Akkoyunlu v. Turkey

In 2001, Mr. Akkoyunlu (the applicant) started his compulsory military service in Turkey. On July 25, 2001, he went to the infirmary of his regiment to complain about severe pain in his left eye. The military doctor was unavailable, so he was given eye drops by another soldier, who had no medical qualifications. He later contacted the infirmary again due to persistent pain, but was told to rest, and was not relieved of his military duties. On August 2, 2001, he was referred to the Cizre State hospital, where he was diagnosed with a corneal ulcer. He started treatment at a different hospital 4 days later; however, he had completely lost sight in his left eye because of the delay in starting treatment. On October 15, 2001, the applicant started proceedings before the Supreme Military Administrative Court, seeking compensation from the Ministry of the Interior for the damage his eye had suffered due to the delay in starting treatment.

The Supreme Military Administrative court dismissed the applicant’s claim, finding that the applicant had been appropriately diagnosed and treated. The court relied on expert evidence which testified that the cause of the corneal ulcer was unknown, and therefore it was not possible to determine whether it was related to his military service, or what the outcome would be had treatment started earlier. The court relied on unavailable government documents which stated that the applicant had been seen by a doctor on his first visit to the infirmary.

The applicant complains that the authorities’ failure to immediately refer him to a hospital denied him appropriate and timely medical treatment, leading to loss of sight in his left eye. He submits that the failure of the authorities is a breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right for all persons to be free from torture or inhuman or degrading treatment or punishment.

• Was there a violation of Article 3 of the Convention?

The European Court of Human Rights held that there was a violation of Article 3 of the Convention because of the Turkish Government’s failure to comply with their positive obligation to provide the applicant with prompt and appropriate medical assistance for his corneal ulcer. The Court decided that there is a positive obligation on the Contracting States to ensure that a person should be able to perform military service in conditions accordant with human dignity and not be subjected to more distress or suffering exceeding the unavoidable hardship inherent to military discipline and the practical demands of military service. The health and well-being of a person in the military must be adequately secured by, among other things, providing him with the medical assistance he requires. The Court found that because the applicant was a conscript and therefore was not able to leave his regiment to acquire medical treatment on his own, his loss of sight in his left eye was sufficiently severe as to breach the threshold under Article 3.

• Did the state discharge its burden to show that they complied with their positive obligation to provide the applicant with prompt and appropriate medical treatment?

The Court held that the state had failed to comply with their positive obligations with regard to Akkoyunlu because of the shortcomings of the proceedings before the domestic courts with regard to the effective domestic remedies pursued by Akkoyunlu, and the evidence they relied upon to make their decisions. The applicant had started proceedings before the Supreme Military Administrative Court in Turkey, which was the domestic court with the relevant available remedy. The Court noted that the domestic courts did not attempt to ascertain whether the applicant was seen by a doctor on his first visit to the infirmary. The Court also noted that the domestic courts did not deal with the applicant’s repeated criticism of the conclusions reached in the expert reports, which meant that several crucial questions still needed to be answered in the medical report. Due to these shortcomings, the Court held that the government failed to comply with their positive obligation, and therefore there was a violation of Article 3 of the Convention.

“The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3” (para 32)

“The positive obligation inherent under Article 3 of the Convention was held to impose a duty on the Contracting States to ensure that a person should be able to perform his 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” (para 33)

“…the Court considers that conscripts are entirely in the hands of the State and events that occur in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. Therefore, the State is under an obligation to account for any injuries or health problems allegedly resulting from acts or omissions of the military authorities.” (para 34)