OLSOY v. TURKEY
Inadmissible
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano
1. The applicant, Ms Neslihan Olsoy, is a Turkish national, who was born in 1952 and lives in Diyarbakır. She was represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events the applicant’s son, Fırat Olsoy, who was born in 1976, was serving a prison sentence in the Diyarbakır Prison. 5. On 24 January 2009 the applicant’s son asked to see the prison doctor. The doctor examined him, diagnosed him with myalgia (muscle pain) and anxiety and gave him medication to treat his problems. 6. At around 3 p.m. on 23 March 2009, suffering from severe chest pain and shortness of breath, the applicant’s son went to the prison infirmary. According to the applicant, the doctor was about to leave for the day and therefore hastily examined her son and gave him painkillers and a sleeping pill before sending him back to his cell. 7. At around 5 p.m. the same day the applicant’s son’s condition worsened and he had difficulty breathing. He told the other inmates in his wing that he had severe pain in his chest. Some of the inmates carried him to the infirmary but it was closed. Subsequently, a prison warden arrived and called an ambulance. The applicant’s son died on the way to the hospital. 8. On the same day an autopsy was conducted by a forensic pathologist at the Diyarbakır State Hospital in the presence of the Diyarbakır prosecutor. Since the cause of death could not be determined during that autopsy, blood samples and tissue samples taken from the heart, brain, lungs, liver, kidneys, spleen and the coronary arteries were sent for histopathological and toxicological examinations at the Forensic Medicine Institute’s headquarters in Istanbul. 9. The following day the prosecutor initiated an ex officio investigation into the death of the applicant’s son. He asked the prison administration to forward him the applicant’s son’s medical file and the names of the prison personnel who were on duty at the time of the events, as well as the names of the inmates detained on the same wing as the applicant’s son. That information was provided to the prosecutor on 25 March 2009. 10. On 26 March 2009 the prosecutor took a statement from the prison doctor. The doctor told the prosecutor that at around 2.30 p.m. on 23 March 2009 he had examined the applicant’s son who had come to the prison’s infirmary with pain in his chest and shoulder and complained of difficulties in sleeping. The doctor told the prosecutor that he had prescribed four medicines to the applicant’s son, namely “Zedprex, Cdoral, Voltaren and Duzyl”, to relax his muscles, relieve his pain and calm him down. However, as he had examined a total of eighty-four prisoners that day, he did not have any further recollection of the applicant’s son or his problems. 11. The same day the prosecutor took a statement from the prison director who explained that, according to the closed circuit video recordings showing the inside of the prison, the applicant’s son had been brought to the infirmary at 5.19 p.m. by his fellow inmates. An ambulance had then been called and a prison guard had administered first aid. The ambulance had arrived at 5.45 p.m. and taken the applicant’s son to the hospital. 12. The prison guard who had administered first aid to the applicant’s son was also heard by the prosecutor on the same day and told the prosecutor that he had been asked to go to the prison’s infirmary some time between 5.25 p.m. and 5.30 p.m. When he had arrived the applicants’ son was still alive but having difficulties in breathing. He had then called the ambulance again and urged them to come at once because the state of the applicant’s son’s health had become critical. The ambulance had arrived at 5.45 p.m. When put in the ambulance on a stretcher the applicant’s son had been alive but his condition had been critical. His body had started to take on a “purple colour”. The prison guard had also got in the ambulance and the doctor in the ambulance had carried out cardiac massage. However the applicant’s son had died on the way to hospital. 13. On 27 March 2009 the prosecutor took statements from nineteen inmates who had witnessed the incident on 23 March 2009. The inmates told the prosecutor that they had been aware that the applicant’s son had been suffering from chest pains. They had also been aware that the applicant’s son had gone to the infirmary earlier that day to see the prison doctor. One of the inmates stated that he had accompanied the applicant’s son to the infirmary at around 3 p.m. but that the prison doctor had been about to leave for the day and had hastily prescribed him painkillers without giving him a proper medical examination. The applicant’s son’s condition had deteriorated after his return from the infirmary and he had been unable to get out of his bed for the roll call which took place at 5 p.m. After the roll call the inmates had carried him to the infirmary because he had been unable to walk unaided. 14. Two of the inmates who had carried the applicant’s son out of his wing told the prosecutor that the infirmary had been closed at the time and that they had instead taken him to the dentist’s office where they had waited for 15-20 minutes for a prison warden to arrive. They also stated that the telephones in the infirmary had not been working. When the prison warden arrived he tried to put an oxygen mask on the applicant’s son but then quickly took it off when the applicant’s son felt worse with the mask. The inmates then “put pressure on the prison warden to call an ambulance” and they waited a further 15-20 minutes for the ambulance to arrive. 15. On 30 March 2009 the applicant’s other son, Mr Orhan Olsoy, filed a petition with the prosecutor’s office and informed the prosecutor that his brother had had no previous health problems and that during his frequent visits to the prison his brother had told him that he was well and would be released soon. Mr Olsoy asked the prosecutor to find out why his brother had lost his life and requested that an investigation be conducted to establish whether the death had been due to anyone’s negligence. He also asked the prosecutor to determine whether there had been any delays in calling the ambulance and requested the prosecutor to secure in evidence the recordings from the prison’s security cameras. 16. Between 22 and 28 April 2009 the prosecutor questioned the deputy director of the prison and four other prison guards. They explained to the prosecutor how they had been informed about the deterioration of the applicant’s son’s condition and how they had then called the ambulance and sent him to hospital. 17. At the request of the prosecutor, the footage recorded by the prison’s security cameras was examined by crime scene examination experts from the Diyarbakır police headquarters on 5 May 2009. According to the report prepared by these experts, two persons could be seen carrying another person in their arms at between 5.19 p.m. and 5.38 p.m. The person was put on a stretcher at 5.45 p.m. and put in an ambulance at 5.46 p.m. 18. The applicant and her husband were questioned by the prosecutor on 8 May 2009. They both told the prosecutor that they had not been aware that their son had had any health problems. The applicant added that on one occasion some ten days before her son was imprisoned he had told her that “he was not well”, but had not elaborated as to the nature of his problem. 19. On 9 June 2009 the prosecutor wrote to the Forensic Medicine Institute in Istanbul and urged it to carry out the necessary examinations of the blood and tissue samples taken from the body of the applicant’s son. The prosecutor sent another reminder to the Forensic Medicine Institute on 16 July 2009. 20. The doctor and the paramedic who had taken the applicant’s son to the hospital were questioned by the prosecutor on 29 June 2009. They told the prosecutor that they had been called to the prison at 5.31 p.m. and that they had arrived there at 5.39 p.m. When they had put the applicant’s son in the ambulance he had stopped breathing and his heart had stopped beating. They had tried to resuscitate him and had arrived at the hospital at 6.10 p.m. where they had handed the applicant’s son to the doctors waiting by the main entrance. 21. The doctor working at the accident and emergency department of the hospital made a statement on 13 July 2009 and told the prosecutor that the applicant’s son had already died on his arrival at the hospital. He and his colleagues had then unsuccessfully tried for approximately thirty minutes to resuscitate him. 22. The Forensic Medicine Institute in Istanbul prepared its report on 13 August 2009 and stated that according to the toxicological examinations there was no alcohol, drugs or other substances in the samples taken from the body. The Institute considered it necessary to seek the opinion of its specialist board on the cause of death. 23. On 25 November 2009 the Expertise Board of the Istanbul Forensic Medicine Institute, which consisted of eight medical experts, issued its report. It confirmed the findings of the toxicology report summarised in the preceding paragraph and added that during the autopsy no signs of traumatic changes on the body had been observed. According to the report, the eight experts unanimously concluded that the exact cause of death could not be determined. 24. On 19 February 2010 the Diyarbakır prosecutor delivered a decision of non-prosecution and concluded that there was no evidence to show that an offence had been committed. The prosecutor also added that the applicant’s son had died of natural causes and that there had been no fault or negligence attributable to another person in his death. 25. The applicant lodged an objection against the prosecutor’s decision and argued, inter alia, that the fact that there had been no signs of trauma on the body of her son and that the toxicology reports had not shown any harmful substances in his body did not exclude that someone’s negligence or fault had caused his death. She submitted that the prosecutor should have made attempts to establish whether or not the prison authorities had shown due care and attention and whether the prison doctor had examined him adequately. In this connection, she also argued that the role played in her son’s death of the infirmary being closed when his condition worsened and the appropriateness of the medicines prescribed by the prison doctor, should also have been examined by the prosecutor. 26. The applicant added in her objection petition that, according to the eyewitnesses, her son had been complaining about having breathing problems as well as pain in his chest, heart and muscles. However the doctor, instead of at least referring her son to a hospital for a detailed examination and further tests, had given him painkillers. The fact that her son’s condition had worsened after having taken the painkillers showed that the doctor had acted negligently. Finally, she alleged that the ambulance had not been called immediately. 27. On 14 May 2010 the Siverek Assize Court dismissed the applicant’s appeal. That decision was served on the applicant’s lawyer on 15 June 2010. 28. According to a report drawn up and signed by a doctor on 13 March 2013, at the time of his entry into the prison a medical examination had been carried out on the applicant’s son and no medical problems had been observed during that examination.