SECOND SECTION

Application no. 15930/11 Åžehmus EKÄ°NCÄ° against Turkey lodged on 8 December 2010

STATEMENT OF FACTS

The applicant, Mr Şehmus Ekinci , is a Turkish national who was born in 1983 and lives in Batman . He is represented before the Court by Mr Fırat Aydınkaya , a lawyer practising in Istanbul .

The circumstances of the case

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

At an early age the applicant was diagnosed with catatonic schizophrenia . As a result of his condition he cannot speak or walk and he displays unexpected behaviour. On a number of occasions he was hospitalised at different hospitals with a diagnosis of schizophrenia and bipolar disorder. On 23 November 2006 Batman State Hospital ’ s Disability Medical Board issued a report, stating that the applicant had bipolar disorder and, as a result of his condition , he ha d a 70% loss in his ability to work.

In 2008, having been called to begin his mandatory military service, the applicant applied to the Gerc üş Military Recruitment Office. Prior to his enrolment he was transferred to Gerc üş Health Care Centre for a medical examination where the diagnosis of bipolar disorder was confirmed. A report prepared by the Dicle University Hospital on 10 February 2008 stated that the applicant ’ s treatment should not be discontinued, but this report was not taken into account.

The applicant was transferred to the Psychiatry Policlinic of the Diyarbak ı r Military Hospital where on 15 February 2008 a report was issued by a consultant doctor, stating that the applicant ’ s mental illness would not prevent him from doing his military service. He also advised him to continue to take his medication regularly.

On 18 February 2008 the applicant objected to the report, maintaining that he had been suffering from psychiatric disorder for the last ten years and from bipolar disorder for the last four years. He attached examination results and reports proving his medical condition and his on-going treatment. He also requested to be examined in a more specialised military hospital. His request was not accepted and on 18 February 2008 he was requested to join his military unit. The applicant joined the Antalya Infantry Training Brigade on 21 February 2008.

In the course of the military training, and despite him having informed the Brigade about his mental problems, he was given weapons training and he was required to use firearms. Furthermore, he was unable to receive his medication and his condition deteriorated. His inability to walk or talk was laughed at, and he was accused of faking his condition.

He was subsequently transferred to the Ankara Etimesgut Military Hospital, where he was hospitalised for a period of thirteen days. On 14 March 2008 the military hospital diagnosed the applicant with psychotic reaction and issued him with a two-months ’ sick leave. The applicant was subsequently transferred to Isparta Military Hospital where he was issued with a three-months ’ sick leave on 5 June 2008 for psychotic disorder.

Following the expiry of his sick leaves the applicant returned to his barracks in S ö ke where he was sent for armed sentry duties. His condition became serious because he could not receive his medication. It was reported that he was aggressive, sceptical, and distant to other soldiers and that he was “behaving oddly”.

On 25 October 2008 the applicant was hospitalised once again, this time in the Psychiatry Clinic of the Istanbul G ü lhane Military Medical Academy ’ s Haydarpa ş a Hospital. He stayed there until his release on 1 December 2008. After his release the applicant was issued with a one-month sick leave.

Between 20 and 25 December 2008 the applicant was hospitalised in Diyarbak ı r Military Hospital where he was diagnosed with chronic psychotic disorder and he was found ineligible for military service.

Following the report of Diyarbak ı r Military Hospital, on 18 February 2009 the Haydarpa ş a Hospital issued a medical report, confirming the applicant ’ s ineligibility for military service.

On 8 April 2009 the applicant was discharged from the military service with effect from 25 December 2008.

On 11 February 2009 the applicant applied to the Ministry of Defence and claimed compensation for his suffering in the army. On 2 June 2009, not having received an answer from the Ministry of Defence, the applicant filed a case before the Supreme Military Administrative Court against the Ministry of Defence, and argued that he had incurred pecuniary and non-pecuniary damages on account of having been forced to perform his military service despite his very serious medical problems.

On 31 March 2010 the Supreme Military Administrative Court rejected the claim, and held that the applicant ’ s illness had not been sufficiently serious at the time of his recruitment and a decision had thus been made to enlist him; his condition had become chronic during his time in the army. One of the five judges dissented and stated in his dissenting opinion that it was clear from the medical reports that the applicant ’ s medical problems had existed at the time when he was enlisted but that those reports had not been taken into account.

The objection lodged by the applicant against the decision was rejected by the Supreme Military Administrative Court on 27 July 2010.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was not tried before an independent and impartial tribunal. In this respect the applicant submits that the Supreme Military Administrative Court is composed of five military officers, rather than civilian judges, who work under the supervision of the Ministry of Defence and that the Supreme Military Administrative Court is legally and economically dependent on the Ministry of Defence and is therefore not independent or impartial.

Under Article 8 of the Convention the applicant submits that despite his serious medical problems he was obliged to perform his military service for a period of almost one year and, as a result, his health deteriorated and his right to respect for his private life was infringed. In support of his submissions he refers to the decision of the military court in which it was accepted that his health had deteriorated during his military service.

QUESTIONS TO THE PARTIES

1. Was the Supreme Military Administrative C ourt which dealt with the applicant ’ s case independent and impartial, as required by Article 6 § 1 of the Convention? To that end, d o the military officers who sit on the bench of this court remain subject to military discipline and assessment reports during their term of office? Furthermore, can these military officers, who according to the relevant legislation are appointed as judges for a maximum term of four years, be removed from their posts prior to the end of their term of office?

2. Has the applicant , who was forced to perform his military service despite his medical problems, been thus subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

3. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention?