KAYGAN v. TURKEY
Inadmissible
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
The applicants, Mr Serdar Tamer Kaygan, Ms E Kaygan and Mr A. Kaygan, are Turkish nationals who were born in 1968, 1962 and 1994 respectively and live in Istanbul. They were represented before the Court by Mr K. Tacar Çağlar, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant, whose regular check-ups during her pregnancy were carried out by a private hospital, gave birth to the third applicant on 31 January 1994. The third applicant was born with serious disabilities. On 27 January 1995 the applicants initiated civil proceedings before the Ankara Court of First Instance (hereinafter “the Ankara court”) against the hospital and doctors, claiming pecuniary and non-pecuniary damage. On 10 July 1995 the Ankara court requested an expert report from the Ministry of Health as to the liability of the defendant hospital and the doctors. The report was delivered on 19 September 1996 and found that no negligence was attributable to the defendant party. Subsequently four more medical reports, drawn up by various specialist bodies on 19 April 1998, 11 March and 8 December 1999 and 1 March 2001, were submitted to the Ankara court. It was established in these reports that the hospital and the doctors involved had in fact been partly responsible for the third applicant’s disabilities, which had been assessed at 100%. On 7 November 2000 the applicants lodged a second case with the Ankara court, requesting additional compensation for non-pecuniary damage. On 12 December 2000 the Ankara court ordered the two cases to be joined and on 16 May 2001 it awarded the applicants their claim in full for both cases. The defendant party appealed. On 21 December 2002 the Court of Cassation upheld the judgment in respect of the award granted for the first case and quashed in so far as it concerned the second case. Relying on Article 126 of the Code of Obligations, the Court of Cassation held that the second case had been introduced out of time since the first and second applicants had been aware of the serious disabilities and their extent when the third applicant was born. Thus, any claim had had to be introduced within five years of the third applicant’s date of birth. The case was remitted to the Ankara court. On 19 July 2002 the Ankara court confirmed in its earlier judgment and held that it was only by having regard to the report dated 8 December 1999 that the third applicant’s disability had been established at 100%. Therefore the applicants’ further claims had been introduced within the statutory time-limit. The case file was transferred to the Grand Chamber of the Court of Cassation’s Civil Division (Hukuk Genel Kurulu). On 11 December 2002 the Grand Chamber of the Court of Cassation quashed the judgment of the Ankara court. In its decision it discussed in detail the concept of damage, when it arose and when the statutory time-limit for claiming damages had started to run for the instant case. It noted in particular that the seriousness of the third applicant’s disability had been visible at birth on 31 January 1994 and, according to medical reports, would not change in time for better or worse. Therefore the five-year statutory time-limit for claiming damages ought to have started running at birth. The applicants appealed. On 28 May 2003 the Grand Chamber of the Court of Cassation’s Civil Division dismissed the appeal. The case was remitted to the Ankara court, which held on 9 October 2003 that there was no need to issue a new judgment concerning the applicants’ first claim, which had already become final, whereas their second claim had been introduced outside the statutory time-limits, as established by the Court of Cassation. The applicants appealed in respect of the costs and fees. On 3 March 2005 the Court of Cassation amended the part of the judgment concerning the applicants’ costs and fees but upheld the merits. The applicants were notified of the judgment on 20 April 2005.