ECHR ruling of September 11, 2018 in the case of "Kasat (Kasat) against Turkey" (application N 61541/09).
In 2009, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Turkey.
In the case, the applicant's application about recognition of his suitability for military service, the passage of which led to the applicant's disability, is being appealed. The case did not violate the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case has violated the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in connection with the failure to provide adequate guarantees of the independence of the court.
THE CIRCUMSTANCES OF THE CASE
The applicant was found fit for military service in a mountain paratroop unit. During his military service, he had scoliosis and lumbodynia. After several hospitalizations and operations, the applicant was granted sick leave, he was released from military service and lost his ability to work by 55%.
The applicant considered that responsibility for the complications from which he suffered was borne by the military commanders, arguing that he was not fit for military service as a paratrooper, and his military duties made him disabled. The applicant's claims against the state for damages were denied.
QUESTIONS OF RIGHT
Regarding compliance with Article 8 of the Convention. The military command was obliged to ensure that the recruit was medically able to withstand the conditions characteristic of the service in the paratroopers' unit and the place of his military service.
In this regard, before embarking on military training, the applicant underwent a routine medical examination procedure to determine suitability for military service for health reasons and was found fit for military service. In addition, at the time of his mobilization, the applicant did not notify the authorities about any health problems.
According to the findings of the examinations included in the case file, the initial medical examination which was carried out during the recruitment into the army might not be enough to conclude that the applicant suffered scoliosis, taking into account, in particular, the lack of a statement from the person concerned and clear symptoms, as well as the location of the affected area of the spine.
After being assigned to the paratrooper unit, the applicant underwent a medical examination, which included, in particular, a chest X-ray, but did not include a X-ray of the lumbar region. Based on the results of this survey, the applicant was deemed fit and began to prepare for service as a paratrooper.
However, according to the regulations, the presence of scoliosis made the recruit unfit for military service. Nevertheless, in the absence of obvious signs of disabling disease, it would be excessive to require the state to conduct a more thorough examination than that provided for by the Charter of the Armed Forces regarding physical fitness for military service. In addition, it would also be excessive to require the military leadership to conduct research on a special medical scan, in particular, radiography of the lumbar region, for each paratrooper candidate on the basis that he may have a hidden pathology.
At the same time, the military command cannot be blamed for lack of goodwill: it responded appropriately and fairly quickly, as soon as the applicant had back problems. The applicant was hospitalized and was provided with surgical treatment at the expense of the state. As soon as the doctors decided that the applicant could no longer continue to undergo military service, he was released from her. Finally, during the medical examinations conducted, no causal link was established between the military service, the presence and progression of the disease from which the applicant suffered.
The case did not violate the requirements of Article 8 of the Convention (adopted unanimously).
The European Court also unanimously found a violation of Article 6 § 1 of the Convention on the grounds that the court, consisting of regular officers sitting as part of the Supreme Military Administrative Court of Turkey, did not provide adequate guarantees of independence.
In application of Article 41 of the Convention. The Court awarded the applicant 1,500 euros (EUR) in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.