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SECOND
SECTION
CASE OF KİZİROĞLU v. TURKEY
(Application
no. 52154/07)
JUDGMENT
STRASBOURG
8 March
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kiziroğlu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
committee composed of:
Danutė Jočienė,
President,
Giorgio Malinverni,
Guido Raimondi,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52154/07) 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 Ahmet Mithat Kiziroğlu
(“the applicant”), on 22 November 2007. The applicant was
represented by Mr K. Bayraktar, Mr M. S. Aslan and Ms A.
Dalkılıç, lawyers practising in Istanbul. 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. In accordance with
Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Istanbul.
- The
applicant, a navy captain at the material time, brought an action
before the Supreme Military Administrative Court against the Ministry
of Defence (“the Ministry”) for the annulment of his
appointment to a different post, which he deemed to be unlawful.
- On
1 May 2007 a hearing was held on the case. Following the hearing, the
Supreme Military Administrative Court adopted an interim decision,
where it put further questions to the Ministry. The applicant was
neither provided with the interim decision, nor was he informed of
the Ministry's replies.
- On
29 May 2007 the Supreme Military Administrative Court delivered its
judgment and refused the applicant's request regarding the annulment
of his appointment.
- The
applicant subsequently requested rectification of this judgment,
along with the disqualification of the judges that delivered it,
alleging their lack of independence and impartiality (hakimin
reddi).
- On
13 July 2007 the Supreme Military Administrative Court dismissed the
applicant's request for the disqualification of the judges, as it
found his allegations to be groundless.
- On
9 October 2007 it rejected the applicant's rectification request.
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 § 1 OF THE
CONVENTION
- The
applicant complained that he had not had access to the classified
documents and information presented by the Ministry to the Supreme
Military Administrative Court, nor to the responses submitted by the
Ministry to the questions posed by this court in its interim
decision, which infringed the principle of equality of arms and the
right to adversarial proceedings as safeguarded in 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. 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 had been aware of the content of the documents
submitted to the Supreme Military Administrative Court.
- 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 v. Turkey,
no. 43980/04, §§ 13 and 14, 21 April 2009; and 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
documents submitted by the Ministry to the Supreme Military
Administrative Court.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the Supreme Military Administrative Court's decisions had been
erroneous and not sufficiently reasoned, which also suggested lack of
independence and impartiality on the part of the judges sitting on
the bench. He further maintained under the same provision that the
Supreme Military Administrative Court had also lacked independence
and impartiality on account of its composition.
- 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 on account
of its composition, see Yavuz and Others v. Turkey (dec.), no.
29870/96, 25 May 2000; as for the remaining complaints, see García
Ruiz v. Spain, [GC], no. 30544/96, ECHR 1999-I; Skorik v.
Ukraine (dec.), no. 32671/02, 8 January 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
A. Damages and costs and expenses
- The
applicant did not claim a definite sum of pecuniary damage, but
submitted alternative calculations reflecting his possible pecuniary
damage, taking into account his loss of salary and other financial
benefits arising from his allegedly unlawful appointment. He claimed
10,000 euros (EUR) for non-pecuniary damage.
- The
Government contested the applicant's claims as speculative and
fictitious.
-
The Court does not discern any causal link between the violation
found and the pecuniary damages alleged (see Kingsley v. the
United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). It
therefore rejects any claim for pecuniary damage. The Court
considers, however, that the applicant must have suffered some
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; 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 complaint under Article 6 § 1
of the Convention concerning the lack of access to the documents
submitted by the Ministry of Defence 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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
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 8 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Danutė Jočienė
Deputy
Registrar President
