Information Note on the Court’s case-law 191
December 2015
Yavuz Selim Güler v. Turkey - 76476/12
Judgment 15.12.2015 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Domestic remedies made accessible only as a result of unforeseeable change in the case-law after the application was lodged: preliminary objection dismissed
Facts – In 2011 the applicant, a non-commissioned officer, was given a sanction of two days’ detention by his military superior. Before the European Court he complained that the custodial sanction had not been decided by an independent and impartial tribunal.
Subsequently the Military Administrative High Court ruled for the first time on such custodial sentences in the context of applications for annulment (24 May 2012) and for compensation (22 February 2013). It took the view that, even though they were compliant with domestic law, the sanctions were in breach of Article 5 § 1 of the Convention. The applicant did not make use of the remedies.
Law – Article 35 § 1: As regards, first, the possibility of lodging an application for annulment, the applicant could not reasonably have foreseen that this remedy would be available and appropriate. At the material time, the law in force expressly prohibited the exercise of any judicial scrutiny over disciplinary sanctions inflicted by superiors for breaches of military discipline. In that connection, according to the well-established case-law in such matters of the Military Administrative High Court, such applications were systematically rejected. That court’s judgment of 24 May 2012 was thus a departure from precedent. But it had not been legally foreseeable for the applicant. A six-month period was normally necessary for a case-law development to acquire publicity and a sufficient degree of legal certainty at domestic level. It was thus from 24 November 2012 that applicants could be required to use that remedy for the purposes of Article 35 § 1 of the Convention. The present application had been lodged on 22 October 2012. Consequently, the applicant did not have to make use of a remedy which was theoretically inaccessible.
As regards the application for compensation, it was noteworthy that the applicant’s detention had been perfectly legal under domestic law, but that it was nevertheless in breach of Article 5 § 1 (a) of the Convention. It followed from the judgment of the Military Administrative High Court that its interpretation (as to the hierarchy of norms and the primacy of the Convention over statute law) opened the way to pecuniary reparation for army personnel deprived of freedom following a custodial sanction imposed by their superior. That situation corresponded precisely to that of the applicant. The compensatory remedy was thus appropriate as it enabled the existence of interference with the right to liberty and security to be established and could secure compensation. However, that remedy had only recently been introduced. The relevant decision of the court in question was delivered on 22 February 2013, so it post-dated the lodging of the present application. At the material time, neither the letter of the law nor its interpretation by the Military Administrative High Court allowed military personnel who had been given a disciplinary sanction by their superior to obtain reparation on the ground that such sanction was in breach of Article 5 of the Convention. Whilst the remedy had become an effective one, there was nothing to show that it already was at the time the application was lodged. The applicant could not therefore be criticised for failing to use it.
Conclusion: preliminary objection rejected (unanimously).
The Court also found, unanimously, that there had been a violation of Article 5 § 1 of the Convention.
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This summary by the Registry does not bind the Court.
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