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Cite as: [2011] ECHR 398

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SECOND SECTION

CASE OF KİZİROĞLU v. TURKEY

(Application no. 52154/07)

JUDGMENT

STRASBOURG

8 March 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kiziroğlu v. Turkey,

The European Court of Human Rights (Second Section), sitting as a committee composed of:

Danutė Jočienė, President,
Giorgio Malinverni,
Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 15 February 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 52154/07) 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 Ahmet Mithat Kiziroğlu (“the applicant”), on 22 November 2007. The applicant was represented by Mr K. Bayraktar, Mr M. S. Aslan and Ms A. Dalkılıç, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 13 May 2009 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1960 and lives in Istanbul.

The applicant, a navy captain at the material time, brought an action before the Supreme Military Administrative Court against the Ministry of Defence (“the Ministry”) for the annulment of his appointment to a different post, which he deemed to be unlawful.

On 1 May 2007 a hearing was held on the case. Following the hearing, the Supreme Military Administrative Court adopted an interim decision, where it put further questions to the Ministry. The applicant was neither provided with the interim decision, nor was he informed of the Ministry's replies.

On 29 May 2007 the Supreme Military Administrative Court delivered its judgment and refused the applicant's request regarding the annulment of his appointment.

The applicant subsequently requested rectification of this judgment, along with the disqualification of the judges that delivered it, alleging their lack of independence and impartiality (hakimin reddi).

On 13 July 2007 the Supreme Military Administrative Court dismissed the applicant's request for the disqualification of the judges, as it found his allegations to be groundless.

On 9 October 2007 it 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 that he had not had access to the classified documents and information presented by the Ministry to the Supreme Military Administrative Court, nor to the responses submitted by the Ministry to the questions posed by this court in its interim decision, which infringed the principle of equality of arms and the right to adversarial proceedings as safeguarded in Article 6 § 1 of the Convention.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

As regards the merits of this complaint, the Government contended that the applicant had been aware of the content of the documents submitted to the Supreme Military Administrative Court.

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 v. Turkey, no. 43980/04, §§ 13 and 14, 21 April 2009; and Topal v. Turkey, no. 3055/04, §§ 16 and 17, 21 April 2009). 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 documents submitted by the Ministry to the Supreme Military Administrative Court.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained under Article 6 § 1 of the Convention that the Supreme Military Administrative Court's decisions had been erroneous and not sufficiently reasoned, which also suggested lack of independence and impartiality on the part of the judges sitting on the bench. He further maintained under the same provision that the Supreme Military Administrative Court had also lacked independence and impartiality on account of its composition.

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 on account of its composition, see Yavuz and Others v. Turkey (dec.), no. 29870/96, 25 May 2000; as for the remaining complaints, see García Ruiz v. Spain, [GC], no. 30544/96, ECHR 1999-I; Skorik v. Ukraine (dec.), no. 32671/02, 8 January 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

A. Damages and costs and expenses

The applicant did not claim a definite sum of pecuniary damage, but submitted alternative calculations reflecting his possible pecuniary damage, taking into account his loss of salary and other financial benefits arising from his allegedly unlawful appointment. He claimed 10,000 euros (EUR) for non-pecuniary damage.

The Government contested the applicant's claims as speculative and fictitious.

The Court does not discern any causal link between the violation found and the pecuniary damages alleged (see Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). It therefore rejects any claim 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; and Topal, cited above, § 23).

The applicant did not claim any costs and expenses. Accordingly, no award is made under this head.

B. 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 the complaint under Article 6 § 1 of the Convention concerning the lack of access to the documents submitted by the Ministry of Defence to the Supreme Military Administrative Court admissible and the remainder of the application inadmissible;

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, EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 8 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Danutė Jočienė
Deputy Registrar President