332/13

SECOND SECTION             CASE OF KAYA v. TURKEY   (Application no. 332/13)                 JUDGMENT           STRASBOURG   12 December 2017             This judgment is final but it may be subject to editorial revision. In the case of Kaya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:  Julia Laffranque, President,  Jon Fridrik Kjølbro,  Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 21 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 332/13) 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 Mehmet Ali Kaya (“the applicant”), on 1 November 2012. 2.  The Turkish Government (“the Government”) were represented by their Agent. 3.  On 3 November 2016 the complaints concerning the alleged unfairness of the proceedings before the Supreme Military Administrative Court on account of the applicant’s inability to access the classified documents submitted by the Ministry of Defence, and the alleged independence and impartiality of the tribunal because of the presence of two military officers sitting on the bench who did not enjoy the same judicial guarantees as the other military judges, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and lives in Diyarbakır. 5. The applicant was an officer in the Army. On 1 August 1989, relying on classified investigation reports, the applicant’s contract was terminated and he was dismissed from his office. At the time, he did not have access to the classified reports and there was no remedy against this decision. Subsequently, following the adoption of a new law in 2011, the applicant once again applied to the Ministry of Defence on 7 April 2011, and asked for reinstatement. His request was rejected. 6.  On 4 August 2011 the applicant initiated proceedings before the Supreme Military Administrative Court to have the annulment of the decision of the Ministry of Defence. During the proceedings, the defendant party submitted classified documents for the court’s consideration. On 24 April 2012 the Supreme Military Administrative Court rejected the applicant’s case. This decision was served on the applicant on 15 May 2012. II.  RELEVANT DOMESTIC LAW 7.  A description of the domestic law at the material time can be found in Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000), and Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015). THE LAW I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 8.  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. A.  Concerning the independence and impartiality of the Supreme Military Administrative Court 1.  Admissibility 9.  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. 10.  The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and 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). 11.  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. 2.  Merits 12.  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. 13.  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. B.  Concerning the access to the classified documents 14.  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. 15.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 16.  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). II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION A.  Damage 17.  The applicant claimed 600,000 euros (EUR) in respect of pecuniary and EUR 100,000 non-pecuniary damage. 18. The Government contested the claims. 19. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made under this head. As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant. B.  Costs and expenses 20.  The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 21.  The Government contested the claim. 22.  In accordance with 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, the applicant has not substantiated his claim in respect of legal fees. Accordingly, the Court does not make any award under this head. C.  Default interest 23.  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 Military Administrative Court;   4.  Holds that (a)  the respondent State is to pay the applicant, within three months EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;   5.  Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Hasan Bakırcı Julia Laffranque Deputy Registrar President