Taştan v. Turkey (63748/00)
| Date | 20080304 |
|---|---|
| Article | 3 |
| Decision | violation |
CHAMBER JUDGMENT TAŞTAN v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Taştan v. Turkey (application no. 63748/00).
The Court held unanimously that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) taken in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights because the applicant was forced to do military service at the age of 71.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)
1. Principal facts
The applicant, Hamdi Taştan, is a Turkish national who was born in 1929 and lives in Şanlıurfa (Turkey). He was registered in the civil status register in 1986 as a single person with no children.
The case concerned the fact that the applicant was forced to do military service aged 71.
Mr Taştan stated that he had been a shepherd since his childhood and that he worked for local villagers in exchange for clothes, food and a roof over his head in winter. He maintained that his wife died in childbirth and that he stopped working to look after their son. As a result, the villagers – annoyed that he wasn’t working for them anymore – denounced him as a deserter. He also claimed to be illiterate and to speak only Kurdish.
On 15 February 2000 the applicant was called up to do military service and taken by gendarmes to the military recruitment office of Şanlıurfa. He was certified medically fit to perform military service and transferred to Erzincan (Turkey), where he underwent military training for recruits for one month. He was forced to take part in the same activities and physical exercises as 20-year-old recruits.
Mr Taştan alleged that he was subjected to degrading treatment during his training, such as being offered cigarettes by his hierarchical superiors in exchange for posing with them for a photo, and had been the target of various jokes. As he had no teeth, he had had problems eating at army barracks; he had also suffered from heart and lung problems on account of temperatures dropping to as low as minus 30oC. Lastly, he alleged that he had had no means of communicating with his son throughout the entire period of his military service.
After his military training the applicant was transferred to the 10th infantry brigade in Erciş (Van), where his state of health deteriorated. He was examined by a doctor on two occasions and then admitted to Van Military Hospital, before being transferred to Diyarbakır Military Hospital (Turkey). On 26 April 2000 he finally obtained a certificate exempting him from military service on grounds of heart failure and old age.
The Turkish Government maintained that, in accordance with the practice followed in similar cases, the applicant’s personal records relating to his military service had been destroyed.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 10 August 2000.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Ireneu Cabral Barreto (Portuguese),
Rıza Türmen (Turkish),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,
and also Sally Dollé, Section Registrar.
3. Summary of the judgment2
Complaints
Relying on Articles 3 (prohibition of inhuman and degrading treatment) and 13 (right to an effective remedy), Mr Taştan complained that he had been forced to perform military service despite his age, alleging in particular that he had been subjected to both physical and mental ill-treatment. Under Article 8 (right to respect for private and family life), he also complained that he had been deprived of all contact with his son during his military service and that he had been distressed by the thought of his son being left alone. The applicant also alleged violations of Articles 4 (prohibition of forced labour) and 5 (right to liberty and security).
Decision of the Court
The Court held that the application should be examined under Article 3 taken together with Article 13. It noted, among other things, that the applicant had not provided any proof of the existence of his child and held that it was not necessary to rule separately on the applicant’s other complaints.
Article 3 taken in conjunction with Article 13
The Court reiterated that it was incumbent on the State to provide a plausible explanation for the cause of any harm to the physical or mental integrity of persons placed under the control of the authorities.
In the applicant’s case the Court considered that that requirement had not been satisfied. Noting that the applicant’s military service records had been destroyed by the authorities, it observed that, apart from the applicant’s statements, it had little evidence in its possession regarding the applicant’s military service or how the applicant, who spoke only Kurdish, had been able to communicate his complaints to the doctors and his hierarchical superiors.
It was established (and not disputed) however, that Mr Taştan, when aged 71, had performed part of his military service between 15 March and 26 April 2000, including his month’s training.
The Court also pointed out that the applicant, who had not been suffering from any particular illness when he was called up to do military service, had had to be taken into hospital after one month’s forced participation in military training designed for 20-year old conscripts.
It went on to observe that the Turkish Government had not referred to any particular measure taken with a view to alleviating, in the applicant’s specific case, the difficulties inherent in military service or to adapting compulsory service to his case. Nor had they specified whether there had been any public interest in forcing him to perform his military service at such an advanced age. The Government had confined themselves to emphasising the applicant’s share of responsibility in the matter by failing to register himself in the civil status register until 1986.
The Court found that calling the applicant up to do military service and keeping him there, making him take part in training reserved for much younger recruits then himself, had been a particularly distressing experience and had affected his dignity. It had caused him suffering in excess of that which would be involved for any man in being obliged to perform military service and had, in itself, amounted to degrading treatment within the meaning of Article 3.
Accordingly, there had been a violation of Article 3 taken in conjunction with Article 13.