In Strasbourg the Expert Opinions Will Not Be Overestimated, However They Will Be Punishment for Red Tape in Courts

According to the European Court of Human Rights, court bureaucracy remains almost the most popular violation. Meanwhile, in the next decision in that respect, the ECHR commented upon the possibility of reviewing the experts’ findings.

The spouse from Turkey appealed to the Court, seeking to obtain justice in regard to the compensation for the death of their 6-year-old daughter after the operation. It was alleged that the doctors have been negligent in a simple tonsils surgery. Since after 10 days the girl died from cerebral brain edema.

Any attempt to obtain reimbursement from the Ministry of Health of Turkey hade turned out to be in vain. Officials refused to acknowledge the fact of medical error. Appeals to the Administrative court in 2001 also did not help: the first examination failed to establish the edema cause, the second one resulted in assumption that the child was prescribed 10 g more anesthesia than necessary for her age and weight.

Nevertheless, the latest expert findings concluded that epileptic seizures started only after the anesthetic wearing off is over. Therefore, the experts hesitated to establish a causal link between the drug treatments and brain edema.

Consequently, in 2004 the Administrative court, taking into account the expert findings, rejected the claim of the parents. After 3 years, the Council of State rejected an appeal on a point of law, and subsequently a request for a review

In its Judgment of 20.02.2018 in the case “Mehmet Gunay et Gullu Gunay v. Turkey”, the ECHR unanimously found that the trial, which lasted 7 years and 4 months, cannot be considered as one that meets the reasonable-time requirements in the context of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In addition, almost four years passed between the parents’ appeal to the Ministry of Health in November 2010 to receive compensation and the case proceeding in the State Council (the cassational court in the court system of administrative justice). The first expert opinion appeared 19 months following a complaint. “Such excessive administrative procedural delays cannot be explained by the complexity of the case or the behavior of the applicants”, the ECHR’s decision states.

Nevertheless, the Court dismissed the complaint on the basis of Article 2 (“Right to Life”) of the Convention as unsubstantiated. The ECHR concluded that “expert medical reports and decisions of national courts being duly justified, rejected any medical errors or negligence”. Likewise, the ECHR recalled that the assessments of national experts must not be compromised.

Therefore, the Turkish couple managed to achieve in Strasbourg is only compensation for moral injury caused by the red tape in the courts (€ 3000) and expenses (€ 1000). Notwithstanding, the question about who or what has caused the death of the girl remained unanswered.

 

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