Press Release No: Individual Application 5/21

Press Release concerning the Judgment Finding a Violation of the Right to Life due to the Public Authorities’ Failure in Their Duty of Supervision and Control

On 15 December 2020, the First Section of the Constitutional Court found a violation of the right to life safeguarded by Article 17 of the Constitution in the individual application lodged by Onur Arslan (no. 2017/17652).

The Facts

The applicant’s sister lost her life after she had undergone an abortion operation, which had been unlawfully performed by a gynaecologist at a state hospital, in the twenty-fourth week of pregnancy. At the end of the criminal proceedings in 2008, the incumbent assize court sentenced the gynaecologist to 5 years’ imprisonment. Upon the gynaecologist’s death in 2019, the court ordered the setting aside of the conviction decision. This decision was upheld by the Court of Cassation.

The applicant claimed pecuniary and non-pecuniary compensation before the Ministry of Health on account of the alleged medical malpractice in the case. However, his claim was rejected. Thereupon, he brought an action for a full remedy, which was also dismissed by the incumbent administrative court. The dismissal decision was upheld by the Council of State.          

The Applicant’s Allegations

The applicant maintained that the right to life had been violated as his sister’s death had resulted from the unlawful medical intervention which had been performed under the State supervision and control and the action for a full remedy had been dismissed upon the erroneous assessment of the administrative court.

The Court’s Assessment

It was found established by the assize court that the abortion operation resulting in the death of the applicant’s next-of-kin was a medical intervention constituting an offence.

It should be primarily noted that the hospital management is entrusted with the duty to manage and supervise the processes concerning the recruitment and supervision of all medical staff working at the hospital, as well as the organisation of treatments and other services provided there. In this sense, it has been considered that the responsibility attributable to the state hospital complained by the applicant within the scope of the impugned incident be examined from the standpoint of the organisational failure.

In its decision dismissing the applicant’s claim for compensation, the administrative court noted that the impugned operation had been performed by the gynaecologist, when he had been on annual leave during which he could not indeed provide public service, without informing the Chief Physician’s Office of the relevant hospital; and that therefore, the hospital administration could not be held liable for the surgical intervention.

However, the gynaecologist, a public officer, performed a surgical operation at the state hospital, in company with the other staff, during a working day despite being on leave, without informing any hospital authorities. Besides, the other staff working in the hospital and indeed being aware of the surgical operation did not inform the hospital authorities of the situation. 

In these circumstances, it is clear that in the present case, there was an organisational failure attributable to the state hospital as the administration had failed to duly fulfil its duty of supervision and control, which would ensure the medical staff to abstain from performing any criminal acts, and thus caused a management vacuum.

In the present case, the public authorities failed to fulfil the positive obligation to protect life. Therefore, the dismissal of the applicant’s claim for compensation by the administrative court for the lack of any malpractice was also incompatible with the principles for the protection of the right to life. 

Consequently, the Court has found a violation of the right to life safeguarded by Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.