SECOND SECTION

DECISION

Application no. 20684/11 Mehmet Zafer YILDIZ against Turkey

The European Court of Human Rights (Second Section), sitting on 18 May 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 19 January 2011,

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 Mehmet Zafer Yıldız, is a Turkish national, who was born in 1971 and lives in Ankara. He was represented before the Court by Ms G. Tütüncüoğlu, a lawyer practising in Ankara.

2. The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

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

4. The applicant, who was a lieutenant in the Turkish armed forces at the time, suffered serious injuries as a result of stepping on a mine during a counter-terrorist operation that took place on 1 May 1997.

5. In a medical report issued by the GATA military hospital on 2 February 2000, it was indicated that the applicant’s right leg was amputated and that he was unfit for service. On the basis of the findings of this report, the medical board of the General Directorate of Pension Fund, in its decision of 28 February 2000, considered that the applicant was permanently disabled and would depend on the assistance of another to perform basic functions. It therefore asked the armed forces to send the relevant paperwork as the applicant fulfilled the conditions for retirement.

6 . The applicant requested to continue to be employed in the armed forces in a position compatible with his disability and notwithstanding his acquired rights to retirement as set out in the decision of 28 February 2000. Pursuant to the applicant’s request, a separate medical report was issued on 8 August 2000 by the GATA military hospital whereby it was decided that the applicant was not disabled to a degree that required personal assistance and that he could perform the tasks set out in section 31 of the Armed Forces Health Regulations.

7. Accordingly, the applicant was appointed to an office position where he worked for almost four years. On 23 September 2004 he wrote to the Pension Fund, indicating his wish to retire, and inquired about his entitlements and allowances.

8. In its reply of 30 September 2004 to the applicant, the Pension Fund referred to its decision of 28 February 2000 where it considered that the applicant was permanently disabled and depended on the assistance of another to perform basic functions. The Pension Fund therefore noted that the applicant would be entitled to retire on the basis of the disability pension and have the relevant benefits as set out in Law nos. 2330, 3713 and 5434.

9. The applicant thereafter officially filed in his request to be retired which was approved by the armed forces on 19 October 2004 and submitted to the Pension Fund.

10. On 28 October 2004 the Pension Fund informed the armed forces that it had decided to revoke the part of its decision of 28 February 2000 concerning the applicant’s entitlement to personal assistance allowance on account of the second medical report of 8 August 2000 (see paragraph 6 above).

11. The applicant challenged the Pension Fund’s decision of 28 October 2004 by bringing a case before the Ankara Administrative Court on 18 December 2014. He argued that the fact that he had continued to work in an intellectual capacity for the armed forces should not be interpreted against him and the report of 2 February 2000 should be taken as authoritative in the determination of his entitlement to personal assistance allowance.

12. The Ankara Administrative court decided to seek an expert medical opinion from the Medical Faculty of the Gazi University with a view to determining whether the applicant required personal assistance to perform basic functions.

13. In its report of 6 June 2007, the medical experts noted that the applicant was permanently disabled and that there had been no change in his disability. While they declared the applicant unfit for physical labour, they noted that he was not disabled to the degree that he would depend on the assistance of another to perform basic functions. This report was delivered to the Ankara Administrative Court on 15 June 2007 but was not communicated to the applicant.

14. The applicant found out about the delivery of the expert report on his own. On 18 June 2007 he submitted to the Ankara Administrative Court his objections in writing to the findings of the experts.

15. The Ankara Administrative Court dismissed the applicant’s case on 27 June 2007, on the basis of the expert reports. The first-instance court held that the previous expert reports in the applicant’s case-file and the last report of 6 June 2007 led to the conclusion that the applicant’s disability did not reach the severity to require the assistance of another and for this reason the Pension Fund’s impugned decision rejecting his request for the payment of personal assistance had been lawful.

16. The applicant lodged an appeal with the Supreme Administrative Court, reiterating his objections to the findings of the expert report of 6 June 2007.

17. The Supreme Administrative Court dismissed the applicant’s appeal and rectification request on 16 April 2008 and 19 March 2010, respectively, by endorsing the conclusions of the Ankara Administrative Court.

18. On 13 November 2010 the applicant made an application with the Pension Fund for a revaluation of his medical condition.

19 . On 29 March 2011 a medical board consisting of three experts considered that the applicant required the assistance of another to perform basic functions. They based their decision expressly on the report of 2 February 2000.

20. As of 1 April 2011, the applicant started to receive the personal assistance allowance in addition to his disability pension.

COMPLAINT

21. The applicant complained under Article 6 § 1 of the Convention that the proceedings before the Ankara Administrative Court had been unfair as that court deprived him of a real opportunity to challenge the findings of the experts and to request a second expert opinion in a timely manner.

22. The relevant part of Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by [a] ... tribunal ...”

THE LAW

23. The Government argued that the applicant did not have victim status in so far as he was receiving the personal assistance allowance since 1 April 2011. Alternatively, the Government proposed that the application be declared inadmissible on the grounds of non-exhaustion of domestic remedies for the applicant had not brought proceedings, after the decision of of 29 March 2011 (see paragraph 19 above), to request the payment of the personal assistance allowance retroactively, that is to say, for the period between his retirement and 1 April 2011.

24. The applicant maintained his arguments and did not comment on the admissibility of his application.

25. The Court does not find it necessary to address the Government’s objections given that the application is in any event inadmissible for the following reasons.

26. The Court reiterates that the concept of a fair hearing implies the right to adversarial proceedings, in accordance with which the parties must have the opportunity not only to adduce evidence in support of their claims, but also to have knowledge of, and comment on, all evidence or observations filed, with a view to influencing the court’s decision ( Nideröst-Huber v. Switzerland , 18 February 1997, § 24, Reports of Judgments and Decisions 1997‑I). What is at stake is the litigants’ confidence in the workings of justice, which is based on, inter alia , the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria , no. 30428/96, § 18, 6 February 2001).

27. At the same time, it is well-established in the Court’s case-law that a defect at first instance may be remedied on appeal, as long as the appeal body has full jurisdiction. Where a complaint is made of alleged non-communication of documents, the concept of “full jurisdiction” involves that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision or to remit the case for a new decision by an impartial body (see M.S. v. Finland , no. 46601/99, § 35, 22 March 2005; Bacaksız v. Turkey , no. 24245/09, § 57, 10 December 2019; and Köksoy v. Turkey , no. 31885/10, § 36, 13 October 2020).

28. Turning to the circumstances of the present case, it is not disputed that the expert report of 6 June 2007 was not communicated to the applicant and that the applicant, who had nevertheless obtained a copy, was able to submit his counter arguments in writing to the Ankara Administrative Court. Having regard to the fact that the Ankara Administrative Court delivered its decision very shortly after the applicant’s submissions in respect of the report of 6 June 2007, the question before the Court is whether the applicant could be considered to have had a real - as opposed to a theoretical - opportunity to comment on the expert report; and if not, whether that short-coming was nevertheless capable of being remedied on appeal.

29. Having regard to the short time between the applicant’s submissions and the delivery of the decision of the Ankara Administrative Court, and the absence of an express reply by that court to the applicant’s objections to the findings of the report, the Court is prepared to accept that the applicant cannot be considered to have had a real opportunity to contest the findings of the experts so as to be able to influence that court’s decision.

30. However, it remains to be determined whether that deficiency was capable of being remedied at the appeal stage. The Court notes that the Supreme Administrative Court as an appeal court with full jurisdiction had the power of quashing the decision of the first-instance court had it considered the applicant’s objections to the expert report to be well-founded and warranted the first-instance court’s decision to be revisited ( compare and contrast with Feldbrugge v. the Netherlands , 29 May 1986, §§ 45-46, Series A no. 99, where the Court found that a shortcoming of a similar nature could not be remedied at appeal since the scope of the appeal body’s review had been very limited). The fact that the Supreme Administrative Court did not quash the Ankara Administrative Court’s decision cannot in itself be criticised. The Court has consistently held in that connection that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation and assess the facts. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts or to give a ruling as to whether certain elements were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair (see Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001-VII).

31. Having regard to the foregoing, the Court concludes that the procedural shortcoming during the first-instance proceedings did not affect the adversarial principle to such an extent as to render the proceedings as a whole unfair. It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021.

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President