UNAL AND OTHERS v. TURKEY - 61981/09 (Judgment : Violation of Right to a fair trial - Administrative proceedings - Fair hearing) [2017] ECHR 1003 (14 November 2017)

In the case of Ünal and Others v. Turkey,

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

          Nebojša Vučinić, President,
          Paul Lemmens,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 17 October 2017,

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

PROCEDURE

1. The cases originated in three applications (nos. 61981/09, 57632/10 and 48915/11) 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 three Turkish nationals, Mr Nuri Ünal, Mr Ahmet Gurlaş and Mr İsa Ünlü (“the applicants”), whose details are set out in the attached appendix.

2. The Government were represented by their Agent.

3. On 22 September 2015 the complaints raised under Article 6 of the Convention were communicated to the Government and the remainder of the applications was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. 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.

5. 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 AND PRACTICE

6. A description of the domestic law may be found in the judgment of Aksoy (Eroğlu) v. Turkey, no. 59741/00, § 17, 31 October 2006.

THE LAW

I. JOINDER OF THE APPLICATIONS

7. 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

8. The applicants complained under Article 6 § 1 of the Convention about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of their inability to access the classified documents submitted by the Ministry of Defence to that court in the course of the judicial proceedings.

A. Admissibility

9. The Court notes that the applications are 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

10. The Court notes that it has previously examined similar complaints and found a violation of Article 6 § 1 of the convention (see Aksoy (Eroğlu) v. Turkey, no. 59741/00, §§ 24-31, 31 October 2006; Topal v. Turkey, no. 3055/04, §§ 16-17, 21 April 2009; and Cevahirli v. Turkey, no. 15067/04, §§ 13-14, 19 October 2010). The Court finds no particular circumstances in the present case which would require it to depart from this jurisprudence.

11. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the applicants’ lack of access to the classified documents submitted by the Ministry of Defence to the Supreme Military Administrative Court.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. The first two applicants (applications nos. 61898/09 and 57632/10) did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

13. In application no. 48915/11, the applicant did not submit a compensation claim for non-pecuniary or pecuniary damage. Accordingly, the Court is not called to award him any some on those accounts. As for costs and expenses, the applicant claimed 5,144 euros (EUR) stating that his representative carried out 32 hours’ legal work. 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 information in its possession and the above criteria, the Court finds it reasonable to award EUR 1,000 to the applicant in application no. 48915/11 in respect of costs and expenses. The Court further 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,

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;

4. Holds

(a) that the respondent State is to pay the applicant in application no. 48915/11, within three months, EUR 1,000 (one thousand 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;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction in application no. 48915/11.

Done in English, and notified in writing on 14 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Nebojša Vučinić
Deputy Registrar President

APPENDIX

No.	Application No.	Lodged on	Applicant Name Date of Birth Place of residence	Represented by	Case specific notes
1.	61989/09	26/10/2009	Nuri Ünal 1990 Aydın	Dursun Bıyık İzmir	On 21 February 2008 the applicant was dismissed from the naval military academy following a security investigation for non-compliance with the pre-conditions for admission. On 22 July 2009 the SMAC rejected the applicant’s rectification request.
2.	57632/10	10/08/2010	Ahmet Gurlaş 1989 Kayseri	Mehmet Kasap Ankara	On 18 August 2009 the applicant was dismissed from the Air Force Military Academy due to non-compliance with the pre-conditions for admission. On 22 February 2010 the SMAC rejected the applicant’s claim.
3.	48915/11	07/04/2011	İsa Ünlü 1987 Şanlıurfa	Kadir Kocalar Ankara	On 20 July 2007 the applicant was dismissed from the Gendarmerie Expert non-commissioned officer vocational high school due to non-compliance with disciplinary rules. On 14 October 2010, the SMAC rejected the applicant’s rectification request.

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