Communicated on 22 January 2018
SECOND SECTION
Application no. 30247/10
Mehmet Ali POLATER
against Turkey
lodged on 13 April 2010
SUBJECT MATTER OF the CASE
The applicant’s son, while performing his compulsory military service, was accidentally shot dead by a fellow soldier during guard duty. When he applied to the Retired Civil Servants’ Fund (Emekli Sandığı) to receive special benefits due to the death of his son, he found out that his son had been considered disabled on duty (vazife malulü) only. He then requested the Ministry of Defence (“the Ministry”) to recognise his son’s martyrdom status and to award him compensation under the Law No. 2330. The Ministry rejected the applicant’s requests. The applicant sought the annulment of the Ministry’s decision denying his son the status of martyrdom. The Supreme Military Administrative Court dismissed the applicant’s lawsuit without replying to his argument that another soldier, who had previously died under identical conditions as his son, had been awarded martyrdom. The final judgment was served on the applicant on 21 October 2009.
The applicant complains under Article 6 § 1 of the Convention of the unfairness of the proceedings on account of the martyrdom status not being sufficiently defined in the Turkish legal context, contrary to the principle of legal certainty and the Supreme Military Administrative Court’s lack of response to his main argument about the other soldier who had died under identical conditions. The applicant further complains under Article 14 of the Convention that he had been treated differently to others in his situation as a result of the divergence in the application of the criteria on according martyrdom status.
QUESTIONS
1. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case? In particular, did the domestic proceedings concern the determination of a “civil right” within the meaning of Article 6 and was those proceedings decisive for the right in question?
The parties are requested to point to provisions of the relevant domestic law and their interpretation by the domestic courts as to the existence of a “civil right”. In particular, the Government are invited to clarify whether
(i) the applicant was denied any pecuniary benefits under domestic law which would have been granted to him if his son were to be recognized as martyr instead of disabled on duty only; and
(ii) the proceedings brought by the applicant against the Ministry before the Supreme Military Administrative Court were instrumental for the applicant obtaining those benefits.
The parties are requested to provide further pertinent judgments on the matter delivered by the military administrative courts over the relevant time-period.
2. In the affirmative, did the applicant have a fair hearing within the meaning of Article 6 § 1 of the Convention? In particular, did the Supreme Military Administrative Court duly evaluate and address in its judgment the applicant’s argument that another soldier who died under identical conditions as his son had been considered martyr (see Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303‑A, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, ECHR 2017 (extracts))?
The Government are invited to clarify the criteria based on which the authorities apply domestic law on martyrdom when deciding whether or not to award martyrdom to soldiers who die accidentally while performing military service. The Government are also asked to provide the incident report prepared for the applicant’s son and that prepared for the soldier which the applicant referred to as example as well as the documents relating to the correspondence between the applicant and the Ministry and other domestic authorities concerning his son’s status and other proceedings (if any) instituted by the applicant.
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