SECOND SECTION
\nDECISION<\/p>\n
Application no. 22134\/11
\nSerpil SARI
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 18\u00a0December 2018as a Committee composed of:<\/p>\n
Ledi Bianku, President,
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Depuy Section Registrar,<\/p>\n
Having regard to the above application lodged on 28 July 2010,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms Serpil Sar\u0131, was a Turkish national, who was born in 1963 and lived in Ankara. She was represented before the Court by Ms\u00a0S.\u00a0Bilal, a lawyer practicing in Ankara. Ms. Sar\u0131 died on 21 March 2012 and her daughter, Ms Duygu Bozda\u011f, informed the Court that she wished to pursue the application in her stead.\u00a0For practical reasons, Ms. Serpil Sar\u0131 will continue to be called as \u201cthe applicant\u201d in this decision although her daughter is now to be regarded as such (see Dalban v. Romania [GC], no.\u00a028114\/95, \u00a7\u00a01, ECHR\u00a01999\u2011VI, and \u00c7akar v. Turkey, no.\u00a042741\/98, \u00a7 2, 23 October 2003).<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarized as follows.<\/p>\n 4.\u00a0\u00a0On 9 September 1995 the applicant, while four-months\u2019 pregnant, was admitted to hospital.<\/p>\n 5.\u00a0\u00a0During the operation, she was administered a medication which put her in a coma.<\/p>\n 6.\u00a0\u00a0On 6 May 1996 the applicant was discharged from the hospital. She remained in a vegetative state until her death in March 2012.<\/p>\n 7.\u00a0\u00a0On 25 March 1998 the applicant was placed under guardianship and the applicant\u2019s father was appointed as her guardian.<\/p>\n 8.\u00a0\u00a0On 26 November 1998 the applicant\u2019s relatives, namely her father, her ex-husband and her two daughters brought, in their name and on behalf of the applicant, compensation proceedings against the hospital, its owner and its director as well as the doctor who performed the operation and the nurse who assisted him. They claimed 110,142.00 Turkish liras (TRY) in pecuniary damages and some non-pecuniary damages.<\/p>\n 9.\u00a0\u00a0The first-instance court ordered an expert examination for a determination of the amount of pecuniary damages suffered. In their report of 8 November 2005, the board of experts calculated the amount of pecuniary damages as TRY 242,114.98.<\/p>\n 10.\u00a0\u00a0On 16 December 2005 the applicant\u2019s relatives requested leave from the first-instance court to increase the amount of their initial claim for pecuniary damages in the light of the expert report by TRY 132,972.98 through a procedure called \u201camendment\u201d (\u0131slah).<\/p>\n 11.\u00a0\u00a0On 2 January 2006 the defendants objected to the amendment to the claim arguing that it was introduced after the expiry of the limitation period.<\/p>\n 12.\u00a0\u00a0On 12 July 2006 the Ankara Civil Court, granted the applicant\u2019s relatives\u2019 request and dismissed the defendants\u2019 objection. Accordingly, it awarded the applicant\u2019s relatives the total amount of their claim for pecuniary damages, equivalent to TRY 242,114.98 and some non-pecuniary damages.<\/p>\n 13.\u00a0\u00a0On an unspecified date, the defendants filed an appeal with the Court of Cassation reiterating their objection that the amount of the claim was increased out of time.<\/p>\n 14.\u00a0\u00a0On 19 April 2007 the Court of Cassation upheld the defendants\u2019 appeal. It qualified the legal relationship between the applicant and the defendants as a mandate contract (vekalet s\u00f6zle\u015fmesi) and noted that the claims under mandate contracts were subject to a limitation period of five years. Accordingly, it reasoned that the amendment to the claim was made more than five years from the date of the applicant\u2019s discharge from the hospital, that is the latest date on which the loss suffered by the applicant became apparent. It, therefore, partially quashed the Ankara Civil Court\u2019s decision.<\/p>\n 15.\u00a0\u00a0During the hearing of 9 April 2008, which took place after the case was remitted to the Ankara Civil Court, the applicant\u2019s relatives requested the court to comply with the Court of Cassation\u2019s decision. With an interim decision on the same date, the court decided to follow the Court of Cassation\u2019s decision.<\/p>\n 16.\u00a0\u00a0Subsequently, on 13 May 2008, the Ankara Civil Court held that the claim for additional compensation, which was made by way of an amendment during the course of the proceedings, was time-barred. It, therefore, lowered the amount of pecuniary damages awarded to the applicant\u2019s relatives to TRY 110,142.00, which corresponds to the sum of their initial claim.<\/p>\n 17.\u00a0\u00a0The applicant\u2019s relatives did not file an appeal against the Ankara Civil Court\u2019s decision of 13 May 2008. On 25 June 2008 they filed a reply to the appeal lodged by the defendants. In their petition, they requested the Court of Cassation to uphold the pecuniary damages awarded by the first\u2011instance court.<\/p>\n 18.\u00a0\u00a0On 27 January 2009 the Court of Cassation upheld the first-instance court\u2019s decision.<\/p>\n 19.\u00a0\u00a0On 18 March 2010 the Court of Cassation dismissed the defendants\u2019 request for rectification and as a result the first-instance court\u2019s decision became final.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 20.\u00a0The Civil Procedure Code (\u201cLaw no. 1086\u201d), in force at the material time, afforded claimants, in civil proceedings, a once-only ability to request a reassessment of the amount of their initial claim by way of a procedure called \u201camendment (\u0131slah)\u201d provided that they expressly reserved their right to further compensation when bringing an action and that they make the request for an amendment within the statutory time-limit (see also Ak\u0131n and Others v. Turkey (dec.), no. 27747\/02, \u00a7\u00a7 18-20, 29 January 2008).<\/p>\n 21.\u00a0\u00a0The legal relationship between a doctor and a patient, save for exceptional circumstances, is characterized as a mandate contract under Turkish law. Pursuant to the Code of Obligations, in force at the material time, disputes arising out of mandate contracts were subject to a limitation of period of five years, which started running when the claim \u201cbecame due\u201d, that is the date on which the non-defaulting party came to know the existence of the loss.<\/p>\n 22.\u00a0\u00a0One of the fundamental principles under Turkish civil procedure law is that judges are bound by the requests of the parties and that they may not decide to award more than what is claimed by the parties (see Deryan v.\u00a0Turkey, no. 41721\/04, \u00a7 21, 21 July 2015). This principle was stipulated in section 74 of the Law no. 1086, which read as follows:<\/p>\n Section 74<\/p>\n \u201c(…) the judge is bound by the claims and defenses made by the parties and may not rule more than or different from those [requested by the parties] (…)\u201d<\/p>\n 23.\u00a0\u00a0Law no. 1086 also described the procedure to be followed by a first\u2011instance court in case its decision is quashed by the Court of Cassation. Its relevant section read as follows:<\/p>\n Section 429<\/p>\n \u201cIf the relevant chamber of the Court of Cassation quashes the appealed decision, [it] shall remit the case to the [first-instance] court which delivered the decision or to any other court it shall deem appropriate.<\/p>\n That court, by (…), shall decide whether to comply with the Court of Cassation\u2019s decision to quash after having invited, on its own motion, the parties for a hearing and having heard them.<\/p>\n If the court persists in its earlier decision, an appeal against the decision to persist shall be made to the Grand Chamber of the Court of Cassation for Civil Law Matters.\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n 24.\u00a0\u00a0The applicant complained under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the dismissal of the amendment to the claim for being introduced out of time prevented her from wholly recovering the losses that she suffered because of the negligence in her treatment.<\/p>\n THE LAW<\/strong><\/p>\n 25.\u00a0\u00a0The applicant complains under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 that she was not awarded sufficient amount of compensation for her damages on account of the domestic courts\u2019 dismissal of part of her claim as being time-barred.<\/p>\n 26.\u00a0\u00a0The Government raised a number of objections regarding the admissibility of the applicant\u2019s complaints.<\/p>\n 27.\u00a0\u00a0They pointed out, firstly, that the applicant had died on 21 March 2012. They argued that upon the applicant\u2019s death the applicant\u2019s father lost his status as the applicant\u2019s guardian. They went on to add that the applicant\u2019s heirs did not inform the Court about the applicant\u2019s death, nor any of her heirs expressed their wish to pursue proceedings on her behalf and therefore the application should be struck out of the Court\u2019s list.<\/p>\n 28.\u00a0\u00a0Secondly, they pleaded that the applicant had not exhausted domestic remedies. They submitted that, after the case was remitted to the Ankara Civil Court, the applicant asked that court to comply with the Court of Cassation\u2019s decision of 19 April 2007. Moreover, instead of appealing against the court\u2019s decision of 13 May 2008 the applicant only filed a petition in reply to the appeal lodged by the defendants.<\/p>\n 29.\u00a0\u00a0Lastly, they argued that the application was lodged out of time. In their opinion, the Court of Cassation\u2019s decision rendered on 27 January 2009, which was served on the applicant on 3 March 2009, was the final court decision since the applicant did not request its rectification. They, therefore, maintained that the application was introduced more than six\u00a0months from the date of the notification of the final court decision.<\/p>\n 30.\u00a0\u00a0The applicant did not reply to the Government\u2019s preliminary objections but she maintained that the application should be examined on the merits.<\/p>\n 31.\u00a0\u00a0The Court notes that, on 5 June 2017, the applicant\u2019s lawyer informed the Court that the applicant\u2019s daughter had expressed her wish to continue the application. The Court reiterates that in a number of cases in which an applicant had died in the course of the proceedings it has taken into account the statements of the applicant\u2019s heirs or of close family members expressing the wish to pursue the proceedings before the Court. In the present case, the Court considers that, apart from explicitly expressing her wish to do so, the applicant\u2019s daughter has sufficient legitimate interest in obtaining the Court\u2019s ruling (see Malhous v.\u00a0the Czech Republic (dec.) [GC], no. 33071\/96, ECHR 2000\u2011XII, with further references).<\/p>\n 32.\u00a0\u00a0The Court will, therefore, proceed with the examination of the Government\u2019s preliminary objection of non-exhaustion of domestic remedies.<\/p>\n 33.\u00a0\u00a0The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 \u00a7 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, \u00a7 65, Reports of Judgments and Decisions 1996\u2011IV). The Court emphasizes that the rationale of the rule is that the national authorities, primarily the courts, should be afforded the opportunity to prevent or put right alleged violations of the Convention (see Selmouni v. France [GC], no. 25803\/94, \u00a7 74, ECHR 1999\u2011V). In this connection, the Court also reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above,\u00a7 71).<\/p>\n 34.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that pursuant to section 429 of the Law no. 1086, a first-instance court may decide about the part of its decision which has been quashed by the Court of Cassation in two ways. It may either persist in its earlier decision, in which case, upon appeal, the matter would have been referred to the Grand Chamber of the Court of Cassation for Civil Law Matters (Yarg\u0131tay Hukuk Genel Kurulu) for a final determination. Alternatively, it may comply with the Court of Cassation\u2019s decision. Also, the first-instance court is required to hold a hearing and to hear both parties\u2019 views on whether or not to comply with the Court of Cassation\u2019s decision before making a decision on this matter (see paragraph 23 above).<\/p>\n 35.\u00a0\u00a0In the instant case, the Court notes that, after the case was remitted to the first-instance court, a hearing was held on 9 April 2008 where both the applicant and the defendants were given the opportunity to express their opinions on the Court of Cassation\u2019s decision of 19 April 2007. In that hearing, the applicant expressly asked the first-instance court to decide in accordance with the Court of Cassation\u2019s decision. The judge was bound by the applicants\u2019 request and could not persist in its earlier decision contrary to the applicant\u2019s wishes. The first-instance court had, therefore, no option but to award her only the amount that she initially claimed in pecuniary damages.<\/p>\n 36.\u00a0\u00a0The Court further notes that the applicant chose not to appeal against the pecuniary damages awarded to her with the first-instance court\u2019s decision of 13 May 2008. In her petition in reply to the appeal lodged by the defendants, she did not raise any complaints regarding the dismissal of the amendment to the claim. Instead, she asked the Court of Cassation to uphold the pecuniary damages awarded to her by the first-instance court.<\/p>\n 37.\u00a0\u00a0The Court points out that the applicant did not provide an explanation, in her submissions in reply to the Government\u2019s observations, why she requested the Ankara Civil Court to comply with the Court of Cassation\u2019s decision and she did not appeal against its decision of 13 May 2008. Moreover, the case file does not reveal the existence of any special circumstances which could dispense the applicant with asking the first\u2011instance court to persist in its earlier decision and appealing against the decision which ordered the defendants to pay a lower amount of compensation.<\/p>\n 38.\u00a0\u00a0In light of the above, the Court considers that the applicant has effectively withdrawn her claim for additional compensation in the domestic proceedings after the Court of Cassation quashed the first-instance court\u2019s decision of 12 July 2006. In the Court\u2019s view, the applicant, therefore, did not do everything that could reasonably be expected of her to exhaust domestic remedies. Accordingly, the Court concludes that the complaints regarding the dismissal of the amended part of the claim for pecuniary damages were raised for the first time before the Court.<\/p>\n 39.\u00a0\u00a0It follows that the application must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n 40.\u00a0\u00a0This conclusion allows the Court to dispense with examining whether, as argued by the Government (see paragraph 29 above), the applicant failed to comply with the six-month rule.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 24 January 2019.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ledi Bianku
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n