I correctly predicted that there was a violation of human rights in DEMİR v. TURKEY.

Information

• Judgment date: 2017-10-24
• Communication date: 2014-09-22
• Application number(s): 51144/06
• Country:   TUR
• Relevant ECHR article(s): 2, 2-1, 6, 6-1, 14
• Conclusion:
  Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Impartial tribunal
  Independent tribunal)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.682082
• Prediction: Violation

• Consistent

Communication text used for prediction

The applicant, Mr Barış Demir, is a Turkish national, who was born in 1978 and lives in İzmir.
He is represented before the Court by Ms L. Özgür and Ms Ö. Yılmaz, lawyers practising in İzmir.
At the time of the incidents, the applicant was a conscript soldier in the Turkish army.
On 5 January 2001, the applicant and his squad were sent to a mountainous area for military training.
In the evening, the squad went into a military trench.
At around 11.30 p.m. while the applicant was sleeping in the trench, another conscript soldier whom the applicant could not identify because of the snow masks they were all wearing stepped on his left arm.
The applicant felt his left arm numb and could not sleep because of the pain.
Meanwhile his arm became swollen and in the morning when they returned to their regiment, the applicant was suffering and hardly able to walk.
However, he could not ask to see a doctor before the roll call.
On 6 January 2001 at around 8.00 p.m. the applicant complained about his injury to the commanding officer, who sent him to the regiment infirmary.
The doctor at the infirmary did not examine him carefully and told him that he might have been bitten by an insect.
On the same day he was transferred to İzmir Military Hospital, where he was examined by two different doctors who each made a different diagnosis although neither of them was an orthopaedist.
One of the doctors who examined the applicant called the orthopaedist who was on duty and according to the orthopaedist’s instructions given by phone, an x-ray was made of the applicant’s arm.
The applicant was then sent to have a splint applied to his arm.
The person at the military hospital who applied the splint to the applicant’s arm was not medically trained.
The applicant’s next doctor’s visit was scheduled for 8 January 2001.
On 7 January 2001, the applicant’s arm was feeling numb and still swollen; therefore he went to the regiment’s infirmary.
When the doctor at the infirmary examined and opened the splint, the applicant saw that there were two symmetrical violet bruises on his elbow.
The doctor explained that this might become gangrenous and he ordered the splint to be loosened.
However, the applicant was still suffering severely and could not sleep.
On 8 January 2001, when he was still in severe physical pain, he was sent to İzmir Military Hospital by military bus.
On 8 January 2001, after being examined by an orthopaedist, he was hospitalised in İzmir Military Hospital and placed in a room; however, he did not receive any treatment.
On 9 January 2001, when a doctor visited him it was observed that a compartment syndrome had occurred because of the blood circulation deficiency.
He was transferred to Dokuz Eylül University Hospital immediately by ambulance, where he had an operation which was not enough to save his arm.
On 13 January 2001 during a second operation his left arm was amputated 8 cm below his armpit.
The applicant had five other operations afterwards and on 22 March 2001 he was discharged from the hospital.
No disciplinary investigation was initiated into the facts surrounding the accident.
On 10 April 2001, the applicant alleged that the military and/or medical staff were guilty of malpractice and medical negligence concerning the accident and the treatment.
On 10 June 2001, the İzmir Military Public Prosecutor decided that there was no need to initiate further proceedings.
In his decision, the prosecutor stated that the military staff supervising or participating in the military training could not be held responsible for the accident.
Furthermore, he noted that the military doctor in the infirmary and the military hospital staff who had examined the applicant had also conducted their duties with due diligence.
It is not clear from the documents in the case file whether the applicant appealed against this decision.
On the other hand, following the applicant’s complaint, criminal proceedings were initiated against C.Ö., the orthopaedist at İzmir Military Hospital, before the İzmir Military Criminal Court.
During the proceedings before İzmir Military Criminal Court, it was revealed that the accused had retired from the military.
Therefore, on 29 December 2004 the court gave a non-jurisdiction decision and referred the case file to İzmir Criminal Court of First Instance.
On 9 November 2006, İzmir Criminal Court of First instance convicted C.Ö.
of malpractice according to Article 459 § 2 of the Turkish Criminal Code then in force, Law No.
765.
C.Ö.
was sentenced to three months’ imprisonment However, the sentence was subsequently suspended.
On 5 March 2003, the applicant applied to the Supreme Military Administrative Court with a compensation request.
On 18 January 2006, the Supreme Military Administrative Court rejected the applicant’s request for pecuniary damage, stating that since 1 July 2002 the applicant had been granted a disability pension (200 euros (EUR) approximately per month) and partially accepted his compensation request for non-pecuniary damages and granted 20,000 Turkish Lira (TRY) (approximately EUR 7,000).
On 28 June 2006 the Supreme Military Administrative Court dismissed the applicant’s request for rectification of its decision.
According to the applicant, at the time of lodging the application he had not been paid the compensation.
COMPLAINTS The applicant alleges that his right to life was breached.
In this connection, he states that he was not provided with prompt and adequate treatment by competent medical staff.
The applicant also alleges that the conditions surrounding the amputation of his left arm were not examined thoroughly and effectively by the Supreme Military Administrative Court.
The applicant argues under Article 6 of the Convention that the Supreme Military Administrative Court, which examined the case, cannot be considered as independent or impartial.
In this respect, he maintains that the two military officers who sit on the bench remain under the hierarchy of the military authorities and do not enjoy the same judicial guarantees as other military judges.
The applicant further complains under the same provision that the written opinion submitted by the principal public prosecutor to the Supreme Military Administrative Court was not communicated to him, which infringed the principle of equality of arms.