SECOND SECTION

DECISION

Application no. 29698/11
Adnan Oğuz BAYSAL
against Turkey

The European Court of Human Rights (Second Section), sitting on 22 May 2018 as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 10 December 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Adnan Oğuz Baysal, is a Turkish national who was born in 1978 and lives in Eskişehir. He was represented before the Court by Mr C. Çalış, a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant, a military officer in the Turkish army, was dismissed in 2009 for disciplinary reasons. Subsequently, he initiated proceedings before the Supreme Military Administrative Court to have the decision regarding his dismissal annulled.

4. On 20 April 2010 the Supreme Military Administrative Court dismissed the applicant’s action (decision no. 2009/919 E, 2010/427K).

5. On 28 September 2010 the applicant’s rectification request was rejected by the Supreme Military Administrative Court. This decision was served on him on 12 October 2010.

B. Relevant domestic law

6. A description of the domestic law at the material time may 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).

7. Following a referendum held on 16 April 2017, Law no. 6771 was passed. According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished. Furthermore, the following paragraph was added to Article 142 of the Constitution:

“... No military courts shall be formed other than disciplinary courts. However, in a state of war, military courts may be formed with jurisdiction to try offences committed by military personnel in relation to their duties.”

8. On 21 March 2018 Law no. 7103 was enacted; it was published in the Official Gazette on 27 March 2018. Section 23 of Law no. 7103 amends the Administrative Procedure Act (Law no. 2577) to state that all applicants who currently have a pending application before the European Court of Human Rights concerning the independence and impartiality of the Supreme Military Administrative Court may request a retrial before the Ankara Administrative Court within three months of notification of the Court’s inadmissibility decision on account of non-exhaustion of domestic remedies.

COMPLAINT

9. The applicant complained under Article 6 § 1 of the Convention of unfairness in the proceedings held before the Supreme Military Administrative Court. In this connection, he argued that the Supreme Military Administrative Court could not be considered to be an independent and impartial tribunal and further complained about his inability to have access to the documents submitted to it.

THE LAW

10. 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 had sat on the bench of the Supreme Militar