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SECOND
SECTION
CASE OF DİKEL v. TURKEY
(Application
no. 8543/05)
JUDGMENT
STRASBOURG
29 September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dikel v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8543/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Mehmet Dikel (“the
applicant”), on 14 February 2005. The applicant was represented
by Mr A. M. Kocaoğlu and Mr S. S. Kocaoğlu,
lawyers practising in Ankara. The Turkish Government (“the
Government”) were represented by their Agent.
- On
5 November 2007 the Court decided to give notice of the application
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
- The
applicant was born in 1972 and lives in Mersin.
- The
applicant was discharged from the Turkish Armed Forces in 2003 due to
a medical condition and the Retired Civil Servants' Fund (Emekli
Sandığı) granted him simple disability benefits.
- Subsequently,
the applicant lodged a request with OYAK, the pension fund of the
armed forces, for full and permanent disability benefits.
- On
25 July 2003 OYAK rejected the applicant's request, holding that he
did not qualify for such benefits under the relevant law (Article 26
of Law no. 205). The applicant requested the annulment of this
decision from the Supreme Military Administrative Court.
- On
10 June 2004 the Supreme Military Administrative Court held a hearing
where it rejected the applicant's request. The written opinion of the
principal public prosecutor submitted to the Supreme Military
Administrative Court was not communicated to the applicant. No
classified documents or information had been submitted by the
administration to the Supreme Military Administrative Court as
evidence during the proceedings.
- The
applicant requested the rectification of this judgment. On
30 September 2004 the Supreme Military Administrative Court
dismissed the applicant's rectification request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the written opinion of the principal public
prosecutor submitted to the Supreme Military Administrative Court had
not been communicated to him in breach of the equality of arms
principle safeguarded under Article 6 § 1 of the Convention.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
- As
regards the merits of this complaint, the Government argued that the
applicant had the opportunity of examining the case file, which
included the written opinion of the public prosecutor, prior to the
hearing. They further claimed that, although the opinion of the
public prosecutor had been read during the hearing at the Supreme
Military Administrative Court, the applicant had not replied to this
opinion, nor had he raised this complaint before the domestic
authorities.
- The
Court points out that it has previously considered complaints similar
to that made by the applicant, where it dismissed similar preliminary
objections of the Government and found a violation of Article 6 §
1 of the Convention (see Meral v. Turkey, no. 33446/02, §§
32-39, 27 November 2007, and Miran v. Turkey, no.
43980/04, §§ 15-18, 21 April 2009). It considers that the
Government have not put forward any fact or argument in the instant
case which would require it to depart from its previous findings.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of the non-communication of the written opinion
of the principal public prosecutor to the applicant.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant alleged a number of violations of his rights enshrined in
Articles 6 § 1, 17 and 18 of the Convention. He complained, in
the first place, that he had been denied a fair hearing by an
independent and impartial tribunal as the Supreme Military
Administrative Court had been composed of military judges and
officers and that this court had acted as a first and only instance
court. He further maintained that he had not had access to the
classified documents submitted by the administration to the Supreme
Military Administrative Court. Lastly, he alleged violations of
Articles 17 and 18 of the Convention.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court does not
find that these complaints disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols
(as regards the complaint concerning the independence and
impartiality of the Supreme Military Administrative Court, see Yavuz
and Others v. Turkey (dec.), no. 29870/96, 25 May 2000; as
for the complaint concerning the lack of appeal procedure against
decisions of the Supreme Military Administrative Court and the lack
of access to classified documents, see Yavuz Selim Karayiğit
v. Turkey (dec.), no. 45874/05, 23 September 2008).
- It
follows that this part of the application should be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 100,000 euros (EUR) as pecuniary damage, which
reflected the amount of disability benefits he would have received
from OYAK had his request for full and permanent benefits been
granted. He also claimed EUR 25,000 in respect of non-pecuniary
damage and 14,250 Turkish liras (TRY) (approximately EUR 7,150)
for the costs and expenses incurred before domestic courts and the
Court. The applicant did not submit any justification as regards the
alleged costs and expenses. The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Kingsley v. the United
Kingdom [GC], no. 35605/97, § 40, ECHR 2002 IV). It
therefore rejects this claim. As to the alleged non-pecuniary damage,
the Court considers that it is sufficiently compensated by the
finding of a violation of Article 6 § 1 in paragraphs 9 12
above (see Meral, cited above, § 58). As regards costs
and expenses, the Court makes no award under this head as the
applicant failed to substantiate his claims.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint under Article
6 § 1 of the Convention concerning the non-communication of the
written opinion of the principal public prosecutor to the applicant
during the proceedings before the Supreme Military Administrative
Court;
- Declares inadmissible the remainder of the
application;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
