European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5173/05
by Elif KARAKAYA
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 August 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 10 January 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Elif Karakaya, is a Turkish national who was born in 1976 and lives in Istanbul. She is represented before the Court by Ms S. Kızılkaya and Mr İ.H. Altan, lawyers practising in Istanbul.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 22 November 1998 the applicant’s husband, who was performing his compulsory military service, died of a heart attack due to a congenital heart defect, which was diagnosed during the subsequent autopsy.

On 19 October 1999 the applicant instituted compensation proceedings before the Supreme Military Administrative Court on her own behalf and on behalf of her son. She also requested a retirement pension.

On 6 January 2000 the Assembly of Chambers of the Supreme Military Administrative Court (Askeri Yüksek İdare Mahkemesi Daireler Kurulu) rejected the applicant’s claim on the ground that she had to introduce, pursuant to relevant domestic legislation, two separate proceedings for each of her claims.

On 4 February 2000 the applicant reintroduced her claims separately and requested 45,000,000,000¹ Turkish liras (TRL) in compensation.

In the meantime the applicant was paid TRL 13,119,500,000² compensation by the Gendarmerie General Command (Jandarma Genel Komutanlığı) of the Ministry of Interior on 12 February 2000.

With reference to the relevant domestic legislation, the second chamber of the Supreme Military Administrative Court issued on 27 March 2002 a decision of non-jurisdiction concerning the applicant’s compensation claim on the ground that she was not military personnel, therefore the proceedings should have been instituted before the competent civil administrative court.

On 7 June 2002 the applicant instituted compensation proceedings before the Ankara Administrative Court.

On 17 July 2003 the Ankara Administrative Court noted that the issue ought to have been examined by the Supreme Military Administrative Court due to its military content and referred the case to the Court of Jurisdictional Disputes (Uyuşmazlık mahkemesi), which held on 17 November 2003 that the matter fell within the jurisdiction of the military administrative courts.

Referring to the above judgment, the Ankara Administrative Court issued a decision of non-jurisdiction on 19 December 2003.

On 16 June 2004 the Supreme Military Administrative Court granted the applicant TRL 10,000,000,000³ pecuniary and TRL 1,500,000,000⁴ non-pecuniary damage with statutory interest running from 22 April 1999 and 22 November 2001 respectively. Referring to its established practice and the expert report in the case file, the court noted that it had deducted from the total sum the amount of compensation paid by the Ministry of Interior, which had also covered the compensation in respect of the applicant’s son.

This judgment, which was final under domestic law, was delivered to the applicant on 27 July 2004. The applicant did not seek rectification.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the length of compensation proceedings exceeded the reasonable time requirement. She adds under the same provision that the domestic court erred in its assessment of the facts and evidence, awarded no compensation for her son and insufficient compensation for herself. She further complains that no appeal lies against the decisions of the Supreme Military Administrative Court.

THE LAW

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court observes that the application was introduced by the applicant alone; thus her son does not have applicant status in the instant case. Moreover, even assuming that the applicant’s complaint in respect of her son could be examined in the present case, the Court considers that the above complaints do not disclose an appearance of a violation of the guarantees of a fair hearing contained in Article 6 § 1 of the Convention for the following reasons.

The Court notes that the decision of the Supreme Military Administrative Court was reached after due consideration of the applicant’s submissions. It is not for the Court to impugn the domestic court’s determination, especially when the decisions were based on an examination of all relevant factors. There is nothing to suggest that the decision reached was manifestly unreasonable or in any way arbitrary to such an extent as to call into question the adequacy of that court’s consideration of the case before it (see, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court observes in this connection that Article 6 § 1 of the Convention does not compel a Contracting State to set up courts of appeal or cassation (see, among others, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 14, § 8; Piroğlu and Karakaya v. Turkey, nos. 36370/02 and 37581/02, § 37, 18 March 2008). Accordingly, the fact that the domestic law of the respondent State did not make provision for an appeal against the Supreme Military Administrative Court’s decisions does not raise an issue under Article 6 § 1.

Having regard to the above considerations, the Court finds that this part of the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the domestic proceedings involving her compensation claims;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President