AS TO THE ADMISSIBILITY OF
by Sedat ŞEN and Others
The European Court of Human Rights (Third Section), sitting on 8 July 2003 as a Chamber composed of
Mr I. Cabral Barreto,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 15 December 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Sedat Şen and Yalçın İnanç, are Turkish nationals, who were born in 1962 and 1974 respectively and live in Uşak and İçel. They are represented before the Court by Mr Muharrem Turan, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicants and their families were denied access to the military premises on the ground that the photographs showing their wives carrying Islamic scarves were not acceptable for the military and social security identity cards. The applicants’ close relatives carrying Islamic scarves were also not allowed into the military buildings.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicants from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94 (b) of Law no. 926.
The Government submit the following in the light of the intelligence reports concerning the applicants:
– Non-commissioned officer Yalçın İnanç was a member of the Nurculuk branch of the Nakşibendi sect. He was involved in disseminating the ideology of the sect. He refused to attend social activities with his family and his wife refused to shake hands with men. He had an antisocial character and his wife wore an Islamic scarf. He was considered to be an insubordinate soldier by his superiors.
– Non-commissioned officer Sedat Şen supported the “Revolutionary Islamic” opinion. He had an antisocial character and his wife wore an Islamic scarf. He refused to attend social events with his wife. He established contacts with other soldiers supporting the “Revolutionary Islamic” opinion. His wife continued to carry the Islamic headscarf despite warnings. He was considered to be an insubordinate soldier by his superiors.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports concerning the applicants, that the applicants had breached military discipline and that they should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
B. Relevant domestic law
1. The Constitution
The relevant provisions of the Constitution are as follows:
Article 14 § 1
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
2. Law no. 357 (“the Military Legal Service Act”)
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
3. Law no. 926 (“the Military Personnel Act”)
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
4. The Regulations on assessment of officers and non-commissioned officers
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”
The applicants complain under Article 8 of the Convention that the decision of the Supreme Military Council constitutes a breach of their right to respect for their private and family lives, insofar as it was based on their families’ and their wives’ way of life and behaviour.
The applicants complain under Articles 9 and 10 of the Convention that the decision of the Supreme Military Council amounts to a violation of their right to freedom of thought, conscience, religion and expression. They maintain that the implicit reasons for the aforementioned decision were their religious convictions and their wives’ Islamic scarf.
The applicants complain under Article 13 of the Convention taken in conjunction with Articles 8, 9 and 10 of the lack of any independent national authority before which complaints can be brought with any prospect of success.
1. The applicants complain that the decision of the Supreme Military Council amounts to a violation of their right to freedom of thought, conscience, religion and expression. They maintain that the implicit reasons for the aforementioned decision were their religious convictions and their wives’ Islamic scarf.
The applicants rely on Articles 9 and 10 of the Convention.
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
a) The parties’ submissions
(i) The Government
The Government argue that the question of whether the applicants should have been allowed to remain members of the armed forces lay at the heart of the issue before the Court. The order for their discharge from the army had not amounted to an interference with their freedom of conscience, religion or belief but had served the purpose of dismissing members of the army who had displayed a lack of loyalty to the principle on which the Turkish nation was founded, namely secularism, and who had undermined the territorial integrity of the State and the indivisible unity of its people, which it was the task of the armed forces to guarantee. They maintain that conduct and activities in breach of that principle could entail the risk of undermining the order prevailing in the armed forces and that it was natural that such conduct should be regarded as incompatible with military discipline. Relying, in particular, on the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, the Kalaç v. Turkey judgment of 1 July 1997 and the Grigoriades v. Greece judgment of 25 November 1997, the Government submit that “the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline” and that it was “accepted in Europe that discipline is essential to maintain the authority of the army and that the army is essential to ensure that democracy is protected from subversion, in accordance with one of the major objectives of the European Convention on Human Rights”.
The Government point out that the applicants were members of sects known to have unlawful fundamentalist tendencies and that they had attended ideological meetings and committed various disciplinary offences, some of which had resulted in the imposition of penalties by their superiors. They observe that, according to documents in the applicants’ personal files, a committee of nine members of the armed forces had concluded that the applicants had breached military discipline and that they should be discharged from the army. The Supreme Military Council had based its decision on that opinion.
Furthermore, the Government highlight that any attitude or conduct such as the applicants’ antisocial character or their wives’ or relatives’ Islamic scarves had not been taken as the sole basis for their discharge from the army.
(ii) The applicants
The applicants argue that the Convention guarantees extended to members of the armed forces and that the system of military discipline established by a State did not in itself run counter to that State’s obligations under the Convention.
In the applicants’ submission, the Government had sought to mislead the Court by mentioning all the disciplinary penalties that had been imposed on them in the course of their careers. Furthermore, the unfavourable assessment reports in respect of the applicants had been drawn up shortly before they had been discharged from the army and had not taken into account their previous positive assessments.
The applicants maintain that their discharge from the army, ordered by an administrative body on the ground of their religious beliefs – for example, the fact that their wives wore Islamic headscarves – , amounted to an interference with their right to freedom of thought, conscience and religion. They emphasise that the principle of secularism guaranteed freedom of religion and conscience. Referring to the Kruslin v. France judgment of 24 April 1990 (Series A no. 176, p. 24, § 36), they point out that domestic law should afford protection against arbitrary interference by the authorities with the rights safeguarded by the first paragraph of Article 9 of the Convention. Where executive power was exercised in secret, the risks of arbitrariness were evident. The applicants add that officers and non-commissioned officers, like any other civil servants, were required by numerous legal provisions to abide by the fundamental principles governing the State, and that that obligation should be seen in the context of the rule of law and respect for human rights. The principle of secularism in Turkey was not open to question; however, where such principles empowered the authorities to impose penalties in the event of failure to adhere to them, there should also be safeguards against arbitrariness and the scope and limitations of the authorities’ power should be strictly defined. The applicants refer in addition to the lack of evidence that their conduct had in any way undermined military life or the principle that Turkey was a secular State, and conclude that they had nonetheless been deprived of a career in which they excelled on account of their religious beliefs.
b) The Court’s assessment
The Court reiterates that, as enshrined in Article 9, the freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 1).
The Court has held that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis cited above, p. 18, § 33).
The Court observes that it is well established that the Convention applies in principle to members of the armed forces and not only to civilians. However, when interpreting and applying the rules of the Convention in cases such as the present one, the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (see Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 23, § 54, and, mutatis mutandis, Grigoriades v. Greece, judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2589-90, § 45).
In order to determine whether this provision was infringed in the instant case, it must first be ascertained whether the measure in issue amounted to an interference with the applicants’ exercise of their right to “freedom to manifest [their] religion or beliefs”.
The Court considers that in choosing to pursue a military career the applicants were accepting of their own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations which could not be imposed on civilians (see Engel and Others cited above, p. 24, § 57). States may adopt for their armies disciplinary regulations forbidding this or that kind of conduct, in particular an attitude inimical to an established order reflecting the requirements of military service (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1210, § 28). These limitations may include a duty for military personnel to refrain from participating in the Islamic fundamentalist movement, whose aim and programme is to ensure the pre-eminence of religious rules (see Yanaşık v. Turkey, application no. 14524/89, Commission decision of 6 January 1993, Decisions and Reports (DR) 74, p. 14).
The Court notes that it is not disputed that members of the armed forces (army officers and non-commissioned officers) can perform their religious duties within the limits imposed by the requirements of military life. It appears from the evidence before it that a committee of nine members of the armed forces examined the applicants’ assessment reports – which listed the disciplinary offences they had committed and stated that they were members of sects known to have fundamentalist tendencies – and found that they did not have the profile of army officers or non-commissioned officers. The committee concluded that the applicants had breached military discipline and should be discharged from the army. The Court further notes that the Supreme Military Council’s order was based not on the applicants’ religious beliefs and opinions, nor on the manner in which they performed their religious duties but on their conduct and activities in breach of military discipline and the principle of secularism (see Tepeli and Others v. Turkey (dec.), no. 31876/96, 12 June 2001).
The Court concludes that the applicants’ discharge did not amount to an interference with the right guaranteed by Article 9 of the Convention.
In the light of the foregoing the Court concludes that the same conclusion applies to the applicants’ complaints under Article 10 of the Convention.
It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
2. The applicants complain that the decision of the Supreme Military Council constitutes a breach of their right to respect for their private and family lives, insofar as it was based on their families’ and their wives’ way of life and behaviour.
They rely on Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government maintain that there had been no interference with the applicants’ right to respect for their private and family life. They submit that any attitude or conduct such as the applicants’ antisocial character or their wives’ or relatives’ Islamic scarves had not been taken as the sole basis for their discharge from the army.
Having regard to the conclusion it reached above the Court finds that there was also no interference with the applicants’ rights under Article 8 of the Convention.
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
3. The applicants complain under Article 13 of the Convention taken in conjunction with Articles 8, 9 and 10 of the lack of any independent national authority before which complaints can be brought with any prospect of success.
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court recalls that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many others, Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 14, § 31)
Having regard to the conclusion it reached above concerning the applicants’ complaints under Articles 8, 9 and 10, the Court finds that these complaints cannot be considered as “arguable” in terms of the Convention.
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Vincent Berger Georg