Medical negligence and liability of health professionals
II. RELEVANT DOMESTIC LAW AND PRACTICE 41 Article 4 of the Law on Blood and Blood Products (Law no. 2857 dated 25 June 1983) provides: “The powers and duties of the Ministry of Health and Social Welfare ... are as follows: ... ( c) Inspection and supervision of real and corporate entities which deal with blood and blood products ... ” 42. Article 23 of the Regulation on the Blood and Blood Products (dated 25 November 1983) reads : “ The following blood screening tests shall be conducted; blood type, Rh, compatibility and cross-match, VDRL tests, Hepatitis B, malaria parasite ... ” 43. Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows: Article 7 and Article 38 respectively “All entities which deal with blood and blood products shall be inspected by the Ministry of Health and Social Welfare at least twice a year. Defects found during inspections shall immediately be remedied by the relevant entities. In the event the same defects are found to exist during the following inspection, the respondent individuals shall be subject to administrative and criminal proceedings.” 44. On 18 August 1983 the Ministry of Health sent a letter to all governors, for distribution to hospitals, blood centres and public institutions, informing them about AIDS and the measures to be taken to prevent the spread of this disease. The Ministry stressed that particular vigilance must be shown when choosing blood donors. In particular, it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected. 45. By a letter dated 21 November 1985, the Ministry of Health informed the governors that all HIV AIDS cases must be reported to the health authorities. It noted that persons suspected of having HIV AIDS must be medically examined, and their blood, bodily fluids and all other relevant substances subjected to the requisite tests. 46. On 4 February 1987 the Ministry of Health issued a circular to all governors (circular no. 1141), for distribution to public and private hospitals and clinics as well as to the Kızılay, for prevention of the spread of the HIV AIDS disease. The Ministry noted in this circular that HIV AIDS could only be transmitted through sexual intercourse, blood transfusion or multiple use of a syringe. In this connection, the Ministry stated that the anti titre test was the most effective way of diagnosing HIV AIDS. This could only be done by the ELISA method. It stressed that, prior to blood transfusions, the requisite ELISA tests must be carried out. To that end, all hospitals should be equipped with facilities for carrying out ELISA tests on blood given by donors. The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres. 47. By a circular dated 1 April 1992, the Ministry of Health required all blood centres and stations to conduct VDRL, HBsAg, AIDS and malaria tests on all blood and blood products. It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 49. The applicants complained that the State authorities had failed in their positive obligation to protect the right to life of the first applicant as a result of his infection with the HIV virus by blood supplied by the Kızılay, and that no effective investigation had been conducted into their criminal complaints. They invoked Article 2 of the Convention, which reads as follows: “1. Everyone's right to life shall be protected by law ... ” 50. The Government contested that argument. A. Admissibility 51. The Government submitted that Article 2 of the Convention did not apply in the circumstances of the present case. They maintained that the applicants were no longer victims of a violation of the aforementioned provision following the redress provided by the authorities, within the meaning of Article 34 of the Convention. They further noted that in the case of D. v. the United Kingdom (application no. 30240/96, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), which concerned the attempted expulsion of an AIDS sufferer to St. Kitts where he would have been deprived of the medical treatment he was receiving in the United Kingdom, the Court had examined the complaints of the applicant under Article 3 of the Convention rather than Article 2. 52. The applicants claimed that Article 2 of the Convention covered not only incidents which resulted in the death of the victim, but also cases where the victim suffered life-threatening, serious injury. Bearing in mind that the first applicant's disease was not curable, the State was responsible for violation of the right to life of the first applicant. They thus claimed that Article 2 of the Convention applied in the present case. 53. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II). 54. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients'lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I, and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V). 55. Furthermore, on a number of occasions the Court has examined complaints raised under Article 2 of the Convention where the victims had suffered serious injuries as a result of illegal acts perpetrated against them and has accepted that the aforementioned provision could apply in exceptional circumstances even if the victims had not died (see Osman v. the United Kingdom, 28 October 1998, Reports 1998 ‑ VIII; Yaşa v. Turkey, 2 September 1998, Reports 1998 ‑ VI; Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 ‑ XI; and G.N. and Others v. Italy, no. 43134/05, § 69, 1 December 2009 ). 56. Likewise, in the above-cited L.C.B. case, where the applicant had suffered from leukaemia diminishing her chances of survival, and in the case of Karchen and Others v. France ((dec.), no. 5722/04, 4 March 2008), where the first applicant had been infected with the HIV virus which put his life in danger, the Court held that Article 2 of the Convention was applicable. 57. In view of the foregoing, the Court sees no reason to depart from its established case-law and considers that Article 2 of the Convention applies in the circumstances of the present case. 58. As regards the Government's reference to the case of D. v. the United Kingdom (cited above), where the applicant's complaints under Article 2 had been examined under Article 3 of the Convention, the Court notes that the circumstances of that case are fundamentally different from the present case. In the case of D. the Court examined the respondent Government's responsibility stemming from the attempted expulsion of the applicant to a third country, where he would be deprived of the medical treatment he had been receiving in the United Kingdom, from the standpoint of Article 3 of the Convention in accordance with its established practice in expulsion cases (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 56-78, ECHR 2005 ‑ I). In the instant case, however, the applicants'complaints must be examined under Article 2 of the Convention since they pertain to the alleged failure of the State authorities to fulfil their positive obligation to protect life by not taking preventive measures against the spread of HIV through blood transfusions and by not conducting an effective investigation against those responsible for the infection of the first applicant. 59. Turning to the Government's submission concerning the victim status of the applicants, the Court notes that this question is inextricably linked to the merits of the case, as it needs to be ascertained whether the national authorities responded to the applicants'grievances in accordance with their positive obligation under Article 2. Accordingly, the Court joins this question to the merits and will examine it under Article 2 of the Convention (see Codarcea v. Romania, no. 31675/04, § 100, 2 June 2009). 60. Finally, the Court notes that the Government implicitly recognised the locus standi of the second and third applicants in accordance with the rulings of the national courts which accepted their standing under Turkish law as parents of the first applicant and delivered judgments favourable to them (see, a contrario, Karchen and Others, cited above). 61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions ( a) The applicants 62. The applicants alleged that the national authorities had not protected the right to life of the first applicant as a result of their failure to give sufficient training to the health personnel concerned and to supervise and inspect their work. In this connection, they noted that the health personnel at the Kızılay had shown gross negligence by not requiring the blood donors to fill out questionnaires and by not screening their blood with sufficient care. The health personnel at the hospital, where the blood transfusion had been conducted, also failed to do the necessary tests on the blood given to the first applicant, considering that the test in question was very expensive. 63. The applicants maintained that no meaningful investigation had been carried out into their complaints, that the proceedings before the administrative courts had lasted more than twelve years and that the compensation awarded by the civil and administrative courts had not even covered the costs of medication of the first applicant. They emphasised that the family was in serious economic difficulty and unable to cover all the expenses for medication and treatment of the first applicant. ( b) The Government 64. The Government submitted that the legal remedies at the domestic level had afforded appropriate redress for the applicants'complaints under Article 2 of the Convention. They further asserted that the national authorities had conducted an effective investigation into the applicants'complaints. In their opinion, both the civil and administrative courts had taken a protective approach towards the applicants when establishing their victim status and granting them redress for their grievances. The courts had awarded the applicants sufficient compensation and these judgments had been executed by the authorities. They added that, following the impugned incident, the Kızılay had decided to give the first applicant a scholarship in order to support his education. 65. As regards the applicants'allegations that the criminal investigation was ineffective, the Government contended that the Ankara Chief Public Prosecutor's decision of non-prosecution in relation to the President of the Kızılay and the Minister of Health was compatible with the principle that the criminal liability should be personal. 2. The Court's assessment ( a ) Applicable principles 66. The Court reiterates that, even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I), the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages. Disciplinary measures may also be envisaged (see Calvelli and Ciglio, cited above, § 51; Lazarini and Giacci v. Italy ( dec.), no. 53749/00, 7 November 2002; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; and G.N. and Others, cited above, § 82 ). ( b) Application of the above principles in the present case 67. The Court notes that the criminal investigation into the applicants'complaints concerning negligence on the part of the health personnel concerned, the Director General of the Kızılay and the Minister of Health was terminated on the ground that there was no fault directly attributable to these persons (see paragraphs 14 and 16 above). 68. In view of the above-cited principles indicating that Article 2 of the Convention does not necessarily require a criminal ‑ law remedy in cases of unintentional infringement of the right to life or to personal integrity, such as the present case involving medical negligence, the Court must ascertain whether the Turkish legal system afforded the applicants sufficient and appropriate civil redress in order to satisfy the positive obligation under the aforementioned provision. 69. In this context, the Court notes that both the civil and administrative courts ruled that the Kızılay was at fault for supplying HIV-infected blood to the first applicant and that the Ministry of Health was also responsible as a result of the negligence of its personnel in the performance of their duties. Both institutions had therefore been held liable for the damage caused to the applicants (see paragraphs 21, 22 and 31 above). Furthermore, the Ankara Civil Court of First Instance established that the HIV infected blood given to the first applicant had not been detected by the health personnel because they had not done the requisite test on the blood in question, considering that it would be too costly. The court found moreover that, prior to the impugned incident, there was no regulation requiring blood donors to give information about their sexual history which could help determine their eligibility to give blood. On account of these deficiencies, and the defendants'failure to comply with the already existing regulations, the civil and administrative courts awarded the applicants TRL 54,930,703,000 and 159,369.49 New Turkish Liras, respectively, to cover non-pecuniary damages and the statutory interest applied to those sums. 70. It thus appears that the applicants had access to the civil and administrative courts which enabled the establishment of the liability of those responsible for the infection of the first applicant with the HIV virus and the award of civil redress, in an order for damages. However, as it appears from the parties'submissions, a crucial question in the instant case is whether the redress in question was appropriate and sufficient. 71. In this connection, the Court notes that the non-pecuniary damage awards received by the applicants only covered one year's treatment and medication for the first applicant (see paragraph 37 above). Thus the family was left in debt and poverty and unable to meet the high costs of the continued treatment and medication amounting to a monthly cost of almost EUR 6,800, which was not contested by the Government (see paragraphs 35, 39 and 40 above). Despite the promises made by the authorities to pay the medical expenses of the first applicant, the applicants'requests to that effect were rejected by the Kızılay and the Ministry of Health (Ibid.). It is striking that the green card given to the applicants was withdrawn immediately after the announcement of the judgments ordering the defendants to pay compensation to the applicants (see paragraph 36 above). It follows that the applicants were left on their own to pay the high costs of treatment and medication for the first applicant. 72. In view of the above, while the Court acknowledges the sensitive and positive approach adopted by the national courts in determining the responsibility of the Kızılay and the Ministry of Health and in ordering them to pay damages to the applicants, it considers that the most appropriate remedy in the circumstances would have been to have ordered the defendants, in addition to the payment of non-pecuniary damages, to pay for the treatment and medication expenses of the first applicant during his lifetime. The Court concludes therefore that the redress offered to the applicants was far from satisfactory for the purposes of the positive obligation under Article 2 of the Convention. 73. Accordingly, the Court considers that the applicants can still claim to be victims of a violation of their rights under Article 2 within the meaning of Article 34 of the Convention. It follows that the Government's objection on this point must be dismissed (see paragraph 59 above). 74. As regards the complaint pertaining to the length of the proceedings before the administrative courts, the Court recalls that the requirements of Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory. It must also operate effectively in practice, which requires a prompt examination of the case without unnecessary delay (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006; and G.N. and Others, cited above, § 97 ). 75. On that basis, the Court observes that, despite the due diligence shown by the civil courts in the handling of the applicants'compensation claims within a very short time (approximately one year and two months), the administrative court proceedings aimed at determining the liability of the Ministry of Health lasted nine years, four months and seventeen days (see paragraphs 24-32 above). Having regard to the latter delay, it cannot be said that the administrative courts complied with the requirements of promptness and reasonable expedition implicit in this context. 76. In that connection, the Court recalls that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Šilih v. Slovenia [GC], no. 71463/01, § 196, 9 April 2009 ). 77. In view of the foregoing considerations, the Court concludes that there has been a violation of Article 2 of the Convention. 78. Finally, the Court is of the view that it is appropriate to further examine the “ reasonableness ” of the length of the administrative proceedings in question from the standpoint of Article 6 § 1 of the Convention below. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION 79. The applicants complained that the length of the administrative court proceedings had contravened the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. They also alleged under Article 13 of the Convention that there were no effective remedies in domestic law to accelerate the proceedings. Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 80. The Government contested that argument. 81. The period to be taken into consideration began on 13 October 1998 and ended on 30 April 2008. It thus lasted approximately nine years, four months and seventeen days for two levels of jurisdiction. A. Admissibility 82. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 83. The applicants alleged that the length of the proceedings before the administrative courts was excessive. They further noted that the Izmir Administrative Court's judgment had not been executed within a reasonable time, although they had informed the authorities that the compensation in question would be used for the treatment and medication of the first applicant. 84. The Government submitted that the alleged delay had been caused by the difficulties pertaining to the jurisdictional questions, the nature of the dispute and the applicants'appeal against the First Instance Court's judgment in relation to the legal fees. 85. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII; X v. France, 31 March 1992, § 32, Series A no. 234 ‑ C; Vallée v. France, 26 April 1994, § 34, Series A no. 289 ‑ A; Karakaya v. France, 26 August 1994, § 30, Series A no. 289 ‑ B; Pailot v. France, 22 April 1998, § 61, Reports 1998 ‑ II; Richard v. France, 22 April 1998, § 57, Reports 1998 ‑ II; Leterme v. France, 29 April 1998, § 64, Reports 1998 ‑ III; and Henra v. France, 29 April 1998, § 61, Reports 1998 ‑ II ). 86. The Court considers that the case was not at all complex as the negligence and responsibility of the authorities in the infection of the first applicant had already been established by the Ankara Civil Court of First Instance and the Court of Cassation by judgments dated 13 July 1998 and 9 February 1999, respectively. 87. As regards the conduct of the applicants, the Court observes that there is no indication in the case file that the applicants noticeably contributed to the length of the proceedings. The fact that they exercised their right to lodge an appeal against the First Instance Court's judgment in relation to the legal fees cannot be taken as a factor which caused significant delay in the proceedings. 88. As to the conduct of the authorities, the Court notes that several periods appear to have been abnormally long. In this connection, it observes that the administrative courts took almost two and a half years to resolve the jurisdictional question (see paragraphs 25 and 26 above). The Izmir Administrative Court delivered its first judgment more than two years after the case had been remitted to it for examination (see paragraphs 26 and 27 above). Finally, it took the Supreme Administrative Court two and a half years to examine the appeal lodged by the applicants against the First Instance Court's judgment of 14 July 2003 (see paragraphs 27-29 above). 89. Notwithstanding the above findings, the Court observes that the main issue in the present case was not whether there had been unreasonable delays imputable to the administrative courts hearing the applicants'case, but whether those courts had acted with “exceptional diligence” in view of the first applicant's condition and the gravity of the overall situation. Furthermore, what was at stake in the proceedings complained of was of crucial importance to the applicants in view of the disease from which the first applicant is suffering (see X v. France, Vallée, Karakaya, Pailot, Richard, Leterme and Henra judgments cited above, § 47, § 47, § 43, § 68, § 64, § 68, and § 68 respectively). 90. Having regard to the foregoing, the Court considers that in the instant case the length of the proceedings before the administrative courts was excessive and failed to meet the “reasonable time” requirement. 91. The applicants further complained of a lack of an effective domestic remedy to accelerate the proceedings. The Government disputed this complaint. 92. The Court recalls its earlier finding that the Turkish legal system did not provide an effective remedy whereby the length of the proceedings could be successfully challenged (see Tendik and Others v. Turkey, no. 23188/02, §§ 3 4-39, 22 December 2005). It finds no reason to reach a different conclusion in the instant case. 93. There has accordingly been a breach of Articles 6 § 1 and 13 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 94. Lastly, relying on Article 6 § 1 of the Convention the applicants complained that they had been denied a fair hearing by an independent and impartial tribunal. Under Article 13 of the Convention they maintained that they had not had an effective remedy in respect of their complaints under Article 2. 95. Having examined the material submitted to it, the Court considers that there is no appearance of a violation of these provisions. 96. It follows that this part of the application is manifestly ill ‑ founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 98. The applicants claimed TRL 1,913,248 (approximately EUR 852,128) in respect of pecuniary damage. The applicants explained that this amount consisted of the following items: – EUR 328,140 for medication costs which had already been incurred by the applicants up until September 2008; – TRL 480,000 for the costs that had already been incurred and will be incurred for forty years for the treatment of the first applicant. This amount includes the travel and accommodation expenses of the applicants who have to travel to Ankara every month for the treatment; – TRL 213,560 for the deprivation of future income of the first applicant; – TRL 259,874 for the costs of employing a house keeper as the second applicant has to work and is unable to do the household work; – TRL 142,999 for the deprivation of income of the second applicant (mother); – TRL 262,361 for the deprivation of future income of the third applicant (father) who is currently unable to work. 99. The applicants submitted a detailed report about the medication consumed by the first applicant and the price of each medicine. They also furnished the Court with an expert report in support of the remaining claims. 100. The Government submitted that the applicants had failed to substantiate their claims in respect of the pecuniary damage. In this connection they emphasised that the domestic courts had already awarded the applicants sufficient compensation for the damage incurred by them. They thus asked the Court not to make any award under this head. 101. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. In view of its above conclusion, it finds that there is a direct causal link between the violation found under Article 2 of the Convention and the damage incurred by the applicants. Having regard to the documents in its possession and to the fact that the authorities refused to pay the costs of treatment and medication for the first applicant, the Court considers it reasonable to award the applicants, jointly, EUR 3 00, 00 0 in respect of past pecuniary damage, plus any tax that may be chargeable on that amount. 102. The Court considers that, in addition to the award made above, the Government must provide free and full medical cover for the first applicant during his lifetime. 2. Non-pecuniary damage 103. The applicants claimed EUR 2,000,000 in respect of non ‑ pecuniary damage. They noted that this amount consisted of the following: EUR 1,000,000 for the first applicant and EUR 500,000 for each of the second and third applicants. 104. The Government submitted that the amount claimed was excessive and unjustified. They further contended that any award to be made for non ‑ pecuniary damage should not be a source of enrichment. 105. The Court has found a violation of Articles 2, 6 and 13 of the Convention on account of the authorities'failure to fulfil their positive obligation to protect the right to life of the first applicant and of the excessive length of the administrative court proceedings as well as lack of an effective remedy to accelerate the proceedings. Bearing in mind the emotional distress and anguish they endured, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. 106. As regards the Government's contention that the award to be made under this head should not be a source of enrichment, the Court recalls the considerations of the Ankara Civil Court of First Instance that the sorrow and pain suffered by the [applicants] cannot be compensated even if huge amounts were awarded (see paragraph 21 above). 107. In view of the above, ruling on an equitable basis, the Court awards the applicants, jointly, a total sum of EUR 78 ,000, plus any tax that may be chargeable thereon. B. Costs and expenses 108. The applicants did not specify a sum in respect of the costs and expenses that which have incurred. However, they submitted a schedule of legal work carried out by their representative before the domestic courts and for the presentation of their case to the European Court. 109. The Government asked the Court to dismiss the applicants'claims for costs and expenses. 110. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII). 111. In the present case, although the applicants did not claim a specific sum, they submitted a time schedule indicating the time spent for the preparation and submission of their application and asked the Court to make an award under this head. Considering that the applicants must have incurred costs and expenses for the presentation of their case which involves complex issues of fact and legal questions, the Court finds it reasonable to award EUR 3 ,000 to them, jointly, under this head. C. Default interest 112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention. While it acknowledged the sensitive and positive approach adopted by the national courts, it considered that the most appropriate remedy in the circumstances would have been to have ordered the defendants, in addition to the payment in respect of non-pecuniary damage, to pay for the first applicant’s treatment and medication expenses during his lifetime. The redress offered to the applicants had therefore been far from satisfactory for the purposes of the positive obligation under Article 2. Moreover, as the domestic proceedings had lasted over nine years, it could not be said that the administrative courts had complied with the requirements of promptness and reasonable expedition implicit in this context. The Court also held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention on account of the length of the administrative proceedings, and a violation of Article 13 (right to an effective remedy) of the Convention.