SECOND SECTION

CASE OF YUMUŞAK AND OTHERS v. TURKEY

(Applications nos. 54957/09, 14242/10, 22161/10 and 53804/11)

JUDGMENT

STRASBOURG

12 December 2017

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

In the case of Yumuşak and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Julia Laffranque, President,
	Jon Fridrik Kjølbro,
	Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 21 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in four applications (nos. 54957/09, 14242/10, 22161/10 and 53804/11) 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 four Turkish nationals, Mr Burçin Yumuşak, Mr Kasım Artunç Kavalalı, Mr Emre Kırgöz and Mr Gürcan Gürsoy (“the applicants”), whose details are set out in the appendix.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  On 22 September 2015 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 applicants’ 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 applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants were cadets in military schools or officers in the Army. Based on classified investigation reports, they were expelled from their schools or their contracts were terminated. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions.
6.  Relying on the classified investigation reports, and the written opinions of the public prosecutors, which were not communicated to the applicants, the Supreme Military Administrative Court rejected the applicants’ cases and their subsequent requests for rectification. The details of the cases are shown in detail in the appendix.
Article II.	II.  RELEVANT DOMESTIC LAW
7.  A description of the domestic law at the material time can be found in Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015), and Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000).
THE LAW
Article III.	I.  JOINDER OF THE APPLICATIONS
8.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
9.  Relying on Article 6 § 1 of the Convention, the applicants complained that they 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. They further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of their 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 them of the written opinion of the public prosecutor submitted to the trial court.
Section 4.01	A.  Concerning the independence and impartiality of the Supreme Military Administrative Court
(a)	1.  Admissibility
10.  The Government argued under Article 35 of the Convention that the applicants’ 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 applicants failed to lodge a motion, requesting the disqualification of the military judges.
11.  The applicants did not comment on that argument.
12.  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 applicants 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).
13.  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
14.  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.
15.  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 4.02	B.  Concerning the complaints regarding access to the classified documents and the non-communication of the written opinion of the public prosecutor
16.  The applicants complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of their inability to have access to the classified documents submitted by the Ministry of Defence and the non-communication of the written opinions of the public prosecutor.
17.  The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.
18.  Having regard to its finding of a violation of the applicants’ 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 V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
Section 5.01	A.  Damage
(a)	1.  Pecuniary damage
19.  The applicants claimed the sums indicated below in respect of pecuniary damage:

Application no.	Claim	
54957/09	73,423.43 euros (EUR)	
14242/10	EUR 50,000	
22161/10	EUR 53,493	
53804/11	EUR 256,838	

20.  The Government contested the claims.
21.  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.
(b)	2.  Non-pecuniary damage
22.  In application nos. 54957/09, 14242/10 and 22161/10 the applicants each claimed EUR 50,000 in respect of non-pecuniary damage. In application no. 53804/11, the applicant requested EUR 18,581 for non‑pecuniary damage.
23.  The Government contested the claims.
24.  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 each of the applicants.
Section 5.02	B.  Costs and expenses
25.  In application nos. 54957/09, 14242/10 and 22161/10, the applicants each claimed EUR 2,000 in respect of legal fees. In application no. 53804/11, the applicant requested EUR 6,972 in respect of legal fees.
26.  The Government contested the claims.
27.  In accordance with 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, the applicants have not substantiated their claim in respect of legal fees. Accordingly, the Court does not make any award under this head.
Section 5.03	C.  Default interest
28.  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.  Decides to join the applications;

2.  Declares the applications admissible;

3.  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;

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

5.  Holds
(a)  that the respondent State is to pay each of the applicants EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable in respect of non-pecuniary damage within three months, to be converted into the currency of the respondent State 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Julia Laffranque
	Deputy Registrar	President

APPENDIX

No. 	Application No. 	Lodged on 	Applicant Name
Date of Birth
Place of residence	Represented by	Case specific notes	
1.	54957/09	5/10/2009	Burçin Yumuşak
1985
İstanbul	Cavit Çalış	On 28 February 2008 the applicant was dismissed from the military academy due to non-compliance with disciplinary rules. On 14 January 2009 the Supreme Military Administrative Court (SMAC) rejected his case. On 15 April 2009 the SMAC further rejected the applicant’s rectification request. 	
2.	14242/10	11/02/2010 	Kasım Artunç Kavalalı
1989
Adana	Cavit Çalış	The applicant was dismissed from the Air Force military academy due to non-compliance with disciplinary rules. On 30 September 2009 the SMAC rejected his case. On 2 December 2009 the SMAC further rejected the applicant’s rectification request.	
3.	22161/10	7/4/2010	Emre Kırgöz
1989
İzmir	Sezai Aydınalp	The applicant was dismissed from the Naval military academy due to non-compliance with pre-admission conditions. On 10 June 2009 the SMAC rejected his case. On 21 October 2009 the SMAC further rejected the applicant’s rectification request.	
4.	53804/11	7/7/2011	Gürcan Gürsoy
1981
Burdur	Orhan Çelen	On 16 February 2010 the applicant, who was a non-commissioned officer, was dismissed from the army due to non-compliance with disciplinary rules. On 21 December 2010 the SMAC rejected his case. On 22 March 2011 the SMAC further rejected the applicant’s rectification request.