above decision.

In a judgment dated 7 June 2007, the Izmir Administrative Court held that the Ministry of Health personnel had been negligent in the performance of their duties. The court thus awarded the applicants TRL 30,000 plus interest at the statutory rate running from the date on which the proceedings had been initiated, namely 19 December 1997. Both the applicants and the Ministry of Health appealed against the judgment. The applicants challenged the failure of the court to order the defendant to pay the legal fees, whereas the Ministry of Health challenged the outcome of the case.

On 26 December 2007 the Supreme Administrative Court dismissed the Ministry of Interior's appeal but partly quashed the judgment insofar as it concerned the fees. The parties did not inform the Court about the outcome of these proceedings.

On 30 April 2008 the Ministry of Health paid 159,369.49 New Turkish Liras to the applicants.

On 16 February 2005 the newly appointed Administrative Board of the Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs. A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the Kızılay.

According to the information given by the applicants, the Kızılay rejected the applicants' claim for treatment and medical costs which amounted to TRL 3,000 (approximately EUR 1,340) and EUR 5,469, respectively, per month. The Ministry of Health also rejected their request for payment of these expenses.

The green card1. issued by the Governorship of Izmir was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants.

The compensation awarded by the civil and administrative courts covered only one year's medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant.

The first applicant was not admitted to any school because of his condition and reactions from families of other pupils. He thus started his education at a hospital. Following public pressure and negotiations with the National Education Directorate, he was ultimately admitted to a public school. Yet he has no close friends and suffers from stammering. Every week he sees a psychologist. Upon the latter's advice, he attends drama and painting courses.

The third applicant's (the father) health has been severely affected as a result of reactions from parents of other children and the school administration's refusal to admit his son to school. Currently he is unable to work and provide any income for the family.

The family is in serious economic difficulty and is trying to pay the first applicant's medical expenses with the help of family friends. Meanwhile, although some health associations offered help, they wanted to test some medications on the first applicant, which the family refused.

The Government submitted that Article 2 of the Convention did not apply in the circumstances of the present case. They maintained that the applicants were no longer victims of a violation of the aforementioned provision following the redress provided by the authorities, within the meaning of Article 34 of the Convention. They further noted that in the case of D. v. the United Kingdom (application no. 30240/96, 2 May 1997, Reports of Judgments and Decisions 1997-III), which concerned the attempted expulsion of an AIDS sufferer to St. Kitts where he would have been deprived of the medical treatment he was receiving in the United Kingdom, the Court had examined the complaints of the applicant under Article 3 of the Convention rather than Article 2.

The applicants claimed that Article 2 of the Convention covered not only incidents which resulted in the death of the victim, but also cases where the victim suffered life-threatening, serious injury. Bearing in mind that the first applicant's disease was not curable, the State was responsible for violation of the right to life of the first applicant. They thus claimed that Article 2 of the Convention applied in the present case.

The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II).

Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I, and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V).

Furthermore, on a number of occasions the Court has examined complaints raised under Article 2 of the Convention where the victims had suffered serious injuries as a result of illegal acts perpetrated against them and has accepted that the aforementioned provision could apply in exceptional circumstances even if the victims had not died (see Osman v. the United Kingdom, 28 October 1998, Reports 1998-VIII; Yaşa v. Turkey, 2 September 1998, Reports 1998-VI; Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004-XI; and G.N. and Others v. Italy, no. 43134/05, § 69, 1 December 2009).

Likewise, in the above-cited L.C.B. case, where the applicant had suffered from leukaemia diminishing her chances of survival, and in the case of Karchen and Others v. France ((dec.), no. 5722/04, 4 March 2008), where the first applicant had been infected with the HIV virus which put his life in danger, the Court held that Article 2 of the Convention was applicable.

In view of the foregoing, the Court sees no reason to depart from its established case-law and considers that Article 2 of the Convention applies in the circumstances of the present case.

As regards the Government's reference to the case of D. v. the United Kingdom (cited above), where the applicant's complaints under Article 2 had been examined under Article 3 of the Convention, the Court notes that the circumstances of that case are fundamentally different from the present case. In the case of D. the Court examined the respondent Government's responsibility stemming from the attempted expulsion of the applicant to a third country, where he would be deprived of the medical treatment he had been receiving in the United Kingdom, from the standpoint of Article 3 of the Convention in accordance with its established practice in expulsion cases (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 56–78, ECHR 2005-I). In the instant case, however, the applicants' complaints must be examined under Article 2 of the Convention since they pertain to the alleged failure of the State authorities to fulfil their positive obligation to protect life by not taking preventive measures against the spread of HIV through blood transfusions and by not conducting an effective investigation against those responsible for the infection of the first applicant.

Turning to the Government's submission concerning the victim status of the applicants, the Court notes that this question is inextricably linked to the merits of the case, as it needs to be ascertained whether the national authorities responded to the applicants' grievances in accordance with their positive obligation under Article 2. Accordingly, the Court joins this question to the merits and will examine it under Article 2 of the Convention (see Codarcea v. Romania, no. 31675/04, § 100, 2 June 2009).

Finally, the Court notes that the Government implicitly recognised the locus standi of the second and third applicants in accordance with the rulings of the national courts which accepted their standing under Turkish law as parents of the first applicant and delivered judgments favourable to them (see, a contrario, Karchen and Others, cited above).

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicants alleged that the length of the proceedings before the administrative courts was excessive. They further noted that the Izmir Administrative Court's judgment had not been executed within a reasonable time, although they had informed the authorities that the compensation in question would be used for the treatment and medication of the first applicant.

The Government submitted that the alleged delay had been caused by the difficulties pertaining to the jurisdictional questions, the nature of the dispute and the applicants' appeal against the First Instance Court's judgment in relation to the legal fees.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; X v. France, 31 March 1992, § 32, Series A no. 234-C; Vallée v. France, 26 April 1994, § 34, Series A no. 289-A; Karakaya v. France, 26 August 1994, § 30, Series A no. 289-B; Pailot v. France, 22 April 1998, § 61, Reports 1998-II; Richard v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, § 64, Reports 1998-III; and Henra v. France, 29 April 1998, § 61, Reports 1998-II).

The Court considers that the case was not at all complex as the negligence and responsibility of the authorities in the infection of the first applicant had already been established by the Ankara Civil Court of First Instance and the Court of Cassation by judgments dated 13 July 1998 and 9 February 1999, respectively.

As regards the conduct of the applicants, the Court observes that there is no indication in the case file that the applicants noticeably contributed to the length of the proceedings. The fact that they exercised their right to lodge an appeal against the First Instance Court's judgment in relation to the legal fees cannot be taken as a factor which caused significant delay in the proceedings.

As to the conduct of the authorities, the Court notes that several periods appear to have been abnormally long. In this connection, it observes that the administrative courts took almost two and a half years to resolve the jurisdictional question (see paragraphs 25 and 26 above). The Izmir Administrative Court delivered its first judgment more than two years after the case had been remitted to it for examination (see paragraphs 26 and 27 above). Finally, it took the Supreme Administrative Court two and a half years to examine the appeal lodged by the applicants against the First Instance Court's judgment of 14 July 2003 (see paragraphs 27–29 above).

Notwithstanding the above findings, the Court observes that the main issue in the present case was not whether there had been unreasonable delays imputable to the administrative courts hearing the applicants' case, but whether those courts had acted with ‘exceptional diligence’ in view of the first applicant's condition and the gravity of the overall situation. Furthermore, what was at stake in the proceedings complained of was of crucial importance to the applicants in view of the disease from which the first applicant is suffering (see X v. France, Vallée, Karakaya, Pailot, Richard, Leterme and Henra judgments cited above, § 47, § 47, § 43, § 68, § 64, § 68, and § 68 respectively).

Having regard to the foregoing, the Court considers that in the instant case the length of the proceedings before the administrative courts was excessive and failed to meet the ‘reasonable time’ requirement.

The applicants further complained of a lack of an effective domestic remedy to accelerate the proceedings. The Government disputed this complaint.

The Court recalls its earlier finding that the Turkish legal system did not provide an effective remedy whereby the length of the proceedings could be successfully challenged (see Tendik and Others v. Turkey, no. 23188/02, §§ 34–39, 22 December 2005). It finds no reason to reach a different conclusion in the instant case.

There has accordingly been a breach of Articles 6 § 1 and 13 of the Convention.

The applicants did not specify a sum in respect of the costs and expenses that which have incurred. However, they submitted a schedule of legal work carried out by their representative before the domestic courts and for the presentation of their case to the European Court.

The Government asked the Court to dismiss the applicants' claims for costs and expenses.

The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII).

In the present case, although the applicants did not claim a specific sum, they submitted a time schedule indicating the time spent for the preparation and submission of their application and asked the Court to make an award under this head. Considering that the applicants must have incurred costs and expenses for the presentation of their case which involves complex issues of fact and legal questions, the Court finds it reasonable to award EUR 3,000 to them, jointly, under this head.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.