The involvement of army officers in a court adjudicating a soldier’s lawsuit against the army makes the court non-impartial and independent

JUDGMENT 

Β.Ι. v. Turkey 11.12.2018 (no.18308/10)

see here  

SUMMARY 

Non-independent and impartial tribunal. The involvement of officers serving in military units in a court which examined a soldier’s appeal against the army can not guarantee the impartiality and independence of the tribunal. These officers remain in the service of the army, are remunerated by it, and their promotion also depend from the army, and they do not enjoy the same constitutional guarantees as those provided for other members of the military judges. Infringement of Article 6 (1) of the ECHR.

Complaint of the soldier for aggravation of his health during his military service. No infringement of Article 8 of the ECHR.

PROVISIONS 

Article 6 par 1

Article 8

PRINCIPAL FACTS

The applicant, B.I., is a Turkish national who was born in 1986 and lives in Ankara.

The case concerned a conscript who had had serious health problems during his military service.

In May 2006 B.I. joined the training unit of the Kayseri first commando regiment for a three-month
period. During a medical consultation doctors at the barracks diagnosed him with a haemorrhoid
condition. In August 2006, at the end of his training period, B.I. was taken to Diyarbakır Military
Hospital because of a worsening of his symptoms. On 1 September 2006 he underwent a
haemorrhoid removal operation in Siirt Military Hospital. He was placed on sick leave for three
months and returned to his home in Ankara. Shortly afterwards, suffering from pain and worsening
health, he reported twice to the emergency department of Gülhane Military Hospital (GATA). His
sick leave was extended and he was admitted to hospital twice. On 26 July 2007 B.I. was examined
by the GATA medical board, which decided to postpone his military service.

B.I. lodged a claim of pecuniary and non-pecuniary damage with the Ministry of National Defence,
which rejected it. He brought an action for compensation before the Supreme Military Administrative Court, seeking 140,000 Turkish lira for all heads of damage. The court dismissed the action, ruling out any liability, with or without fault, on the part of the administrative authorities. It also rejected his application for rectification of that judgment.

Relying in substance on Article 8 (right to respect for private and family life), the applicant alleged
that his state of health had deteriorated because of delays and errors in the medical treatment he
had received in the military hospitals. He maintained that he had been in good health when he had
been recruited and now had a partial disability. Relying on Article 6 § 1 (right to a fair hearing), he
alleged lack of independence and impartiality on the part of the Supreme Military Administrative
Court.

THE DECISION OF THE COURT

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

Relying on Article 2 of the Convention, the applicant complains of a violation of his right to life. He alleges in this regard that his health has deteriorated due to delays and errors in the medical procedures he has undergone in military hospitals. He adds that, at the time of his recruitment as a commando in the service of the army, he was in full health and that, from now on, he is suffering from a partial infirmity.

The Court reiterates that, under the principle of Jura Novit Curia, it is not bound by the legal arguments advanced by the applicants under the Convention and its Protocols, and it may decide on the legal qualification to be given the facts of a grievance by examining it on the ground of articles or provisions of the Convention other than those invoked by the applicants.

It goes on to point out that it is only in exceptional circumstances that the Court finds a violation of Article 2 of the Convention where there is no death of the victim. However, in this case, it notes that there is no indication of an immediate risk to the applicant’s life.

In these circumstances, the Court considers that, instead of examining the complaint under Article 2 of the Convention, it must be examined under Article 8. Indeed it falls within the scope of this latter provision issues related to the moral and physical integrity of individuals.

The Court reiterates that, although the right to health does not appear as such among the rights guaranteed by the Convention or its Protocols, it is well established that the High Contracting Parties have, in addition to their positive obligations under the Convention. Article 2 of the Convention, a positive obligation under Article 8, on the one hand, to put in place regulations requiring public and private hospitals to adopt appropriate measures to protect the physical integrity of their patients and, secondly, to make available to victims of medical negligence a procedure capable of providing them, where appropriate, with compensation for their bodily injury.

​​It also recalls that the obligations under Article 8 largely coincide with those of Article 2 of the Convention

In that regard, the Court recalls that, except in cases of manifest arbitrariness or error, it is not its task to call into question the findings of fact made by the domestic authorities. This is particularly true for scientific expertise, which by definition requires special and in-depth knowledge of the subject.

The Court notes in the present case that the applicant does not claim that he was denied access to medical treatment but that he was subjected to a defective treatment. Nor is it alleged that at that time there was any systemic or structural dysfunction in the hospitals where the applicant was treated, whose authorities knew or ought to have known about them and for which they did not take the necessary preventive measures, and that this failure contributed decisively to the invalidity of the person concerned. Nor has it been shown that the fault allegedly committed by the health professionals went beyond a mere error or medical negligence or that the persons who took part in the care of the applicant did not provided the latter with medical treatment, in defiance of their professional obligations.

Moreover, the Court considers that no lack of good will can be blamed on the military authorities, since the latter reacted correctly and sufficiently quickly once the applicant’s health problems were identified. Indeed, the person concerned was hospitalized and benefited from the establishment of surgical treatments, at the expense of the State. When postoperative complications appeared, he was offered a new surgical treatment to treat the anal narrowing that he suffered, but he refused. In addition, a decision to postpone military service was pronounced in his favor, after the doctors had decided that he was no longer fit for military service. Lastly, no causal link between the military service and the existence and progress of the illness suffered by the applicant was established by the medical examination conducted under domestic law .

In view of the above, the Court considers that the current regulatory framework does not reveal any failure on the part of the State to fulfill its obligation to protect the physical integrity of the applicant.

Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

Relying on Article 6 § 1 of the Convention, the applicant complains of a lack of independence and impartiality of the judges of the High Court.

The Court states that it has already examined an identical complaint in its leading judgment Tanışma and that it has found a violation of Article 6 § 1 of the Convention on the ground that career officers sitting the High Court did not enjoy adequate guarantees of independence. In this case, the Court does not identify any element or argument that would lead it to depart from this conclusion.

It therefore declares this complaint admissible, and finds a violation of Article 6 § 1 of the Convention.

No violation of Article 8

Violation of Article 6 § 1 (impartial tribunal)

Just satisfaction: EUR 1,500 (non-pecuniary damage)(echrcaselaw.com editing).


ECHRCaseLaw

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