TASCI v. TURKEY - 43868/06 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings Article 6-1 - Impartial tribunal Indep...) [2017] ECHR 846 (10 October 2017)

In the case of Taşçı v. Turkey,

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

          Robert Spano, President,
          Ledi Bianku,
          Işıl Karakaş,
          Nebojša Vučinić,
          Valeriu Griţco,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 5 September 2017,

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

PROCEDURE

1. The case originated in an application (no. 43868/06) 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 Ekrem Taşçı (“the applicant”), on 27 October 2006.

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

3. On 5 September 2014 the complaint concerning the independence and impartiality of the Supreme Military Administrative Court was communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1971 and lives in Ankara.

5. In 1995 the applicant, who had been serving as a non-commissioned officer, was dismissed from the army. Subsequently, proceedings were initiated before the Supreme Military Administrative Court to have the decision regarding his dismissal annulled. The applicant also asked to be awarded pecuniary compensation.

6. On 20 December 2005 the Supreme Military Administrative Court annulled the dismissal decision and accepted the applicant’s compensation claims in part.

7. On 18 April 2006 the applicant’s rectification request regarding the remaining compensation claims was rejected by the Supreme Military Administrative Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

8. A detailed description of the relevant domestic law and practice may be found in the cases of Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000), and Tanışma v. Turkey (no. 32219/05, §§ 29-50, 17 November 2015).

9. Following a referendum held on 16 April 2017, Law no. 6771 was adopted; Articles 145 and 157 of the Constitution were repealed and the following paragraph was added to Article 142 of the Constitution:

“... No military courts shall be formed other than disciplinary courts. However, in a state of war, military courts may be formed with jurisdiction to try offences committed by military personnel in relation to their duties.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

10. The applicant alleged that the Supreme Military Administrative Court could not be considered an independent and impartial tribunal, since the two military officers who had sat on the five-member bench in his case had been subject to the military authorities and had not enjoyed the same judicial guarantees as the other military judges on the bench. He alleged a violation of Article 6 § 1 of the Convention.

A. Admissibility

11. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

12. The Court notes that it examined a similar complaint in the case of Tanışma v. Turkey (no. 32219/05, §§ 74-84, 17 November 2015) and held that the Supreme Military Administrative Court could not be regarded as an independent and impartial tribunal, since the two military officers sitting on the bench in the case in question had not enjoyed the same constitutional safeguards as the military judges on the bench.

13. The Court takes note of the recent amendments in domestic law (see paragraph 9 above). However, the events complained of took place before the new legislation was adopted, and thus there is nothing which would require it to depart from its previous findings in the case of Tanışma, cited above.

14. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

15. The applicant claimed 367,446 euros (EUR) in respect of pecuniary and EUR 179,856 in respect of non-pecuniary damage.

16. The Government contested the claims.

17. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made under this head.

18. As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant.

B. Costs and expenses

19. Without providing any documents in support of his claims, the applicant claimed a total of 45,500 Turkish liras (TRY) for legal fees, costs and expenses incurred before the Court.

20. The Government contested the claim.

21. In accordance with 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 are reasonable as to quantum. In the present case, the applicant did not submit any receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.

C. Default interest

22. 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. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> TASCI v. TURKEY - 43868/06 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings Article 6-1 - Impartial tribunal Indep...) [2017] ECHR 846 (10 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/846.html Cite as: CE:ECHR:2017:1010JUD004386806, [2017] ECHR 846, ECLI:CE:ECHR:2017:1010JUD004386806