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SECOND
SECTION
CASE OF ABDULLAH YILDIZ v. TURKEY
(Application
no. 35164/05)
JUDGMENT
STRASBOURG
26 April 2011
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 Abdullah Yıldız
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Giorgio Malinverni,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 5 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35164/05) 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 Abdullah Yıldız
(“the applicant”), on 31 August 2005. The applicant was
represented by Mr A.L. Koçer and Mr H. Pembeçiçek,
lawyers practising in Ankara. 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
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Tokat.
- While
performing his compulsory military service, the applicant was
injured. He was subsequently declared medically unfit to serve in the
armed forces on account of his injury and was thus discharged.
- The
applicant subsequently applied to the Social Security Institution
(“Sosyal Güvenlik Kurumu”, “SGK”),
claiming a special service disability pension. Upon the SGK’s
refusal of this claim, he brought an action before the Supreme
Military Administrative Court for the annulment of the SGK’s
decision denying him a service disability pension.
- On
14 April 2005 the Supreme Military Administrative Court dismissed the
applicant’s claim, holding that no causal link could be
established between the applicant’s disability and the
functions he performed in the armed forces. The written opinion of
the principal public prosecutor submitted to this court prior to the
delivery of the decision was not communicated to the applicant.
- On
9 June 2005 the Supreme Military Administrative Court dismissed the
applicant’s request for rectification of its previous decision
as the request had been lodged outside the statutory time-limit.
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 the written opinion of the principal public
prosecutor submitted to the Supreme Military Administrative Court
during the proceedings had not been communicated to him, in breach of
the equality of arms principle safeguarded under Article 6 § 1
of the Convention.
- The
Government asked the Court to declare this complaint inadmissible for
failure to exhaust domestic remedies under Article 35 § 1 of the
Convention. The Government maintained that the applicant had not
brought this complaint to the attention of the Supreme Military
Administrative Court, nor had he requested the written opinion of the
principal public prosecutor from this court.
- The
Court observes that it dismissed a similar preliminary objection in
the case of Miran v. Turkey (no. 43980/04, § 12, 21 April
2009). It sees no reason to do otherwise in the present case and
therefore rejects the Government’s objection.
- The
Court notes that this part of the application 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 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 and that the role of the public
prosecutor in administrative proceedings differed from those in
criminal proceedings.
- The
Court observes that it has already examined and dismissed similar
submissions by the Government in previous cases and found a violation
of Article 6 § 1 of the Convention (see, amongst others, Miran,
cited above, §§ 15-18; Yavuz Selim Karayiğit v.
Turkey, no. 45874/05, §§ 11-15, 27 October 2009;
and Biçer v. Turkey, no. 21316/05, §§ 14-19,
8 June 2010). 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 complained under Article 6 § 1 of the Convention that
he had not had access to the confidential documents submitted by the
administration to the Supreme Military Administrative Court; that
this court had lacked independence and impartiality on account of its
composition; that there had been no possibility of appeal against the
decisions of the Supreme Military Administrative Court; that it had
not been possible to know in advance which chamber of this court
would examine the case; and that the Supreme Military Administrative
Court’s decisions had been erroneous and not sufficiently
reasoned. The applicant also alleged violations of Articles 8 §
2, 13, 17 and 18 of the Convention on the basis of the
above-mentioned facts, without further substantiation.
- 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 complaints concerning appeal procedures, chamber assignments
and access to classified documents, see Karayiğit (dec.),
cited above; as regards the complaint concerning the erroneous and
insufficient reasoning in the domestic court’s decision, see
García Ruiz v. Spain, [GC], no. 30544/96, ECHR 1999-I,
and 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
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary damage
and EUR 15,000 for non-pecuniary damage. He also claimed EUR 5,000
for the costs and expenses incurred before the Court, without
submitting any supporting documents.
- The
Government contested the applicant’s claims as being
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; 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 paragraph 15 above, in view of the purely technical nature of
the violation found (see Meral v. Turkey, no. 33446/02, §
58, 27 November 2007, and Biçer, cited above, §
27).
- As
for costs and expenses, the Court makes no award under this head as
the applicant has failed to submit any documentary evidence in
support of his claims.
FOR THESE REASONS, THE COURT
- Declares unanimously 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 admissible and the remainder of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by four votes to three that the finding of
a violation constitutes in itself sufficient compensation for any
non-pecuniary damage;
- Dismisses by four votes to three the remainder
of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judges G. Malinverni, D. Popović and P. Pinto de
Albuquerque is annexed to this judgment:
F.T.
S.H.N.
PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY
JUDGES POPOVIĆ AND PINTO DE ALBUQUERQUE
- I
voted against point 3 of the operative provisions, which states that
“the finding of a violation constitutes in itself sufficient
compensation for any non-pecuniary damage”. In my opinion, the
mere finding of a violation is insufficient to repair the damage
suffered by the applicant. Even from a theoretical or philosophical
viewpoint, it is legitimate to wonder whether the mere finding of a
violation of a fundamental right can possibly afford sufficient
redress (see Aquilina v. Malta [GC], no. 25642/94, dissenting
opinion of Judge Bonello).
- It
is true that Article 41 of the Convention stipulates that the Court
is to afford just satisfaction only “if necessary”. The
case-law reveals that the Court has adopted this solution mainly when
the victim had the possibility of obtaining satisfaction at domestic
level, when the violation found was of little significance, when the
national authorities clearly expressed the will to reform the
legislation or practice from which the violation originated or when
the victim had the possibility of requesting the reopening of the
domestic proceedings or obtaining satisfaction at domestic level.
- It
must be acknowledged, however, that these criteria are fairly vague
and imprecise and leave the Court with a significant discretion,
which might give rise to inequalities in treatment. For instance, in
some cases similar to the present one the Court has made an award to
the victims. Examples of such cases are Schaller-Bossert v.
Switzerland (no. 41718/05, § 47, 28 October 2010) and
Ellès and Others v. Switzerland (no. 12573/06, §§
27 and 37, 16 December 2010).
- In
the present case, the applicant was the victim of a violation of the
principle of equality of arms, implicitly guaranteed by Article 6 of
the Convention. The Court has always held that when an applicant has
been convicted despite an infringement of his rights as guaranteed by
Article 6 of the Convention he should, as far as possible, be put in
the position in which he would have been had the requirements of the
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be trial de novo or the reopening
of the proceedings if requested.
- However,
in the present case the judgment does not even mention the
possibility for the applicant to request the reopening of the
proceedings. This fact, coupled with the Court’s refusal to
make an award to the applicant, means that the damage he sustained
has not been sufficiently redressed.
