Events
B.K. and A.K. (brothers), the sons of the applicants Ali Karakılıç and Songül Karakılıç and the brother of Cengizhan Karakılıç, were alone at their residence when a fire broke out. Firefighters responded to the fire and the two brothers were taken to the state hospital in a state of cardiopulmonary arrest (respiratory and circulatory arrest). The siblings were referred to the University Faculty of Medicine Hospital, where they were assessed to be in a serious condition and referred to another centre for further treatment (hyperbaric oxygen therapy), but no hospital could be found to accept the siblings. The applicants transferred their children by their own means to a private medical centre in another province, which did not have an intensive care unit but had hyperbaric oxygen treatment facilities.One of the siblings, A.K., did not respond to the treatment at the medical centre and died, while B.K. was transferred to different hospitals but did not respond to the treatment process and died. As a result of the investigation initiated by the Ministry of Health following the deaths, it was concluded that the health personnel involved in/contacting the treatment process of the siblings did not have any fault in the treatment process and transfer stages. The full jurisdiction lawsuit filed before the administrative court based on service defects was rejected on the merits and the judgement was finalised.
Allegations
The applicants claimed that the right to life was violated due to the failure to provide the necessary protection in the medical treatment of the children who were injured in the fire and subsequently died.
The Court’s Assessment
In the concrete case, the applicants stated that their children, who were affected by smoke/poisoning due to the fire, died due to the disruptions in the treatment process as a whole, that the health service (starting from Samsun and extending to Ankara) was carried out incorrectly/incompletely/defectively, that their children could not reach the necessary treatment, and that they were transported between hospitals in ambulances without sufficient equipment, and filed a full judgement lawsuit by naming the Ministry of Health as an adversary. In the judicial process, the expert report requested by the court from the Forensic Medicine Institution showed that the examination was limited to the health service provided in Samsun, and even made an assessment only in terms of A.K.
Although the applicants claimed that the incident was not sufficiently clarified, the court found the expert report sufficient and took it as a basis for the judgement. On the other hand, the applicants complained not only about the treatment process limited to Samsun but also about the treatment process extending to Ankara; they also complained about the transport by ambulance with inadequate equipment, the failure of 112 Emergency Service to provide an ambulance, and the refusal of hospitals in Ankara to accept their children. It is understood that the Court did not make an assessment on these issues raised by the applicants.
In the light of all these findings, it has been concluded that the positive obligations of the state within the scope of the right to life regarding the process in question, which resulted in the death of two children, were not investigated with the level of depth, diligence and speed required by Article 17 of the Constitution in order to reveal the legal responsibility in the context of the positive obligations of the state within the scope of the right to life, and as a result, the positive obligations (procedural obligation) of the state were not duly fulfilled and the right to life was violated in this respect.
İn the event that the obligation of effective investigation, which the state is obliged to fulfil within the scope of the right to life, is not duly fulfilled, it is not possible to determine whether the allegations that are not subject to the court’s assessment (such as 112 Emergency Service not providing an ambulance, hospitals in Ankara not accepting children), in other words, whether the requirements of the obligation to protect have been fulfilled, since all the circumstances surrounding the incident cannot be clearly revealed. In this context, it is not possible to make an assessment in terms of the material (protection) dimension of the right to life at this stage, since the Court has not clearly evaluated whether the state has complied with the obligation to protect in terms of the whole process.
For the reasons explained above, the Constitutional Court decided that the procedural dimension of the right to life was violated.
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