SECOND SECTION
CASE OF ELİF KARAKAYA v. TURKEY
(Application no. 5173/05)
JUDGMENT
STRASBOURG
27 October 2009
FINAL
27/01/2010
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Elif Karakaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 6 October 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 5173/05) 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, Ms Elif Karakaya (“the applicant”), on 10 January 2005.
2. The applicant was represented by Ms S. Kızılkaya and Mr İ.H.Altan, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 28 August 2008 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of compensation proceedings. It also decided to rule on the admissibility and merits of this complaint at the same time (Article 29 § 3).
THE FACTS
4. On 22 November 1998 the applicant's husband, who was performing his compulsory military service, died of a heart attack due to a congenital heart defect, which was diagnosed during the subsequent autopsy.
5. On 19 October 1999 the applicant instituted compensation proceedings before the Supreme Military Administrative Court (Askeri Yükesek İdare Mahkemesi). She also requested a retirement pension.
6. On 6 January 2000 the Assembly of Chambers of the Supreme Military Administrative Court (Askeri Yüksek İdare Mahkemesi Daireler Kurulu) rejected the applicant's claim on the ground that she had to introduce, pursuant to relevant domestic legislation, two separate proceedings for each of her claims. On 4 February 2000 the applicant reintroduced her claims separately before the Supreme Military Administrative Court.
7. On 1 March 2000 the Supreme Military Administrative Court issued an interim decision and inquired whether the applicant had requested compensation from the Ministry of the Interior before instituting legal proceedings. With reference to the relevant domestic provisions and in the absence of such a preliminary request from the administrative authorities, the court referred the applicant's claim to the Ministry of the Interior on 29 March 2000.
8. In the meantime the applicant had been paid compensation by the Gendarmerie General Command (Jandarma Genel Komutanlığı) of the Ministry of the Interior on 12 February 2000. On an unspecified date the Ministry of the Interior rejected the applicant's compensation claim on the ground that she had already been paid. The applicant was notified of this decision on 24 May 2000.
9. Having thus complied with the preliminary requirement, the applicant re-introduced her compensation claim before the Supreme Military Administrative Court on 1 June 2000 and requested the same amounts of compensation as well as legal aid. By reference to the relevant provisions and the compensation already paid to the applicant, the Supreme Military Administrative Court rejected the applicant's request for legal aid on 28 June 2000.
10. On 27 March 2002, the second chamber of the Supreme Military Administrative Court issued a decision of non-jurisdiction concerning the applicant's compensation claim on the ground that she was not military personnel. With reference to the relevant domestic legislation, the chamber held that the proceedings should have been instituted before the competent civil administrative court.
11. On 7 June 2002 the applicant instituted compensation proceedings before the Ankara Administrative Court. On 17 July 2003 the Ankara Administrative Court noted that the issue ought to have been examined by the Supreme Military Administrative Court due to its military content and referred the case to the Court of Jurisdictional Disputes (Uyuşmazlık mahkemesi), which held on 17 November 2003 that the matter fell within the jurisdiction of the military administrative courts.
12. Referring to the above judgment, the Ankara Administrative Court issued a decision of non-jurisdiction on 19 December 2003. Consequently the Supreme Military Administrative Court continued examining the merits of the case. On 3 May 2004 an expert report regarding the applicant's possible pecuni
