CASE OF METIN GÜLTEKİN AND OTHERS v. TURKEY

SECOND SECTION

CASE OF METİN GÜLTEKİN AND OTHERS v. TURKEY

(Application no. 17081/06)

JUDGMENT

STRASBOURG

6 October 2015

FINAL

01/02/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Metin Gültekin and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Paul Lemmens, President,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller,
Ksenija Turković,
Egidijus Kūris,
Robert Spano, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 15 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17081/06) 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 four Turkish nationals, Mr Metin Gültekin, Mrs Gülten Gültekin, Mr Tanju Gültekin, and Ms Selma Karaduman (“the applicants”), on 1 April 2006.

2. The applicants were represented by Ms Nuran Özdemir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. Relying on Article 2 of the Convention, the applicants alleged, in particular, that their close relative, Toğay Gültekin, had died while doing his compulsory military service owing to the authorities’ failure to ensure prompt access to medical treatment for his serious health problems.

4. On 2 April 2014 the application was communicated to the Government.

THE FACTS

5. The applicants were born in 1960, 1963, 1988 and 1986 respectively and live in Zonguldak. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin.

A. The incident

6. Toğay Gültekin was born in 1983 and started doing his compulsory military service on 22 August 2003 in the city of Kırklareli. At that time he had no known health problems.

7. On 17 March 2004 Toğay Gültekin was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases. On 22 March 2004 a doctor who examined him at his regiment’s infirmary referred him to Trakya University Hospital (“The University Hospital”) for suspected hepatitis or meningoencephalitis. The following day Toğay Gültekin was sent to the hospital in Edirne where, after a number of examinations were conducted, he was diagnosed with fulminant hepatitis (acute liver failure). A decision was taken on 24 March 2004 to send him to the Haydarpaşa GATA Hospital in Istanbul for a liver transplant operation. On arrival at the hospital in Istanbul the same afternoon he was put in the intensive care unit.

8. At 5.15 p.m. on 27 March 2004 he died at the GATA Hospital. No autopsy was performed.

B. The military investigation

9. An investigation was carried out at the military unit where Toğay Gültekin had been doing his military service. On 30 and 31 March 2004 a total of eleven military personnel who knew or had had dealings with Toğay Gültekin were questioned by their superiors.

10. The eleven military personnel all stated that Toğay Gültekin had spoken to his commanding officer on 16 February 2004 and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease. His superior had then transferred him to the regiment’s infirmary where tests had been conducted, establishing that he did not have hepatitis.

11. One of the eleven military personnel was the doctor who had examined Toğay Gültekin in the regiment’s infirmary on 22 March 2004 (see paragraph 7 above). The doctor stated that on 22 March 2004 Toğay Gültekin had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual. He had then sent Toğay Gültekin for a urine examination and when he had got the results back he had noticed a problem. The same day he had asked for Toğay Gültekin to be referred to the University Hospital.

12. The military officers who carried out the investigation concluded, on the basis of the statements referred to above, that the military authorities had acted in accordance with their duties when providing medical assistance to Toğay Gültekin and that there had been no fault attributable to them in his death.

C. The compensation proceedings

13. On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court (“the Military Administrative Court”). They argued, in particular, that Toğay Gültekin had not received prompt or adequate medical care in his regiment.

14. The applicants submitted in their petition that, according to the official documents in their possession, Toğay Gültekin had been examined by a doctor attached to his regiment on 17 March 2004 and that the doctor had recommended his transfer to a hospital specialising in infectious diseases. Nevertheless, the military authorities had not followed that recommendation. When his condition had deteriorated he had been examined by another doctor at the regiment on 20 March 2004. However, that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit. When Toğay Gültekin’s condition had deteriorated even further on 22 March 2004, he had been examined once again and this time a urine test had been carried out. The doctor who had evaluated the results of the test had considered that Toğay Gültekin might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital. Nevertheless, Toğay Gültekin had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital. The applicants argued that it had been these inordinate delays that had caused Toğay Gültekin’s death. They pointed out that Toğay Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition. Therefore, the authorities had been under an obligation to protect his well-being and to ensure timely medical treatment for him.

15. On 14 January 2005 the Ministry of Defence submitted its observations to the Military Administrative Court. Based on the testimonies of the soldiers from the same regiment (see paragraphs 9-11 above), it argued that on 16 February 2004 Toğay Gültekin had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well. A blood test had been conducted, but the results had not revealed any abnormalities.

16. The Ministry of Defence alleged that Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004, but accepted that he had been examined by a doctor at the regiment’s infirmary on 20 March 2004 and then sent back to his military unit. It maintained that the military authorities had not acted in a negligent fashion when dealing with Toğay Gültekin’s medical problems.

17. In their replies to the Ministry of Defence the applicants submitted that there was no evidence to show that a blood test had been carried out on 16 February 2004. They also referred to the medical reports and stated that it had been clearly indicated in the records that Toğay Gültekin had seen the doctor at the infirmary on 17 March 2004 and that his referral to an infectious diseases clinic had been decided by that doctor.

18. During the proceedings the Military Administrative Court appointed three medical experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, in order to clarify whether the military authorities had acted negligently. The medical experts reached the following conclusion in their report of 20 September 2005:

“... An examination of the documents and other information in the file shows that Toğay Gültekin started his military service on 22 August 2003. On 2 January 2004 he was treated for a retractile testicle at Çorlu Military Hospital. On 5 January 2004 he was prescribed medication at the regiment’s infirmary for an upper respiratory tract infection. On 17 March 2004 the regimental infirmary doctor decided to refer him to the Çorlu Military Hospital’s infectious diseases department, but that was not done. On 20 March 2004 he was diagnosed with and treated for an infection of the upper respiratory tract. On 22 March 2004 he was referred to the University Hospital with suspected hepatitis and he was sent there. On 23 March 2004 he was diagnosed with fulminant hepatitis. On 24 March 2004 he was transferred to the GATA Research Hospital in Haydarpaşa where he died on 27 March 2004 as a result of fulminant hepatitis.

Two of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus. Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits. Hepatitis B spreads through sexual contact, or by coming into contact with infected blood by sharing personal items such as toothbrushes, razors, or needles. Military service, in itself, does not pose a special risk for hepatitis contamination.

Having examined the medical reports in the file, we consider it very likely that the first symptoms regarding Toğay Gültekin’s disease became obvious on 20 March 2004 and his condition then deteriorated for one week until his death. The first symptoms of the liver disease (acute liver failure) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs. They can be similar to the symptoms of upper respiratory tract infection. Only after developing typical symptoms, such as jaundice, does it become easier to diagnose.

The disease caused by these two viruses (hepatitis) can be more serious in adults. According to the medical reports in the file, Toğay Gültekin was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time. This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis (fast-deteriorating acute liver failure). The mortality rate of fulminant hepatitis is 70% within the first week; a liver transplant is the sole method of ensuring patient survival. Normally, the patient would be kept in hospital under close observation.

Having taken cognisance of the documents in the file, we have not established any delays, fault or negligence in the medical treatment provided to Toğay Gültekin at the infirmary of his regiment, at the University Hospital or at the GATA Hospital in Haydarpaşa.”

19. The applicants lodged an objection to this report. They maintained that the authorities had acted negligently as they had delayed Toğay Gültekin’s transfer to hospital. Referring to the medical reports in the file, the applicants stated that although the doctor at the regiment had decided to refer Toğay Gültekin to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor’s decision until 23 March 2004. The applicants also asked the Military Administrative Court to obtain an additional medical expert report.

20. On 26 October 2005 the Military Administrative Court dismissed the applicants’ claim. In its decision the court relied on the medical expert report summarised above (see paragraph 18), and concluded that no fault could be attributed to the authorities for Toğay Gültekin’s death. No mention was made in the decision of the applicants’ complaint regarding the failure to transfer Toğay Gültekin to hospital on 17 March 2004.

21. The applicants lodged a request for rectification of the Military Administrative Court’s decision and argued, inter alia, that if, as alleged, Toğay Gültekin had told his commanding officer on 16 February 2004 that he might have been infected with hepatitis (see paragraphs 9-11 above), his superior should have taken it seriously and referred him to hospital. However, there were no records showing that any action had been taken. They also pointed out that their complaints did not relate to the period following Toğay Gültekin’s transfer to the hospital, but to the authorities’ negligence in failing to refer Toğay Gültekin to hospital between 17 and 23 March 2004.

22. On 28 December 2005 the Military Administrative Court refused to entertain the rectification request lodged by the applicants.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

23. The applicants complained under Article 2 of the Convention that the delay in transferring Toğay Gültekin to the hospital from his regiment had delayed his access to appropriate treatment and had thus caused his death. They argued that, as Toğay Gültekin had been under the authority of the military administration during his compulsory military service, the State should be held responsible for his death which, they believed, had been caused as a result of the authorities’ negligence. The applicants also relied on Article 6 of the Convention and argued that the proceedings before the Supreme Administrative Military Court had not been conducted fairly. In this connection, they stated that their objection to the medical expert report had not been taken into account and that the Military Administrative Court had failed to interpret the facts of the case correctly and that no effective investigation had been carried out.

24. The Government contested the applicants’ arguments.

25. The Court considers it appropriate to examine the applicants’ complaints solely from the standpoint of Article 2 of the Convention which provides, in so far as relevant, as follows:

“1. Everyone’s right to life shall be protected by law ...”

A. Admissibility

26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

27. The applicants complained that Toğay Gültekin had died as a result of negligence by the military authorities.

28. The Government argued that after Toğay Gültekin had informed his commanding officer (on 16 February 2004) of the possibility that he might have contracted hepatitis (see paragraphs 9-11 above), he had undergone a blood test the very same day and that the results of that test had been negative. The Government submitted that, although the authorities had been unable to find and submit to the Court the blood test report, it had been recorded in the relevant logbooks that such a report had indeed been obtained that day.

29. From 20 March 2004 onwards Toğay Gültekin had received the required treatment and tests and had been referred to different hospitals depending on the stage of the disease. A medical expert investigation had been carried out within the scope of the compensation proceedings (see paragraph 18 above) and the medical experts had considered that the fact that Toğay Gültekin had not been referred to hospital on 17 March 2004 could not be regarded as a shortcoming. In the opinion of the Government, given that Toğay Gültekin had been examined some three days afterwards, that is on 20 March 2004, the three-day delay in transferring him to hospital had not amounted to a violation of the Convention. In this connection the Government also pointed to the finding that Toğay Gültekin had contracted two viruses at the same time and his disease had progressed rapidly as a result (see paragraph 18 above).

30. The Government submitted that no autopsy had been conducted as Toğay Gültekin had died in hospital. Furthermore, no requests had been made by the family for a judicial investigation to be opened into the death and the authorities had not done so of their own motion. An administrative investigation had, however, been conducted within the military unit (see paragraphs 9-12 above). The applicants had also been paid the sum of approximately 2,690 euros (EUR) by the Mehmetçik Foundation (a foundation set up to help families of servicemen who have died while on duty).

2. The Court’s assessment

31. The Court reiterates at the outset that Article 2 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, 27 September 1995, § 47, Series A no. 324). The first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III; and Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII).

32. The Court has also had previous occasion to emphasise that persons deprived of their liberty, such as persons in custody, are in a vulnerable position and that the authorities are under a duty to protect them (see Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000‑VII). This duty to protect, when read in light of the positive obligation described in the preceding paragraph, extends to protecting the health and well-being of persons deprived of their liberties and implies an obligation for the authorities to provide such persons with the medical care necessary to safeguard their life. A sharp deterioration in a person’s state of health in detention facilities inevitably raises serious doubts as to the adequacy of medical treatment there. Thus, where a detainee dies as a result of a health problem, the State must offer a reasonable explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death (see Makharadze and Sikharulidze v. Georgia, no. 35254/07, §§ 71-72, 22 November 2011 and the cases cited therein).

33. Noting the salient parallels between the situation of persons in custody and conscripts doing their compulsory service, the Court has held that conscripts are also entirely in the hands of the State and that the Contracting Parties bear the burden of providing a plausible explanation for any injuries and deaths occurring in the army (see Beker v. Turkey, no. 27866/03, §§ 41-43, 24 March 2009).

34. The Court will examine the applicants’ complaints in the present case in light of the principles set out above. To that end, the Court observes that the applicants’ relative Toğay Gültekin started his military service on 22 August 2003 and was in the course of doing so when his health problems began in March 2004. It is not disputed that while he was performing his military service he was not able to leave his regiment in order to procure medical treatment from a medical establishment of his own choice.

35. At this juncture the Court deems it important to stress that in their application before the Court the applicants do not complain that Toğay Gültekin contracted hepatitis as a result of an action or omission attributable to the military authorities. Neither do they allege that the medical treatment provided to Toğay Gültekin after his hospitalisation on 23 March 2004 was unsatisfactory or inadequate. Their complaint relates solely to the military authorities’ failure to send him to hospital on 17 March 2004, contrary to the decision of the doctor who examined him that day, and their subsequent and repeated failures to take Toğay Gültekin to hospital until 23 March 2004. The applicants allege that those delays caused Toğay Gültekin’s death. The Court’s examination will therefore be limited to that specific complaint.

36. To that end, the Court considers that it is not its duty to establish whether or not the seven-day delay caused Toğay Gültekin’s death. Indeed, it is not the Court’s task to rule on matters lying exclusively within medical specialists’ field of expertise (see Kozhokar v. Russia, no. 33099/08, § 108, 16 December 2010). Establishing whether or not the delays had a bearing on the death was the duty of the national authorities who, as explained above (see paragraph 33), bore the burden of providing a plausible explanation for the death of a soldier under their exclusive control. The Court will therefore establish whether the respondent State has discharged that duty by showing that the delays in question did not have a direct bearing on the death and that the national authorities did everything which could reasonably have been expected of them under the circumstances to protect Toğay Gültekin’s life (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 167, 14 March 2013).

37. In order to establish whether the respondent Government have satisfactorily discharged their burden of showing that they complied with their positive obligation to provide Toğay Gültekin with prompt and adequate medical treatment for his problem, the Court will have regard to the documents in its possession and the steps taken during the military investigation.

38. The Court notes that the applicants initiated compensation proceedings before the Military Administrative Court. In theory, at least, at the end of those proceedings the applicants could have obtained an assessment of whether or not the military authorities had acted negligently and received compensation for the damage they had suffered. This remedy was therefore appropriate in the present case and in examining the applicants’ allegations the Court will also have regard to the manner in which the compensation proceedings were conducted.

39. The Court observes at the outset that hepatitis is a potentially lethal disease which requires specialist treatment. According to the three medical school professors whose opinions were sought by the national courts when examining the applicants’ claim for compensation, the mortality rate in fulminant hepatitis is 70% within the first week (see paragraph 18 above).

40. Moreover, the Court observes that the military authorities were given ample indications that Toğay Gültekin might have contracted hepatitis, and considers that they knew or ought to have known of the real risks to his life (see Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001‑III). The Court would highlight, in this connection, that according to the information given by the eleven military personnel, Toğay Gültekin had informed his commanding officer on 16 February 2004 of his suspicion that he might have contracted hepatitis (see paragraphs 9-11 above). Furthermore, the Court recalls that the military doctor who examined Toğay Gültekin on 17 March 2004 in the regiment’s infirmary decided to refer him to a hospital specialising in infectious diseases.

41. Nevertheless, although the military authorities were thus aware of Toğay Gültekin’s health problems and should have taken measures within the scope of their powers which, judged reasonably, might have been expected to protect his health (ibid.), they failed to do so. Importantly, although the doctor who examined Toğay Gültekin on 17 March 2004 showed diligence by deciding to refer him to hospital, his decision was not acted upon by the military authorities.

42. The Court notes that the failure to take Toğay Gültekin to the hospital on 17 March 2004 and the allegation that that delay cost him his life were the central and crucial points of the case brought by the applicants against the Ministry of Defence. However, notwithstanding the existence of the official military records indicating otherwise, the Ministry Of Defence denied the fact that Toğay Gültekin had been examined on 17 March 2004 by the military doctor who decided to refer him to hospital. According to that Ministry, Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004 (see paragraph 15 above).

43. Moreover, the Court observes that the importance of the failure to comply with the doctor’s decision was not examined by the Military Administrative Court, which chose to base its rejection of the case on the report prepared by the three medical experts. That court did not seek information from the military authorities about the reasons behind the failure to comply with the decision taken by the doctor on 17 March 2004 and did not take steps to obtain another medical expert report – as requested by the applicants (see paragraph 19 above) – with a view to assessing the extent to which the delay led to Toğay Gültekin’s death.

44. The Court has examined the medical expert report summarised above (see paragraph 18 above) and notes that, other than acknowledging that Toğay Gültekin’s referral to hospital had been decided on 17 March 2004 and that that decision had not been acted upon, the three medical experts did not examine the importance of that failure from the standpoint of medical science.

45. The Government, when being given notice of the application, were expressly requested by the Court to comment on the seven-day delay between 17 March and 23 March 2004; they argued that the medical experts had considered that the fact that Toğay Gültekin had not been referred to hospital on 17 March 2004 could not be regarded as a shortcoming. Noting the absence of any assessment made by medical experts in that respect, the Court considers the Government’s submissions to be without basis. For the same reasons, the Court also remains unconvinced by the Government’s argument that given that Toğay Gültekin was re-examined on 20 March 2004, the failure to transfer him to hospital did not amount to a violation of the Convention (see paragraph 29 above).

46. The Court observes that the military authorities’ shortcomings were not limited to the failure to take Toğay Gültekin to hospital on 17 March 2004. It observes that when Toğay Gültekin visited the regimental infirmary once again on 20 March 2004 (see paragraph 19 above) the other military doctor who examined him does not seem to have sought information as to the decision taken by his colleague on 17 March 2004 and does not seem to have consulted the medical records from which he would have seen that Toğay Gültekin had complained of the possibility of having contracted hepatitis a short while ago. Had the doctor (who had diagnosed Toğay Gültekin with infection of the upper respiratory tract (see paragraph 18 above)) done so, he could have realised that the symptoms were in fact those of hepatitis and not those of an upper respiratory tract infection –which, according to the three university professors, are similar – and could have made attempts to ensure Toğay Gültekin’s referral to hospital.

47. The Court observes that the shortcomings and failures on the part of the military authorities did not end there. When Toğay Gültekin’s condition deteriorated and his symptoms became impossible to be misinterpreted or ignored, a military doctor at the regiment’s infirmary referred him to hospital with suspected hepatitis. Nevertheless, that decision was also not acted upon until the following day (see paragraph 7 above). As is the case with the other failures examined above, no explanations or justifications were proffered by the Government in respect of this final one.

48. The Court has stated above that what was expected from the national authorities was to do everything which could reasonably have been expected of them under the circumstances to protect Toğay Gültekin’s right to life (see paragraphs 36 and 41 above). Having examined the military investigation and the administrative proceedings conducted at the national level, and highlighted the shortcomings, the Court concludes that the Government have failed to satisfy their burden of showing that the authorities complied with their positive obligation by taking timely and adequate measures in order to prevent the fatal outcome in the present case.

49. There has accordingly been a violation of Article 2 of the Convention on account of the Government’s failure to comply with their positive obligation to protect Toğay Gültekin’s right to life.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

51. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention.

Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithPaul Lemmens
RegistrarPresident

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