SECOND SECTION

DECISION

Application no . 58402/09 Ziver DEMÄ°R and Nasraddin DEMÄ°R against Turkey

The European Court of Human Rights (Second Section), sitting on 10 January 2017 as a Chamber composed of:

Julia Laffranque , President, Işıl Karakaş , Nebojša Vučinić , Paul Lemmens , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , Georges Ravarani , and Hasan Bakırcı, Deputy S ection Registr r ,

Having regard to the above application lodged on 23 October 2009,

Having deliberated, decides as follows:

THE FACTS

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. SaÄŸlam , a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The first applicant ’ s admission to military service and subsequent illness

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 G ü m üş suyu 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 HaydarpaÅŸa 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 HaydarpaÅŸa Military Hospital for follow-up treatment.

7. The neurological report issued by GATA HaydarpaÅŸa Military Hospital on 20 October 2005 found that the first applicant was exhibiting articulation problems resulting from dysarthria [1] , and that he was suffering from dystonia [2] . According to that report, he had also lost the ability to walk.

8. On 21 October 2005 the Health Council of GATA HaydarpaÅŸa 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.

2. Compensation proceedings

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.

3. Requests for financial assistance

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.

B. Relevant domestic law

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 – T ü rk Silahl ı 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, §§ 32 ‑ 39, 17 June 2008).

COMPLAINTS

25. The applicants complained under Articles 2 and 5 of the Convention that the State authorities had failed to protect the first applicant ’ s physical integrity while he was performing his military service.

26. Under the same provisions, they also complained that the claim for compensation for pecuniary and non-pecuniary damage had been dismissed, despite the fact that the first applicant had lost most of his speech and body function as a result of the disease he had contracted in the army and required continuing treatment, and that he had not received any financial assistance from the State.

THE LAW

27. The Court notes that the right to physical integrity relied on by the applicants is an aspect of the right to respect for private life, and thus finds protection under Article 8 of the Convention (see, for instance, mutatis mutandis , Raninen v. Finland , 16 December 1997, § 63, Reports of Judgments and Decisions 1997 ‑ VIII; Botta v. Italy , 24 February 1998, § 32, Reports of Judgments and Decisions 1998 ‑ I; Y.F. v. Turkey , no. 24209/94, § 33, ECHR 2003 ‑ IX ; and Trocellier v. France ( dec. ), no. 75725/01 , ECHR 2006 ‑ XIV). It therefore considers, as the master of the characterisation to be given in law to the facts of the case (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), that the applicants ’ complaints fall to be examined under Article 8 of the Convention alone, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

28. The Court has some doubts about the victim status of the second applicant in respect of the complaints in question. However, it does not deem it necessary to rule on this matter, as the application will be declared inadmissible in any event for the reasons stated below.

A. General principles

29. The Court notes that, although the object of Article 8 is essentially the protection of the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference, since it may also give rise to positive obligations inherent in effective “respect” for private and family life (see Pentiacova and 48 Others v. Moldova ( dec. ), no. 14462/03, 4 January 2005; Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts); Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014; and Bédat v. Switzerland [GC], no . 56925/08, § 73, ECHR 2016 ). The Court has indeed held on many occasions that the State has a positive duty to take reasonable and appropriate measures to secure an applicant ’ s rights under Article 8 of the Convention (see, among many other authorities, Brincat and Others v. Malta , nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11 , § 102, 24 July 2014, and the cases cited therein ).

30 . Accordingly, although there is no “right to health” as such among the rights guaranteed under the Convention and its Protocols, the Contracting States have a positive obligation under Article 8 to take appropriate steps to safeguard the physical and psychological integrity of those within their jurisdictions as necessary (see, mutatis mutandis , Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016; A, B and C v. Ireland [GC], no. 25579/05, § 245, ECHR 2010; and Hämäläinen v. Finland [GC], no. 37359/09, § 63, ECHR 2014). For the most part, the positive obligations that arise under Article 8 in the context of a person ’ s physical and psychological integrity correspond with those under Articles 2 and 3 of the Convention, and require the national authorities to take the same types of practical measures as those expected of them under that provision (see Kolyadenko and Others v. Russia , nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05 , § 216, 28 February 2012 ; and Brincat and Others , cited above).

31. While the above-mentioned positive obligations under Articles 2, 3 and 8 are directly secured to anyone within the jurisdiction of the Contracting States (see Ireland v. the United Kingdom , 18 January 1978, § 239, Series A no. 25, and Scordino and Others v. Italy (no. 1) ( dec. ), no. 36813/97 , 27 March 2003 ), the States have a reinforced duty towards people who are under their exclusive control, such as conscripts or individuals carrying out compulsory military service (see, for instance, Beker v. Turkey , no. 27866/03, §§ 41-41, 24 March 2009; Perevedentsevy v. Russia , no. 39583/05 , §§ 93-94, 24 April 2014; and Tikhonova v. Russia , no. 13596/05, § 68, 30 April 2014 ). In the context of compulsory military service, the State has a primary duty to put in place rules appropriate to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life, and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels (see Kılınç and Others v. Turkey , no. 40145/98, § 41, 7 June 2005; Mosendz v. Ukraine , no. 52013/08 , § 91, 17 January 2013; and Chember v. Russia , no. 7188/03, § 50, ECHR 2008 ). The Court further stresses that it has thus far been reluctant to impose rigid standards in respect of the specific medical tests to be performed prior to or during military service, assessing each case on its facts and leaving the States some margin of appreciation in this matter (see, for instance, Sürer v. Turkey , no. 20184/06, § 38, 31 May 2016; see also Gavriliţă v. Romania , no. 10921/03, § 33, 22 June 2010 for a similar approach in a detention context ). Nevertheless, special measures must be taken to adequately secure the health and well ‑ being of conscripts by, among other things, providing them with the medical assistance they require (see, mutatis mutandis , Chember , cited above ).

32. These obligations must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind, inter alia , the operational choices which must be made in terms of priorities and resources (see, for instance, Budayeva and Others v. Russia , nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, §§ 134-135, ECHR 2008 (extracts)). Accordingly, not every claimed risk to life or physical integrity can entail a Convention requirement for the authorities to take operational measures to prevent that risk from materialising (see, mutatis mutandis , Tikhonova , cited above, § 68 ). In the Court ’ s opinion, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real risk to the life or physical integrity of an identified individual or individuals, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, mutatis mutandis , Öneryıldız v. Turkey [GC], no. 48939/99, § 101, ECHR 2004 ‑ XII ). The Court stresses in this connection that, despite the best efforts of State authorities, it may not be possible to completely eradicate or prevent the spread of transmissible diseases amongst conscripts, owing to the nature and demands of military life. In such circumstances, the provision of timely and adequate medical treatment becomes key in assessing the liability of State authorities (see, mutatis mutandis , Dmitriy Sazonov v. Russia , no. 30268/03, § 40, 1 March 2012 and the cases cited therein for a similar approach under Article 3 in custodial settings, where the Court made it clear that contracting tuberculosis during detention did not in itself imply a violation of Article 3, provided that the applicants concerned received adequate treatment for it).

B. Application of the general principles to the present case

33. The first applicant claimed that the respondent State had failed in its positive obligations to protect his physical integrity, since he had contracted tuberculosis during the course of his compulsory military service.

34. The Court acknowledges that the closely confined settings in which military units often live render them susceptible to the spread of contagious diseases such as tuberculosis, just like in prisons. That does not mean, however, that authorities are to be held responsible for all transmissible diseases observed in such settings (see also the principles noted in paragraph 32 above regarding the limits of State authorities ’ responsibility). The Court considers that, for liability to arise under Article 8, it must be proved that the State authorities failed to take all measures that could be reasonably expected of them to protect an individual ’ s health and physical integrity in the circumstances. The Court will now examine whether the State authorities thus breached their obligations towards the first applicant.

35. The Court notes at the outset that, while the first applicant was diagnosed with meningeal tuberculosis during the course of his military service, there is no material evidence in the case file to support his allegation that he actually contracted the disease while in the army. The first applicant claimed, and the expert report submitted to the Supreme Military Administrative Court on 20 April 2007 agreed, that the physical examination performed prior to his conscription had not disclosed any medical conditions that would disqualify him from military service, suggesting that he had not been suffering from active tuberculosis at the relevant time. The expert report in question also stated, however, that it could not be said that the first applicant ’ s illness was service-related, as he had not been stationed in an area where tuberculosis was prevalent (see paragraph 11 above). The Court notes that neither in his reply to the expert report nor in his opposition to the Supreme Military Administrative Court ’ s judgment did the first applicant challenge that finding, which formed the basis of the administrative court ’ s judgment (see paragraphs 13 and 16 above).

36. The Court also notes in this connection that, according to the information the Turkish Armed Forces provided to the Supreme Military Administrative Court, there were no other cases of meningeal tuberculosis among the soldiers with whom the first applicant served. The first applicant similarly did not object to this information during the domestic proceedings, nor did he claim before the Strasbourg Court that there had been other cases of tuberculosis amongst his servicemen – even if this tuberculosis had not developed into meningeal tuberculosis – from whom he may have contracted such a disease and against whom the State authorities had a duty to protect him.

37. Even supposing that he did contract the disease while in the army, the Court notes that the first applicant did not specify during the domestic proceedings or before the Strasbourg Court how the State authorities had failed to fulfil their positive obligations towards him in that respect, that is whether their failures had arisen from regulatory deficiencies or from omissions in the application of the relevant practice regulations. In this connection, the Court observes that, at the material time, the respondent State had in place a legal framework which aimed to protect the health of conscripts, including the Turkish Armed Forces Health and Fitness Regulation that governed, inter alia , the physical examination of conscripts prior to admission to military service, and the Turkish Armed Forces Internal Service Law concerning, inter alia , the various measures to be taken during the course of military service to protect their health (see paragraphs 21-24 above under “Relevant Domestic Law”). In the instant case, the first applicant did not claim that the medical screening measures set out in the relevant legislation were insufficient to protect against the spread of contagious diseases such as tuberculosis, or that the said legislation was not being duly applied in practice. In the absence of any such arguments from the applicant, the Court has no grounds to find that the scope or application of the relevant legislation or of the regulatory framework was insufficient to protect his physical integrity.

38. The Court further notes that, in addition to his lack of complaints regarding the legislative and regulatory framework governing the health of conscripts or its application, the first applicant similarly did not complain that the material conditions he had been exposed to in the army had caused his illness. In this connection, the first applicant did not allege that the physical and sanitary conditions in the army had been such as to particularly favour the spread of transmissible diseases as a result of, for instance, poor hygiene, overcrowding, inadequate food, lack of access to natural light, good ventilation or heating, the absence of timely and adequate medical assistance for those in need, or the inadequacy of measures to combat transmissible diseases. The Court notes once again in this regard that the first applicant did not mention any other cases of tuberculosis amongst the conscripts who served with him (see paragraph 36 above).

39. The Court lastly notes that the first applicant did not complain of a delay in the diagnosis or treatment of his condition, nor did he complain regarding the quality of the treatment offered to him following his diagnosis. In his response to the expert reports, the second applicant expressly stated that they had no claims regarding the treatment provided to the first applicant (see paragraph 13 above). In the absence of any complaints by the applicants, the Court cannot find any shortcomings in the first applicant ’ s medical care that would engage the State authorities ’ responsibility under Article 8 of the Convention.

40. Although State authorities have a positive obligation to take all reasonable measures necessary to protect the health and well-being of conscript soldiers, the Courts considers, in the light of the foregoing and based on the particular facts, that the applicants have not provided any evidence to suggest that the respondent State failed in its positive obligations to protect the first applicant ’ s physical integrity. It follows that the complaint regarding the infringement of the first applicant ’ s right to physical integrity must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

41. As for the applicants ’ remaining complaints, in the light of all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 2 February 2017 .

Hasan Bakırcı Julia Laffranque              Deputy Registrar President

[1] Motor speech disorder resulting from neurological injury of the motor component of the motor speech system .

[2] A neurological disorder affecting movement .