SECOND SECTION
DECISION
Application no. 51205/13
Behzat YEŞİLBAŞ
against Turkey
The European Court of Human Rights (Second Section), sitting on 17 February 2015 as a Committee composed of:
Helen Keller, President,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 1 August 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Behzat Yeşilbaş, is a Turkish national and was born in 1966. He was represented before the Court by Mr C. Koç, a lawyer practising in Ankara.
A. The circumstances of the case
2. The applicant is a senior sergeant in the army. In September 2011, he was transferred from Ankara Garrison to Kütahya Garrison.
3. On 24 October 2011, the applicant applied to the Supreme Military Administrative Court alleging that his transfer was arbitrary and requested that it be annulled.
4. On 8 May 2012 the Supreme Military Administrative Court dismissed his case. The applicant applied for the rectification of the decision. On 13 November 2012 the Supreme Military Administrative Court rejected the rectification request.
5. On 26 December 2012 the applicant brought an individual application before the Constitutional Court. Relying on prohibition of discrimination the applicant alleged that the Supreme Military Administrative Court in dismissing the annulment of the arbitrary transfer violated his fundamental right which should be protected under the Turkish Constitution and the European Convention of Human Rights.
6. On 22 April 2013 the Constitutional Court declared his application inadmissible for being manifestly ill-founded. In its reasoning the Constitutional Court held that the applicant did not substantiate his discrimination allegation and as there has been no arbitrariness on the domestic court decisions, his complaint concerning the unfairness of the domestic court decisions was of a fourth instance nature.
7. On 4 July 2013 the applicant was served with the Constitutional Court’s judgment.
B. Relevant domestic law
8. A description of the relevant domestic law may be found in Hasan Uzun v. Turkey ((dec.), no.10755/13, §§ 68-71, 30 April 2013).
COMPLAINTS
9. The applicant invoked violation of Articles 6 and 14 of the Convention. He complained under Article 6 that the Supreme Military Administrative Court was not independent and impartial, that his rectification request was rejected by the same chamber which had delivered the judgment and that the decision delivered by the Supreme Military Administrative Court was erroneous. He complained under Article 14 that the domestic authorities acted in breach of the prohibition of discrimination principle.
THE LAW
10. The Court observes that the applicant submitted various complaints under Article 6 before the Court.
11. The Court reiterates however that under Article 35 of the Convention the complaints intended to be brought before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time‑limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200 and Gäfgen v. Germany [GC], no.22978/05, § 142, ECHR 2010).
12. As regards the complaints concerning independence and impartiality of the Supreme Military Administrative Court and examination of the rectification request by the same chamber that gave the decision, in the light of all the material in its possession, the Court observes that the applicant did not submit these complaints before the Constitutional Court. Accordingly, the Court considers that the applicant did not exhaust the domestic remedy available to him. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
13. As regards the fairness of the proceedings, the Court acknowledges that this complaint was dealt by the Constitutional Court and was found manifestly ill-founded. The Court observes that the applicant did not substantiate his complaint but alleged that the domestic court decision was erroneous. Consequently, the Court considers that this part of Article 6 complaint is of a fourth-instance nature and therefore must be declared manifestly ill-founded.
14. Without substantiating his allegations, the applicant further maintained under Article 14 of the Convention that he had been discriminated.
15. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of this provision. It follows that this part of the application is also manifestly ill-founded and must be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 March 2015.
Abel CamposHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy