OZSOY AND YILDIRIM v. TURKEY - 30953/09 (Judgment : Violation of Right to a fair trial - Administrative proceedings - Impartial tribunal Indep...) [2017] ECHR 1052 (28 November 2017)

In the case of Özsoy and Yıldırım v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Ledi Bianku, President,
          Paul Lemmens,
          Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 30953/09 and 53174/10) 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 two Turkish nationals, Mr Mahmud Sami Özsoy and Mr Serdar Yıldırım (“the applicants”), on 27 April 2009 and 8 July 2010 respectively.

2. The first applicant was represented by Mr K. Tangülü, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. On 22 September 2015 the complaints concerning the alleged unfairness of the proceedings before the Supreme Military Administrative Court on account of the applicants’ inability to access the classified documents submitted by the Ministry of Defence, and the alleged independence and impartiality of the tribunal because of the presence of two military officers sitting on the bench who did not enjoy the same judicial guarantees as the other military judges, were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1987 and 1986 respectively and live in Ankara.

6. The applicants were cadets in military schools. Based on classified investigation reports, they were expelled from their schools. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions.

7. Relying on the classified investigation reports, the Supreme Military Administrative Court rejected the applicants’ requests and their subsequent requests for rectification on different dates shown in detail in the attached list.

II. RELEVANT DOMESTIC LAW

8. A description of the domestic law at the material time can be found in Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015), and Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000).

THE LAW

I. JOINDER OF THE APPLICATIONS

9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

10. Relying on Article 6 § 1 of the Convention, the applicants complained that they had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. They further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of their inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings.

A. Concerning the independence and impartiality of the Supreme Military Administrative Court

1. Admissibility

11. The Government argued under Article 35 of the Convention that the applicants’ complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicants failed to lodge a motion, requesting the disqualification of the military judges.

12. The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and law. Accordingly, any objection filed by the applicants regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see, mutadis mutandis, Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008, and Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000).

13. Thus, such a request before the national authorities would not have remedied the situation complained of. It follows that this objection should be dismissed. The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

14. The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention. It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.

15. There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court.

B. Concerning the access to the classified documents

16. The applicants complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of their inability to have access to the classified documents submitted by the Ministry of Defence.

17. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

18. Having regard to its finding of a violation of the applicants’ right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine this complaint (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998-IV; Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no. 24087/07, § 33, 14 March 2017).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

19. In application no. 30953/09, the applicant claimed 100,000 euros (EUR) in respect of non-pecuniary and EUR 118,021 for pecuniary damage. In application no. 53174/10, the applicant claimed EUR 50,000 in respect of non-pecuniary and EUR 70,745 for pecuniary damage.

20. The Government contested the claims.

21. As regards the pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicant under this head. As regards non-pecuniary damage, and ruling on an equitable basis, the Court awards EUR 1,500 to each of the applicants.

B. Costs and expenses

22. In application no. 30953/09, the applicant claimed EUR 8,760 for the costs and expenses, relying on the Ankara Bar Association’s recommended fee scales. In application no. 53174/10, the applicant claimed EUR 474 for costs and expenses. In support of his claim, he has submitted invoices attesting to the payment of these costs.

23. The Government contested the claims.

24. The Court reiterates that according to its 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 are reasonable as to quantum.

25. Regarding application no. 30953/09, the applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head.

26. Regarding application no. 53174/10, the Court considers it reasonable to award the applicant the sum requested in full (EUR 474).

C. Default interest

27. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court;

4. Holds that it is not necessary to consider the applicants’ complaint concerning their inability to have access to the classified documents submitted by the Ministry of Defence to the Supreme Ministry Administrative Court;

5. Holds

(a) that the respondent State is to pay each of the applicants, within three months, EUR 1,500 (one thousand five hundred euros) plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that the respondent State is to pay the applicant in application no. 53174/10, within three months, EUR 474 (four hundred and seventy four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c) 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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President

APPENDIX

No.	Application No.	Case specific notes
1.	30953/09	On 14 March 2008, the applicant was dismissed from the Air Force Military Academy due to non-compliance with admission pre-conditions. The applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the dismissal decision. On 18 February 2009 the Supreme Military Administrative Court rejected the applicant’s case.
2.	53174/10	In July 2009, the applicant was dismissed from the Expert Gendarmerie School due to non-compliance with disciplinary rules. The applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the dismissal decision. On 6 January 2010 the Supreme Military Administrative Court rejected the applicant’s case.

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