May 24, 2013
Fellow observers of the Strasbourg case law will probably agree with me: when you systematically go through the Court’s case law you’re confronted with the most extraordinary facts that you would never have imagined. Horrible prison circumstances, ill-treatment and torture are sometimes described into utmost details.
One can also not remain untouched by cases concerning child abductions and other family dramas. One recent example is the sad story of the family Şentürk in the recent case of Mehmet Şentürk and Bekir Şentürk v. Turkey. The applicants respectively lost their wife and mother who died due to pregnancy complications. Mrs. Menekse Şentürk who was 8 months pregnant spent the last day of her life, the 11th of March 2000, running from one hospital to the other in search for help.
Complaining of pain, she went to a first hospital where she was examined by a midwife. Since the midwife considered that there was no need to call a doctor yet, the husband drove his wife to a second hospital where she was again only examined by a midwife and not by a doctor. As Mrs. Şentürk was still in pain, the Mr. Şentürk drove her to a third hospital where she was examined by an urologist who prescribed her medicines and advised her to come back after she had given birth. After they returned home and the pain still did not cease by the evening, the first applicant drove his wife to a fourth hospital. For the first time the applicant’s wife was examined by gynecologists who took an ultrasound and discovered that the child she was caring was dead. Mrs. Şentürk was informed that an urgent operation to remove the child was needed. According to the first applicant, the hospital informed him that he first had to pay a deposit to cover the hospital costs, an amount he wasn’t immediately able to pay at the time of the facts. The hospital denies this part of the declaration. In any event, Mrs. Şentürk was transferred in an ambulance to another hospital where she could be operated. She was only accompanied by her husband and no medical staff. She never made it to the (fifth) hospital, since she died on the way.
Besides of the dramatic facts, this case caught my attention because of the Court’s reaction to the applicants’ claim under article 3, but I will first summarize very briefly the reasoning under article 2.
Violation of the right to life of Mrs. Şentürk
The Court finds a violation of article 2 on both the substantive and procedural aspect. On the substantive level the Court concludes inter alia that the state fell short in its duty to protect the physical integrity of the applicant since the hospital of Ege was preoccupied with the financial aspect of the medical intervention, while knowing that the absence of a quick medical intervention could have extremely serious consequences. The fact that the patient would have refused medical assistance because of her inability to pay the deposit asked by the hospital did not exonerate the hospital from its responsibility to offer adequate medical assistance. The refusal of the patient could not be considered to be an informed decision.
Under the procedural aspect of article 2, the Court examines whether the authorities’ examination was conducted in a prompt, effective and diligent way. The procedure took more than nine years, among which three years had been taken up only for the administrative part concerning the leave to bring prosecutions in front of the domestic courts. The Court considers a prompt reaction as vital in maintaining public confidence and support for the rule of law and concludes that this promptness in examining the Şentürk’s case was not present.
Finally the Court examined the claim concerning the right to life of the unborn child. The Court refers to the lack of consensus in Europe on the scientific and legal definition of the beginning of life and, in line of previous case law, concludes that a wide margin of appreciation should be accorded to the State in this matter. Since the life of the foetus was intimately connected with the life of the mother and it was dependent of the medical treatment the mother received, the Court states that it does not consider it necessary to proceed to a separate examination of the right to life of the unborn child.
No recognition of mental suffering
Mr. Şentürk and his son invoke a violation of article 3 for their mental suffering because of the death of their wife and mother and for the suffering that Mrs. Şentürk endured on the 11th March 2000. The Court considers that the principal legal question was already examined under article 2 and therefore concludes that no separate examination of the other claims, including the article 3 claim, is needed.
I can somewhat understand the Court’s reasoning with regard to the suffering of Mrs. Şentürk, which is to some extent already recognized under article 2. I can also understand that the Court sometimes decides, maybe because of the huge caseload, not to examine all the claims in a particular case when the principal claim has been answered. But this case is in my opinion a case where the Court could have been more generous and more empathic towards the applicants.
Until now, the Court only assessed the case from the perspective of Mrs. Şentürk, who is of course the main victim. The suffering of both applicants in this case, the father and the son, is however not recognized. Although the Court does not find it necessary to examine this aspect of the case, we can ask ourselves whether the applicants are satisfied by the acknowledgment of the responsibility of the authorities in the death of Mrs. Şentürk or whether they long for recognition of their personal suffering as well. I can imagine the latter. Not only are they confronted with the death of a beloved one, but they also lost the unborn child. The husband was moreover confronted with the “Kafkaesque” situation of having to visit 5 hospitals in one day begging for medical assistance. Afterwards the applicants were also confronted with a procedure that almost lasted for a decade.
Social psychologists developed the notion of procedural justice based on research that shows that people do not only care about the outcome of their case but also and sometimes even more about the way this outcome is reached. (see publications about the application of this notion on the ECtHR jurisprudence here and here) One of the elements taken into account in the assessment of procedural fairness is ‘participation’. Participation (also called ‘voice’) refers to the ability of individuals to express their views and opinions, but also to having these opinions been genuinely considered. Another procedural justice element involves ‘caring’. This refers to an understanding and a caring approach of a court towards an applicant. By considering the claim under article 3 to be “unnecessary to be examined”, the Court falls short of respecting these criteria.
Moreover, examining the article 3 claim would also be more consistent with the Court’s case law concerning disappearance cases, in which the family also endures distress. In these cases the Court usually states that:
“the question whether a member of the family of a ’disappeared person‘ is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct” (see e.g. Utsayeva and others v. Russia §185 and Meryem Celik and others v. Turkey §89)
In sum, from a procedural justice perspective, the Court should at least have acknowledged the applicants’ suffering by examining their claim under Article 3 and it could have perfectly done that in analogy of the above reasoning.