SECOND SECTION

DECISION

Application no . 12958/05 Osman and Havva ERG Ü N against Turkey

The European Court of Human Rights ( Second Section ), sitting on 6 September 2016 as a Chamber composed of:

Julia Laffranque , President, Işıl Karakaş , Nebojša Vučinić , Paul Lemmens , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , Georges Ravarani , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 8 March 2005 ,

THE FACTS

1. The applicants, Mr Osman Ergün and Ms Havva Ergün , are Turkish nationals, who were born in 1956 and 1965 respectively and live in Ankara . They were represented before the Court by Mr K. Gül , a lawyer practising in Samsun .

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

A. First set of proceedings

3. On 7 September 2000 th e applicants ’ son, A.E., joined the army to perform his compulsory military service. The medical report drawn up by the Gülhane Military Academy prior to his conscription stated that there were no contraindications to his conscription. However, he was known to be suffer ing from a severe dermatological disease since 1996 .

4. On 10 October 2000 the applicants ’ son ’ s disease deteriorated, and he was transferred to the Ege University Hospital. He died on 19 January 2001.

5. On 26 September 2001 the applicants initiated proceedings before the Supreme Military Administrative Court and requested pecuniary and non-pecuniary compensation . In their petition, the applicants each claimed 1,000 Turkish Liras (TRY) in respect of pecuniary damages. For non ‑ pecuniary damages, they requested TRY 150,000 for the mother and TRY 125,000 for the father.

6. On 3 April 2002 the Supreme Military Administrative Court rejected the case on the ground that it lacked jurisdiction.

7. Following a rectification request, the Supreme Military Administrative Court decided to examine the merits of the case in a decision dated 2 September 2002.

8. Having held a public hearing on 13 November 2002 and taken into account an expert report dated 19 March 2003 , the Supreme Military Administrative Court delivered its judgment on 5 April 2005. It ruled in favour of the applicants and awarded each of them TRY 1,000 in respect of pecuniary damage and TRY 2,450 in respect of non-pecuniary damage.

9. On 11 July 2005 the applicants initiated proceedings and asked for additional compensation in respect of their pecuniary damage , arguing that their claim for additional compensation had not been taken into account in the judgment of the Supreme Military Administrative Court dated 5 April 2005.

10. On 21 July 2005 the Supreme Military Administrative Court rejected the case for additional compensation in respect of pecuniary damages on the b as is o f the failure to bring the claim within the statutory time - limit. The c ourt considered the applicants ’ claim to be an application to have the initial amount amended ( ıslah ) and dismissed it for being out of time.

11. On 16 November 2005 the Supreme Military Administrative Court rejected the rectification request of the applicants.

B. Second set of proceedings

12. In the meantime, on 18 November 2002 the applicants had applied to the General Directorate of Pension Funds. They requested a pension, claiming that their son had died during his military service and because of his death the administration was required to pay a pension under domestic law.

13. On 21 January 2003 the General Directorate of Pension Fund s rejected the applicants ’ request for a pension on the ground that the death of the applicants ’ son was not the consequence of his military service .

14. O n 6 January 2004 the applicants lodged an application with the Suprem e Military Administrative Court with a request for a pension.

15. On 27 January 2005 the Supreme Military Administrative Court rejected the applicants ’ request on the ground that the applicants ’ son had died due to an illness he had had before joining the army , and it ha d a genetic basis. Also , the applicants had failed to prove that they fulfilled the requirements for a pension since no document showing that the applicants were dependent or disabled had been provided . Thus , the Supreme Military Administrative Court found t hat the applicants ’ request did not have any legal ground and rejected the application.

COMPLAINTS

16. The applicants complained under Article 4 § 2 of the Convention that their son ’ s obligation to join the army despite his disease violated the prohibition of forced labour. Relying on Article 6 of the Convention, they also maintained that the impossibility of filing an appeal against the judgments of the Supreme Military Administrative Court had violated their right of access to court. Under Article 6, they further complained about the insufficiency of the amount of compensation awarded by the domestic court. Under the same Article the applicants also complained about the outcome of the proceedings before the Supreme Military Administrative Court concerning their request for pension.

THE LAW

17. The applicants complained under Article 4 of the Convention that their son ’ s obligation to join the army despite his disease had violated the prohibition of forced labour. The applicants also complained under Article 6 § 1 of the Convention about various shortcomings in the two proceedings before the Supreme Military Administrative Court.

Article 4 of the Convention as relevant provides:

“... 2. No one shall be required to perform forced or compulsory labour .

3. For the purpose of this article the term ‘ forced or compulsory labour ’ shall not include:

...

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised , service exacted instead of compulsory military service ... ”

Article 6 § 1 of the Convention provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Article 4 of the Convention

18. The Court notes that Article 4 § 3 (b) of the Convention excludes military service from the scope of forced or compulsory labour . Moreover, it observes that the applicants ’ son had, notwithstanding his illness, been found fit to perform his service. Therefore, the applicants ’ co mplaint under Article 4 does not raise an issue under the Convention and should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention (see Eker v. Turkey , no. 26970/95, Commission decision of 20 May 1998).

B. Article 6 of the Convention

1. Concerning the amount of compensation awarded

19. The Court notes that in its judgment of 5 April 2005, the Supreme Military Administrative Court based its decision on an expert report which calculated the pecuniary and non-pecuniary compensation. With respect to pecuniary damages, the Supreme Military Administrative Court awarded each of them TRY 1,000, which was the amount claimed. There is no further element in the case file which discloses an appearance of a violation of the guarantees of Article 6 by the Supreme Military Administrative Court. Furthermore, the Court observes that on 21 July 2005 the Supreme Military Administrative Court rejected the applicants ’ request for additional compensation due to their failure to bring their case within the time-limit provided for by law. The applicants have not provided the Court with any explanation showing that the application of the time-limit was arbitrary or unreasonable.

20. In the light of the foregoing, the Court declares this part of the application inadmissible for being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. Concerning the fairness of the second set of proceedings

21. Regarding the judgment of the Supreme Military Administrative Court dated 27 January 2005 concerning a pension, the Court observes that the applicants ’ request was rejected by the Supreme Military Administrative Court on account of the fact that the applicants had failed to bring their claim within any of the grounds specified under domestic law. T he case file do es not reveal any deficiency in the conduct of the proceedings, and the applicants do not present any argument which requires further examination.

22. Therefore, the Court declares this part of the application inadmissible for being manifestly ill-founde d within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. Concerning the right of access to court

23. As to the complaint on the impossibility to appeal against the judgments of the Supreme Military Administrative Court, this issue has already been examined by the Court in the case of Arslan v. Turkey ( dec. ), no. 39080/07, ECHR 21 September 1999). The Court finds no reasons to depart from those findings in this case.

24. Having regard to the above considerations the Court considers that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2016 .

Stanley Naismith Julia Laffranque Registrar President