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SECOND
SECTION
CASE OF İLTER v. TURKEY
(Application
no. 43554/04)
JUDGMENT
STRASBOURG
29 September 2009
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 İlter v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43554/04) 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 Nazım İlter
(“the applicant”), on 3 November 2004. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
11 February 2008 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, who is a retired non-commissioned officer, was born in
1959 and lives in Osmaniye.
- On
29 June 2002 the applicant attempted to enter the social facilities
of the Osmaniye Gendarmerie Commandership, which was a right granted
to him under Article 664 § 4 of the Internal Service Regulation
of the Turkish Armed Forces (“the Internal Service Regulation”)
as a retired non commissioned officer. He was, however, not
admitted on the basis of an order of the Turkish General Staff,
prohibiting him from entering any social facilities of the Armed
Forces. The applicant was not provided any further information as to
the reason for this prohibition.
- The
applicant subsequently filed an action against the Ministry of
Defence with the Supreme Military Administrative Court and requested
the annulment of the order of the Turkish General Staff. The
applicant emphasised that he was not able to duly defend himself
against the impugned decision due to his lack of access to the secret
information and documents relied on by the Turkish General Staff.
- In
its reply, the Ministry of Defence stated that the applicant had been
banned from using the said facilities for engaging in activities
proscribed under Article 664 § 4 (c) of the Internal Service
Regulation. It submitted certain classified documents in support of
its decision.
- On
22 April 2004 the Supreme Military Administrative Court rejected the
applicant’s request. It stated that information and documents
the confidentiality of which was required and necessitated for the
performance of military service could not be disclosed to the
applicant. The court further emphasised that it was not bound by the
classification made by the administration and that it made its own
assessment as to whether the confidentiality of the documents was
justified in each case.
- On
16 September 2004 the Supreme Military Administrative Court rejected
the applicant’s rectification request
II. RELEVANT DOMESTIC LAW
- Article
664 § 4 of the Internal Service Regulation of the Turkish Armed
Forces provides that:
“Commissioned officers, military personnel and
non-commissioned officers, together with persons who have retired
[from such positions], are natural members of the social facilities
(orduevi)... of the army.”
- Article
664 § 4 (c) of the Internal Service Regulation of the Turkish
Armed Forces further provides that:
“In the event that retired members or a member of
their families are found to engage in activities involving religious
fundamentalism and retrogression (irtica) or secession of the
national territory, or to make statements and carry out activities
against the Turkish Armed Forces, their entry to the social
facilities ... of the army shall be prohibited by the Turkish General
Staff temporarily or permanently.”
- A
description of the relevant domestic law concerning proceedings
before Supreme Military Administrative Court can be found in the
decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23
September 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6, 9, 10 AND 11 OF THE
CONVENTION
- The
applicant complained under Article 6 § 3 (b) of the Convention
that he had not been able to access, and therefore contest, the
classified documents and information submitted by the Ministry of
Defence to the Supreme Military Administrative Court. He further
maintained that although he had not been informed of the exact reason
for the decision of the Turkish General Staff, this measure had
allegedly been based on an action or statement proscribed by Article
664 § 4 (c) of the Internal Service Regulation and thus had
violated his rights under Articles 9, 10 and 11 of the
Convention.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Lack of access to classified documents (Article 6 of
the Convention)
- 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; 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
classified documents submitted to the Supreme Military Administrative
Court.
2. Articles 9, 10 and 11 of the Convention
- The
Court considers that the main legal question raised by the instant
application is whether the applicant’s request for the
annulment of the banning order had been rejected by way of a fair
hearing within the meaning of Article 6 of the Convention. Having
already replied to this question in the negative (see paragraph 15
above), the Court is of the opinion that there is no need to give a
separate ruling on this complaint (see Güner Çorum,
cited above, § 35, and Topal, cited above, § 20).
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. He further argued under Article 14 of
the Convention and Article 1 of Protocol No. 12 that the
prohibition of his access to the army’s social facilities,
while other retired officers could benefit from this right, had
amounted to discrimination. Lastly, he contended under Article 2 of
Protocol No. 7 that there was no appeal against the decisions of the
Supreme Military Administrative Court.
- 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, 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, and Yavuz Selim Karayigit v. Turkey (dec.), no.
45874/05, 23 September 2008). It follows that these complaints 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 did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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 and the complaint under Articles 9, 10 and 11 of the
Convention 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 that there is no need to examine
separately the complaint under Articles 9, 10 and 11 of the
Convention.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
