Information Note on the Court’s case-law 221
August-September 2018
Kasat v. Turkey - 61541/09
Judgment 11.9.2018 [Section II]
Article 8
Article 8-1
Respect for private life
Military service performed by a conscript who had not informed the authorities about his scoliosis: no violation
Facts – The applicant was declared fit for military service in the unit of mountain commandos. While he was serving in the army, doctors diagnosed scoliosis and low back pain. After hospital treatment and an operation he was put on sick leave, exempted from military service and registered as 55% unfit for work.
The applicant considered the military authorities to be responsible for the consequences of his condition, alleging that he was unfit to serve in the army as a commando and that his military duties had left him disabled. His compensation claim against the State was unsuccessful.
Law – Article 8: The military authorities had a duty to ensure that conscripts were medically fit to face the conditions inherent in serving with the commandos and in the place to which they were posted.
In this connection, the applicant had undergone the usual process of a medical examination to verify fitness for military service in terms of health before beginning his training, and he had been declared fit. In addition, at the time of his mobilisation, he had not informed the authorities of any health problems.
According to the reports available in the file, the initial medical examination carried out at the time of recruitment might not have been sufficient to reach a diagnosis of scoliosis, particularly as the applicant had not drawn attention to any obvious symptoms or to the affected area of the spine.
After being posted to the commandos, the applicant had undergone a medical examination which had in particular included a chest X-ray but no back X-ray. Following that examination he had been declared fit and had begun the commando training.
Under the rules, however, scoliosis rendered a conscript unfit for military service. That being said, as there were no obvious signs of a handicap, it would have been excessive to expect the State to proceed with a more in-depth examination than that provided for by the rules of the armed forces concerning physical fitness for military service. It would also be disproportionate to ask the military authorities to carry out any specific medical tests, such as back X-rays, for each commando candidate, on the grounds of a possibility of such an underlying condition.
Moreover, the military authorities could not be reproached for a lack of good will. They had reacted properly and quickly enough once the applicant’s back problems had been identified. He had been admitted to hospital and operated on at the State’s expense. In addition, since the doctors had taken the view that the applicant could no longer continue to do his military service, he was then exempted from it. Lastly, no causal link between the military service and the existence, together with the progression, of the condition suffered by the applicant had been established by the medical assessments subsequently carried out.
Conclusion: no violation (unanimously).
The Court also found, unanimously, that there had been a violation of Article 6 § 1, on the ground that the career officers in the Military Administrative High Court did not present sufficient guarantees of independence.
Article 41: EUR 1,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Álvarez Ramón v. Spain (dec.), 51192/99, 3 July 2001; Lütfi Demirci and Others v. Turkey, 28809/05, 2 March 2010, Information Note 128; and the Factsheet on Health)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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