20151334| Abri Sunny Anthraper (15 JGLS)

Class Activity – 1

Question 1: Who were the Applicants?

There are three applicants in this case of Opal vs Turkey. All three applicants are Turkish
Nationals.

1. Mr. Digit Turhan Oyal

Question 2: Which Article/Articles of the Convention was/were subject/subjects of

The convention in question under which the applicants had made their application was the
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

The articles that are the subjects of allegation namely are

a. Article 2: The Right to Life.

Question 3: Which Facts were most Relevant in the Case?

The 1st Applicant was born on 6th May 1996 and was diagnosed with “inguinal and umbilical
hernia”. Multiple blood and plasma transfusions were carried out on the 1st Applicant all units
of said red blood cells and plasma were purchased by the 3rd Applicant who is the father of
the 1st Applicant. Four months after the transfusions the 2nd and 3rd applicants learned that the
1st applicant was infected with HIV virus and had a high chance of developing AIDS.

According to the information that the Govt. had provided there was a donor (Donor no. 1294)
that had donated blood on 31st Oct 1996 and on conducting various tests it was found that the
blood had contained HIV. On further investigation it was found that the blood that among the
multiple tests that was conducted on the 1st applicant one of the tests had contained the blood
donated by donor 1294 who had HIV.

Criminal Proceedings

The Applicants had first legally moved against the Turkish Red Cross (Kizilay) claiming that
they were negligent in conduction of the routine tests of scanning the blood donated. In a
report by the Ministry of Health it was stated that the blood of donor 1294 had not developed
the anti-body of HIV during the scanning stage, making it impossible for the Kizilay to detect
the existence of HIV in the donated blood.

The Izmir administrative council had decided that no action should be taken against the
Doctors that were involved in the transfusion of the blood of the 1st applicant as the hospital
 20151334| Abri Sunny Anthraper (15 JGLS)

was not equipped to conduct the ELISA (enzyme-linked immunosorbent assay) test. Hence,
the Doctors could not have been at fault.

Civil Proceedings

On 13 July 1998 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction
in respect of the case brought against the Ministry of Health.

As regards the case instituted against the Kızılay, the Ankara Civil Court of First Instance
held that the Kızılay was strictly liable for the incident as it had been established through a
witness statement that the test which gave clear results on the presence of the HIV virus could
not be carried out due to its high costs. Thus, the court awarded the applicants
30,000,000,000 Turkish lira (TRL) plus interest at the statutory rate running from 17 June
1996, the date of the incident.

On 9 February 1999 the Court of Cassation upheld the judgment of the Ankara Civil Court of
First Instance.

In a judgment dated 7 June 2007, the Izmir Administrative Court held that the Ministry of
Health personnel had been negligent in the performance of their duties. The court thus
awarded the applicants TRL 30,000 plus interest at the statutory rate running from the date on
which the proceedings had been initiated, namely 19 December 1997.

Current Condition of the Applicants

The 1st Applicant was not admitted to any school because of his condition as the families of
other students were scared of the fact that a child having HIV would study with their
children. He had after a lot of struggle gotten admission into a Public school, but still does
not have nay close friends.

The 3rd Applicant’s health had been severely affects and he is not able to provide for the
family. This family is now in a serious economic difficulty and is needing the help of 3rd
parties to pay off the medical bills and expense of the 1st applicant.

Question 4: Why did Judge Sajo render a partly concurring and partly dissenting opinion?

Judge Sajo restates that he is sitting in the court of Human rights with special Humanitarian
responsibilities. He wishes that considerations doled out would have been more formalistic in
its judicial application.

For the purposes of Article 2 of the convention judge Sajo looks at the current living
conditions of the applicants and the facts they were only given enough money to be able to
afford medical support for only one year. 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. Therefore, the case concluded that the damages awarded are not
satisfactory. He goes on to comment that where the State causes the loss of life or a
permanent life-threatening situation, the issue is not one of positive obligation: in fact, the
State contributes to death, even if life is not deprived “intentionally”.
 20151334| Abri Sunny Anthraper (15 JGLS)

But he says that a lack of redress amounts to a substantive violation of Article 2 of the
Convention but not a general violation of Article 2.

The judgment, as per Judge Sajo, finds a substantive violation of Article 2 for the non-
payment of compensation for material damage, the claim made in the guise of just
satisfaction, after the original complaint, and referring to new developments, is a new one.
The original application, as communicated to the Government by the Court, concerned the
remedies offered in the different domestic proceedings. It did not concern the alleged
pecuniary damage caused by lack of treatment, an event that might have occurred from a non-
specified date after June 2007.

He pointed out the inconsistencies of the Applicants claims of the amount needed by them to
conduct medical treatment. He points out that no bill for treatment related costs was
submitted before the court. His reasoning is that damage should be awarded only if actual
damage can be shown to have been done.

The change in situation on 2007 is where he is concurring.

While free medical treatment was provided as long as the applicant had a Green Card, after
the alleged revocation of the card, sometime after June 2007, a new situation arose. It is
possible that the child was without treatment after that date, though this is not clear from the
just satisfaction claim.

When talking about the applicants not applying to a Turkish court Judge Sajo said that, to
request a court order in the actual proceedings for the provision of lifelong treatment would
not have caused additional delay. Even if one were to accept that it would have done, the
applicants had ample opportunity to initiate separate proceedings, at least after 1999 when the
responsibility of Kızılay had been definitively established, and after June 2007, with regard to
the Ministry of Health. As to the new development, namely, that the child was deprived of
free medical treatment, they could have appealed against the revocation of the Green Card or
have initiated proceedings against the two defendants for provision of the treatment or
payment of the cost thereof.

In conclusion Judge Sajo states, that the applicants had made no attempt to use the domestic
legal remedies. Judge Sajo, is in line with international law when he says that it is on the
applicants to show that they have completely utilised and exhausted all forms of domestic
remedy. This is a requirement to be shown for the convention to take effect and become
applicable.

Question 5: What is better explained judgement or opinion, why?

In my view, I feel that the opinion is better explained while the judgement does finally hold
the just and righteous finding that it does, Judge Sajo according to me offers a very
compelling argument in it that he is doing his best to give legitimacy to the international law
proceedings. When he states that it is the duty of the applicants to exhaust all their domestic
remedies, such a statement is needed to be said and taken seriously even in such a horrible
case of injustice, because if procedure is not given its due value then it becomes harder for
 20151334| Abri Sunny Anthraper (15 JGLS)

international courts to gain legitimacy. The Judge also is giving a deeper understanding of the
article 2 and his views of right to life. Although he has found it difficult to define what
general and substantive violation of right life is, he is still distinguishing that difference and
gives us a further understanding of why the convention exists.

Question 6: What will you decide whether you should render judgement in this case? Give
detailed explanation of your opinion?
In my opinion, both the judgement and the opinion are relying on very important principles or
Human Rights and Fundamentals of International law.
The Human Rights aspect is very clear, that an injustice was done and that the authorities
were negligent in conducting its duties. This is very persuasive in it that, when we look at the
lives of the applicants and the life threatening positionof the 1st applicant as well as how such
negligence has affects the 2nd and 3rd applicant’s lives as well it is a tragedy and has all the
bearings of being considered as a genuine Human Rights issue. For these reasons i agree with
the judgement.
But, on the flipside the opinion of Judge Sajo is very persuasive as well, where he talks about
the further differences within Article 2 of the convention and the difference between
substantive and general violation of the right to life. He offers a view of the judgement and
shows us why there is problem with how the judgement has gone about the treatment of right
to life. He raised very important evidentiary claims as well citing the need of the applicants to
show that actual damage was done whereas they did not even submit a single piece of
evidence of their medical expenses. He also gives a good account of prevailing international
law principle of exhaustion of domestic remedy before approaching the ECHR.
If i were to give an opinion in this regard i would have to weigh it still in favour of the
applicants as even though Jduge Sajo offers a very well explained and detailed reason why
the judgement is wrong, he does not see how a judgement to the contrary would affect the
lives of the people.
All the proceedigns show that the defendents agree to all the negligence accounts and all
evidence proves to the negligence of the defendents. It is not necessary then to go into the
evidence of the applicants. There is more than enough evidence to go against the defendents
under Article 2 and it then becomes Prima Facie a case of gross negligence of Human Rights
and Humanitarian law, which is very reason why this specific court was established. For
these reasons, for the reasons of the negligence of the defendents, for the unbearable and
extreme pain that had been caused to the applicants which will sustain for the rest of their
lives i must render judgement in favour of the applicants for the reasons as stated,