Communicated on 2 April 2014

SECOND SECTION

Application no. 17081/06 Metin GÃœLTEKÄ°N and others against Turkey lodged on 1 April 2006

STATEMENT OF FACTS

The applicants, Mr Metin Gültekin , Mrs Gülten Gültekin , Mr Tanju Gültekin , and Ms Selma Karaduman are Turkish nationals, who were born in 1960, 1963, 1988 and 1986 respectively. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin , who died on 27 March 2004. Before the Court, the applicants are represented by Ms Nuran Özdemir , a lawyer practising in Ankara.

On 22 August 2003 Toğay Gültekin (T.G.) started his compulsory military service. Before he was drafted in the army, he did not have any health problems.

On 5 January 2004 T.G. attended the infirmary of his regiment. The doctor, suspecting that he suffered from upper respiratory infection, prescribed him medication.

On 17 March 2004 T.G., still feeling sick, went once again to the infirmary. The doctor advised that he be transferred to an infectious diseases clinic. It appears that the military authorities did not follow this recommendation.

As his condition deteriorated, the applicant consulted the military doctor once again, on 20 March 2004. Without prescribing any urine and/or blood test, the doctor concluded that he suffered from upper respiratory infection. T.G. was given painkillers and antibiotics.

On 22 March 2004, as T.G. ’ s complaints continued, the doctor requested a urine test and as the results came back positive for urobilinogen , biluribin and glucose, the doctor requested T.G. ’ s transfer to the Trakya Medical Faculty Hospital on suspicion of jaundice or meningoencephalitis . According to the information in the file, T.G. was transferred to the hospital the following day.

On 24 March 2004 T.G. was transferred to the HaydarpaÅŸa GATA Hospital, where he could have a liver transplant operation. On 27 March 2004 he died as a result of fulminant hepatitis. No autopsy was performed following his death.

On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court. They argued that T.G. had not received prompt and adequate medical care at his regiment and maintained that he had been infected with hepatitis as a result of the poor hygiene conditions in the regiment.

On 14 January 2005 the Ministry of Defence submitted their observations. Based on testimonies of soldiers from the same regiment, they argued that T.G. had been friends with certain soldiers, who used drugs and had psychological problems and during the week-ends he visited prostitutes. It was further stated that on 16 February T.G. had seen his superior and stated that his friend had hepatitis and that he suspected that he had been contaminated as well. A blood test was done, but the results did not reveal any abnormalities. The Ministry of Defence further alleged that T.G. had not gone to the infirmary until 20 March 2004.

In their replies to the Ministry of Defence, the applicants submitted that there was no evidence to support the allegation that a blood test had been done on 16 February 2004. They further referred to the medical reports and stated that it was clearly indicated in the records that T.G. had seen the doctor at the infirmary on 17 March and that his transfer to an infectious diseases clinic had been recommended.

During the proceedings, the court appointed three experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, to clarify whether there had been any medical negligence in the present case. The report, submitted on 20 September 2005, reads as follows:

“ ...

T.G. died at the HaydarpaÅŸa GATA Hospital due to fulminant hepatitis. One of the causes of fulminant hepatitis is viral hepatitis. Hepatitis A may spread by drinking contaminated water, and by eating fresh vegetables and fruits washed with contaminated water. Hepatitis B spreads through sexual contact, or when infected blood is contacted due to sharing personal items such as toothbrushes, razors, or needles. Military service, in itself, does not carry a special risk for hepatitis contamination.

It appears that the first symptoms regarding T.G. ’ s disease developed initially on 20 March 2014 and his condition deteriorated within one week, resulting in his death on 27 March 2004. Symptoms of acute liver failure could be similar to upper respiratory infection and only after developing symptoms such as jaundice, a correct diagnosis can be made. According to the medical reports in the file, T.G. was contaminated with both hepatitis A and hepatitis B, and when a liver is contaminated with both viruses, the condition of the patient is very serious and may lead to acute liver failure. Mortality rate in fulminant hepatitis is 70% within the first week and liver transplant is the sole remedy for patient survival. In view of the foregoing, it is concluded that no delay, fault or negligence could be attributed to the authorities during T.G. ’ s treatment at the infirmary, Trakya University Medical School Hospital or Haydarpaşa GATA Hospital.”

The applicants filed an objection to this report. They pointed out that their complaint did not concern the period following T.G. ’ s transfer to the hospital. They maintained in this connection that there was negligence on the part of the authorities as they had delayed his transfer to a hospital. Referring to the medical reports, they stated that although the doctor at the regiment recommended T.G. ’ s transfer to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor ’ s instructions. The applicants further challenged the experts ’ report in so far it stated that military service did not carry a special risk for hepatitis contamination. In their view, the soldiers used common areas and poor hygienic and sanitary conditions increased the risk. They maintained once again that T.G. had not been contaminated with hepatitis before his admission to the army.

On 26 October 2005 the Supreme Military Administrative Court dismissed the case. In delivering its judgment, the court relied on the experts ’ report, and concluded that no fault could be attributed to the authorities for T.G. ’ s death.

On 28 December 2005 the Supreme Military Administrative Court rejected the rectification request of the applicants.

COMPLAINTS

The applicants complained under Article 2 of the Convention that owing to T.G. ’ s late transfer to the hospital from his regiment, his access to appropriate treatment was delayed, causing his death. They contended that as T.G. was under the authority of the military administration during his compulsory military service, the State should be held responsible for his death, which they believed was the result of medical malpractice. They further relied on Article 6 of the Convention, arguing that the proceedings before Supreme Administrative Military Court had been unfair. In this connection, they stated that their objection to the experts ’ report had not been taken into account and that the court had failed in the interpretation of the facts of the case and that no effective investigation was made.

QUESTIONS TO THE PARTIES

1. Can the fourth applicant, who was the fiancée of the deceased, claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2. Having regard to the fact that T.G. was a conscript soldier under the responsibility of the Turkish Army and that it was not possible for him to consult a doctor of his own choice, have the Government complied with their obligation to ensure that his health and well-being were being adequately secured by, among other things, providing him with the requisite medical assistance, as required by Article 2 and/or Article 8 of the Convention? In particular, did the fact that military authorities ignored the doctor ’ s recommendation dated 17 March 2004 regarding T.G. ’ s transfer to an infectious diseases clinic, constitute a violation of Article 2 of the Convention?

3. Having regard to the procedural oblig ation of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 ‑ VII), was the investigation following the death of M r Gültekin in breach of Article 2 of the Convention?

The parties are invited to submit a full and legible copy of T.G. ’ s medical file, including a copy of the result of the blood test which appears to be done on 16 February 2004.