SECOND SECTION

CASE OF KÖK v. TURKEY

(Application no. 42289/11)

JUDGMENT

STRASBOURG

28 November 2017

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

In the case of Kök v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Paul Lemmens,
	Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 42289/11) 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 Emre Kök (“the applicant”), on 2 June 2011.
2.  The applicant was represented by Ms T. Çelikyürek, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 21 November 2016 the complaints concerning the alleged independence and impartiality of the Supreme Military Administrative Court, the fairness of the proceedings before that court on account of the applicant’s inability to access the classified documents submitted by the Ministry of Defence, and the non-communication of the written opinion of the public prosecutor were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1984 and lives in Afyonkarahisar.
5.  The applicant, who was a student in the military school, was dismissed from his school based on classified investigation reports. The applicant then initiated proceedings against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decision.
6.  Relying on the classified investigation reports, and the written opinion of the public prosecutor, which were not communicated to the applicant, on 9 January 2008 the Supreme Military Administrative Court dismissed the applicant’s request. On 10 November 2010 the applicant’s request for rectification was also rejected by the Supreme Military Administrative Court.
Article II.	II.  RELEVANT DOMESTIC LAW
7.  A description of the domestic law at the material time can be found in Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000, and Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015)).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
8.  Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. He further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings and the non-communication to him of the written opinion of the public prosecutor submitted to the court.
Section 3.01	A.  Concerning the independence and impartiality of the Supreme Military Administrative Court
(a)	1.  Admissibility
9.  The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicant failed to lodge a motion, requesting the disqualification of the military judges.
10.  The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and law. Accordingly, any objection filed by the applicant regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see, mutadis mutandis, Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008, and Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000).
11.  Thus, such a request before the national authorities would not have remedied the situation complained of. It follows that this objection should be dismissed. The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
12.  The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention. It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.
13.  There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court.
Section 3.02	B.  Concerning the complaints regarding access to the classified documents and the non-communication of the written opinion of the public prosecutor
14.  The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence and the non-communication of the written opinion of the public prosecutor.
15.  The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.
16.  Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine these complaints (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998‑IV; Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no. 24087/07, § 33, 14 March 2017).

Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
Section 4.01	A.  Damage
17.  The applicant claimed 500,000 euros (EUR) in respect of pecuniary and EUR 500,000 in respect of non-pecuniary damage.
18.  The Government contested the claims.
19.  As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made under this head. As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant.
Section 4.02	B.  Costs and expenses
20.  The applicant also claimed 384 Turkish liras (TRY) (approximately EUR 95) for the costs and expenses incurred before the Court. In this respect, he submitted receipts for postal expenses.
21.  The Government contested the claim.
22.  Regard being had to the documents in its possession and to its case-law, the awards the requested amount in full (EUR 95) in respect of costs and expenses.
Section 4.03	C.  Default interest
23.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court;

3.  Holds that it is not necessary to consider the applicant’s remaining complaints raised under Article 6 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii)  EUR 95 (ninety five euros), plus any tax that may be chargeable to the applicant, 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Ledi Bianku
	Deputy Registrar	President