FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47503/99 by Habip GÃœNDOÄžDU against Turkey

The European Court of Human Rights ( First Section) , sitting on 5 December 2000 as a Chamber composed of

Mrs W. Thomassen , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 1 April 1999, and registered on 16 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1969 and living in NiÄŸde , Turkey. He is represented before the Court by Mr Tevfik Demirel , a lawyer practising in Ankara.

A. Particular circumstances of the case

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

On 4 December 1998 the Supreme Military Council ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of insubordination and immoral conduct pursuant to Article 50(c) of Law 926.

B. Relevant domestic law and practice

1. The Constitution

The relevant provisions of the Constitution are as follows:

Article 14 § 1

“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”

Article 24

“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.

...

No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”

Article 125

“All acts or decisions of the administration are subject to judicial review

...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.

...”

Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.

2. Law no. 357 (“the Military Legal Service Act”)

Section 22 (c) of the Military Legal Service Act provides:

“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.

...

Where their conduct and attitude reveal that they have adopted unlawful opinions.”

3. Law no. 926 (“the Military Personnel Act”)

Section 50 (c) of the Military Personnel Act provides:

“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”

Section 94 (b) of the Military Personnel Act provides:

“(b) Discharge from the army for the acts of insubordination and immoral conduct:

Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund.  The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.

4. The Regulations on assessment of officers and non-commissioned officers

Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:

“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:

...

(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention that he had no recourse to challenge the decision of the Supreme Military Council before the national authorities.

The applicant complains under Article 7 of the Convention that the decision to discharge him from the army is in contradiction with the domestic provisions regulating the disciplinary sanctions.

The applicant complains under Article 9 of the Convention that the decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion.

THE LAW

1. The applicant complains under Article 7 of the Convention that the decision to discharge him from the army is in contradiction with the domestic provisions regulating the disciplinary sanctions.

The Court recalls that the principle set forth in Article 7 § 1 of the Convention, namely that offences and penalties must be provided for by law, concerns convictions on account of any act or omission which constitutes an offence under national criminal law. In this case, the proceedings complained of by the applicant concerned disciplinary charges brought against him which led to his discharge from the army. The Court takes the view that such a penalty does not amount to conviction of an offence within the meaning of Article 7 of the Convention. Consequently, that provision of the Convention cannot be applicable in the present case (cf. Eur. Comm. HR, No. 15965/90, 15.01.1993, D.R. 74, p. 91).  

Against this background the Court considers that the applicant’s complaint under this head is inadmissible ratione materiae within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Articles 6 and 13 of the Convention that he had no recourse to challenge the decision of the Supreme Military Council before the national authorities.

The applicant further complains under Article 9 of the Convention that the decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaints under Article 9 and 13 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of its Rules of Procedure, to give notice of them to the respondent Government.

For these reasons, the Court, unanimously,

Decides to adjourn the examination of the applicant’s complaints that he had no recourse to challenge the decision of the Supreme Military Council before the national authorities and that decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion;

Declares inadmissible the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President