SECOND SECTION

DECISION

Application no. 29698/11 Adnan OÄŸuz BAYSAL against Turkey

The European Court of Human Rights (Second Section), sitting on 22 May 2018 as a Chamber composed of:

Robert Spano, President, Paul Lemmens, Ledi Bianku, Işıl Karakaş, Nebojša Vučinić, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 10 December 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Adnan Oğuz Baysal, is a Turkish national who was born in 1978 and lives in Eskişehir. He was represented before the Court by Mr C. Çalış, a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant, a military officer in the Turkish army, was dismissed in 2009 for disciplinary reasons. Subsequently, he initiated proceedings before the Supreme Military Administrative Court to have the decision regarding his dismissal annulled.

4. On 20 April 2010 the Supreme Military Administrative Court dismissed the applicant ’ s action (decision no. 2009/919 E, 2010/427K).

5. On 28 September 2010 the applicant ’ s rectification request was rejected by the Supreme Military Administrative Court. This decision was served on him on 12 October 2010.

B. Relevant domestic law

6. 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).

7. Following a referendum held on 16 April 2017, Law no. 6771 was passed. According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished.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.”

8. 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 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 decision on account of non-exhaustion of domestic remedies.

COMPLAINT

9. The applicant complained under Article 6 § 1 of the Convention of unfairness in the proceedings held before the Supreme Military Administrative Court. In this connection, he argued that the Supreme Military Administrative Court could not be considered to be an independent and impartial tribunal and further complained about his inability to have access to the documents submitted to it.

THE LAW

10. Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal, since the two military officers who had sat on the bench of the Supreme Military Administrative Court had remained under the authority of the military hierarchy of the military authorities and had not been afforded the same judicial guarantees as other military judges. He further complained of unfairness in the proceedings before that court on account of his inability to have access to the classified documents submitted to it by the Ministry of Defence in the course of the proceedings and the non-communication to him of the written opinion of the public prosecutor submitted to the court. Article 6 of the Convention, in so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

11. 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).

12. 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).

13. The Court recalls that in its judgment in the case of Tanışma ( no. 32219/05 ), 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, Law no. 7103 was passed on 21 March 2018. This new law affords a genuine opportunity to obtain a fresh trial before a civil administrative court for all applications that are currently pending before the Court.

14. The Court must now confine its examination to the new remedy introduced by Law no. 7103 of 21 March 2018, which provides for the possibility of a retrial in cases that concern the independence and impartiality of the Supreme Military Administrative Court.

15. In this connection, t he Court notes that as of 16 April 2017 the Supreme Military Administrative Court has been abolished. Furthermore, subsequent to the enactment of section 23 of Law no. 7103 on 21 March 2018, all applicants who have a pending case before the Court concerning the independence and impartiality of the Supreme Military Administrative Court have 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 case.

16. Furthermore, an appeal may be lodged with the Supreme Administrative Court against the decision of the Ankara Administrative Court, and the applicant may also 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.

17. In the light of the above considerations, the Court considers that many factors in the instant case justify a departure from the general principle that the exhaustion requirement must be assessed with reference to the time at which the application was lodged. The Court accordingly concludes that the applicant should use the possibility of a retrial provided for by Law no. 7103 and ask for a fresh examination of his case before the Ankara Administrative Court, which would also allow him to request to have access to the documents that had not been communicated to him during the initial trial.

18. It follows that the present application must, as a whole, 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 June 2018 .

             Stanley Naismith Robert Spano Registrar President