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SECOND
SECTION
CASE OF MERDAN v. TURKEY
(Application
no. 38011/05)
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 Merdan 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. 38011/05) 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 Mustafa Merdan (“the
applicant”), on 19 October 2005. The applicant was represented
by Ms G. Bağcı, a lawyer practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
23 September 2008 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
applicant's lack of access to classified documents submitted by the
Ministry of Defence to the Supreme Military Administrative Court to
the Government. It 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 was born in 1971 and lives in Şırnak.
- On
8 June 2004 the applicant, an artillery captain at the Turkish Armed
Forces, brought a case before the Supreme Military Administrative
Court against the Ministry of Defence for the annulment of his
transfer to a different garrison.
- In
their pleadings the Ministry of Defence argued that the applicant's
transfer had been lawful and submitted certain confidential documents
in support of their arguments for the Supreme Military Administrative
Court's examination under Article 52 (4) of Law no. 1602. These
documents were not communicated to the applicant.
- On
15 February 2005 the Supreme Military Administrative Court held that
the applicant's appointment had not been contrary to law and rejected
his request. In taking this decision the Supreme Military
Administrative Court relied on, inter alia, the confidential
documents submitted by the Ministry of Defence by virtue of Article
52 (4) of Law no. 1602.
- On
26 April 2005 the applicant's rectification request was rejected by
the Supreme Military Administrative Court.
II. RELEVANT DOMESTIC 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 ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied access to the classified
documents and information submitted by the Ministry of Defence to the
Supreme Military Administrative Court during the proceedings, which
infringed the principle of equality of arms and the right to
adversarial proceedings as safeguarded in Article 6 § 1 of
the Convention.
- 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 already examined and rejected this objection
raised by the Government in similar cases (see Miran v. Turkey,
no. 43980/04, §§ 9-11, 21 April 2009, and Topal v.
Turkey, no. 3055/04, §§ 12 15, 21 April
2009). The Court finds no particular circumstances in the instant
case which would require it to depart from this jurisprudence and
therefore rejects the Government's objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- As
regards the merits of this complaint, the Government contended that
the applicant was cognizant of all the information relevant to the
case. They did not, however, explain why certain documents deposited
with the Supreme Military Administrative Court remained classified
throughout the proceedings if the applicant was aware of their
content as alleged.
- 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; Miran, cited
above, §§ 13 and 14; Topal, cited above, §§
16 and 17). It considers that the Government have not put forward any
fact or argument 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
- The
applicant claimed 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim as being excessive.
- The
Court considers 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, it awards the applicant EUR 6,500 (see Güner Çorum,
cited above, § 39; Aksoy (Eroğlu), cited above,
§ 39; Miran, cited above, § 22; and Topal,
cited above, § 23).
- The
applicant did not claim any costs and expenses. Accordingly, no award
is made under this head.
B. 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 remainder of the application
admissible;
- 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 ;
- 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, EUR 6,500 (six thousand
five hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Turkish liras at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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
