SECOND SECTION

Application no . 44790/08 Gazi KARADENÄ°Z and others against Turkey lodged on 4 September 2008

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Gazi Karadeniz , Mrs Åžadiye Karadeniz , Mr Fatih Karadeniz , and Mrs Mehtap Bayram , are Turkish nationals, who were born in 1954, 1959, 1980 and 1981 respectively. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the sister of Mr Sinan Karadeniz , who died on 18 September 2006. Before the Court, the applicants are represented by Mr E. Aytekin , a lawyer practising in Ankara .

On 23 November 2005 the applicants ’ relative, Sinan Karadeniz , started his compulsory military service.

On 5 September 2006 at 2.30 a.m., he started feeling sick and applied to the infirmary of his regiment. He was sent back to his dormitory without any treatment. Later on the same day, at 1 p.m., Sinan Karadeniz applied to the infirmary once again, but as the doctor was absent, he was not examined. Still feeling sick, he returned to the infirmary at 6.30 p.m., but as the doctor was about to leave, he was given pain killers and was told to come back the following day.

On 6 September 2006, Mr Karadeniz was transferred to the Military Hospital in Çorlu , where he was diagnosed as suffering from a pilonodal cyst. He was told that he should have rest for three days.

On 7 September 2006 Mr Karadeniz ’ s condition worsened and he was transferred to the Gata Haydarpaşa Military Hospital .

He died on 18 September 2006 due to septicaemia.

On 10 May 2007 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court . They argued that their relative had not received prompt and adequate medical care, and that as he had been serving in the army since 2005, his infection had been caused as a result of the poor hygiene conditions in his regiment.

On 5 March 2008, the Supreme Military Administrative Court , composed of five members, including three military judges and two military officers, decided to dismiss the case, by a majority. In delivering its judgment, the court relied on an experts ’ report, which had concluded that no fault could be attributed to the military authorities for the death of Sinan Karadeniz .

On 30 April 2008, the same chamber of the Supreme Military Administrative Court rejected, by a majority, the rectification request of the applicants.

COMPLAINT S

The applicants allege that the right to life of their relative was breached. In this connection, they state that owing to the late diagnosis, his access to appropriate and prompt medical treatment was delayed. They further maintain that as their relative had been serving in the military since 2005, his infection was undoubtedly caused as a result of the poor hygiene conditions in the regiment, and that the military authorities should be held responsible for the damage they have sustained due to the death of their relative. The applicants also allege that the conditions surrounding the death of their relative were not examined thoroughly and effectively by the Military Supreme Administrative Court .

The applicants argue under Article 6 of the Convention that the Supreme Military Administrative Court , which examined their case, cannot be considered as independent or impartial. In this respect, they maintain that the two military officers who sit on the bench remain under the hierarchy of the military authorities and do not enjoy the same judicial guarantees as the other military judges. The applicants further complain that their rectification request was examined and rejected by the same judges who made up the chamber which had given the judgment.

QUESTIONS TO THE PARTIES

1. Having regard to the fact that the applicants ’ relative, Mr Karadeniz , 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, did the domestic authorities take all the necessary measures to safeguard his life, as required by Article 2 and/or Article 8 of the Convention? In particular, was he provided with prompt and adequate medical care when he fell sick during his military service?

2. Could the Military Supreme Administrative Court , which examined the applicants ’ claims, be considered as independent and impartial, as required by Article 6 § 1 of the Convention? In particular, the Government are requested to inform the Court as to whether the military officers who sit on the bench of the Military Supreme Administrative Court remain subject to military discipline and assessment reports during their term of office? Furthermore, do the military officers, who according to the legislation could be appointed as judges for a term of maximum of four years, be removed from their post before the end of their term of office?

The Government are further requested to produce copies of the autopsy report and the experts ’ report submitted during the domestic proceedings.