Last Updated on November 1, 2019 by LawEuro
SECOND SECTION
DECISION
Application no.40312/11
TahaErdem SARI
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 February 2019 as a Committee composed of:
Julia Laffranque, President,
StéphanieMourou-Vikström,
ArnfinnBårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 27 December 2010,
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 TahaErdem Sarı, is a Turkish national, who was born in 1990 and lives in Ankara. He was represented before the Court by Mr E. Alkılıç, a lawyer practising 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 was a cadet in Air Force Military Academy. On 1 April 2009 he was dismissed from the academy as it was established that he did not fulfil the admission pre-conditions. On 17 April 2009 the applicant applied to the Supreme Military Administrative Court (“SMAC”) to have the annulment of this decision.
5. On 13 January 2010, relying on the classified investigation reports submitted by the Ministry of Defence, the SMAC rejected the applicant’s case. The applicant did not have access to these classified reports.
6. On 14 July 2010 the SMAC rejected the applicant’s request for rectification.
B. Relevant domestic law
7. 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).
8. 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 According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished.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.”
9. 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
10. The applicant stated under Article 6 § 1 of the Convention that the proceedings held before the Supreme Military Administrative Court had been unfair and complained about his inability to have access to the documents submitted to it.
THE LAW
11. The applicant complained under Article 6 of the Convention about the fairness of the proceedings before the Supreme Military Administrative Court.
12. 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 the 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 non-exhaustion of domestic remedies.
13. 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 Radomilja and Others v. Croatia [GC], no. 37685/10, § 117, 20 March 2018; Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010; and İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006).
14. 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).
15. 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.
16. 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.
17. 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.
18. The Court further notes that this fresh examination would also remedy the remaining complaints of the applicant (see Baysal, cited above, § 17).
19. 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 7 March 2019.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President
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