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Cite as: [2011] ECHR 852

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SECOND SECTION

CASE OF KELOĞLAN AND OTHERS v. TURKEY

(Applications nos. 14019/07, 46287/07 and 19387/08)

JUDGMENT

STRASBOURG

31 May 2011

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

In the case of Keloğlan and Others v. Turkey,

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

Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 10 May 2011,

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

PROCEDURE

The case originated in three applications (nos. 14019/07, 46287/07 and 19387/08) 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 Ramazan Keloğlan, Mr Gökhan Yıldırım and Mr Tarık Kuruldak (“the applicants”), on 19 March 2007, 10 October 2007 and 10 April 2008, respectively.

The applicants were represented by Mr İ. Çetin, Mr K. Bilgiç and Mr R. Hallaçoğlu and Mr N. K. Tüylüce, lawyers practising in Ankara, Kocaeli and Adana, respectively. The Turkish Government (“the Government”) were represented by their Agent.

On 26 May 2009 the Court declared the applications partly inadmissible and decided to communicate to the Government the complaint concerning the infringement of the right to adversarial proceedings and the principle of equality of arms on account of the lack of access to classified documents submitted by the Ministry of Defence to the Supreme Military Administrative Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants, who are former military students, were born in 1988, 1987 and 1991 respectively and live in Ankara, Kocaeli and Adana.

On different dates the applicants were expelled from military schools following disciplinary decisions, which held that the applicants did not possess the requisite attributes of a military student as defined in the relevant legislations. The applicants were not provided with any further information regarding the reasons for their expulsions.

The applicants subsequently brought separate actions before the Supreme Military Administrative Court against the Ministry of Defence, requesting this court to quash the disciplinary decisions ordering their expulsions.

The Ministry of Defence submitted certain documents and information to the Supreme Military Administrative Court during the course of the proceedings, which were classified as “secret documents” under Article 52 (4) of Law no. 1602 on the Supreme Military Administrative Court. These documents were not disclosed to the applicants.

On 27 September 2006, 22 November 2006 and 3 October 2007, respectively, the Supreme Military Administrative Court rejected the applicants’ request. The judgment of 3 October 2007 was served on the third applicant on 25 October 2007. Citing the relevant legislation, the Supreme Military Administrative Court held that a student could be lawfully expelled from a military school by a disciplinary board decision if he was found to have lost the attributes of a military student during the course of his studies or if it became apparent at such time that he did not possess the necessary qualifications from the start. The applicants, who were found to lack the requisite attributes of a military student following a secret security investigation conducted on them and their families, were thus lawfully expelled from their schools.

On 15 November 2006 and 12 September 2007, respectively, the Supreme Military Administrative Court rejected the first and second applicants’ rectification request. The third applicant did not seek rectification.

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 applicants complained under Article 6 § 1 of the Convention that their lack of access to the documents submitted by the Ministry of Defence to the Supreme Military Administrative Court had infringed their right to adversarial proceedings, together with the principle of equality of arms. The second applicant, Mr Yıldırım (application no. 46287/07), also complained that his expulsion from the military school on the basis of a secret security investigation, the results of which had not been disclosed to him, had been unfair.

The Court notes that the remaining part of these applications 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, the Government argued that the nature of the functions performed by the armed forces necessitated the confidentiality of certain information and documents. They further stated that the applicants had in any event been aware of the reasons underlying the measures imposed on them.

The Court considers in the first place that Mr Yıldırım’s complaint regarding his expulsion from the military school on the basis of a secret security investigation should be examined from the standpoint of Article 6 § 1 of the Convention, as it is an integral part of the question of the fairness of the proceedings before the Supreme Military Administrative Court.

Secondly, 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). It considers that the Government have not put forward any fact or argument in the instant applications which would require it to depart from its previous findings and which would justify the encroachment on the applicants’ 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 cases (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 the applicants’ 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 expel the applicants from their respective schools.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage and costs and expenses

The first applicant claimed 70,000 Turkish liras (TRY) (equivalent of approximately 33,570 euros (EUR)) in respect of pecuniary damage and TRY 50,000 (equivalent of approximately EUR 23,980) as non-pecuniary damage. He did not submit any claims in respect of cost and expenses. The second applicant claimed a total amount of EUR 80,000 as pecuniary and non-pecuniary damage and costs and expenses. The third applicant claimed TRY 78,181.74 (equivalent of approximately EUR 37,280) in respect of pecuniary and non-pecuniary damage and TRY 20,000 (equivalent of approximately EUR 9,500) for the costs and expenses incurred before the domestic courts and the Court. Both the second and the third applicant submitted fee agreements executed with their respective representatives in support of their claims, but did not provide time sheets demonstrating the hours spent by their representatives on the case

The Government contested these claims as being unsubstantiated and excessive.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicants; it therefore rejects the applicants’ claims for pecuniary damage. However, it considers that the applicants must have suffered non-pecuniary damage which the finding of a violation of the Convention in the present judgment does not suffice to remedy. Ruling on an equitable basis, it awards the applicants EUR 6,500 each in respect of non-pecuniary damage (Güner Çorum, cited above, § 39; Aksoy (Eroğlu), cited above, § 39; Miran, cited above, § 22; and Topal, cited above, § 23).

As for costs and expenses, according to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documentation in its possession and the above criteria, the Court considers it reasonable to award the second and the third applicants the sum of EUR 2,000 each for their costs and expenses.

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 remainder of the applications admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 6,500 (six thousand five hundred euros) to each of the applicants (Mr Ramazan Keloğlan, Mr Gökhan Yıldırım and Mr Tarık Kuruldak), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros) to Mr Gökhan Yıldırım and Mr Tarık Kuruldak, separately, plus any tax that may be chargeable to these applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicants’ claims for just satisfaction.

Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Dragoljub Popović
Deputy Registrar President