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SECOND
SECTION
CASE OF AKIN ŞAHİN v. TURKEY
(Application
no. 9871/05)
JUDGMENT
STRASBOURG
14
September 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 Akın Şahin
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,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9871/05) 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 Akın Şahin
(“the applicant”), on 28 December 2004. The applicant was
represented by Mr M. An, 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, a former lieutenant, was born in 1975 and lives in
Istanbul.
- After
being expelled from the armed forces for disciplinary and ethical
reasons, mainly on account of his excessive indebtedness and his
failure to discharge his debts, the applicant brought an action
before the Supreme Military Administrative Court against the Ministry
of Defence for the annulment of the expulsion order.
- An
action for fraud was subsequently filed against the applicant before
the criminal courts.
- The
Ministry of Defence submitted certain documents and information to
the Supreme Military Administrative Court regarding the applicant's
expulsion, which were classified as “secret documents”
under Article 52 (4) of Law no. 1602 on the Supreme Military
Administrative Court. These documents were not disclosed to the
applicant.
- On
11 November 2003 the Supreme Military Administrative Court held a
hearing, which the applicant attended, and on 30 March 2004 it
rejected the applicant's case. The court refused to hear the
applicant's witnesses, holding that the witness statements would not
make any difference to the applicant's position in the circumstances
of the present case and that the examination could be sufficiently
conducted on the basis of the documents in the case file.
- On
6 July 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 OF THE CONVENTION
- The
applicant complained under Article 6 § 3 (b) 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.
- 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
regards the merits of this complaint, the Government contended that
the applicant had been aware of the content of the documents
submitted to the Supreme Military Administrative Court under Article
52 (4) of Law no. 1602.
- The
Court considers in the first place that this complaint should be
examined under Article 6 § 1 of the Convention in its civil
limb. The Court further 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 v. Turkey, no. 43980/04, §§ 13
and 14, 21 April 2009; and 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.
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he 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. He maintained under Article
6 § 3 (a) and (d) of the Convention that this court had refused
to hear his witnesses and under Article 6 § 2 that it had failed
to postpone the proceedings pending the outcome of the criminal case
filed against him. Lastly, he claimed that his expulsion from the
armed forces on account of his debts violated Article 1 of
Protocol No. 4.
- 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 regarding his proposed witnesses, see Perna v.
Italy [GC], no. 48898/99, § 29, ECHR 2003-V; as regards the
complaint under 6 § 2, see, mutatis mutandis, Tamay
and Others v. Turkey (dec.), no. 38287/04, 13 May 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
- The
applicant claimed 300,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 for non-pecuniary damage. As for the costs and
expenses, the applicant claimed EUR 10,000 for his legal
representation before the Court. He submitted a fee agreement
executed with his representative in support of his claim but did not
provide a time sheet demonstrating the hours spent by his
representative on the case.
- The
Government contested these 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.
However, it considers that the applicant must have suffered
non-pecuniary damage which the finding of a violation of the
Convention in the present judgment does not suffice to remedy. Ruling
on an equitable basis, 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
for costs and expenses, 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 are reasonable as to quantum. In the present
case, regard being had to the documentation in its possession and the
above criteria, the Court considers it reasonable to award the
applicant the sum of EUR 2,000 for costs and expenses.
- 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 complaint under Article 6 § 1
of the Convention concerning the applicant's lack of access to the
classified documents submitted to 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
(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, the following amounts to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
6,500 (six thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 14 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
