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SECOND
SECTION
CASE OF ARSLANTAY v. TURKEY
(Application
no. 9548/06)
JUDGMENT
STRASBOURG
14
December 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 Arslantay v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9548/06) 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 Yusuf Kenan Arslantay
(“the applicant”), on 21 February 2006. The applicant was
represented by Mr A.L. Koçer, 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1986 and lives in Adana.
- Subsequent
to his expulsion from a military academy due to his health problems,
the applicant brought a case before the Supreme Military
Administrative Court against the Ministry of Defence (“the
Ministry”) for damages. The applicant argued that the alleged
delay in the diagnosis of his medical condition had led to his unfair
expulsion, which had inflicted pecuniary and non-pecuniary damages on
him.
- On
24 November 2004 the Supreme Military Administrative Court held a
hearing, where it heard the parties and the opinion of the principal
public prosecutor, which had previously been submitted to the court
in writing. On 21 September 2005, relying on the findings of medical
experts, the Supreme Military Administrative Court refused the
applicant's claim for damages. On 23 November 2005 it 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: NON-COMMUNICATION OF THE WRITTEN OPINION OF THE PRINCIPAL
PUBLIC PROSECUTOR
- The
applicant complained that the written opinion of the principal public
prosecutor submitted to the Supreme Military Administrative Court
during the proceedings had not been communicated to him, in breach of
the equality of arms principle safeguarded under Article 6 § 1
of the Convention.
- 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.
- As
for the 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 case as the applicant had had the option of
examining the case file and the written opinion of the principal
public prosecutor prior to the hearing, as well as the further
opportunity of replying to this opinion during the hearing.
- 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;
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 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 under Article 6 § 1 of the Convention that
he had not had access to the documents, confidential or other,
submitted by the Ministry to the Supreme Military Administrative
Court; that this court had lacked independence and impartiality on
account of its composition; that there had been no possibility of
appeal against the decisions of the Supreme Military Administrative
Court; that it had not been possible to know in advance which chamber
of this court would examine the case; and that the Supreme Military
Administrative Court's decisions had been erroneous and not
sufficiently reasoned. The applicant also alleged violations of
Articles 8 § 2, 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; as regards the complaint concerning the erroneous and
insufficient reasoning in the domestic court's decision, see García
Ruiz v. Spain ([GC], no. 30544/96, ECHR 1999-I); Van de Hurk
v. the Netherlands, 19 April 1994, § 61, Series A no.
288; Skorik v. Ukraine (dec.), no. 32671/02, 8 January 2008).
- 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
Damage and costs and expenses
- The
applicant claimed 30,000 euros (EUR) in respect of pecuniary damage
and EUR 15,000 for non-pecuniary damage. He also claimed EUR 5,000
for the costs and expenses incurred before the Court, without
submitting any supporting documents.
- The
Government contested the applicant's claims as being unsubstantiated
and fictitious.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
to the alleged non-pecuniary damage, the Court considers that it is
sufficiently compensated by the finding of a violation of Article 6
§ 1 in paragraph 11 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 applicant has failed to submit any documentary evidence in
support of his claims.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention concerning the non-communication of the written
opinion of the principal public prosecutor to the applicant during
the proceedings before the Supreme Military Administrative Court
admissible and the remainder of the application inadmissible;
- 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
