SECOND SECTION

CASE OF PALİTKIRAN v. TURKEY

(Application no. 72006/10)

JUDGMENT

STRASBOURG

10 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Palitkıran v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Paul Lemmens,
	Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Section Deputy Registrar,
Having deliberated in private on 5 September 2017,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1.  The case originated in an application (no. 72006/10) 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 Yunus Palitkıran (“the applicant”), on 1 November 2010.
2.  The applicant was represented by Mr T. Yıldırım, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 22 September 2015 the application was communicated to the Government.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1989 and lives in Manisa.
6.  The facts of the case, as submitted by the parties, may be summarised as follows.
7.  On 7 July 2009 the applicant was dismissed from the Expert Gendarmerie School due to non-compliance with disciplinary rules.
8.  On 28 July 2009 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the decision to dismiss him.
9.  On 6 January 2010 the Supreme Military Administrative Court rejected the applicant’s case, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant.
10.  On 5 May 2010 the applicant’s request for rectification was rejected by the same court.
Article II.	II.  RELEVANT DOMESTIC LAW
11.  A description of the domestic law at the material time can be found in Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015), and Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
12.  Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. He further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings.
Section 3.01	A.  Concerning the independence and impartiality of the Supreme Military Administrative Court
(a)	1.  Admissibility
13.  The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicant failed to lodge a motion, requesting the disqualification of the military judges.
14.  The applicant did not comment on that argument.
15.  The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and statutory law. Accordingly, any objection filed by the applicant regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see, mutadis mutandis, Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000, and Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008).
16.  Thus, such a request before the national authorities would not have remedied the situation complained of. It follows that this objection should be dismissed. The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
17.   The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention. It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.
18.  There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court.
Section 3.02	B.  Concerning the access to the classified documents
19.  The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence.
20.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
21.  Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine this complaint (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998‑IV; Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no. 24087/07, § 33, 14 March 2017).
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
Section 4.01	A.  Damage
22.  The applicant claimed 88,921 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of the non-pecuniary damage.
23.  The Government contested the amount claimed by the applicant.
24.  As regards the pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicant under this head. As regards non-pecuniary damage, and ruling on an equitable basis, the Court awards the applicant EUR 1,500.
Section 4.02	B.  Costs and expenses
25. The applicant claimed EUR 1,833 for his lawyer’s legal fees and EUR 185 for the costs and expenses incurred before the domestic courts and the Court. In respect of his claims, the applicant submitted two invoices, signed by his representative, and vouchers concerning the litigation fees paid by him.
26.  The Government contested the claims.
27.  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, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 1,000 covering costs under all heads.
Section 4.03	C.  Default interest
28.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court;

3.  Holds that it is not necessary to consider the applicant’s complaint concerning his inability to have access to the classified documents submitted by the Ministry of Defence to the Supreme Ministry Administrative Court;

4.  Holds
(a)  that the respondent State is to pay to the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one 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 abovementioned 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Ledi Bianku
	Registrar	President