SECOND SECTION
CASE OF KESKİN v. TURKEY
(Application no. 16887/09)
JUDGMENT
STRASBOURG
10 July 2018
This judgment is final but it may be subject to editorial revision.
In the case of Keskin v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 19 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 16887/09) 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, Mr Tarık Keskin (“the applicant”), on 23 March 2009.
2. The applicant was represented by Ms T. Çelikyürek, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. On 21 March 2012 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1979 and lives in Kayseri.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant, who was a sergeant in the Army had a traffic accident in 2007 and was declared “disabled” (Adi malül”).
7. On unspecified date, the applicant requested the General Directorate of Pension Fund (the Fund) (“Emekli-Sandığı”) to modify his retirement statute as service-disabled (“vazife malülü”), but the fund rejected that request.
8. On 9 August 2007 the applicant brought an action before the Supreme Military Administrative Court seeking the annulment of the Fund’s decision.
9. On 22 May 2008 the Supreme Military Administrative Court dismissed the applicant’s request.
10. On 11 September 2008 the applicant’s rectification request was rejected.
11. During the proceedings, namely on 12 May 2008 and 29 July 2008 the Public Prosecutor at the Supreme Military Administrative Court filed lengthy written opinions on the case. However these opinions were not communicated to the applicant.
II. RELEVANT DOMESTIC LAW
12. The description of the relevant domestic law may be found in Meral v. Turkey (no. 33446/02, §§ 21-26, 27 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. Non-communication of the Chief Public Prosecutor’s written opinions
13. The applicant complained that the non-communication of the Chief Public Prosecutor’s written opinions during the proceedings before the Supreme Administrative Court had violated his right to an adversarial and fair hearing. In this respect, he relied on Article 6 § 1 of the Convention.
14. The Government contested that argument.
15. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
16. The Court has already examined a similar complaint in the case of Meral v. Turkey (no. 33446/02, §§ 32-39, 27 November 2007) and found a violation of Article 6 § 1 of the Convention. It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.
17. In view of the foregoing, the Court holds that there has been a violation of Article 6 § 1 of the Convention.
B. Alleged unfairness of the proceedings
18. The applicant complained under Article 6 of the Convention that the administrative proceedings had not been fair.
19. In the light of all the material in its possession, the Court finds that these submissions by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that this complaint must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
20. The applicant did not submit a claim in respect of pecuniary and non-pecuniary damage within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.
B. Costs and expenses
21. The applicant claimed 1,600 Turkish Liras (TRY) (equivalent of approximately 310 euros (EUR)) in respect of lawyer’s fees and TRY 125 (equivalent of approximately EUR 24) for other costs and expenses incurred before the domestic court. In that connection, he submitted two receipts concerning expenses before the domestic court and an agreement concerning the lawyer’s fee.
22. According to 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, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 200 covering costs under all heads.
C. Default interest
23. 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 complaints under Article 6 § 1 concerning non‑communication of public prosecutor’s opinion admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 200 (two hundred 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 amount 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy