ECHR update - Sajó András különvéleménye az Oyal v. Turkey ügyben

Március végén egy említésre méltó döntést hozott a strasbourgi bíróság ketes szekciója az Oyal v. Turkey ügyben:

“It concerned a boy born in 1996, who was given blood transfusions for medical reasons right after birth. A few months later the parents were told that due to the transfusion, the baby had become infected with HIV which could develop into aids. Although criminal proceedings were started at the request of the parents, these were discontinued for the reason that no fault could be attributed directly to the doctors or the director general of the Turkish Red Cross (where the infected blood came from). The parents also brought civil and administrative proceedings. The outcome of those was that the Red Cross was responsible for the supplying of contaminated blood and the Ministry of Health for negligence, amongst others because the medical staff had not performed a blood test since that was considered too costly. As a result the courts awarded the boy and his parents damages (one year of medical coverage) and the authorities promised to pay for medical expenses. The latter did not materialise, however. Even more astonishingly, the Ministry of Health withdrew a special green card for free health care from the applicants following the judgments. The family claimed they lived in debt and poverty because of all the medical expenses for their son”.

A bíróság Törökországot arra kötelezte, hogy (1) élethossziglan állja a kisfiú orvosi költségeit (2) valamint, hogy összesen 378.000. euró kártérítést fizessen meg.

Sajó András a szekció magyar bírája különvéleményt fogalmazott meg:

“Little Yiğit’s fate is heartbreaking: as a newborn baby, he was infected with the HIV virus because of the gross negligence of the authorities. The consequences unfold as if in a Greek tragedy. His fate puts our humanity to the test. This Court is a human rights court, with special humanitarian responsibilities. It has to be human, it has to serve rights, and it has to operate as a court. In the present case I would have opted for a different balance among these three considerations, and would have opted for more judicial “formalism”, which – to my mind – would have been equally able to reflect human sensibility and rights protection (in line with the established case-law and the Convention). […] The applicants could have sought material damages in Turkey. They did not do so in the original proceedings. They argued that this would have caused additional delays in the domestic proceedings. This is pure speculation, though it might be reasonable. But to request a court order in the actual proceedings for the provision of lifelong treatment would not have caused additional delay. Even if one were to accept that it would have done, the applicants had ample opportunity to initiate separate proceedings, at least after 1999 when the responsibility of Kızılay had been definitively established, and after June 2007, with regard to the Ministry of Health. As to the new development, namely, that the child was deprived of free medical treatment, they could have appealed against the revocation of the Green Card, or have initiated proceedings against the two defendants for provision of the treatment or payment of the cost thereof. They claimed that Kızılay had promised it, which is again an allegation, and if it was a legally binding promise they could have asked for enforcement or execution. Although State liability had been clearly established, the specific remedy (of treatment) was never asked for, nor judicially recognized. Instead of making use of the available legal remedies, the applicants brought the treatment claim directly to the Court in the guise of a just-satisfaction claim.

In view of the applicants’ allegations in their just satisfaction claim, the proper approach would have been a) to ask for minimum substantiation (why was the Green Card cancelled?; is the child actually without treatment? etc.) and b) in the affirmative, apply an interim measure of its own motion that requires the Government to proceed with the treatment until the Court decides on the matter.

What I find stunning is that the applicants made no attempt to use the available domestic legal remedies, but brought their claim in the form of a just satisfaction claim. I fully understand that the parents, being in shock, asked for support from foundations and the President of the Republic, but their lawyer should have made use of domestic judicial remedies. There is no reason to assume that the domestic courts or other authorities would not have acted in the same spirit as the Court has in the judgment.

The exhaustion of domestic remedies is not only a Convention requirement that serves reasonable goals, but is one that in the present case would have served the interests of the applicants.

As the Court could have found an equitable legal “solution” to the lack of treatment, to the extent that there is a legal solution to a human tragedy of this nature, and without disregarding its subsidiary role (exhaustion of domestic remedies), I feel compelled to partly dissent”.