SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 14019/07, 46287/07, 19387/08 and 48053/08
by Ramazan KELOĞLAN, Gökhan YILDIRIM, Tarık KURULDAK and
Özgün ÖZDEMİR
against Turkey
The European Court of Human Rights (Second Section), sitting on 26 May 2009 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above applications lodged on 19 March 2007, 10 October 2007, 10 April 2008 and 25 September 2008,
Having deliberated, decides as follows:
THE FACTS AND COMPLAINTS
The applicants are Turkish nationals and former military students. Their names, their dates of birth and the names of their representatives appear in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants were expelled from military academies on different dates on the basis of the results of secret security investigations conducted by the Ministry of Defence about them and their families, except for the applicant in application no. 48053/08, whose expulsion was grounded on his alleged use of illicit drugs. The applicants subsequently lodged separate applications with the Supreme Military Administrative Court (“the SMAC”) against the Ministry of Defence for the annulment of their respective expulsions. During the trial of each action the Ministry of Defence submitted certain classified documents to the SMAC as evidence against the applicants, the contents of which were not disclosed to them.
The applicants mainly complain under Article 6 § 1 of the Convention that the restriction on access to the documents submitted as evidence against them to the SMAC as justification of their respective expulsions constituted an infringement of their right to adversarial proceedings in conjunction with the principle of equality of arms. Mr Yıldırım (application no. 46287/07) also complains, without specifying any provisions of the Convention, that his expulsion from the military academy for unspecified reasons on the basis of the secret security investigation was unfair.
The details regarding the proceedings and the remaining complaints raised by the applicants appear in the table below:
Application no. and case name
Date of final decision delivered by the SMAC
Introduction date of the application
Other complaints raised by the applicants
14019/07
Keloğlan v. Turkey
15 November 2006
19 March 2007
- Article 6: Lack of independence and impartiality of the SMAC.
46287/07
Yıldırım v. Turkey
12 September 2007
10 October 2007
_
19387/08
Kuruldak v. Turkey
3 October 2007
10 April 2008
- Article 13: Lack of independence and impartiality of the SMAC.
48053/08
Özdemir v. Turkey
30 April 2008
25 September 2008
- Article 6: Lack of independence and impartiality of the SMAC;
- Article 6: Lack of an appeal procedure against the decisions of the SMAC.
THE LAW
1. In view of the similarity of the four applications, the Court finds it appropriate to join them.
2. The applicants complained under Article 6 § 1 of the Convention that their lack of access to the documents submitted by the Ministry of Defence to the SMAC had infringed their right to adversarial proceedings, together with the principle of equality of arms. The second applicant, Mr Yıldırım (application no. 46287/07), also complained that his expulsion from the military academy on the basis of a secret security investigation, the results of which had not been disclosed to him, had been unfair.
The Court deems it appropriate to examine Mr Yıldırım’s complaint from the standpoint of Article 6 § 1 of the Convention as an integral part of the question of the fairness of the proceedings before the SMAC.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applications to the respondent Government.
3. The applicants, except for Mr Yıldırım (application no. 46287/07), complained under Articles 6 § 1 and 13 of the Convention that the SMAC lacked independence and impartiality as it was composed of military judges and officers, who were servicemen belonging and accountable to the army, and subject to military discipline.
The Court deems it appropriate to examine these complaints from the standpoint of Article 6 § 1 of the Convention alone. However, it notes that this same complaint was declared inadmissible in the case of Yavuz and others v. Turkey ((dec.), no. 29870/96, 25 May 2000). It sees no reason to reach a different decision in the present cases.
It follows that this part of the applications should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The fourth applicant, Mr Özdemir (application no. 48053/08), also complained that he had had no right under domestic law to appeal against the decision reached by the SMAC, which had infringed his right to a fair hearing under Article 6 § 1 of the Convention.
The Court observes in this connection that Article 6 § 1 of the Convention does not compel a Contracting State to set up courts of appeal or cassation (see, among others, Delcourt v. Belgium, 17 January 1970, § 8, Series A no. 11; Piroğlu and Karakaya v. Turkey, nos. 36370/02 and 37581/02, § 37, 18 March 2008; Karakaya v. Turkey (dec.), no. 5173/05, 28 August 2008). Accordingly, the fact that the domestic law of the respondent State did not make provision for an appeal against the SMAC’s decisions does not raise an issue under Article 6 § 1.
Having regard to the above considerations, the Court finds that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaint of an infringement of the right to adversarial proceedings and the principle of equality of arms on account of the lack of access to classified documents submitted by the Ministry of Defence to the Supreme Military Administrative Court;
Declares the remainder of the complaints inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
APPENDIX
File No
Applicant’s Name
Applicant’s Date of Birth
Applicant’s Representative
14019/07
Mr Ramazan Keloğlan
21 April 1988
Mr İsa Çetin
46287/07
Mr Gökhan Yıldırım
10 October 1987
Mr Kureyş Bilgiç
19387/08
Mr Tarık Kuruldak
25 March 1991
Mr Ruhi Hallaçoğlu, Mr Namık Kemal Tüylüce
48053/08
Mr Özgün Özdemir
3 November 1986
Mr Ali Paşaoğlu
Full & Egal Universal Law Academy