PROCEDURE

The case originated in an application (no. 7505/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hayrullah Akkoyunlu (“the applicant”), on 6 February 2006.

The applicant was represented by Mr Sami Esen and Mr Serhat Hamdi Aydın, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged, in particular, that while performing his military service he had lost the sight in his left eye as a result of the military authorities’ failure to provide him with prompt and appropriate medical assistance.

On 18 June 2012 the application was communicated to the Government. On 16 December 2014 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations on the admissibility of the applicant’s complaint under Article 3 of the Convention.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1981 and lives in Istanbul.

On 24 May 2001 the applicant started his compulsory military service in Şırnak. On 25 July 2001 he contacted the infirmary of his regiment, complaining of severe pain in his left eye. According to the applicant, the military doctor was absent and he was given eye drops by a soldier who had no medical qualifications. According to the Government, the records of the infirmary (which were not made available to the Court) showed that the applicant had been examined by a military doctor and given eye drops by that doctor and not by a soldier.

The following day the pain became persistent, so the applicant contacted the infirmary once again. He was told that he should go to his dormitory and rest. According to the applicant, despite the pain he was in, he was not relieved of his sentry duties during that period. On 2 August 2001 he was referred to the Cizre State Hospital, where he was diagnosed with a corneal ulcer.

On 6 August 2001 the applicant was transferred to the Diyarbakır Military Hospital, where his treatment started. However, he completely lost the sight in his left eye. According to the applicant, the doctors informed him that he had lost his eyesight because of the delay in starting the treatment, as in corneal ulcer cases it was essential to start treatment immediately.

On 13 August 2001 the applicant was transferred to Ankara GATA Military Hospital for further treatment. He stayed there until 25 September 2001, during which time he underwent several operations. He returned to the hospital for a number of additional operations from 9 November 2001 to 7 February 2002, 10 to 21 March 2002, 2 to 10 May 2002, and lastly, 15 to 18 July 2002.

A medical report issued on 17 July 2002 concluded that the applicant was no longer medically fit for military service and that he was eligible for an ocular prosthesis. On the basis of that report, the applicant was formally discharged from the army.

On 15 October 2002 the applicant instituted proceedings before the Supreme Military Administrative Court, seeking compensation from the Ministry of the Interior for the damage he had suffered to his eye during his compulsory military service as a result of the delay in his treatment. He claimed 30,000,000,000 Turkish liras (TRL0; approximately 19,000 euros (EUR)) in respect of pecuniary damage and TRL 30,000,000,000 in respect of non-pecuniary damage. He argued that for a period of one week after the start of his eye problem, he had been unable to see a doctor because there had been no doctor present at his regiment infirmary during that time. He gave the administrative court the names of a number of his fellow conscripts who had witnessed the fact that he had not been provided with medical treatment by a doctor in the first week but had instead been told to rest and use eye drops, and asked the court to question them.

In the written defence submissions that it sent to the administrative court, the Gendarmerie High Command argued that on 25 and 26 July 2001 the applicant had been examined at the infirmary of his regiment by military doctor İ.H.Ş., who had prescribed medication for him.

In his observations submitted to the administrative court on 6 January 2003 in response to those of the Gendarmerie High Command, the applicant maintained his allegation that on his first visit to the infirmary he had been examined by a soldier because the military doctor, İ.H.Ş., had been temporarily dispatched to another regiment. He repeated his request that witnesses be summoned to testify before the administrative court and asked the administrative court also to summon and question Dr İ.H.Ş.

During the proceedings the administrative court appointed three university professors from the ophthalmology department of Gazi University’s Faculty of Medicine as experts with a view to clarifying whether there had been any medical malpractice in the applicant’s case. Their expert report drawn up on 6 April 2005 concluded: “Our medical opinion, based on our examination of the plaintiff’s allegations, is as follows:

It is understood that, although the problem in the patient’s eye is described in the medical reports as a ‘corneal ulcer’, the cause of the corneal ulcer (Herpes virus? Fungal infection? Bacterial infection?) is not known. Furthermore, it is considered that it was not possible to establish with certainty the infection factor at the hospitals where the patient was observed and treated. For this reason, it is not possible to decide whether the eye problem was related to his military service or whether it was idiosyncratic.

Similarly, because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks.

[We are of the opinion that] there were no delays, shortcomings, mistakes or negligence in the steps taken in transferring the patient to the hospital, diagnosing the problem, treating the problem or treating the patient.”

The applicant submitted a written statement to the administrative court on 29 April 2005, arguing that the medical report contained contradictory conclusions. He pointed out that, although the experts had indicated in the report that the problem had not been fully diagnosed, they had then gone on to conclude that there had been no shortcomings in the diagnosis of the problem. He further argued that the conclusion reached by the experts, namely that “because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks”, fully supported his allegations. His contention was also that, precisely because the problem had not been diagnosed properly, the treatment had not started in a timely manner. The applicant asked the administrative court to take steps to eliminate the inconsistencies by requesting and obtaining additional reports from a different set of experts.

In his written opinion submitted to the Supreme Military Administrative Court, the public prosecutor stated that the applicant should be awarded compensation either for the authorities’ negligence if such negligence was established, or on the basis of the no-fault strict liability of the military administration.

On 18 May 2005 the Supreme Military Administrative Court, on the basis of the expert report of 6 April 2005 (see paragraph 14 above), dismissed the applicant’s claim by a majority of four to one and held that no fault could be attributed to the military authorities in the treatment of the applicant.

In its decision the Supreme Military Administrative Court did not deal with the applicant’s allegation that between 25 July and 2 August 2001 he had been unable to see a doctor in the regiment infirmary because there had not been a doctor there during that time, other than stating that the applicant had “contacted the infirmary of the regiment on 25 and 26 July 2001 and started receiving medical treatment there”. Nor did the administrative court respond to the applicant’s requests to have his witnesses heard.

A dissenting judge stated in his separate opinion that issues such as the cause of the problem, whether or not it had been as a result of the applicant’s military activities, and what bearing the one-to-two week delay had had on the outcome had not been established in the expert report of 6 April 2005. The dissenting judge thus considered that the administrative court should not have decided the case without having obtained a new report and clarified those points.

The applicant requested a rectification of the administrative court’s decision. He claimed, in particular, that his arguments had not been examined adequately by the court and repeated his arguments regarding the contradictions in the expert report of 6 April 2005.

On 21 September 2005 the Supreme Military Administrative Court refused the applicant’s rectification request by a majority of four to one.

According to a medical report of 9 October 2009 issued by the Haseki Hospital, the applicant was deemed to be suffering from a permanent disability as a result of the loss of sight in his left eye. It was indicated that his ability to work had been reduced by 41% as a result of the disability, and that the applicant was entitled to receive a disability pension.
HEALTH
check
001-157755_a10_e1
001-157755_a10_em1
CODE
DIRECT
7505/06
NOT_CONFIDENTIAL
insert
001-157755_a10_e2
001-157755_a10_em2
ORG
NO_MASK
Republic of Turkey
NOT_CONFIDENTIAL
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001-157755_a10_e3
001-157755_a10_em3
DEM
NO_MASK
Turkish
HEALTH
check
001-157755_a10_e4
001-157755_a10_em4
PERSON
DIRECT
Mr Hayrullah Akkoyunlu
HEALTH
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001-157755_a10_em5
DATETIME
QUASI
6 February 2006
HEALTH
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001-157755_a10_em6
PERSON
QUASI
Mr Sami Esen
HEALTH
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001-157755_a10_em7
PERSON
DIRECT
Mr Serhat Hamdi Aydın
NOT_CONFIDENTIAL
check
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001-157755_a10_em8
LOC
QUASI
Istanbul
NOT_CONFIDENTIAL
check
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001-157755_a10_em9
ORG
NO_MASK
001-157755_a10_em2
Turkish Government
HEALTH
insert
001-157755_a10_e9
001-157755_a10_em10
DEM
NO_MASK
lost the sight in his left eye
HEALTH
check
001-157755_a10_e10
001-157755_a10_em11
DATETIME
QUASI
18 June 2012
HEALTH
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001-157755_a10_e11
001-157755_a10_em12
DATETIME
QUASI
16 December 2014
HEALTH
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001-157755_a10_e12
001-157755_a10_em13
DATETIME
QUASI
1981
NOT_CONFIDENTIAL
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001-157755_a10_e8
001-157755_a10_em14
LOC
QUASI
Istanbul
HEALTH
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DATETIME
QUASI
24 May 2001
NOT_CONFIDENTIAL
insert
001-157755_a10_e14
001-157755_a10_em16
DEM
NO_MASK
compulsory military service
NOT_CONFIDENTIAL
correct
001-157755_a10_e15
001-157755_a10_em17
LOC
QUASI
Şırnak
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001-157755_a10_e16
001-157755_a10_em18
DATETIME
QUASI
25 July 2001
HEALTH
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001-157755_a10_e17
001-157755_a10_em19
DEM
NO_MASK
severe pain in his left eye
NOT_CONFIDENTIAL
check
001-157755_a10_e18
001-157755_a10_em20
DEM
NO_MASK
military doctor
NOT_CONFIDENTIAL
check
001-157755_a10_e18
001-157755_a10_em21
DEM
NO_MASK
military doctor
HEALTH
check
001-157755_a10_e19
001-157755_a10_em22
DATETIME
NO_MASK
following day
HEALTH
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001-157755_a10_e20
001-157755_a10_em23
DATETIME
QUASI
2 August 2001
HEALTH
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001-157755_a10_e21
001-157755_a10_em24
ORG
QUASI
Cizre State Hospital
HEALTH
insert
001-157755_a10_e22
001-157755_a10_em25
DEM
QUASI
corneal ulcer
HEALTH
insert
001-157755_a10_e23
001-157755_a10_em26
DATETIME
QUASI
6 August 2001
HEALTH
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001-157755_a10_e24
001-157755_a10_em27
ORG
QUASI
Diyarbakır Military Hospital
HEALTH
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001-157755_a10_e9
001-157755_a10_em28
DEM
NO_MASK
lost the sight in his left eye
HEALTH
check
001-157755_a10_e22
001-157755_a10_em29
DEM
QUASI
corneal ulcer
HEALTH
check
001-157755_a10_e25
001-157755_a10_em30
DATETIME
QUASI
13 August 2001
HEALTH
check
001-157755_a10_e26
001-157755_a10_em31
ORG
QUASI
Ankara GATA Military Hospital
HEALTH
check
001-157755_a10_e27
001-157755_a10_em32
DATETIME
QUASI
25 September 2001
HEALTH
check
001-157755_a10_e28
001-157755_a10_em33
DATETIME
QUASI
9 November 2001
HEALTH
check
001-157755_a10_e29
001-157755_a10_em34
DATETIME
QUASI
7 February 2002
HEALTH
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001-157755_a10_e30
001-157755_a10_em35
DATETIME
QUASI
10 to 21 March 2002
HEALTH
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001-157755_a10_e31
001-157755_a10_em36
DATETIME
QUASI
2 to 10 May 2002
HEALTH
check
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001-157755_a10_em37
DATETIME
QUASI
15 to 18 July 2002
HEALTH
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001-157755_a10_em38
DATETIME
QUASI
17 July 2002
HEALTH
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001-157755_a10_e34
001-157755_a10_em39
DATETIME
QUASI
15 October 2002
NOT_CONFIDENTIAL
check
001-157755_a10_e35
001-157755_a10_em40
ORG
NO_MASK
Supreme Military Administrative Court
NOT_CONFIDENTIAL
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001-157755_a10_em41
ORG
NO_MASK
Ministry of the Interior
NOT_CONFIDENTIAL
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DEM
NO_MASK
compulsory military service
NOT_CONFIDENTIAL
insert
001-157755_a10_e37
001-157755_a10_em43
QUANTITY
QUASI
30,000,000,000 Turkish liras (TRL0; approximately 19,000 euros (EUR))
NOT_CONFIDENTIAL
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001-157755_a10_e38
001-157755_a10_em44
QUANTITY
QUASI
TRL 30,000,000,000
HEALTH
check
001-157755_a10_e39
001-157755_a10_em45
DATETIME
QUASI
one week
HEALTH
insert
001-157755_a10_e40
001-157755_a10_em46
DEM
NO_MASK
eye problem
HEALTH
check
001-157755_a10_e41
001-157755_a10_em47
DATETIME
QUASI
first week
NOT_CONFIDENTIAL
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001-157755_a10_e42
001-157755_a10_em48
ORG
NO_MASK
Gendarmerie High Command
HEALTH
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001-157755_a10_em49
DATETIME
QUASI
25 and 26 July 2001
NOT_CONFIDENTIAL
insert
001-157755_a10_e18
001-157755_a10_em50
DEM
NO_MASK
military doctor
HEALTH
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001-157755_a10_e44
001-157755_a10_em51
PERSON
QUASI
İ.H.Ş.
HEALTH
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001-157755_a10_e45
001-157755_a10_em52
DATETIME
QUASI
6 January 2003
NOT_CONFIDENTIAL
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001-157755_a10_em53
ORG
NO_MASK
Gendarmerie High Command
NOT_CONFIDENTIAL
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001-157755_a10_em54
DEM
NO_MASK
military doctor
HEALTH
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001-157755_a10_e44
001-157755_a10_em55
PERSON
QUASI
İ.H.Ş.
NOT_CONFIDENTIAL
insert
001-157755_a10_e46
001-157755_a10_em56
DEM
NO_MASK
Dr
HEALTH
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001-157755_a10_e44
001-157755_a10_em57
PERSON
QUASI
İ.H.Ş.
NOT_CONFIDENTIAL
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001-157755_a10_em58
ORG
NO_MASK
ophthalmology department of Gazi University’s Faculty of Medicine
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DATETIME
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6 April 2005
HEALTH
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DEM
QUASI
corneal ulcer
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001-157755_a10_em61
DEM
QUASI
corneal ulcer
HEALTH
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001-157755_a10_e49
001-157755_a10_em62
DEM
QUASI
Herpes virus? Fungal infection? Bacterial infection?
HEALTH
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001-157755_a10_e40
001-157755_a10_em63
DEM
NO_MASK
eye problem
HEALTH
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001-157755_a10_e50
001-157755_a10_em64
DATETIME
QUASI
one to two weeks
HEALTH
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001-157755_a10_e51
001-157755_a10_em65
DATETIME
QUASI
29 April 2005
HEALTH
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001-157755_a10_e50
001-157755_a10_em66
DATETIME
QUASI
one to two weeks
NOT_CONFIDENTIAL
check
001-157755_a10_e35
001-157755_a10_em67
ORG
NO_MASK
Supreme Military Administrative Court
HEALTH
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001-157755_a10_em68
DATETIME
QUASI
18 May 2005
NOT_CONFIDENTIAL
check
001-157755_a10_e35
001-157755_a10_em69
ORG
NO_MASK
Supreme Military Administrative Court
HEALTH
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001-157755_a10_e48
001-157755_a10_em70
DATETIME
QUASI
6 April 2005
NOT_CONFIDENTIAL
check
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001-157755_a10_em71
ORG
NO_MASK
Supreme Military Administrative Court
HEALTH
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DATETIME
QUASI
25 July
HEALTH
check
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001-157755_a10_em73
DATETIME
QUASI
2 August 2001
HEALTH
insert
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001-157755_a10_em74
DATETIME
QUASI
25 and 26 July 2001
HEALTH
insert
001-157755_a10_e54
001-157755_a10_em75
DATETIME
QUASI
one-to-two week
HEALTH
check
001-157755_a10_e48
001-157755_a10_em76
DATETIME
QUASI
6 April 2005
HEALTH
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001-157755_a10_em77
DATETIME
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6 April 2005
HEALTH
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001-157755_a10_em78
DATETIME
QUASI
21 September 2005
NOT_CONFIDENTIAL
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001-157755_a10_em79
ORG
NO_MASK
Supreme Military Administrative Court
HEALTH
check
001-157755_a10_e56
001-157755_a10_em80
DATETIME
QUASI
9 October 2009
HEALTH
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001-157755_a10_e57
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ORG
QUASI
Haseki Hospital
HEALTH
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001-157755_a10_e58
001-157755_a10_em82
DEM
NO_MASK
permanent disability as a result of the loss of sight in his left eye
HEALTH
check
001-157755_a10_e59
001-157755_a10_em83
QUANTITY
QUASI
41%
Hayrullah Akkoyunlu
TUR
CHAMBER
Task: Annotate the document to anonymise the following person: Hayrullah Akkoyunlu