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SECOND
SECTION
CASE OF OKAN ERDOĞAN v. TURKEY
(Application
no. 43696/04)
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 Okan Erdoğan
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. 43696/04) 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 Okan Erdoğan (“the
applicant”), on 20 October 2004. The applicant was represented
by Mr M. N. Eldem, a lawyer practising in Ankara. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
15 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, who was born in 1980 and lives in Kayseri, was a student
at a military academy. At the time of his registration at this
academy, his father had signed a promissory note for the
reimbursement of the applicant's educational expenses in the event of
his leaving the school, due to expulsion or otherwise.
- In
March 2003 the applicant was expelled from the military academy
following a secret security investigation conducted by the Ministry
of Defence into him and his family. The applicant was not notified of
the specific reasons for his expulsion.
- Subsequently,
the applicant asked the Supreme Military Administrative Court to
annul the expulsion decision. During the proceedings, he did not have
access to the classified documents and information submitted by the
Ministry of Defence to the Supreme Military Administrative Court in
support of its decision to expel him from the military academy.
- On
10 December 2003 the Supreme Military Administrative Court refused to
annul the expulsion decision. It stated that information and
documents the confidentiality of which was required and necessitated
for the performance of military service could not be disclosed to the
applicant. The Court further emphasised that it was not bound by the
classification made by the administration and that it made its own
assessment as to whether the confidentiality of the documents was
justified in each case. The written opinion submitted by the
principal public prosecutor to the Supreme Military Administrative
Court during the proceedings was not communicated to the applicant.
- On
7 April 2004 the Supreme Military Administrative Court rejected the
applicant's rectification request, which decision was served on the
applicant on 20 April 2004.
- The
Ministry of Defence subsequently filed an action with the Kayseri
Civil Court against the applicant for the reimbursement of his
educational expenses. On 3 May 2004 the Kayseri Civil Court ordered
the applicant to pay the Ministry of Defence 5,050,500,000 Turkish
liras (TRL) (approximately 3,000 euros (EUR)), plus interest running
from 8 April 2003.
II. RELEVANT LAW
- A
description of the relevant domestic law can be found in the decision
of Karayiğit v. Turkey ((dec.), no. 45874/05, 23
September 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the principle of equality of arms had been infringed on account of
his lack of access to the classified information submitted by the
Ministry of Defence to the Supreme Military Administrative Court and
the non-communication to him of the written opinion of the principal
public prosecutor attached to this court. He further complained under
Article 8 of the Convention that the secret security investigation
conducted by the Ministry of Defence in relation to him and his
family had breached his right to private life.
A. Admissibility
- Relying
mainly on the jurisprudence of Pellegrin v. France ([GC],
no. 28541/95, ECHR 1999 VIII), the Government argued that
Article 6 § 1 of the Convention was not applicable in the
instant case on account of the special relationship that existed
between the applicant and the State.
- The
Court notes that it has recently revised its case-law concerning the
applicability of Article 6 § 1 to disputes between the State and
civil servants in its Vilho Eskelinen and Others v. Finland
judgment ([GC], no. 63235/00, § 62, ECHR 2007 IV).
Having regard to the new criteria adopted in the aforementioned case,
the Court notes that the Government failed to demonstrate, first,
that the applicant did not have a right of access to a court under
national law and, secondly, that any exclusion of the rights under
Article 6 for the applicant was justified by the subject matter of
the dispute. In these circumstances, the Court considers that Article
6 § 1 is applicable in the instant case and it therefore
dismisses the Government's preliminary objection (see Miran v.
Turkey, no. 43980/04, §§ 9 12, 21 April 2009,
and Topal v. Turkey, no. 3055/04, §§ 12-15, 21 April
2009).
- The
Court further notes that these complaints are not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that they are not inadmissible on any other grounds.
This part of the application must therefore be declared admissible.
B. Merits
1. Lack of access to classified documents and
non-communication of the principal public prosecutor's written
opinion
- As
regards the applicant's complaint concerning the non communication
of the principal public prosecutor's written opinion, the Government
argued that the applicant had the opportunity of examining the case
file, which included the written opinion of the principal public
prosecutor, at any time. They further argued that the opinion of the
principal public prosecutor had no effect on the decision of the
court in administrative proceedings. The Government did not submit
any observations on the merits of the complaint concerning the lack
of access to classified documents.
- The
Court notes that it has previously considered similar complaints and
found a violation of Article 6 § 1 of the Convention (see Güner
Çorum v. Turkey, no. 59739/00, §§ 24-31, 31
October 2006; Aksoy (Eroğlu) v. Turkey, no.
59741/00, §§ 24-31, 31 October 2006; Meral v. Turkey,
no. 33446/02, §§ 32-39, 27 November 2007; Miran,
cited above, §§ 13-18; and Topal, cited above,
§§ 16 and 17). The Court finds no particular circumstances
in the instant case which would require it to depart from this
jurisprudence.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of the applicant's lack of access to the
classified documents submitted to the Supreme Military Administrative
Court and the non-communication of the written opinion of the
principal public prosecutor to the applicant.
2. Right to respect for private life
- As
regards the complaint under Article 8 of the Convention, the Court
considers that the main legal question raised by the instant
application is whether the applicant's request for the annulment of
the expulsion decision had been rejected by way of a fair hearing
within the meaning of Article 6 of the Convention. Having
already replied to this question in the negative (see paragraph 15
above), the Court is of the opinion that there is no need to give a
separate ruling on this complaint (see Güner Çorum,
cited above, § 35, and Topal, cited above, § 20).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention 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 that it had acted as a first
and only instance court, which had also infringed his right to an
effective remedy. He further maintained under Article 6 § 1 that
he had been denied a public hearing due to the lack of reference to
the principal public prosecutor's name in the court decisions. The
applicant contended that his expulsion from the military academy had
amounted to a punishment without a law, in violation of Article 7 of
the Convention. Lastly, he maintained under Article 14 of the
Convention that he had been expelled from the military academy by
reason of his father's affiliations with a certain trade union, which
amounted to discrimination.
- As
regards the applicant's complaints concerning the lack of
independence and impartiality of the Supreme Military Administrative
Court and the unavailability of an appeal procedure against the
decisions of this court, the Court considers in the first place these
complaints should be examined from the standpoint of Article 6 §
1 of the Convention alone. The Court further notes that these
complaints were declared inadmissible in previous similar cases (see
Yavuz and Others v. Turkey ((dec.), no. 29870/96, 25 May
2000; Delcourt v. Belgium, 17 January 1970, § 8,
Series A no. 11; Piroğlu and Karakaya v. Turkey,
nos. 36370/02 and 37581/02, § 37, 18 March 2008; Karakaya v.
Turkey (dec.), no. 5173/05, 28 August 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.
- As
regards the complaint under Article 6 § 1 that the applicant had
been denied a public hearing due to the lack of reference to the
principal public prosecutor's name in the court decisions, the Court
notes that this does not raise any issues under Article 6 § 1,
considering specifically that the Supreme Military Administrative
Court has only one principal public prosecutor attached to it, whose
identity may be readily discovered. 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.
- As
for the complaint under Article 7 of the Convention, the Court notes
that the applicant was not held guilty of a criminal offence within
the meaning of this provision. It follows that this part of the
application should be rejected as being incompatible ratione
materiae, pursuant to Article 35 §§ 3 and 4 of the
Convention.
- With
regard to the allegation under Article 14 of the Convention, the
Court observes that the applicant has failed to submit any evidence
to indicate that his expulsion from the military academy had been
based on any discriminatory grounds. 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
A. Damage
- The
applicant claimed 204,000 euros (EUR) in respect of pecuniary damage:
EUR 200,000 for the salaries and pension rights he would have been
entitled to as a non-commissioned officer, as well as EUR 4,000 for
the educational expenses his father was asked to reimburse following
his expulsion from the military academy. He also claimed EUR 10,000
for non pecuniary damage. The Government contested these claims.
- The
Court considers that, in the present case, an award of just
satisfaction can only be based on the fact that the applicant did not
have the benefit of the guarantees of Article 6 of the Convention.
The Court cannot speculate as to the outcome of the trial had the
position been otherwise and therefore rejects the applicant's claims
for pecuniary damage. The Court considers, however, that the
applicant must have suffered non-pecuniary damage which the findings
of a violation of the Convention in the present judgment do not
suffice to remedy. Ruling on an equitable basis, in accordance with
Article 41, it awards the applicant EUR 6,500 (see Güner
Çorum, cited above, § 39; Aksoy (Eroğlu),
cited above, § 39; Miran, cited above, § 22; Topal,
cited above, § 23).
B. Costs and expenses
- The
applicant also claimed EUR 37,980 for the costs and expenses incurred
before the domestic courts and the Court. Relying on the Ankara Bar
Association's scale of fees and a legal fee agreement concluded with
his representative, he claimed EUR 32,100, being 15% of the total
damages claimed from the Court; EUR 1,300 on the basis of the
recommended fee list of the Ministry of Justice in international
cases and EUR 4,500 for the 45 hours work his representative
carried in relation to the instant case (EUR 100 per hour). He
also claimed EUR 80 for postal expenses and domestic court fees. The
applicant submitted a legal fees agreement, a time-sheet prepared by
his representative and various invoices to substantiate his expenses.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 6 §
1 and 8 of the Convention concerning the applicant's lack of access
to classified documents submitted to the Supreme Military
Administrative Court, the non communication to the applicant of
the written opinion of the principal public prosecutor and the
applicant's right to respect for his private life admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the applicant's lack of
access to classified documents submitted to the Supreme Military
Administrative Court and the non-communication to the applicant of
the written opinion of the principal public prosecutor;
- Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
6,500 (six thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- 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
