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SECOND
SECTION
CASE OF ÖZCAN KORKMAZ AND OTHERS v. TURKEY
(Applications
nos. 44058/04, 19807/05 and 26384/05)
JUDGMENT
STRASBOURG
1 December 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 Özcan Korkmaz
and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 44058/04, 19807/05 and
26384/05) 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 three Turkish
nationals, Mr Özcan Korkmaz, Mr Serkan Yazar and Mr Murat
İslam (“the applicants”), on 1 November 2004, 23 May
2005 and 27 June 2005 respectively. The applicants were represented,
respectively, by Ms T. Çelikyürek, Mr C. Calış
and Mr A. L. Koçer, lawyers practising in Ankara. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
23 September 2008 the Court declared the applications partly
inadmissible and decided to communicate to the Government the
complaints concerning the applicants' lack of access to the
classified documents submitted by the Ministry of Defence to the
Supreme Military Administrative Court (applications nos. 19807/05 and
26384/05) and the non-communication to the applicants of the
principal public prosecutor's written opinion (all applications), as
well as the submissions of the reporting judge, during the
proceedings before the Supreme Military Administrative Court
(application no. 44058/04). It also decided to examine the merits of
the applications at the same time as their admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants were all former members of the Turkish Armed Forces, who
had been discharged for disciplinary reasons.
- The
applicants brought separate proceedings before the Supreme Military
Administrative Court, requesting the annulment of their discharge.
- The
Supreme Military Administrative Court held, after hearing the parties
(except in application no. 44058/04 where no hearing was held) and
examining the confidential documents submitted by the Ministry of
Defence by virtue of Article 52 (4) of Law no. 1602, that the
applicants' discharges had been in conformity with the applicable
laws. Consequently, it rejected their annulment requests. Neither the
written opinion of the principal public prosecutor submitted to the
Supreme Military Administrative Court prior to the hearings, nor the
comments of the reporting judge which were entertained during the
deliberations, were communicated to the applicants.
- The
applicants subsequently requested the rectification of the Supreme
Military Administrative Court's decisions. Their requests were
rejected on the following days:
-
application no. 44058/04: 20 April 2004 (decision served on the
applicant on 3 May 2004)
-
application no. 19807/05: 26 April 2005
-
application no. 26384/05: 2 February 2005
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). In particular, Article 79 of Law no. 1602 on the
Supreme Military Administrative Court provides as follows:
“Prosecutors shall examine the files assigned to
them on behalf of the Principal Prosecutor and shall give their
written reasoned opinions on [his or her] behalf within thirty days
at the latest in proceedings [on the merits] ... [They] shall perform
other tasks assigned by the President and the Principal Prosecutor...
Prosecutors may demand, through the President, all types
of information and files from the relevant authorities.
Where deemed necessary by the Chambers and Assembly of
Chambers, prosecutors may [be asked to] express their opinions
orally...”
- Provisional
Article 2 of Law no. 1602 provides as follows in respect of the
functions of the reporting judge:
“...Rapporteurs shall duly examine the cases
assigned to them by the Presidents of the Chamber[s] and shall
provide the Chamber or the Assembly of Chambers with the necessary
explanations.
[The rapporteurs] shall give their opinion[s] and
conclusions orally and in writing, shall write draft judgments, [and]
draw up the necessary minutes. [They] shall perform other tasks
assigned by the President or the President of the Chamber[s].”
THE LAW
I. AS REGARDS THE APPLICANT MURAT İSLAM (APPLICATION
NO. 26384/05)
- The
applicant complained that he had been denied access to the classified
documents presented by the Ministry of Defence to the Supreme
Military Administrative Court and that the written opinion of the
principal public prosecutor submitted to this court had not been
communicated to him.
- The
Court considers that it is no longer required to examine the
application lodged by Murat İslam, for the reasons elaborated
below.
- By
letter dated 6 April 2009, the Government's observations were sent to
the applicant's representative, who was requested to submit any
comments, together with any claims for just satisfaction, by 18 May
2009. The applicant's representative did not submit any observations.
- By
letter dated 23 June 2009, sent by registered post, the applicant's
representative was notified that the period allowed for submission of
the applicant's observations had expired on 18 May 2009 and that no
extension of time had been requested. The attention of the
applicant's representative was drawn to Article 37 § 1 (a) of
the Convention, which provides that the Court may strike a case out
of its list of cases where the circumstances lead to the conclusion
that the applicant does not intend to pursue the application. No
response has been received to date.
- The
Court considers that, in these circumstances, the applicant may be
regarded as no longer wishing to pursue his application, within the
meaning of Article 37 § 1 (a) of the Convention. Furthermore, in
accordance with Article 37 § 1 in fine, the Court finds
no special circumstances regarding respect for human rights as
defined in the Convention and its Protocols which require the
continued examination of the case. In view of the above, it is
appropriate to disjoin it from the present group of applications and
to strike it out of the list.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the written opinion of the principal
public prosecutor submitted to the Supreme Military Administrative
Court had not been communicated to them in breach of the equality of
arms principle safeguarded under Article 6 § 1 of the
Convention. Özcan Korkmaz (application no. 44058/04) also
complained of the non communication of the submissions of the
reporting judge. Lastly, Serkan Yazar (application no. 19807/05)
complained of his lack of access to the classified documents and
information submitted by the Ministry of Defence to the Supreme
Military Administrative Court.
A. Admissibility
- The
Court notes, as regards the complaint concerning the
non communication of the submissions of the reporting judge
(application no. 44058/04), that no violation of Article 6 § 1
of the Convention was found regarding a similar complaint in the case
of Meral v. Turkey (no. 33446/02, §§ 40-43,
27 November 2007), where the role of the reporting judge before
the Supreme Administrative Court was examined at length in comparison
with that of the public prosecutor. The Court found in Meral
that unlike a public prosecutor, who was in charge of the preparation
of the case for trial and who was in a position to influence the
bench's decision through his or her opinion without there
being an opportunity for the parties to challenge it -, the role
of the reporting judge was limited to carrying out the judicial tasks
assigned by the President of the Chamber and could thus hardly be
distinguished from the role of the judges hearing the appeal. In this
connection, the reporting judge did not as a general rule order
investigative measures but merely formed an opinion on the basis of a
file which had already been investigated.
- Bearing
in mind that the functions of a reporting judge before the Supreme
Military Administrative Court are virtually the same as those before
the Supreme Administrative Court, the Court sees no reason to depart
from its findings in the Meral case. It follows that this
complaint should be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
- As
regards the applicants' remaining complaints, the Court notes that
they are not manifestly ill founded within the meaning of
Article 35 § 3 of the Convention. It further notes that they are
not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. Non-communication of the principal public
prosecutor's written opinion (applications nos. 44058/04 and
19807/05)
-
The Government contended that, unlike in criminal proceedings, the
principal public prosecutor in administrative proceedings was not a
party to the case, and his or her opinion had no influence on the
decision of the administrative court. The Government also argued that
the principle of equality of arms had not been infringed in the
instant cases as the applicants had had the option of examining their
case files, which included the written opinion of the principal
public prosecutor, at any time. They maintained that the applicant
Serkan Yazar had had the further opportunity of replying to this
opinion during the hearing held on 22 February 2005.
-
The Court observes that it has already examined and dismissed similar
objections by the Government in previous cases and found a violation
of Article 6 § 1 of the Convention (see Meral, cited
above, §§ 32 39; Miran v. Turkey, no.
43980/04, §§ 15-18, 21 April 2009). The Court finds no
particular circumstances in the instant cases 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 non-communication of the written opinion
of the principal public prosecutor to the applicants.
2. Lack of access to classified documents (application
no. 19807/05)
- The
Government argued that maintaining certain information and documents
as confidential was necessitated by the nature of the functions
performed by the armed forces. Furthermore, the Supreme Military
Administrative Court was not bound by the classification of the
documents submitted to it as “confidential” by the
administration; it made its independent assessment as to whether the
confidentiality of the documents was justified on the facts of each
case and disclosed any information which it deemed appropriate. The
Government contended that, in keeping with this principle, the
underlying grounds regarding the measure imposed on the applicant
Serkan Yazar had been stated in the Supreme Military Administrative
Court's judgment in the instant case. The documents submitted to that
court, however, had remained unavailable to the applicant in the
interest of safeguarding the secrecy of information collection
methods.
- 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 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 case which would require it to depart from
its previous findings and which would justify the encroachment on the
applicant's 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 case (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 this applicant's 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
discharge him from the armed forces.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicants did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to disjoin application no. 26384/05,
lodged by Murat İslam, from the present group of cases and
strike it out of the list;
2. Declares admissible the complaints concerning
the non-communication of the written opinion of the principal public
prosecutor to the applicants during the proceedings before the
Supreme Military Administrative Court in respect of applications nos.
44058/04 and 19807/05 and the applicant's inability to access the
classified documents submitted by the Ministry of Defence to that
court in respect of application no. 19807/05;
3. Declares the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
