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SECOND
SECTION
CASE OF CEVAHİRLİ v. TURKEY
(Application
no. 15067/04)
JUDGMENT
STRASBOURG
19 October
2010
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 Cevahirli v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar.
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
cases originated in an application (no. 15067/04) 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
İsmail Cevahirli (“the applicant”), on 5 April 2004.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
13 May 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, a retired military officer, was born in 1955 and lives in
Bolu.
- By
an order of the Turkish General Staff dated On 9 May 2002, the
applicant's access to the army's social facilities (orduevi)
was prohibited due to his non-compliance with the rules of conduct
set out in the Internal Service Regulation of the Turkish Armed
Forces (“the Internal Service Regulation”). It appears
that while lodging in an army guesthouse in Ankara, the applicant had
insisted on performing the Muslim prayer (namaz) in a communal
area despite warnings. It further appears that the order of the
Turkish General Staff was never served on the applicant.
- On
24 December 2002 the applicant was refused entry to the army's social
facilities in Ankara on the basis of the order of the Turkish General
Staff.
- On
9 January 2003 the applicant brought an action before the Supreme
Military Administrative Court against the Ministry of Defence and
requested the annulment of the order of the Turkish General Staff,
along with the reinstatement of his right to benefit from the social
facilities of the army.
- The
Ministry of Defence submitted certain documents and information to
the Supreme Military Administrative Court during the course of the
proceedings, which were classified as “secret documents”
under Article 52 (4) of Law no. 1602 on the Supreme Military
Administrative Court. These documents were not disclosed to the
applicant.
- On
3 October 2003 the Supreme Military Administrative Court dismissed
the applicant's case. The court held that the decision of the Turkish
General Staff had been in compliance with the Internal Service
Regulation, considering in particular that the applicant had refused
to perform his prayer in the area allocated to him and had acted in a
disorderly fashion and argued with the officer who had warned him. It
appears that this decision was served on the applicant on 26 October
2003.
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 under Article 6 § 3 (a) of the Convention
that he was not aware of the accusations against him as he had not
been able to access the classified documents and information
submitted by the Ministry of Defence to the Supreme Military
Administrative Court.
- 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
for the merits, the Government contended that the applicant had been
aware of the content of the documents submitted to the Supreme
Military Administrative Court under Article 52 (4) of Law no. 1602.
- The
Court considers in the first place that this complaint should be
examined under Article 6 § 1 of the Convention in its civil
limb. The Court further 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 v. Turkey, no. 43980/04,
§§ 13 and 14, 21 April 2009; Topal v.
Turkey, no. 3055/04, §§ 16 and 17, 21 April 2009).
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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 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 officers. He further maintained under
Article 9 of the Convention that the decision of the Turkish General
Staff to ban his access to the army's social facilities had infringed
his freedom of conscience and religion.
- The
Court does not find that the complaint under Article 6 § 1 of
the Convention discloses any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols, in the light
of all the material in its possession, and in so far as the matters
complained of are within its competence (see Yavuz and Others v.
Turkey (dec.), no. 29870/96, 25 May 2000). It follows that this
complaint should be rejected as being manifestly ill founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
- As
for the complaint under Article 9 of the Convention, the Court notes
that according to the documents in the case file, the authorities had
not interfered with the applicant's religious exercises, but had
merely asked him to perform these in the privacy of his room rather
than in a public space, which request was ignored by the applicant.
The ban on his access to the army's social facilities was not,
therefore, based on the applicant's religious practices as such but
on his unwillingness to comply with the rules of conduct, which was
also acknowledged by the Supreme Military Administrative Court in its
decision. It follows that this complaint 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 5,232 euros (EUR) in respect of
pecuniary damage and EUR 10,000 for non-pecuniary damage. He also
claimed EUR 205 in respect of the costs and expenses incurred
before the Court for translation. He submitted bank receipts
regarding the payments made to the translation office in support of
his claim.
- The Government contested these claims as being
unsubstantiated and fictitious.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it considers that the applicant must
have suffered non-pecuniary damage which the finding of a violation
of the Convention in the present judgment does 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; Topal, cited above, § 23).
- As for costs and expenses, 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 full amount claimed by the applicant.
- 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 complaint under Article 6 of the
Convention concerning the applicant's lack of access to classified
documents submitted to the Supreme Military Administrative Court
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;
- 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
205 (two hundred five 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 19 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens Deputy
Registrar President
