CANBAZ v. TURKEY
Inadmissible
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
The applicant, Mr Sadettin Canbaz, was a Turkish national and lived in Sakarya. On 8 May 2011 the Court was informed of his death on 1 August 2007 and that his successors, Mrs Cevriye Canbaz, Mr Sertan Canbaz, Mrs Mehtap Cepoğlu and Mr Erdinç Canbaz stated their wish to pursue the application. For practical reasons, Mr Sadettin Canbaz will continue to be called “the applicant”, although his successors are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and also Ahmet Sadık v. Greece, 15 November 1996, § 3, Reports of Judgments and Decisions 1996V). On 26 September 1995 the applicant underwent a hernia repair operation at the Sakarya Social Security Hospital. On 18 March 1999 the applicant initiated legal proceedings against the doctor in charge and the hospital administration, claiming 500,000,000 Turkish liras (TRL) in compensation. He alleged that he had lost two thirds of his earning capacity as a result of the medical negligence of the doctor. In particular, he contended that, following the surgery, a disc had become infected due to the doctor’s malpractice. On 14 July 2004 Law No. 5219, according to which the jurisdictional limits imposed in appeals and rectification requests were increased, entered into force. On 22 December 2004 the Sakarya Civil Court of General Jurisdiction dismissed the case, relying on expert reports provided by the Supreme Health Council and the Istanbul Forensic Institute. It held that disc infection was a foreseeable complication of hernia operations, which had been treated appropriately in the applicant’s case by his doctor. It concluded that the applicant’s current health problems had not arisen from the surgery in question and therefore determined that no fault could be attributed to the doctor or the hospital. On 5 May 2005 the Court of Cassation rejected the applicant’s request for leave to appeal on the grounds that the amount in dispute was less than the minimum amount (TRL 1,000,000,000,000) required under the recently amended legislation for an appeal to be lodged with the Court of Cassation. That being so, the applicant’s request for leave to appeal had to be declared inadmissible in accordance with Article 427 of the Code of Civil Procedure as amended by Law No. 5219. On 24 October 2005 the Court of Cassation rejected a request for rectification brought by the applicant, as the sum in dispute in the matter also did not exceed the required threshold (TRL 6,000,000,000,000) for rectification pursuant to the aforementioned law.