CASE OF METIN GÜLTEKİN AND OTHERS v. TURKEY
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković
5. The applicants were born in 1960, 1963, 1988 and 1986 respectively and live in Zonguldak. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin. 6. Toğay Gültekin was born in 1983 and started doing his compulsory military service on 22 August 2003 in the city of Kırklareli. At that time he had no known health problems. 7. On 17 March 2004 Toğay Gültekin was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases. On 22 March 2004 a doctor who examined him at his regiment’s infirmary referred him to Trakya University Hospital (“The University Hospital”) for suspected hepatitis or meningoencephalitis. The following day Toğay Gültekin was sent to the hospital in Edirne where, after a number of examinations were conducted, he was diagnosed with fulminant hepatitis (acute liver failure). A decision was taken on 24 March 2004 to send him to the Haydarpaşa GATA Hospital in Istanbul for a liver transplant operation. On arrival at the hospital in Istanbul the same afternoon he was put in the intensive care unit. 8. At 5.15 p.m. on 27 March 2004 he died at the GATA Hospital. No autopsy was performed. 9. An investigation was carried out at the military unit where Toğay Gültekin had been doing his military service. On 30 and 31 March 2004 a total of eleven military personnel who knew or had had dealings with Toğay Gültekin were questioned by their superiors. 10. The eleven military personnel all stated that Toğay Gültekin had spoken to his commanding officer on 16 February 2004 and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease. His superior had then transferred him to the regiment’s infirmary where tests had been conducted, establishing that he did not have hepatitis. 11. One of the eleven military personnel was the doctor who had examined Toğay Gültekin in the regiment’s infirmary on 22 March 2004 (see paragraph 7 above). The doctor stated that on 22 March 2004 Toğay Gültekin had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual. He had then sent Toğay Gültekin for a urine examination and when he had got the results back he had noticed a problem. The same day he had asked for Toğay Gültekin to be referred to the University Hospital. 12. The military officers who carried out the investigation concluded, on the basis of the statements referred to above, that the military authorities had acted in accordance with their duties when providing medical assistance to Toğay Gültekin and that there had been no fault attributable to them in his death. 13. On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court (“the Military Administrative Court”). They argued, in particular, that Toğay Gültekin had not received prompt or adequate medical care in his regiment. 14. The applicants submitted in their petition that, according to the official documents in their possession, Toğay Gültekin had been examined by a doctor attached to his regiment on 17 March 2004 and that the doctor had recommended his transfer to a hospital specialising in infectious diseases. Nevertheless, the military authorities had not followed that recommendation. When his condition had deteriorated he had been examined by another doctor at the regiment on 20 March 2004. However, that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit. When Toğay Gültekin’s condition had deteriorated even further on 22 March 2004, he had been examined once again and this time a urine test had been carried out. The doctor who had evaluated the results of the test had considered that Toğay Gültekin might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital. Nevertheless, Toğay Gültekin had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital. The applicants argued that it had been these inordinate delays that had caused Toğay Gültekin’s death. They pointed out that Toğay Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition. Therefore, the authorities had been under an obligation to protect his well-being and to ensure timely medical treatment for him. 15. On 14 January 2005 the Ministry of Defence submitted its observations to the Military Administrative Court. Based on the testimonies of the soldiers from the same regiment (see paragraphs 9-11 above), it argued that on 16 February 2004 Toğay Gültekin had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well. A blood test had been conducted, but the results had not revealed any abnormalities. 16. The Ministry of Defence alleged that Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004, but accepted that he had been examined by a doctor at the regiment’s infirmary on 20 March 2004 and then sent back to his military unit. It maintained that the military authorities had not acted in a negligent fashion when dealing with Toğay Gültekin’s medical problems. 17. In their replies to the Ministry of Defence the applicants submitted that there was no evidence to show that a blood test had been carried out on 16 February 2004. They also referred to the medical reports and stated that it had been clearly indicated in the records that Toğay Gültekin had seen the doctor at the infirmary on 17 March 2004 and that his referral to an infectious diseases clinic had been decided by that doctor. 18. During the proceedings the Military Administrative Court appointed three medical experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, in order to clarify whether the military authorities had acted negligently. The medical experts reached the following conclusion in their report of 20 September 2005: “... An examination of the documents and other information in the file shows that Toğay Gültekin started his military service on 22 August 2003. On 2 January 2004 he was treated for a retractile testicle at Çorlu Military Hospital. On 5 January 2004 he was prescribed medication at the regiment’s infirmary for an upper respiratory tract infection. On 17 March 2004 the regimental infirmary doctor decided to refer him to the Çorlu Military Hospital’s infectious diseases department, but that was not done. On 20 March 2004 he was diagnosed with and treated for an infection of the upper respiratory tract. On 22 March 2004 he was referred to the University Hospital with suspected hepatitis and he was sent there. On 23 March 2004 he was diagnosed with fulminant hepatitis. On 24 March 2004 he was transferred to the GATA Research Hospital in Haydarpaşa where he died on 27 March 2004 as a result of fulminant hepatitis. Two of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus. Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits. Hepatitis B spreads through sexual contact, or by coming into contact with infected blood by sharing personal items such as toothbrushes, razors, or needles. Military service, in itself, does not pose a special risk for hepatitis contamination. Having examined the medical reports in the file, we consider it very likely that the first symptoms regarding Toğay Gültekin’s disease became obvious on 20 March 2004 and his condition then deteriorated for one week until his death. The first symptoms of the liver disease (acute liver failure) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs. They can be similar to the symptoms of upper respiratory tract infection. Only after developing typical symptoms, such as jaundice, does it become easier to diagnose. The disease caused by these two viruses (hepatitis) can be more serious in adults. According to the medical reports in the file, Toğay Gültekin was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time. This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis (fast-deteriorating acute liver failure). The mortality rate of fulminant hepatitis is 70% within the first week; a liver transplant is the sole method of ensuring patient survival. Normally, the patient would be kept in hospital under close observation. Having taken cognisance of the documents in the file, we have not established any delays, fault or negligence in the medical treatment provided to Toğay Gültekin at the infirmary of his regiment, at the University Hospital or at the GATA Hospital in Haydarpaşa.” 19. The applicants lodged an objection to this report. They maintained that the authorities had acted negligently as they had delayed Toğay Gültekin’s transfer to hospital. Referring to the medical reports in the file, the applicants stated that although the doctor at the regiment had decided to refer Toğay Gültekin to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor’s decision until 23 March 2004. The applicants also asked the Military Administrative Court to obtain an additional medical expert report. 20. On 26 October 2005 the Military Administrative Court dismissed the applicants’ claim. In its decision the court relied on the medical expert report summarised above (see paragraph 18), and concluded that no fault could be attributed to the authorities for Toğay Gültekin’s death. No mention was made in the decision of the applicants’ complaint regarding the failure to transfer Toğay Gültekin to hospital on 17 March 2004. 21. The applicants lodged a request for rectification of the Military Administrative Court’s decision and argued, inter alia, that if, as alleged, Toğay Gültekin had told his commanding officer on 16 February 2004 that he might have been infected with hepatitis (see paragraphs 9-11 above), his superior should have taken it seriously and referred him to hospital. However, there were no records showing that any action had been taken. They also pointed out that their complaints did not relate to the period following Toğay Gültekin’s transfer to the hospital, but to the authorities’ negligence in failing to refer Toğay Gültekin to hospital between 17 and 23 March 2004. 22. On 28 December 2005 the Military Administrative Court refused to entertain the rectification request lodged by the applicants.