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SECOND
SECTION
CASE OF TEVFİK OKUR v. TURKEY
(Application
no. 2843/05)
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 Tevfik Okur 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. 2843/05) 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 Tevfik Okur (“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
23 September 2008 the Court declared the application partly
inadmissible and decided to communicate the complaints 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 principal public prosecutor's written opinion to
the Government. It 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 Nevşehir, was a civil
servant working for the Turkish Armed Forces at the time of the
events giving rise to this application.
- On
10 September 2003 the Supreme Disciplinary Council of the Ministry of
Defence decided to dismiss the applicant from service for misconduct
in office following his criminal conviction by a martial law court.
- The
applicant subsequently requested the annulment of the dismissal
decision from the Supreme Military Administrative Court.
- In
its reply to the submissions of the applicant, the Ministry of
Defence stated that the applicant had been dismissed in accordance
with the relevant provisions of Law no. 657 on Civil Servants and the
regulation on disciplinary councils and superiors concerning civil
servants employed in the Turkish Armed Forces (Türk Silahlı
Kuvvetlerinde Görevli Devlet Memurları Disiplin Kurulları
ve Disiplin Amirleri Yönetmeliği). The Ministry of
Defence also submitted certain documents and information to the
Supreme Military Administrative Court, which were classified as
“secret documents” under Article 52 (4) of Law no. 1602
on Supreme Military Administrative Court. These documents were not
disclosed to the applicant.
- On
24 June 2004 the Supreme Military Administrative Court rejected the
applicant's request. The written opinion submitted by the principal
public prosecutor to the Supreme Military Administrative Court during
the proceedings was not communicated to the applicant.
- On
16 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 replied to the
opinion of the principal public prosecutor when it was read out
during the hearing.
- 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 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 reason for the applicant's dismissal
from service was clearly stated in the judgment of the Supreme
Military Administrative Court and that the documents submitted under
Article 52 (4) of Law no. 1602 had no significance for the
outcome of the proceedings.
- 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; 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. The Court notes particularly
that the Government's allegations concerning the insignificance of
the secret documents submitted to the Supreme Military Administrative
Court makes their non-disclosure to the applicant all the more
unjustifiable in terms of fairness of the proceedings.
- 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.
- The
Court points out that it has previously examined similar complaints
and found a violation of Article 6 § 1 of the Convention (see
Meral v. Turkey, no. 33446/02, §§ 32-39, 27 November
2007, and 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. 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,
which was the total amount of salaries he would have received until
his retirement but for his dismissal, and EUR 25,000 for
non-pecuniary damage. The applicant also claimed EUR 5,000 for costs
and expenses, without submitting any documents in support of his
claim.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Kingsley v. the United
Kingdom [GC], no. 35605/97, § 40, ECHR 2002 IV). It
therefore rejects this claim. The Court considers, however, that the
applicant must have suffered non-pecuniary damage which the findings
of a violation of the Convention in the present judgment do not
suffice to remedy. Ruling on an equitable basis, in accordance with
Article 41, it awards the applicant EUR 6,500 (see Güner
Çorum, cited above, § 39; Aksoy (Eroğlu),
cited above, § 39; Miran, cited above, § 22; Topal,
cited above, § 23). As regards the costs and expenses, the Court
makes no award under this head as the applicant failed to
substantiate his 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 6,500 (six thousand
five hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Turkish liras 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;
- Dismisses [unanimously] the remainder of the
applicant's claim for just satisfaction.
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
