SECOND SECTION

Application no. 7505/06 Hayrullah AKKOYUNLU against Turkey lodged on 6 February 2006

STATEMENT OF FACTS

The applicant, Mr Hayrullah Akkoyunlu , is a Turkish national, who was born in 1981 and lives in Istanbul . He is represented before the Court by Mr S. Esen , a lawyer practising in Istanbul .

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

On 25 July 2001, while he was doing his compulsory military service, the applicant applied to the infirmary of his regiment suffering from severe pain in his eye. The doctor was absent, and a soldier gave him eye drops. When his pain became persistent, the applicant applied to the infirmary once again on 26 July 2001, but was told that he should have a rest in the dormitory. According to the applicant, despite his pain, he was not dispensed from his duties as a guard. The regiment doctor came back one week later, and on 2 August 2001 he ordered that the applicant be transferred to the Cizre State Hospital . At the hospital, the applicant was diagnosed as suffering from corneal ulcer and was transferred to the Diyarbakır Military Hospital . On 6 August 2001 the applicant was admitted to the Diyarbakır Military Hospital and his treatment started, but he completely lost the vision in his left eye. The applicant was informed by the doctors that he had lost his eye sight due to the delay in his treatment, as in corneal ulcer cases it was important to start the treatment immediately. On 13 August 2001 the applicant was transferred to Ankara GATA Military Hospital for further treatment. He stayed at the GATA Military Hospital for about a month and underwent several surgeries. A medical report issued on 17 July 2002 concluded that the applicant was not medically fit for military service and that he was eligible to use ocular prosthesis. Based on this report, the applicant was discharged from the army.

On 15 October 2002 the applicant initiated compensation proceedings against the Ministry of Interior before the Supreme Military Administrative Court for the damage that he had sustained during his compulsory military service, owing to the delay in his treatment.

During the proceedings, the court appointed three experts, namely three university professors from the Ophthalmology Department of the Gazi University Faculty of Medicine to clarify whether there had been any malpractice in the applicant ’ s case. According to the experts ’ report, submitted on 6 April 2005, it was indicated that while the doctors who treated the applicant had diagnosed that he suffered from corneal ulcer, the cause of the disease had not been determined. The experts stated that corneal ulcer could be caused due to bacterial infection, fungal infection or viral infection caused by the herpes virus. Without determining the cause, it would not be possible to establish whether the treatment of the patient had been appropriate or not. They therefore concluded that it had not been possible to find out whether the applicant ’ s illness was linked to his military activities. The experts further stated that as the diagnosis lacked precision, it could not have been possible to predict how his illness would progress within a week or two. The report was concluded by stating that no fault could be attributed to the military authorities in the transfer, diagnosis and treatment of the applicant.

The applicant filed an objection against this medical report. He maintained that the experts ’ report was contradictory in itself. He pointed out that although the experts indicated that the diagnosis was not precise, it was concluded that no fault could have been attributed to the military authorities.

In his written opinion, the public prosecutor at the Supreme Military Administrative Court maintained that the applicant should be awarded compensation either on account of the negligence of the authorities, or on the basis of the absolute liability of the military administration.

On 18 May 2005 the Supreme Military Administrative Court dismissed the applicant ’ s case, by a majority, holding that no fault could be attributed to the military authorities in the treatment of the applicant. The dissenting judge stated that an additional expert report should have been requested to clarify the contradictory findings in the report, dated 6 April 2005.

On 21 September 2005 the applicant ’ s rectification request was dismissed, by a majority, by the Supreme Administrative Court .

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that owing to his late transfer to the hospital from his regiment, his access to appropriate treatment was delayed. He contends that as he was under the authority of the military administration during his compulsory military service, the State should be held responsible for the damage he has sustained because of this medical malpractice. He further invokes Article 13 of the Convention, arguing that he did not have an effective domestic remedy which could provide him with redress for his complaint.

QUESTIONS TO THE PARTIES

1. Having regard to the fact that the applicant 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 Articles 8 of the Convention? In particular, did the delay in the starting of his treatment, which caused the complete loss of his left eye sight, constitute a violation of Article 8 of the Convention?

2. Did the refusal of the Supreme Military Administrative Court to award compensation to the applicant comply with the obligation of the State to protect the right to life of those who are under their strict control, and to protect individuals ’ physical and psychological integrity under Article 8 of the Convention ?