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 CİHANGÜL v. TURKEY
(Application
no. 44292/04)
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 Cihangül 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. 44292/04) 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 Erol Cihangül (“the
applicant”), on 25 October 2004. The applicant was represented
by Mr O. Çelen, a lawyer practising in Ankara. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
29 November 2007 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 1980 and lives in Istanbul. On 5 March
2003 he was expelled from a military academy as he was found
unsuitable to be a student there following a secret security
investigation conducted on him and his family. The applicant was not
notified of the specific reasons for his expulsion.
- Subsequently,
the applicant asked the Supreme Military Administrative Court to
annul the expulsion decision. During the proceedings, he did not have
access to the classified documents and information submitted by the
Ministry of Defence to the Supreme Military Administrative Court in
support of its decision to expel him from the military academy.
- On
25 February 2004 the Supreme Military Administrative Court rejected
the applicant's request. It stated that information and documents the
confidentiality of which was required and necessitated for the
performance of military service could not be disclosed to the
applicant. The court further emphasised that it was not bound by the
classification made by the administration and that it made its own
assessment as to whether the confidentiality of the documents was
justified in each case. The written opinion submitted by the public
prosecutor to the Supreme Military Administrative Court during the
proceedings was not communicated to the applicant.
- The
applicant subsequently requested the rectification of the Supreme
Military Administrative Court's decision, arguing that his inability
to access the results of the security investigation due to their
allegedly confidential nature precluded him from duly defending
himself.
- On
20 May 2004 the Supreme Military Administrative Court rejected the
applicant's rectification request.
II. RELEVANT 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 public prosecutor submitted to this court.
A. Admissibility
- Relying
mainly on the jurisprudence of Pellegrin v. France ([GC],
no. 28541/95, ECHR 1999 VIII), the Government argued that
Article 6 § 1 of the Convention was not applicable in the
instant case on account of the special relationship that existed
between the applicant and the State.
- The Court notes that it has recently revised its
case-law concerning the applicability of Article 6 § 1 to
disputes between the State and civil servants in its Vilho
Eskelinen and Others v. Finland judgment ([GC], no. 63235/00,
§ 62, ECHR 2007 IV). Having regard to the new criteria
adopted in the aforementioned case, the Court notes that the
Government failed to demonstrate, first, that the applicant did not
have a right of access to a court under national law and, secondly,
that any exclusion of the rights under Article 6 for the applicant
was justified by the subject matter of the dispute. In these
circumstances, the Court considers that Article 6 § 1 is
applicable in the instant case and it therefore dismisses the
Government's preliminary objection (see Miran v. Turkey, no.
43980/04, §§ 9-12, 21 April 2009, and Topal v.
Turkey, no. 3055/04, §§ 12-15, 21 April 2009).
- The
Court further notes that these complaints are not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that they are not inadmissible on any other grounds.
This part of the application must therefore be declared admissible.
B. Merits
- As
regards the applicant's complaint concerning the 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. As for the complaint concerning
lack of access to classified documents, the Government argued that
such confidentiality was required for public interest reasons.
- 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; Meral v. Turkey,
no. 33446/02, §§ 32-39, 27 November 2007; Miran,
cited above, §§ 13 18; Topal, cited above,
§§ 16 and 17). 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 and 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, in the first place, that he had been denied a
fair hearing by an independent and impartial tribunal in violation of
Article 6 § 1 as the Supreme Military Administrative Court
had been composed of military judges and that it had acted as a first
and only instance court. He further maintained under this provision
that the decision of the Supreme Military Administrative Court had
lacked reasoning and that it had not been possible to know in advance
which chamber of this court would examine the case. Lastly, he
alleged a violation of Articles 13, 17 and 18 of the Convention.
- 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 appeal procedure against
decisions of the Supreme Military Administrative Court and the
impossibility of knowing which chamber of this court will examine a
case, see Yavuz Selim Karayigit v. Turkey (dec.),
no. 45874/05, 23 September 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
A. Damage and Costs and Expenses
- The
applicant claimed 30,000 euros (EUR) as pecuniary damage for the loss
of income he had been deprived of during the time he spent at the
military academy and subsequent to his expulsion while he was looking
for a job. He also claimed EUR 20,000 for non pecuniary damage
and EUR 3,000 for costs and expenses. The applicant did not
submit any justification in support of his claims, all of which the
Government contested.
- 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 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, 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 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
