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 KELOĞLAN AND OTHERS v. TURKEY
(Applications nos. 14019/07, 46287/07 and 19387/08)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Keloğlan and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 14019/07, 46287/07 and
19387/08) 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 three Turkish
nationals, Mr Ramazan Keloğlan, Mr Gökhan Yıldırım
and Mr Tarık Kuruldak (“the applicants”), on 19
March 2007, 10 October 2007 and 10 April 2008, respectively.
- The
applicants were represented by Mr İ. Çetin, Mr K. Bilgiç
and Mr R. Hallaçoğlu and Mr N. K. Tüylüce,
lawyers practising in Ankara, Kocaeli and Adana, respectively. The
Turkish Government (“the Government”) were
represented by their Agent.
- On
26 May 2009 the Court declared the applications partly inadmissible
and decided to communicate to the Government the complaint concerning
the infringement of the right to adversarial proceedings and the
principle of equality of arms on account of the lack of access to
classified documents submitted by the Ministry of Defence to the
Supreme Military Administrative Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, who are former military students, were born in 1988, 1987
and 1991 respectively and live in Ankara, Kocaeli and Adana.
- On
different dates the applicants were expelled from military schools
following disciplinary decisions, which held that the applicants did
not possess the requisite attributes of a military student as defined
in the relevant legislations. The applicants were not provided with
any further information regarding the reasons for their expulsions.
- The
applicants subsequently brought separate actions before the Supreme
Military Administrative Court against the Ministry of Defence,
requesting this court to quash the disciplinary decisions ordering
their expulsions.
- The
Ministry of Defence submitted certain documents and information to
the Supreme Military Administrative Court during the course of the
proceedings, 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
applicants.
- On
27 September 2006, 22 November 2006 and 3 October 2007, respectively,
the Supreme Military Administrative Court rejected the applicants’
request. The judgment of 3 October 2007 was served on the third
applicant on 25 October 2007. Citing the relevant legislation, the
Supreme Military Administrative Court held that a student could be
lawfully expelled from a military school by a disciplinary board
decision if he was found to have lost the attributes of a military
student during the course of his studies or if it became apparent at
such time that he did not possess the necessary qualifications from
the start. The applicants, who were found to lack the requisite
attributes of a military student following a secret security
investigation conducted on them and their families, were thus
lawfully expelled from their schools.
- On
15 November 2006 and 12 September 2007, respectively, the Supreme
Military Administrative Court rejected the first and second
applicants’ rectification request. The third applicant did not
seek rectification.
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
applicants complained under Article 6 § 1 of the Convention that
their lack of access to the documents submitted by the Ministry of
Defence to the Supreme Military Administrative Court had infringed
their right to adversarial proceedings, together with the principle
of equality of arms. The second applicant, Mr Yıldırım
(application no. 46287/07), also complained that his expulsion from
the military school on the basis of a secret security investigation,
the results of which had not been disclosed to him, had been unfair.
- The
Court notes that the remaining part of these applications 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, the Government argued that the nature of the
functions performed by the armed forces necessitated the
confidentiality of certain information and documents. They further
stated that the applicants had in any event been aware of the reasons
underlying the measures imposed on them.
- The
Court considers in the first place that Mr Yıldırım’s
complaint regarding his expulsion from the military school on the
basis of a secret security investigation should be examined from the
standpoint of Article 6 § 1 of the Convention, as
it is an integral part of the question of the fairness of the
proceedings before the Supreme Military Administrative Court.
- Secondly,
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 v.
Turkey, no. 43980/04, §§ 13 and 14, 21 April 2009; and
Topal v. Turkey, no. 3055/04, §§ 16 and
17, 21 April 2009). It considers that the Government have not put
forward any fact or argument in the instant applications which would
require it to depart from its previous findings and which would
justify the encroachment on the applicants’ right to
adversarial proceedings. The Court particularly notes that although
in certain circumstances it may be justifiable to withhold evidence
from an opposing party for public interest reasons, the Government
have failed to show that such measure was strictly necessary in the
instant cases (see Van Mechelen and Others v. the Netherlands,
23 April 1997, § 58, Reports of Judgments and Decisions
1997-III).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of the applicants’ lack of access to the
classified documents submitted by the Ministry of Defence to the
Supreme Military Administrative Court in support of its decision to
expel the applicants from their respective schools.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
- The
first applicant claimed 70,000 Turkish liras (TRY) (equivalent of
approximately 33,570 euros (EUR)) in respect of pecuniary damage and
TRY 50,000 (equivalent of approximately EUR 23,980) as non-pecuniary
damage. He did not submit any claims in respect of cost and expenses.
The second applicant claimed a total amount of EUR 80,000 as
pecuniary and non-pecuniary damage and costs and expenses. The third
applicant claimed TRY 78,181.74 (equivalent of approximately EUR
37,280) in respect of pecuniary and non-pecuniary damage and TRY
20,000 (equivalent of approximately EUR 9,500) for the costs and
expenses incurred before the domestic courts and the Court. Both the
second and the third applicant submitted fee agreements executed with
their respective representatives in support of their claims, but did
not provide time sheets demonstrating the hours spent by their
representatives on the case
- The
Government contested these claims as being unsubstantiated and
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged by the applicants; it therefore
rejects the applicants’ claims for pecuniary damage. However,
it considers that the applicants 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 applicants EUR 6,500 each in respect of
non-pecuniary damage (Güner Çorum, cited above, §
39; Aksoy (Eroğlu), cited above, § 39; Miran,
cited above, § 22; and 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 second
and the third applicants the sum of EUR 2,000 each for their costs
and expenses.
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 applications
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 applicants,
within three months, 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) to each of the applicants (Mr
Ramazan Keloğlan, Mr Gökhan Yıldırım and
Mr Tarık Kuruldak), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros) to Mr Gökhan Yıldırım
and Mr Tarık Kuruldak, separately, plus any tax that may be
chargeable to these applicants, 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 applicants’
claims for just satisfaction.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub
Popović
Deputy Registrar President
