SECOND SECTION

CASE OF ÇULHAOĞLU v. TURKEY

(Application no. 38958/12)

JUDGMENT

STRASBOURG

12 December 2017

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

In the case of Çulhaoğlu 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. 38958/12) 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 Aziz Çulhaoğlu, Mr Mahmut Hüdai Çulhaoğlu and Ms Seval Çulhaoğlu (“the applicants”), on 24 April 2012.
2.  The applicants were represented by Mr M. Yalçın, a lawyer practising in Denizli. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 7 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 pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1961, 1990 and 1960 respectively and they live in Denizli.
5.  The applicants’ relative, Mr Ahmet Aziz Çulhaoğlu, died during his compulsory military service. On 11 September 2009 the applicants initiated compensation proceedings before the Supreme Military Administrative Court, alleging that the death of their relative had been caused due to the negligence of the military authorities.
6.  On 16 September 2010 the Supreme Military Administrative Court, composed of five members, including three military judges and two military officers, decided to dismiss the case, stating that the death of Mr Ahmet Aziz Çulhaoğlu could not be attributed to the military authorities.
7.  On 7 December 2011 the applicants’ rectification request was further rejected by the Supreme Military Administrative Court.
Article II.	II.  RELEVANT DOMESTIC LAW
8.  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
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.
Section 3.01	A.  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 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, Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000), and Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008.
12.  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.
Section 3.02	B.  Merits
13.  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.
14.  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.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
Section 4.01	A.  Damage
15. The applicant claimed 800,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage.
16.  The Government contested the claims.
17.  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, the Court, deciding on an equitable basis, awards EUR 1,500 jointly to the applicants.
Section 4.02	B.  Costs and expenses
18.  The applicants also claimed EUR 20,000 for their lawyer’s fee. In this connection, they submitted a contingency fee agreement stating that the representative would receive 13 % of the global compensation amount that would be awarded by the Court.
19.  The Government contested the claim.
20.  Regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 1,000 jointly to the applicants for the proceedings before the Court.
Section 4.03	C.  Default interest
21.  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
(a)  that the respondent State is to jointly pay the applicants, 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;
(ii)  EUR 1,000 (one thousand 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;

4.  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