DEMIR v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
1. The applicants, Mr Ziver Demir and Mr Nasraddin Demir, who are brothers, are Turkish nationals who were born in 1982 and 1970 respectively and live in Konya. They were represented before the Court by Ms F. Sağlam, a lawyer practising in Ankara. 3. The first applicant, Ziver Demir, joined the army on 15 April 2002 to perform his compulsory military service in Istanbul. According to the information in the case file, the medical examination conducted prior to his conscription found no medical conditions precluding his admission to military service. 4. On 6 May 2003, while he was still performing his military service, the first applicant was taken to Gümüşsuyu Military Hospital complaining of coughing, bloody phlegm and weight loss. Following certain medical tests, he was diagnosed with a mild infection and was prescribed a course of antibiotics and cough medicine. He was also given seven days of bed rest and was asked to attend a check-up at the end of that period. 5. When his condition deteriorated on 14 May 2003, the first applicant was hospitalised at GATA Haydarpaşa Military Hospital, where he was diagnosed with meningeal tuberculosis. He received inpatient treatment at the hospital until 14 April 2004. Following his discharge from hospital, he had physiotherapy at the Turkish Armed Forces Rehabilitation Centre in Ankara and was subsequently given sick leave. 6. Between 14 and 30 July 2004 the first applicant was readmitted to GATA Haydarpaşa Military Hospital for follow-up treatment. 7. The neurological report issued by GATA Haydarpaşa Military Hospital on 20 October 2005 found that the first applicant was exhibiting articulation problems resulting from dysarthria, and that he was suffering from dystonia. According to that report, he had also lost the ability to walk. 8. On 21 October 2005 the Health Council of GATA Haydarpaşa Military Hospital declared the first applicant unfit to continue his military service, owing to his major loss of speech and body function (90 %) as a result of meningeal tuberculosis. 9. On 31 March 2006 the second applicant, acting on behalf of his brother as his guardian, brought compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court, claiming pecuniary and non-pecuniary compensation for the damage his brother had suffered as a result of the disease he had contracted during his military service. 10. On 15 November 2006 the Supreme Military Administrative Court appointed a panel of three neurology experts to determine: the cause of the first applicant’s disease; whether it might have been caused by performance of his military service; and whether there had been any delay or other shortcoming in the medical treatment offered to him. 11. In their report dated 20 April 2007 the experts confirmed that the first applicant had been declared unfit for military service not because of a pre-existing medical condition, but as a result of meningeal tuberculosis. They further noted that there was no evidence that he had been infected with tuberculosis bacteria prior to his conscription. They also found, however, that since he had not performed his military service in an area where tuberculosis was prevalent, it could not be said that his disease was “service-related”. As for the quality of the treatment offered to the first applicant, the experts stated that they did not have enough information on the tests he had undergone and the initial treatment he had received at Gümüşsuyu Military Hospital, which prevented them from commenting on the adequacy of the medical assistance provided there. The detailed medical records pertaining to the treatment subsequently offered at GATA Haydarpaşa Military Hospital suggested, however, that he had received comprehensive assistance at that hospital, and that there was no evidence of negligence or other shortcomings in his medical care. 12. Upon receiving the relevant medical files from the Supreme Military Administrative Court, on 10 July 2008 the experts issued an additional report regarding the quality of the treatment provided at Gümüşsuyu Military Hospital. According to the experts, the results of the initial medical tests carried out at that hospital had not pointed to tuberculosis, as the disease had been in its early stages at the time. There was therefore no evidence to suggest an unjustified delay in the diagnosis and treatment of the first applicant’s tuberculosis at Gümüşsuyu Military Hospital. 13. On 2 September 2008, on behalf of his brother, the second applicant responded to the findings of the expert reports submitted to the Supreme Military Administrative Court. The second applicant stated at the outset that, despite the expert report’s focus on the quality of the medical treatment offered to his brother, he and his brother had no claims regarding the treatment provided following the diagnosis. The basis of the compensation proceedings they had brought before the Supreme Administrative Court was rather that the first applicant, who had been healthy at the time of his admission to military service, had contracted the disease while under the control and protection of the State, a fact which was also supported by the findings of the experts. 14. On 14 January 2009 the Supreme Military Administrative Court requested information from the Turkish Armed Forces as to whether any other soldiers who had performed their military service with the first applicant had been diagnosed with meningeal tuberculosis. On 12 February 2009 the commander in charge of the brigade informed the court that no other cases of meningeal tuberculosis had been registered at the material time. 15. By a judgment dated 25 March 2009 the Supreme Military Administrative Court dismissed the second applicant’s claims. Relying mainly on the expert reports in the case file, the administrative court held that there was no evidence to prove a causal link between the first applicant’s illness and the military service. It further found that he had been provided with the necessary medical assistance without delay or fault, which exonerated the administration from any liability in respect of the first applicant. 16. On 4 May 2009 the second applicant objected to the Supreme Military Administrative Court’s judgment, arguing that the court should have upheld the claim for damages on the basis of the principle of strict liability (kusursuz sorumluluk), bearing in mind that the first applicant had been diagnosed with meningeal tuberculosis while under the control and protection of the State. The second applicant did not contest the court’s finding as to the quality of the treatment offered to his brother. 17. On 1 July 2009 the Supreme Military Administrative Court dismissed the second applicant’s objection. 18. On 11 May 2005 the first applicant lodged claims for disability benefits with OYAK, the pension fund of the armed forces, and the Retired Civil Servants’ Fund (Emekli Sandığı). 19. On 3 June 2005 and 17 October 2006 respectively, OYAK and the Retired Civil Servants’ Fund rejected the first applicant’s claims, holding that he did not qualify for such benefits under the relevant legislation. 20. In the meantime, on 8 July 2006 the first applicant had applied to the Mehmetçik Foundation for some financial assistance. The fund had been set up to, inter alia, provide support for wounded and disabled soldiers. According to the information in the case file, the Mehmetçik Foundation did not respond to the first applicant’s application. 21. At the material time, the relevant provisions of the Turkish Armed Forces Health and Fitness Regulation (Regulation no. 86/11092 of 24 November 1986 – Türk Silahlı Kuvvetleri Sağlık Yeteneği Yönetmeliği) provided: Section 5 “The initial medical examination of [persons to be conscripted] shall be carried out at the time of their final draft ... by two physicians (one may be a civilian) in the following manner: 1) Their psychological and physical condition and internal organs are reviewed carefully, their heart rates and blood pressures are checked ... The size of their chest cavities during inhalation and exhalation, and any illnesses or disorders, are recorded. 2) Those whose [medical condition] remains inconclusive after the medical examination, and those who require observation, are referred to the nearest military hospital.” Section 7 “The medical examination of those whose illnesses and disorders went undetected during the initial medical examination, and those who fell ill after their initial medical examination but before their draft ... shall be carried out at military hospitals or in units or institutions that have at least two physicians.” Section 9 “... Military physicians who are in charge of the final draft shall inform the nearest government physician of any contagious diseases they may encounter.” 22. In accordance with the same regulation, in the event of an illness or disability being discovered during the medical examinations, necessary measures were taken to arrange for the postponement of military service or for sick leave. The illnesses and disabilities in question were set out in a list annexed to the regulation (Hastalık ve Arızalar Listesi), which included various types of tuberculosis. 23. In accordance with section 57 of the Turkish Armed Forces Internal Service Law (Law no. 211 of 10 January 1961 – Türk Silahlı Kuvvetleri İç Hizmet Kanunu), in force at the material time, the physical and psychological condition of soldiers had to be surveyed and protected by the unit commanders and military physicians. Moreover, in accordance with section 61 of the same Law, privates and non-commissioned officers were to undergo general medical examinations at the time of their admission to and discharge from the military. These examinations were to be repeated in each quarter of the first six months, and then every six months for the remainder of service. The commanders would monitor and check the general medical condition of the soldiers according to the results of these examinations. 24. Further details regarding the general system for protecting the physical and psychological integrity of conscripts may be found in the judgment of Abdullah Yılmaz v. Turkey (no. 21899/02, §§ 3239, 17 June 2008).