SECOND SECTION
DECISION
Application no. 60151/10
Fatih IŞIK
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 September 2012 as a Committee composed of:
Isabelle Berro-Lefèvre, President,
Guido Raimondi,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Fatih Işık, is a Turkish national, who was born in 1984 and lives in İstanbul. He was represented before the Court by Mr A. Adıbelli, a lawyer practising in Şırnak.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 November 2004 the applicant started his compulsory military service. Before he was drafted into the army, the applicant had had orchiopexy surgery for undescended testicles.
On 22 July 2005, complaining about a lump in his right testicle, the applicant applied to the infirmary of his regiment and stated that he was in a lot of pain. The doctor told him that he was fine, without prescribing any medical tests. On 24 July 2005 the applicant was once again admitted to the infirmary, as the lump in his testicle had grown and he was in much pain. Suspecting that he was suffering from a hernia, the doctor advised that the applicant be transferred to Elazığ Military Hospital for further examination.
On 4 August 2005 the applicant was transferred to Elazığ Military Hospital. The following day, he was examined by a general surgeon, who was a military official. The general surgeon diagnosed the applicant’s condition as a hernia and told him that he would have surgery for this on 29 December 2005.
On 1 November 2005 the applicant went to Istanbul during his annual leave. As his condition had worsened, on 17 November 2005 he went to Haydarpaşa GATA Military Hospital upon his own initiative. Following medical tests, the applicant was diagnosed with testicular cancer and was informed that due to the delay in the diagnosis, the cancer had spread to his lungs. Consequently, he was treated with chemotherapy, had to undergo surgery and his right testicle was removed. On 16 August 2006 GATA Haydarpaşa Military Hospital reported that the applicant was not fit for military service.
On 6 February 2007 the applicant initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court for the damage he had sustained during his compulsory military service owing to the late diagnosis of his cancer.
On 9 September 2009 the Second Chamber of the Supreme Military Administrative Court dismissed the applicant’s case by a majority. The court held that although the military doctors at the regiment infirmary and Elazığ Military Hospital had clearly failed in their diagnosis and delayed the applicant’s access to treatment, this shortcoming had been subsequently compensated for by the other military doctors at Haydarpaşa GATA Military Hospital who had treated the applicant efficiently. In this connection, considering that his rights had not been prejudiced, the court rejected the applicant’s claim for compensation.
On 27 January 2010 the Second Chamber of the Supreme Military Administrative Court rejected the applicant’s rectification request. According to the information in the file, this final decision was notified on the applicant’s lawyer on 24 February 2010.
COMPLAINTS
The applicant complained under Article 2 of the Convention that owing to an incorrect diagnosis at Elazığ Military Hospital, his access to appropriate treatment had been delayed. He contended that as he had been under the authority of the military administration during his compulsory military service, the State should be held responsible for the damage he had sustained because of this medical malpractice. He further invoked Article 13 of the Convention, arguing that he did not have an effective domestic remedy which could provide him with redress for his complaint.
The applicant further complained about the fairness of the proceedings before the Supreme Military Administrative Court. In this respect, he asserted that his request for rectification of the judgment had been examined and rejected by the same judges who had made up the chamber which had given the judgment. He further alleged that the imposition of a fine as a result of his unsuccessful request for rectification constituted a violation of his right to a fair hearing.
THE LAW
The Court recalls that according to its settled case-law, the six-month time-limit starts to run on the day following the public pronouncement of the final decision or, in cases where a decision is not pronounced publicly, on the day following the date on which the final decision is served on the applicant or his representative, and expires six calendar months later, irrespective of the actual length of those months (see, Sabri Güneş v. Turkey [GC], no. 27396/06, § 44, 29 June 2012).
The Court observes that in the instant case the final decision of the Supreme Military Administrative Court of 27 January 2010 was served on the applicant’s representative on 24 February 2010. The time-limit laid down by Article 35 § 1 of the Convention therefore started to run on the following day, 25 February, and expired at midnight on 24 August 2010. The application was lodged on 25 August 2010, that is, after the expiry of the above-mentioned time-limit (see, Sabri Güneş, cited above, § 60).
Consequently, the Court concludes that the application was lodged more than six months after the service of the final domestic decision within the meaning of Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIsabelle Berro-Lefèvre
Deputy RegistrarPresident
Full & Egal Universal Law Academy