SECOND SECTION
DECISION
Application no. 246/13
Rasim TÜTÜNCÜ
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:
Paul Lemmens, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 31 October 2012,
Having regard to the decision of 8 March 2018,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Rasim Tütüncü, is a Turkish national, who was born in 1971 and lives in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a military officer in the Turkish Armed Forces. Despite the fact that he had the necessary qualification for promotion of excellence (üstün başarı kıdemi), his name was not on the list issued in 2011 by the Turkish Land Forces (TLF).
5. On 6 September 2011 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the TLF’s decision denying him to grant promotion.
6. During the proceedings, the Chief Public Prosecutor at the Supreme Military Administrative Court delivered his opinion on the merits of the case. This opinion was not communicated to the applicant.
7. On 6 March 2012 the Supreme Military Administrative Court dismissed the applicant’s case.
8. On 8 May 2012 the Supreme Military Administrative Court rejected the applicant’s rectification request.
B. Relevant domestic law and practice
9. 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).
10. Following a referendum held on 16 April 2017, Law no. 6771 was adopted. According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished.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.”
11. 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 an application pending 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
12. The applicant complained under Article 6 § 1 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion to him in the proceedings before the Supreme Military Administrative Court violated his right to an adversarial and fair hearing.
THE LAW
13. The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court.
14. The Government informed the Court that on 21 March 2018 Law no. 7103 had been enacted and published in the Official Gazette on 27 March 2018. They pointed out that Section 23 of Law no. 7103 had amended 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 decisions on account of non-exhaustion of domestic remedies. Accordingly, they maintained that the present application should be rejected for due to non-exhaustion of domestic remedies.
15. The Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts. Yet, the rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006; Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010; and Radomilja and Others v. Croatia [GC], no. 37685/10, § 117, 20 March 2018).
16. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and İçyer, cited above).
17. The Court recalls that in its judgment in the case of Tanışma v. Turkey (no. 32219/05, 17 November 2015), it has examined the legal problem at issue and ruled that the Supreme Military Administrative Court could not be considered to be an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. As a result, in order to provide redress for similar complaints at domestic level and to reduce the number of applications pending before the Court, as of 16 April 2017 the Supreme Military Administrative Court has been abolished. Subsequently, by Law no. 7103 dated on 21 March 2018, a genuine opportunity to obtain a fresh trial before a civil administrative court for all applications that are currently pending before the Court, was adopted.
18. In its decision in the case of Baysal v. Turkey ((dec.), no. 29698/11, 22 May 2018), the Court declared a new application inadmissible on the ground that the applicant had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the fairness of proceedings.
19. In the present case, the Court reiterates its conclusion in the case of Baysal (cited above) and observes that the applicant has now the possibility of requesting 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. As a result, the Ankara Administrative Court will be called on to conduct a fresh examination of the cases and an appeal may be lodged with the Supreme Administrative Court against the decision of the Ankara Administrative Court. The applicant may further bring an individual application to the Constitutional Court against the judgment of the Supreme Administrative Court. Should the applicant still consider himself to be the victim of the alleged violation, it would be open to him to lodge a new application with the Court pursuant to Article 34 of the Convention.
20. It follows that the present application must be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 February 2019.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy