SECOND SECTION
DECISION
Application no. 33032/09
Şeyhmus ŞENGÜNER and Emine ŞENGÜNER
against Turkey
The European Court of Human Rights (Second Section), sitting on 30 September 2014 as a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Nebojša Vučinić,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 2 May 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Şeyhmus Şengüner and Ms Emine Şengüner, are Turkish nationals, who were born in 1943 and live in Diyarbakır. They were represented before the Court by Ms C. Turhallı Balsak, a lawyer practising in Diyarbakır.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 30 May 2005 the applicants’ son, Zeydin Şengüner, started his compulsory military service. On 15 August 2005, suffering from nausea and gastric bleeding, he applied to the infirmary of his regiment. On the same day he was transferred to the Erzincan Military Hospital, where he underwent two surgical operations, on 15 and 17 August 2005. Following receipt of the pathology report, he was diagnosed as suffering from non‑Hodgkin’s lymphoma and on 6 September 2005 he was transferred to the Oncology Department of the Ankara GATA Hospital, where he received six cycles of chemotherapy. While he was receiving treatment, a tumour was discovered in his brain and he was treated with radiotherapy. He died on 6 January 2006.
4. The applicants initiated compensation proceedings before the Military Supreme Administrative Court and maintained that the authorities had been at fault, as harsh military conditions had had a negative effect on their son’s health and there had been a delay in the diagnosis of his illness.
5. During the proceedings, the court asked for an expert report to determine whether any fault could be attributed to the military authorities for the death of the applicants’ son. In a report dated 19 June 2008, the experts concluded that the applicants’ son had received adequate medical treatment in one of the most advanced hospitals in Turkey. They maintained that despite modern treatment options being available, the mortality rate for sufferers of non‑Hodgkin’s lymphoma was very high and no fault could be attributed to the authorities for the death of the applicants’ son. They further stated that his cancer had not been related to his serving in the military.
6. On 23 July 2008 the Military Supreme Administrative Court dismissed the applicants’ case. In delivering its judgment, the court relied on the expert report and concluded that no fault could be attributed to the military authorities for the death of the applicants’ son. Subsequently, on 28 October 2008, a rectification request lodged by the applicants was rejected. This decision was served on them on 14 November 2008.
COMPLAINTS
7. In their initial application, lodged on 2 May 2009, the applicants alleged that the right to life of their son had been breached. They contended that their son had been under the authority of the military administration during his compulsory military service and therefore the State should be held responsible for his death. In this connection, they stated that no appropriate medical tests had been conducted prior to their son’s admission to the military, that the harsh conditions had had a negative effect on his health, and that there had been a delay in the diagnosis of his cancer and in beginning the appropriate treatment. They further relied on Articles 6 and 13 of the Convention, arguing that the domestic proceedings had been unfair. In this connection, they stated that their objection to the expert report had not been taken into account, that the court had erred in the interpretation of the facts of the case and that no effective investigation had been carried out.
8. On 25 September 2009 the applicants submitted further complaints under Articles 3, 5, 6, 14 and 18 of the Convention.
THE LAW
A. Concerning Article 2 of the Convention
9. The applicants complained that their son had died in circumstances engaging the responsibility of the authorities. They further stated that the ensuing proceedings had been ineffective. In this connection, they relied on Articles 2, 6 and 13 of the Convention.
10. At the outset, the Court notes that this part of the application should be examined from the standpoint of Article 2 alone.
11. The Court reiterates that the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured by, among other things, providing him with the medical assistance he requires (see Baklanov v. Ukraine, no. 44425/08, § 65, 24 October 2013, and Chember v. Russia, no. 7188/03, § 50, ECHR 2008). It is therefore clear that in the present case, the military administration was responsible for the health of Zeydin Şengüner, who had started serving in the military on 30 May 2005.
12. The Court notes that the applicants’ son was diagnosed with non‑Hodgkin’s lymphoma in August 2005, almost three months after he was drafted into the army, and that he died on 6 January 2006.
13. According to the documents in the file, Zeydin Şengüner was suffering from nausea and gastric bleeding and applied to the infirmary of his regiment on 15 August 2005. There is no information to suggest that he had any health problems prior to this date. He was immediately transferred to the Erzincan Military Hospital, where he underwent two surgical operations. Following receipt of the pathology report, he was diagnosed as suffering from non-Hodgkin’s lymphoma and on 6 September 2005 he was transferred to the Oncology Department of the Ankara GATA Hospital, where he received six cycles of chemotherapy. While he was receiving treatment, a tumour was discovered in his brain and he was treated with radiotherapy. In these circumstances, the Court observes no delays in his treatment. It further notes that the applicants did not complain of medical negligence on the part of the doctors who treated their son in hospital.
14. The Court further notes that the applicants’ complaints were examined by the domestic courts. During the proceedings an expert report was obtained, which found it established that the applicants’ son had received adequate medical treatment in one of the most advanced hospitals in Turkey. The experts stated that despite modern treatment options being available, the mortality rate for sufferers of non-Hodgkin’s lymphoma was very high and no fault could be attributed to the authorities for the death of the applicants’ son. It was further pointed out that his cancer had not been related to his serving in the military. The Court reiterates that the domestic courts are in principle better placed for assessing the relevance of evidence to the issues in the present case and for interpreting and applying rules of substantive and procedural law (see Besen v. Turkey (dec.), no. 48915/09, § 38, 8 September 2009). In the present case, the Court does not find any evidence in the case file which might allow it to depart from or call into question the expert report relied on by the domestic courts. Furthermore, the applicants were given the opportunity to have access to the report and were able to challenge it at three levels of jurisdiction.
15. Having regard to the above, the Court observes that in the circumstance of the present case, there appears to be no failure attributable to the domestic authorities regarding their obligation to protect the right to life of the applicants’ son.
16. It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
B. Other complaints
17. On 25 September 2009 the applicants submitted further complaints under Articles 3, 5, 6, 14 and 18 of the Convention.
18. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter “within a period of six months from the date on which the final decision was taken”. The running of the six‑month time-limit is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made. As regards complaints not included in the initial application, the running of the six‑month time-limit is not interrupted until the date when the complaint is first submitted to the Court (see Allan v. the UK (dec.), no. 48539/99, 28 August 2001, and Dağlı v. Turkey, no. 28888/02, §§ 36‑39, 27 November 2007).
19. In the present case, the Court notes that these complaints were not mentioned in any communication prior to 25 September 2009, whereas the final decision was served on the applicants on 14 November 2008.
20. Consequently, the Court concludes that this part of the application should be rejected as being out of time, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Abel CamposGuido Raimondi
Deputy RegistrarPresident
Full & Egal Universal Law Academy