European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF KILIÇ v. TURKEY

 

(Application no. 46227/11)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

12 December 2017

 

 

 

 

 

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




In the case of Kılıç 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 an application (no. 46227/11) 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 two Turkish nationals, Ms Melahat Kılıç and Mr Yılmaz Kılıç (“the applicants”), on 19 May 2011.

2.  The applicants were represented by Ms M. Yaman Yurdugül, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 20 September 2016 the complaint concerning the independence and impartiality of the Supreme Military Administrative Court was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1961 and 1960 respectively and live in İzmir.

5.  Following the death of their son during his military service, on 2 February 2006 the applicants initiated compensation proceedings before the Supreme Military Administrative Court. On 20 October 2010 the Supreme Military Administrative Court, composed of five members, including three military judges and two military officers, dismissed the case. This judgment was notified on the applicants on 29 November 2010.

II.  RELEVANT DOMESTIC LAW

6.  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

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

7.  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.

A.  Admissibility

8.  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.

9.  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).

10.  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.  Merits

11.  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.

12.  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.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

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.

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