KOÇAK v. TURKEY
Inadmissible
Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
1. The applicant, Mr Mehmet Lütfi Koçak, is a Turkish national who was born in 1982 and lives in Mersin. He was represented before the Court by Mr A. Erkol, a lawyer practising in Mersin. 3. On 27 September 2002 the applicant was operated on in Adana Numune Hospital. In the consultation and examination form it was noted that the applicant was complaining of weakness in the right leg as well as occasional urinary incontinence and that he had tethered cord syndrome, a disorder of the spinal column. 4. On 30 September 2002 his catheter was removed. However, as he was not able to pass urine it was reinserted. 5. He was discharged from the hospital on 7 October 2002. 6. He was admitted to the hospital once again on 12 November 2002 for inability to pass urine. He was discharged on 21 November 2002. In the discharge summary form it was noted that the applicant had a permanent catheter. He was diagnosed with neurogenic bladder and prescribed with the use of a catheter six times a day. 7. On 22 June 2004 the applicant obtained a medical report from the health board of the Hospital of the Mersin University School of Medicine. It reads as follows: “The applicant who came to our hospital on 17 June 2004...was examined, treated and given recommendations at the Urology Department. For your information. Admission-Discharge Dates: 17/6/2004 Diagnosis: Neurogenic bladder (“urinary dysfunction”) Other issues: The catheterisation of the patient with...type of catheter six times a day for a period of one year is convenient.” 8. On 13 September 2004 he applied to the Ministry of Health seeking compensation and lodged a criminal complaint against the doctor concerned for breach of duty. 9. On the basis of a medical expert opinion given by two spinal surgeons on 7 October 2004, the Ministry of Health rejected the applicant’s request on 19 October 2004. 10. On 1 November 2004 he initiated compensation proceedings against the administration. 11. On 6 January 2005 the Governorship of Adana did not grant the permission sought for the prosecution of the doctor concerned, basing its decision on a preliminary investigation report. It was observed that the patient’s symptoms had existed prior to the surgery and that they consisted of the development of his progressive neurological disease, namely tethered cord spinal syndrome. On 7 April 2005 the public prosecutor terminated the investigation for this reason. 12. Before the Adana Administrative Court the administration claimed that the civil action was time-barred; that in any case the applicant’s complaints had pre-dated the impugned operation; that the applicant had been operated on 27 September 2002 for tethered spinal cord syndrome, and that the medical expert evidence had confirmed that the doctor concerned had not been negligent. 13. The Adana Administrative Court noted that on 25 September 2002 the applicant had been diagnosed with tethered spinal cord syndrome, the symptoms of which included loss of bladder control. Having observed that the applicant had been hospitalised for urinary incontinence on 12 November 2002, it stated: “...even assuming that at the time of the diagnosis he had not been suffering from this symptom, since he was admitted to the Urology Department on 12 November 2002 for inability to pass urine without the use of a catheter it should be held that he should have been aware of his condition by that date at the latest.” 14. The first-instance court concluded that for the purposes of section 13 of the Administrative Procedure Act the one-year time-limit had started running on 12 November 2002 and that the case lodged on 1 November 2004 was therefore time-barred. It declared the case inadmissible on 22 June 2006. 15. The applicant appealed against the decision. 16. The public prosecutor at the Supreme Administrative Court pointed out that the time should be calculated from the date on which the person concerned had become aware of the damage. He referred to paragraph 1 of section 13 of the Administrative Procedure Act, which stipulates that individuals whose rights have been violated by an administrative action should apply to the administration concerned for redress within one year of the date on which they were notified or otherwise became aware of the administrative action, and in any case within five years of the date of the action. He proposed that the judgment of the first-instance court should be quashed, holding that the applicant had become aware on 22 June 2004 that his neurogenic bladder might have been connected to the surgical operation. 17. The Supreme Administrative Court upheld the decision of the firstinstance court on 27 October 2008. The final decision was served on the applicant on 5 January 2009.