Individual Application

The Facts

Following the final examination which found the applicant medically fit for military service, the applicant started his military service at the Gendarmerie Training Command. The applicant suffered from crusting and pain around his eye and reduced vision, and he was referred to a hospital where he underwent a surgery for having an eye infection.

The applicant was then discharged from the army in line with the medical report issued by the Gülhane Military Medical Hospital according to which he was no longer fit for military service. The applicant suffered a total loss of vision in his one eye.

In the report issued by the Gendarmerie Training Unit commander and military staff at the end of the inquiries conducted into the incident, it was stated that the applicant had complained of severe headaches during the initial training but he had not filed a request for a medical examination by the dispensary due to the belief that minor health problems were not taken care of at the dispensary. It was also noted that the applicant, who had fallen sick in the unit to which he was assigned following the completion of initial training, was taken to the hospital. On the other hand, the applicant asserted that he had suffered health problems at the training camp and filed a request for a medical examination with the unit command; however, his request had been dismissed as “he would undergo a medical examination at the unit to which he would be assigned following the initial training”.

The applicant applied to the Ministry of National Defence, seeking compensation for his pecuniary and non-pecuniary damages. Upon the implicit rejection of his compensation claim, he filed an action for compensation before the Supreme Military Administrative Court (“SMAC”) which partially accepted his action. In its decision, the SMAC held that there had been a neglect of duty on the part of the relevant administration for having recruited the applicant who had been indeed medically unfit for military service and awarded him 2,600 Turkish liras (TRY) -calculated by the court experts- and TRY 1,000 in compensation for his pecuniary and non-pecuniary damages respectively.

The Applicant’s Allegations

The applicant maintained that the right to protect his corporeal and spiritual existence had been violated, stating that he had suffered health problems during his compulsory military service and subsequently a total loss of vision in his one eye due to the omissions in his treatment process; and that the amount of compensation awarded to him was insufficient.

The Court’s Assessment

It was found established by the inferior court’s decision that there was a neglect of duty in the present case due to the recruitment of the applicant who had been indeed medically unfit for military service. Therefore, the Court confined its examination to the question whether the amount of compensation awarded so as to redress the consequences of the impugned neglect of duty afforded a sufficient redress for the applicant.

It has been observed that the SMAC conducted the necessary inquiries and examinations for the determination and calculation of the pecuniary damage sustained by the applicant and determined the amount of pecuniary compensation based on the court experts’ calculations. The Court has accordingly concluded there was no manifest violation in respect of the pecuniary compensation.

As regards the non-pecuniary compensation, the Court has observed that there was a manifest disproportionality between the amount awarded to, and the damage sustained by, the applicant. The amount was significantly lower than the amount awarded by the Court in similar cases.

It is not of course necessary that any amount of compensation to be awarded by the inferior courts be the same with the amount awarded by the Court in case of similar violations. However, given the lack of a detailed and sufficient medical examination prior to the applicant’s recruitment, his recruitment despite being unfit for military service, as well as the total loss of vision he suffered in his eye during this service, the Court has found the amount of TRY 1,000 so low that would impair the very essence of the right to compensation.

As the amount of non-pecuniary compensation awarded to the applicant was found insufficient for the redress of the consequences of the violation, it has been concluded that the positive obligations incumbent on the State within the meaning of the right to protect the individuals’ corporeal and spiritual existence were not fulfilled in the present case.

Consequently, the Court has found a violation of the right to protect the corporal and spiritual existence safeguarded by Article 17 of the Constitution and also awarded TRY 40,000 in compensation for the applicant’s non-pecuniary damage.