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SECOND
SECTION
CASE OF YILMAZ AND ZABUN v. TURKEY
(Applications
nos. 16231/06 and 4890/08)
JUDGMENT
STRASBOURG
12
October 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 Yılmaz and
Zabun 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 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 16231/06 and 4890/08)
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
Hakan Yılmaz and Mr Taner Zabun (“the applicants”),
on 3 April 2006 and 15 January 2008, respectively.
- The
first applicant was represented by Mr H. İşler, a lawyer
practising in Ankara. The second applicant was represented by Mr A.
Okat, a lawyer practising in Kütahya. 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 applications to the Government. It was also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants were born in 1980 and 1975, respectively, and live in
Ankara and Kütahya.
- The
first applicant lost the sight of his right eye and the second
applicant was injured in the legs during their compulsory military
service. Upon the refusal of the Retirement Fund (Emekli Sandığı)
to grant them special disability benefits, they applied to the
Supreme Military Administrative Court, separately, for annulment of
the Retirement Fund's decisions.
- On
6 October 2005 and 5 April 2007, respectively, the Supreme Military
Administrative Court rejected their requests. In delivering its
decision in respect of the first applicant, the Supreme Military
Administrative Court relied on an old expert report which it had
obtained during an action for damages filed previously by the
applicant regarding the same disability. The written opinions
submitted by the principal public prosecutor to the Supreme Military
Administrative Court regarding their cases were not communicated to
the applicants.
- The
applicants' requests for rectification were rejected by the Supreme
Military Administrative Court on 15 December 2005 and 5 July
2007, respectively. The decision of 5 July 2007 was served on the
second applicant on 17 July 2007.
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
- Given
the similarity of the applications, both as regards fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicants complained that the written opinion of the principal
public prosecutor submitted to the Supreme Military Administrative
Court had not been communicated to them, in breach of the equality of
arms principle safeguarded under Article 6 § 1 of the
Convention.
A. Admissibility
- The
Government argued that the second applicant (application no. 4890/08)
had failed to comply with the six-month rule laid down in Article 35
§ 1 of the Convention. They argued that the Supreme Military
Administrative Court having delivered its final decision in the case
on 5 July 2007, the applicant should have lodged his application
to the Court no later than 5 January 2008.
- The
Court reiterates that the six-month time-limit imposed by Article 35
§ 1 of the Convention requires applicants to lodge their
applications within six months of the final decision in the process
of exhaustion of domestic remedies, and that, where an applicant is
entitled to be served automatically with a written copy of the final
domestic decision, the object and purpose of Article 35 § 1 of
the Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see amongst
many examples Salmanoğlu and Polattaş v. Turkey,
no. 15828/03, § 72, 17 March 2009). The Court notes that the
final decision of the Supreme Military Administrative Court dated
5 July 2007 was served on the applicant's lawyer on 17 July
2007. The Court therefore considers that the application lodged on 15
January 2008 complied with the six-month time-limit under Article 35
§ 1 of the Convention. It thus dismisses the Government's
preliminary objection in this connection.
- The
Court notes that this complaint 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
- The
Government contended that, unlike in criminal proceedings, the
principal public prosecutor in administrative proceedings was not a
party to the case and his or her opinion had no influence on the
decision of the administrative court. The Government also argued that
the principle of equality of arms had not been infringed in the
instant cases as the applicants had had the option of examining the
case files and the written opinions of the principal public
prosecutor prior to the hearings, as well as the further opportunity
of replying to these opinions during the hearings.
- The
Court observes that it has already examined and dismissed similar
submissions by the Government in previous cases and found a violation
of Article 6 § 1 of the Convention (see, amongst others, Miran
v. Turkey, no. 43980/04, §§ 15-18, 21 April 2009;
and Yavuz Selim Karayiğit v. Turkey, no. 45874/05, §§
11-15, 27 October 2009). It considers that the Government have not
put forward any fact or argument in the instant cases 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
opinions of the principal public prosecutor to the applicants.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants argued under Article 6 § 1 of the Convention that
they had been denied a fair hearing by an independent and impartial
tribunal as the Supreme Military Administrative Court had been
composed of military judges and officers and that this court had
acted as a first and only instance court.
- 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 complaint concerning the lack of an appeal procedure, see
Karayiğit (dec.), cited above).
- The
first applicant (application no. 16231/06) also complained under
Article 6 § 1 of the Convention of the Supreme Military
Administrative Court's failure to obtain a new expert report in
connection with the underlying causes of his disability.
- The
Court reiterates that the admissibility of evidence is governed
primarily by the rules of domestic law. The Court considers in this
connection that the Supreme Military Administrative Court was
entitled to take the view that it had sufficient information for it
to be able to give judgment on the basis of the evidence before it.
Accordingly, and in the absence of any apparent arbitrariness in the
conduct of the domestic court, the fact that it did not order a new
expert opinion did not infringe the applicant's right to a fair
trial.
- 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
A. Damage and costs and expenses
-
The first applicant claimed 30,000 euros (EUR) in total as pecuniary
and non-pecuniary damage. The second applicant claimed EUR 100,000
and EUR 50,000 in respect of pecuniary and non-pecuniary damage,
respectively. The first applicant also claimed EUR 2,500 for the
costs and expenses incurred before the Court. The second applicant
claimed EUR 1,500 under this head. The applicants did not submit
any legal fee agreements, receipts or other vouchers in respect of
their costs and expenses.
- The
Government contested these claims as being unsubstantiated.
- The
Court does not discern any causal link between the violations found
and the pecuniary damages alleged; it therefore rejects these claims.
As to the alleged non-pecuniary damage of the applicants, the Court
considers that they are sufficiently compensated by the finding of a
violation of Article 6 § 1 in paragraph 16 above (see Meral
v. Turkey, no. 33446/02, § 58, 27 November 2007;
and Dikel v. Turkey, no. 8543/05, § 18, 29
September 2009).
- As
for costs and expenses, the Court makes no award under this head as
the applicants have failed to submit any documentary evidence in
support of their claims.
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
- Decides to join the applications;
- Declares admissible the complaints under
Article 6 § 1 of the Convention concerning the
non-communication of the written opinion of the principal public
prosecutor to the applicants during the proceedings before the
Supreme Military Administrative Court;
- Declares inadmissible the remainder of the
applications;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 12 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
