BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF KARAARSLAN v. TURKEY
(Application
no. 4027/05)
JUDGMENT
STRASBOURG
27 July
2010
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 Karaarslan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley
Naismith, Section
Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4027/05) 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 Utku Karaarslan (“the
applicant”), on 3 December 2004. The applicant was represented
by Mr C. Çalış, a lawyer 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
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 was born in 1970 and lives in Ankara.
- The
applicant was dismissed from his job at military facilities following
disciplinary proceedings instituted by the Supreme Disciplinary Board
of the Ministry of Defence against him for misconduct in office. He
subsequently lodged an application with the Supreme Military
Administrative Court against the Ministry of Defence for the
annulment of his dismissal.
- The
Ministry of Defence submitted certain documents and information to
the Supreme Military Administrative Court regarding the applicant's
dismissal, which were classified as “secret documents”
under Article 52 (4) of Law no. 1602 on the Supreme Military
Administrative Court. These documents were not disclosed to the
applicant.
- On
1 July 2004 the Supreme Military Administrative Court held a hearing
where it rejected the applicant's request. The written opinion
submitted by the principal public prosecutor to this court during the
proceedings was not communicated to the applicant.
- On
23 September 2004 the Supreme Military Administrative Court dismissed
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 under Article 6 § 1 of the Convention that
the principle of equality of arms had been infringed on account of
his lack of access to the classified documents and information
submitted by the Ministry of Defence to the Supreme Military
Administrative Court and the non-communication to him of the written
opinion of the principal public prosecutor attached to this court.
A. Admissibility
- The
Government asked the Court to dismiss the complaint regarding the
non-communication of the written opinion of the principal public
prosecutor for failure to exhaust domestic remedies under Article 35
§ 1 of the Convention. The Government maintained in this regard
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.
B. Merits
1. Lack of access to classified documents
- The
Government contended that the applicant had been aware of the content
of the documents submitted to the Supreme Military Administrative
Court under Article 52 (4) of Law no. 1602.
- 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, cited
above, §§ 13 and 14; 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. Non-communication of the principal public
prosecutor's written opinion
- 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 in administrative proceedings and that the role of the
public prosecutor in administrative proceedings differed from those
in criminal proceedings.
- The
Court points out that it has previously examined similar complaints
and found a violation of Article 6 § 1 of the Convention (see
Miran, cited above, §§ 15-18). 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 that he had been denied a fair hearing by an
independent and impartial tribunal in violation of Article 6 § 1
of the Convention as the Supreme Military Administrative Court had
been composed of military judges and officers and it had acted as a
first and only instance. He further maintained under this provision
that it had not been possible to know in advance which chamber of
this court would examine the case. Lastly, he alleged violations of
Articles 8, 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).
- 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. Damage and costs and expenses
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary damage
and EUR 25,000 for non-pecuniary damage. He also claimed EUR 5,750
for the costs and expenses incurred before the domestic courts and
the Court. That sum comprised legal representation costs (EUR 685
for legal representation during the domestic proceedings and EUR
5,000 for representation before the Court), domestic court fees (EUR
53) and translation expenses (EUR 540). Apart from submitting an
invoice from the translation office, the applicant only documented a
part of his expenses before the domestic courts and did not submit
any proof of the costs and expenses incurred before the Court.
- The
Government contested these claims as being unsubstantiated and
fictitious. They further contended that the applicant could not make
any claims in respect of the costs and expenses incurred during the
domestic proceedings.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have suffered
non pecuniary damage which the finding of a violation of the
Convention in the present judgment do not suffice to remedy. Ruling
on an equitable basis, 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).
- As
for costs and expenses, according to 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 were reasonable as to quantum. In the
present case, regard being had to the documents in its possession and
the above criteria, the Court considers it reasonable to award the
applicant the sum of EUR 540 for his costs and expenses.
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 complaints under Article 6 § 1
of the Convention concerning the applicant's lack of access to
classified documents submitted to the Supreme Military Administrative
Court and the non-communication to the applicant of the written
opinion of the principal public prosecutor 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 and the non-communication to the applicant of
the written opinion of the principal public prosecutor;
- Holds
(a) 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, the following amounts to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
6,500 (six thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
540 (five hundred and forty euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
