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SECOND
SECTION
CASE OF ÇATAK v. TURKEY
(Application
no. 26718/05)
JUDGMENT
STRASBOURG
6 October 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 Çatak 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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26718/05) 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 Uğur Çatak
(“the applicant”), on 13 July 2005. The applicant was
represented by Mr Ç. Bingölbalı, a lawyer practising
in İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
4 March 2008 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, who was born in 1985 and lives in İzmir, was a
student at a military academy. When he registered with the academy,
the applicant and his father had signed a promissory note for the
reimbursement of the applicant's educational expenses in the event of
his leaving the school, due to expulsion or otherwise.
- On
7 June 2004 the applicant was expelled from the military academy
following a secret security investigation conducted by the Ministry
of Defence into him and his family. The applicant was not notified of
the specific reasons for his expulsion.
- On
23 July 2004 the applicant asked the Supreme Military Administrative
Court to annul the expulsion decision.
- On
23 August 2004 the Ministry of Defence made submissions to the
Supreme Military Administrative Court, alleging that the applicant
had been expelled in compliance with the relevant laws. The Ministry
of Defence also supplied that court with the results of the security
investigation which had led to the applicant's expulsion in support
of its allegations. The applicant was not granted access to this
information, as it was classified as secret, in accordance with
Article 52 (4) of Law no. 1602 on the Supreme Military Administrative
Court.
- Following
an examination of the classified documents submitted by the Ministry
of Defence, on 15 December 2004 the Supreme Military Administrative
Court refused to annul the expulsion decision. The court acknowledged
that the security investigation conducted into the applicant and his
family had revealed that his father had previously been convicted of
forgery. It further held that this information justified the
applicant's expulsion under the relevant laws and regulations.
- On
18 January 2005 the applicant requested rectification of that
judgment, which the Supreme Military Administrative Court rejected on
16 February 2005.
- The
Ministry of Defence subsequently filed an action with the İzmir
Civil Court against the applicant for the reimbursement of his
educational expenses. On 14 April 2008 the İzmir Civil Court
ordered the applicant to pay the Ministry of Defence 12,355.61
Turkish liras (TRY) (approximately 6,000 euros (EUR)), plus
interest running from 7 June 2004.
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). In particular, Article 52 of Law no. 1602 on the
Supreme Military Administrative Court provides as follows:
“The Chambers
... may request the parties or the competent authorities to provide
them with all documents and information concerning the cases before
them ...
...
Nonetheless, the
Prime Minister, the Army Commander-in-Chief or the competent Minister
may refuse to submit the requested documents or information if they
concern the security or superior interests of the Republic of Turkey
... on condition of disclosing the reasons.
... the confidential documents requested
by the Chamber ..., as well as the [confidential] documents submitted
by the Administration ...cannot be the object of an examination by
the parties or their representatives ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied 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, which infringed the principle of
equality of arms safeguarded by Article 6 § 1 of the Convention.
- 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 which existed
between the applicant and the State. The applicant contested this
argument.
- 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
[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; Topal
v. Turkey, no. 3055/04, §§ 12-15, 21 April 2009).
It further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and
that it is not inadmissible on any other grounds. This part of the
application must therefore be declared admissible.
- As
regards the merits of this complaint, 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,
cited above, §§ 13 and 14; 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied a fair trial by an independent and impartial
tribunal on account of the composition of the Supreme Military
Administrative Court. He maintained that the failure of the Ministry
of Defence to inform him of the charges against him amounted to a
breach of Article 5 § 2 of the Convention and that the terms and
conditions of his expulsion from the military academy violated his
rights under Article 6 § 2. He lastly complained under Article
13 of the Convention that the Supreme Military Administrative Court
failed to state explicitly what means of redress against its decision
were available.
- 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
regards the complaints under Articles 5 § 2 and 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
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
1. Damage
- The
applicant claimed TRY 10,000 (approximately EUR 5,700) in
respect of pecuniary damage on account of the educational expenses
his father was asked to reimburse following his expulsion from the
military academy. He also requested that the payment order of the
İzmir Civil Court in the judgment of 14 April 2008 be lifted. He
further claimed EUR 10,000 in respect of non-pecuniary damage.
The Government contested these claims.
- The
Court notes in the first place that it may not order the lifting of a
payment order under Article 41 of the Convention, but may only
examine whether the applicant has suffered any recognisable pecuniary
damage because of such an order.
- The
Court considers that in the present case an award of just
satisfaction can only be based on the fact that the applicant did not
have the benefit of the guarantees of Article 6 of the Convention.
The Court cannot speculate as to the outcome of the trial had the
situation been otherwise and therefore rejects the applicant's claims
for pecuniary damage. The Court considers, however, that the
applicant must have suffered some 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).
2. Costs and expenses
- The
applicant also claimed TRY 3,000 (approximately EUR 1,700) for
legal representation and EUR 514.18 for translation costs. The
applicant submitted a fee agreement with his representative and an
invoice from a translation office in support of his requests.
- The
Government contested these claims.
- 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.
3. 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 admissible the complaint under Article
6 § 1 of the Convention concerning the lack of access to
classified documents submitted by the Ministry of Defence to the
Supreme Military Administrative Court;
- Declares inadmissible the remainder of the
application;
- 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 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
