FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47491/99 by Hasan SERT 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 23 March 1999 and registered on 15 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1971 and living in Muğla , Turkey. He is represented before the Court by Mr Mustafa Halit Çelik , a lawyer practising in Istanbul.

A. Particular circumstances of the case

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

In a letter dated 1 September 1998 the applicant was ordered to vacate his tied accommodation provided by the army on the grounds that his wife was carrying an Islamic scarf in the military premises.

Following an ordinance issued by the Muğla Infantry Command on 10 August 1995 the applicant and his family was denied to access to the military premises on the same grounds. The applicant’s close relatives carrying Islamic scarves were also not allowed in the military buildings.

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 94(b) 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 Article 6 § 3 of the Convention that he was not informed of the nature and cause of the accusations against him and that he was denied the assistance of a lawyer while the Supreme Military Council was examining his case. He points out that the decisions of the Supreme Military Council are not subject to judicial review according to Article 125 of the Turkish Constitution.

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. He maintains that the implicit reason for the aforementioned decision was based on his religious convictions and his wife’s Islamic scarf.

The applicant complains under Article 13 of the Convention taken in conjunction with Article 9 of the lack of any independent national authority before which complaints can be brought with any prospect of success.

THE LAW

1. The applicant complains under Article 6 § 3 of the Convention that he was not informed of the nature and cause of the accusations against him and that he was denied the assistance of a lawyer while the Supreme Military Council was examining his case.

The Applicability of Article 6

a) On the existence of “any criminal charge”

The Court notes that the applicant was discharged from the army for insubordination and immoral conduct by a decision of a military body. The Court already examined a similar issue in two cases relating to military disciplinary proceedings (see, the Engel and others v. the Netherlands judgment of 8 June 1976, Series A-22) and to prison disciplinary proceedings (see, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A-80).

In those cases the Court held that the Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. However, the Court does not follow that the classification thus made is decisive for the purposes of the Convention (see the above-mentioned the Engel and others v. the Netherlands judgment, §§ 81-82 and the Campbell and Fell v. the United Kingdom judgment, §§ 68-69). It is important, therefore, to ascertain whether or not the text defining the offences in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently (see the above-mentioned Engel and Others judgment, § 82).

In the instant case the Court observes that the acts of insubordination and immoral conduct, which the applicant was accused of, are punished under Turkish law by the disciplinary statutes.

As to the nature of the disciplinary sanction, the Court recalls that “disciplinary sanctions are generally designed to ensure that the members of particular groups comply with the specific rules governing their conduct” (see, the Weber v. Switzerland judgment of 22 May 1990, Series A-177, § 33).

The Court observes that in choosing a military career the applicant was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians (see the above-mentioned the Engel and Others v. the Netherlands judgment of 8 June 1976, p. 24, § 57). States may adopt for their armies disciplinary regulations forbidding this or that type of conduct, in particular an attitude inimical to an established order reflecting the requirements of military service (see the Kalaç v. Turkey judgment of 1 July 1997, Reports 1997-IV, § 28).

The Court notes that the essence of the sanction of discharge imposed to the applicant falls into the field of disciplinary proceedings in the armed forces and addresses itself only to one given group with a particular statute. Consequently, the Court concludes that the decision of discharge cannot be considered as a “criminal charge” within the meaning of Article 6 of the Convention.

b) On the existence of a “determination” of “civil rights”

As to the question of the applicability of Article 6 to the disputes concerning civil rights and obligations the Court notes that the applicant was employed as an officer in the Turkish army. Having regard to the nature of the functions and responsibilities which it incorporates, the applicant’s employment can be regarded as a direct participation in exercise of the public authority and functions aiming at safeguarding the general interests of the State. (see, Pellegrin v. France, no. 28541/95, § 66, ECHR 1999-II).

Against this background the Court considers that Article 6 § 1 of the Convention is not applicable in the instant case. It follows that the applicant’s complaints under this head must be rejected as being incompatible ratione materiae within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. 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 notes that Article 7 of the Convention embodies the principle that only the law can define a crime and prescribe a penalty and prohibits the retrospective application of the criminal law to an accused’s disadvantage (see, the Kokkinakis v. Greece judgment of 25 May 1993, Series A-260, § 52).

Against this background and the above considerations related to the inapplicability of Article 6 of the Convention 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.

3. 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. He maintains that the implicit reason for the aforementioned decision was based on his religious convictions and his wife’s Islamic scarf.

The applicant complains under Article 13 of the Convention taken in conjunction with Article 9 of the lack of any independent national authority before which complaints can be brought with any prospect of success.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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 the decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion and that there existed no independent national authority before which complaints can be brought with any prospect of success;

Declares inadmissible the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President