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SECOND
SECTION
CASE OF BİÇER v. TURKEY
(Application
no. 21316/05)
JUDGMENT
STRASBOURG
8 June
2010
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 Biçer v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 18 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21316/05) 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 Murat Biçer (“the
applicant”), on 3 May 2005. The applicant was represented by Mr
Ö. Yıldırım and Ms P. Yıldırım,
lawyers practising in Kocaeli. The Turkish Government (“the
Government”) were represented by their Agent.
- On
9 January 2009 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, a former military student, was born in 1981 and lives in
Yalova.
- On
an unspecified date the applicant was expelled from the naval academy
in accordance with the Law of Military Academies (Law no. 4466) for
failing his class twice.
- On
1 August 2001 he brought an action before the Supreme Military
Administrative Court seeking the annulment of the expulsion order.
Claiming that his exam in Mathematics 1 had not been graded
correctly, he demanded the reassessment of his paper in the relevant
subject.
- On
10 July 2002 the Supreme Military Administrative Court refused the
applicant's request. The court acknowledged that the reassessment of
the applicant's paper by a group of three experts revealed that the
paper had indeed been misgraded, yet even the modified grade did not
entitle the applicant to pass his class.
- Upon
the applicant's request for rectification, on 5 March 2003 the
Supreme Military Administrative Court annulled the expulsion order on
account of procedural illegalities.
- The
applicant subsequently retook the exams he had previously failed, yet
failed them once again, which led to the issue of a second expulsion
order by the naval academy.
- On
25 July 2003 the applicant brought another case before the Supreme
Military Administrative Court for the annulment of the expulsion
order. He again requested reassessment of his paper in Mathematics 1.
- On
an unspecified date an expert report was submitted to the Supreme
Military Administrative Court which confirmed the accuracy of the
grading of the applicant's exam paper.
- On
29 September 2004 the Supreme Military Administrative Court held a
hearing, where it dismissed the applicant's request for annulment of
the expulsion order. The written opinion submitted by the principal
public prosecutor to this court prior to the hearing was not
communicated to the applicant.
- On
12 January 2005 the Supreme Military Administrative Court rejected
the applicant's rectification request.
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
applicant complained, in respect of the second set of proceedings
before the Supreme Military Administrative Court, that the written
opinion of the principal public prosecutor submitted to this court
had not been communicated to him in breach of the equality of arms
principle safeguarded under 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
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 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 case as the applicant had had the
option of examining the case file and the written opinion of the
principal public prosecutor prior to the hearing, as well as the
further opportunity of replying to this opinion during the hearing.
- The
Court observes that it has already examined and dismissed similar
submissions by the Government in previous cases and found a violation
of Article 6 § 1 of the Convention (see, amongst others, Miran,
cited above, §§ 15-18; Yavuz Selim
Karayiğit v. Turkey, no.
45874/05, § 15, 27 October 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.
- 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 applicant.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1, 8, 13, 17
AND 18 OF THE CONVENTION
- The
applicant alleged a number of violations of his rights enshrined in
Articles 6 § 1, 8, 13, 17 and 18 of the Convention. He
complained, in the first place, that he had been denied a fair
hearing by an independent and impartial tribunal as the Supreme
Military Administrative Court had been composed of military judges
and officers, that this court had acted as a first and only instance
court and that it had not been possible to know in advance which
chamber of this court would examine the case. He further maintained
that he had not had access to the classified documents submitted by
the administration to the Supreme Military Administrative Court.
Lastly, he alleged violations of Articles 8, 13, 17 and 18 of the
Convention on the basis of the above mentioned facts, without
further substantiation.
- 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
for the complaints concerning appeal procedures, chamber assignments
and access to classified documents, see Yavuz Selim Karayiğit
(dec.), cited above.)
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his observations dated 3 March 2009, the applicant submitted a number
of new complaints. In particular, he complained that the length of
the proceedings before the Supreme Military Administrative Court had
not been reasonable, that the judgment rendered by this court had
been erroneous and that it had infringed his right to education. The
applicant relied on Article 6 § 1 of the Convention and Article
2 of Protocol No. 1.
- The
Court finds that these complaints relate to events or decisions which
intervened more than six months before being lodged with the Court on
3 March 2009, and it therefore rejects them pursuant to Article 35 §§
1 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 148,848.86 Turkish liras (TRY)
in respect of pecuniary damage: TRY 72,000
for the salaries to which he would have been entitled as a military
officer, as well as TRY 76,848.86
for his educational expenses, including the expenses he was asked to
reimburse following his expulsion from the naval academy. He also
claimed TRY 50,000
for non pecuniary damage and TRY 4,500
for the costs and expenses incurred before the domestic courts. The
applicant only submitted two fee agreements signed with the lawyers
representing him during the domestic proceedings in support of his
claims.
- The
Government contested these claims as speculative and fictitious, and
argued that the applicant could not claim costs and expenses in
respect of services rendered during domestic proceedings.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Kingsley v. the United
Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). It
therefore rejects this claim. As to the alleged non-pecuniary damage,
the Court considers that it is sufficiently compensated by the
finding of a violation of Article 6 § 1 in paragraph 19 above
(see Meral, cited above, § 58).
- As
regards costs and expenses, the Court notes that, according to its
case-law, an applicant is entitled to reimbursement of such outlays
only in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. In the
present case, regard being had to the information in its possession
and the above criteria, the Court observes that there is no evidence
in the file to suggest that the applicant incurred any extra costs
and expenses in the domestic courts as a result of the violation of
his right to a fair hearing. The Court notes, in particular, that one
of the fee agreements submitted by the applicant concerns the first
set of proceedings before the Supreme Military Administrative Court,
which are not related to the specific violation found in the instant
case and which cannot, therefore, be taken into account. The Court
further notes that no costs and expenses have been incurred under the
other fee agreement, which envisaged payment only upon a favourable
outcome. The Court therefore rejects this claim for domestic court
costs and expenses (Smoje v. Croatia, no. 28074/03, § 58,
11 January 2007).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint under Article
6 § 1 of the Convention concerning the non-communication of the
written opinion of the principal public prosecutor to the applicant
during the proceedings before 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 that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
