Press Release No: Individual Application 36/16
14.07.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF AYSUN OKUMUŞ AND AYTEKİN OKUMUŞ ON THE RIGHT TO LIFE

The Constitutional Court held, at its plenary meeting on 20/4/2016, with regard to the individual application lodged by Aysun Okumuş and Aytekin Okumuş (application no. 2013/4086) that there had been a breach of the right to life guaranteed in Article 17 of the Constitution under its procedural aspect.   

The facts

Having stated that their own child and their relatives’ children had previously lost their lives in babyhood stage of their lives, the applicants had recourse to the Paediatric Emergency Department of the Dokuz Eylül University Medical Faculty Hospital (the Hospital) with the complaint that there were contractions on the body of Alper Okumuş, who was the applicants’ son born on 13/8/2003. The patient was hospitalized in the paediatric service with a pre-diagnosis that he had been suffering from a metabolic disease. He was then referred to the intensive care unit.

Alper Okumuş, who had received outpatient and inpatient treatments several times due to his disease, was lastly taken to the Paediatric Emergency Department of the Hospital at around 07:00 p.m.. on 17/10/2007. The patient whose state of health was determined to be serious was referred to the Tepecik Training and Research Hospital as there was no respiratory equipment and no place to be allocated for him in the previous hospital; however, he died in the Tepecik Training and Research Hospital at 03:30 a.m..

On 13/6/2008, the applicants applied to the Rectorship of the Dokuz Eylül University and requested that the pecuniary and non-pecuniary damages sustained by them be redressed. Upon the unfavourable reply taken from the rectorship, the applicants brought a full remedy action before the 2nd Chamber of the İzmir Administrative Court for compensation of their pecuniary and non-pecuniary damages. The applicants noted in their petition for action that their son Alper Okumuş had been subject to certain medical tests and experiments concerning epilepsy without taking their permission; that such tests might have led to their son’s death; and that they had not been informed in any way during the period which was ended with the death of their son. They also maintained that there had been no respiratory equipment, and inexperienced personnel had been employed in the hospital; that the doctors in charge had not known how to use the ambu device and there had been no specialist and respiratory equipment in the hospital; and that all of these were indicators of the fact that there had been severe neglect of duty in the incident.

The defendant administration stated that the allegations asserted were not accurate; and that there was no fault attributable to the administration in the death of the applicants’ son.

The administrative court requested the Forensic Medicine Institute to draw up a report as to whether the treatment administered in the hospital had complied with the rules of medicine. The Forensic Medicine Institute Specialized Board found established that the treatment administered to the minor having died of metabolic-derived neurodegenerative disease had been in compliance with the rules of medicine. The applicants objected to the report drawn up by the Forensic Medicine Institute and additionally stated that although there had been a report received from the Hacettepe University and indicating that the diagnosis of metabolic disease was wrong, their son had died of faulty intervention by the inexperienced assistants who had insisted on administering treatment on the basis of misdiagnosis. The applicants accordingly requested that a new expert report be received.

By its decision of 2/6/2011, the 2nd Chamber of the İzmir Administrative Court found the existing expert report sufficient and accordingly dismissed the action brought by the applicant. The 8th Chamber of the Supreme Administrative Court upheld the first instance decision on 5/6/2012, and the applicants’ request for rectification of the judgment was dismissed.

The Applicants’ Allegations

The applicants maintained that false treatment had been administered to their son suffering from epilepsy; that the doctor previously dealing with their son had not been informed and called; that their son had been subject to unsuccessful medical intervention due to the inexperienced assistants; that there was no specialist working in the hospital. They also alleged that the treatment had not been performed in compliance with the medical principles; and that although the action for damage and the criminal action brought against the relevant officers due to their personal faults had been pending, these actions had been dismissed without waiting for the conclusion thereof. The applicants accordingly maintained that there had been a breach of Article 70 of the Law no. 1219 in which the patient’s and the patient relatives’ right to be informed is set out and of Article 6 and 8 of the European Convention on Human Rights.

The Court’s Assessment

In brief, the Constitutional Court made the following assessment within the scope of this individual application.

Although a sufficient assessment as to whether Alper Okumuş, who could not avail himself of the respiratory equipment in the hospital and was therefore referred to another hospital, had been affected from this incident; whether there was any neglect in the present incident; and whether there was any delay in the patient’s treatment was not made in the report of the Forensic Medicine Institute forming a basis for the decision of the 2nd Chamber of the İzmir Administrative Court, it could not be understood how the first instance court had found this report sufficient.

It has been observed that as to the applicants’ allegations that the diazem treatment administered to the patient was wrong, any assessment and any plausible explanation were included neither in the decision rendered by the 2nd Chamber of the İzmir Administrative Court nor in the report drawn up by the Forensic Medicine Institute and taken as a basis for this decision.

In a similar vein, the decision rendered by the 2nd Chamber of the İzmir Administrative Court did not include any sufficient assessment as to the applicants’ allegations that there had been no specialist in the hospital; that they had not been informed of the acts performed on the incident day; and that inexperienced personnel had been employed in the hospital.

When all of these issues are taken into consideration together, it has been concluded that as a result of the action brought before the administrative jurisdiction, a decision was rendered by relying on the report of the Forensic Medicine Institute which did not include sufficient information concerning the applicants’ allegations; that the substantial allegations were not dealt with sufficiently for the resolution of the dispute; and that the circumstances leading to the death of Alper Okumuş were not precisely revealed.

It has been consequently held by the Constitutional Court that there was a breach of the right to life, which is guaranteed in Article 17 of the Constitution, under its procedural aspect.

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

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