SECOND SECTION

DECISION

Application no. 30247/10 Mehmet Ali POLATER against Turkey

The European Court of Human Rights (Second Section), sitting on 22 September 2020 as a Committee composed of:

Egidijus Kūris , President, Ivana Jelić , Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 13 April 2010,

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 Ali Polater , is a Turkish national, who was born in 1942 and lives in Van. He was represented before the Court by Mr I. Güler , a lawyer practising in Van.

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

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

4 . On 17 August 1993 while the applicant ’ s son, Veysel Polater , was serving his compulsory military service, he was accidentally shot dead by another conscript during the exchange of guard duty.

5 . On 4 April 1995 the Gaziantep Military Criminal Court convicted the fellow conscript of manslaughter by negligence. It noted that the applicant ’ s son bore no fault in the matter.

6 . In the meantime, on 18 January 1996, the applicant made an application to the Retired Civil Servants ’ Fund ( Emekli Sandığı ) with a view to receiving special benefits and compensation for the death of his son. The Fund replied that the status of the applicant ’ s son was considered as “disability or death during service” ( vazife malülü ) subject to Law no. 5434 and that therefore the applicant and his wife would only receive a pension on that basis when they reached the age of 65. It appears that the applicant started receiving a monthly pension on 1 February 2007.

7 . On 11 July 2008, the applicant made an application to the Ministry of Defence and requested that the status of martyr – that is to say someone who died defending their country ( şehit ) – be accorded to his son and that the related pecuniary benefits be given to him as his surviving heir under Law no. 2330. In support of his application he submitted that another conscript named Ş. Sönmez , who had died under identical circumstances as his son, had been accorded the status of martyr.

8 . In their reply of 20 August 2008, the Ministry rejected the applicant ’ s application, stating that the conditions of his son ’ s death did not satisfy the requirements to be deemed a martyr. In particular, citing the relevant parts of the internal regulations on the status of martyrdom in this context, they considered that the brigade command where the applicant ’ s son was stationed had not been entrusted with ensuring interior security or public order.

9 . On 15 October 2008 the applicant lodged an action against the Ministry before the Supreme Military Administrative Court requesting the annulment of the Ministry ’ s decision not to accord his son martyr status and the compensation of his pecuniary rights under Law no. 2330.

10 . On 4 September 2009 the Supreme Military Administrative Court dismissed the applicant ’ s case by agreeing with the reasons given by the Ministry in its letter of reply of 20 August 2008.

11 . The applicant ’ s rectification request before the Supreme Military Administrative Court was rejected on 24 September 2009 and the rejection was served on him on 21 October 2009.

12 . There are several different pieces of legislation that govern pecuniary rights to be granted to related persons in the event of death or disability during public or military service. The legislation which lays down the general conditions for qualifying for a service disability pension for surviving heirs is Law no. 5434 and provides for a monthly pension to be accorded to the deceased person ’ s parents when they reach the age of sixty ‑ five, and earlier if they are themselves disabled or widowed. Supplementary pensions or additional benefits may be granted to those depending on their duties or duty stations or the conditions in which they were wounded or died. For instance, Law no. 2330 is applicable to those, inter alia , who die or become permanently disabled during the performance of their duties related to public safety or order during times of peace; traffic security, combatting smuggling, transporting of detainees or convicts, or examination, storage, transport and des truction of explosives. Law no. 3713 is applicable to public employees who are wounded or disabled, or die or are killed as a result of terrorist acts in the performance of their duties inside and outside the country. Law no. 3479 applies to those whose duties include the protection of land borders.

13 . The Government submitted that there were no binding regulations concerning the status of martyrdom in Turkey. The internal regulation of 1987 of the Ministry of Defence enumerates certain types of deaths which allow the deceased to be buried as a martyr in a special cemetery designated for martyrs.

14 . The applicant submitted to the Court the official document that was given to Ş. Sönmez ’ s heirs upon the recognition of the deceased as a martyr and which listed the benefits they were entitled to. Among these were a one-time payment of 270,000,000 Turkish lira (TRL) payable immediately, an annual payment of TRL 2,523,000,000, education aid and bursaries to the martyr ’ s surviving children as well as a monthly pension to surviving heirs. Furthermore, the martyr would be buried with the Turkish flag in the cemetery for martyrs, his or her sibling who is due for compulsory military service would have the right to ask for exemption, and the surviving heirs would receive discounts on electricity bills.

15 . 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 Ya vuz v. Turkey (( dec. ), no. 29870/96, 25 May 2000).

16 . Following a referendum held on 16 April 2017, Law no. 6771 was adopted. 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.”

17 . 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 an application pending 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.

COMPLAINTs

18 . The applicant complained under Article 6 § 1 and 14 of the Convention that the proceedings held before the Supreme Military Administrative Court had been unfair on account of the fact that martyrdom status was not sufficiently defined in the Turkish legal context. He also complained about the Supreme Military Administrative Court ’ s lack of response to his main argument concerning the other conscript (Ş. Sönmez ) who had died under identical circumstances and was accorded martyr status. In that connection the applicant complained that he had been treated differently to others in his situation as a result of the divergence in the application of the criteria in deeming a deceased soldier a martyr.

THE LAW

19 . The applicant complained about the fairness of the proceedings and the allegedly insufficient reasons given by domestic courts in response to his arguments and divergence of criteria employed in the determination of martyrdom status.

20 . The Court, being the master of the characterisation to be given in law to the facts of the cases before it (see, among many other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant ’ s complaints fall to be examined under Article 6 § 1 of the Convention alone, which in so far as relevant reads:

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

21 . The Government argued at the outset that the application should be declared inadmissible under Article 35 of the Convention for being incompatible ratione materiae . Firstly, they explained that if a deceased soldier was granted a status of martyr, he or she would be buried in a special cemetery. They submitted that the pecuniary benefits sought by the applicant were not dependent on his son being granted a status of martyr. For this reason, they considered that the legal action initiated by the applicant before the Supreme Military Administrative Court had not been directly decisive for the applicant ’ s pecuniary claims. Moreover, they considered that there was no right for the applicant ’ s son to be granted the status of martyr and that, in any event, it could not be classified as “civil” within the meaning of Article 6 § 1 of the Convention.

22 . The Government further considered that the applicant could not claim to be a victim of the violation complained of as he had been receiving a monthly pension since 2007 and that his other sons had benefitted from the right to be appointed to civil service on a preferential basis.

23 . The Government contended, in the alternative, that the application should be rejected for non-exhaustion of domestic remedies. In that connection they first argued that the applicant had not correctly formulated his case before the Supreme Military Administrative Court because he had not specifically requested pecuniary compensation under Law nos . 2330 or 3713. Neither had he attempted a full-remedy action on account of the death of his son during his military service.

24 . Lastly, referring to section 23 of Law no. 7103 that amended the Administrative Procedure Act (Law no. 2577) (see paragraph 17 above) and the Court ’ s decision in the case of Baysal v. Turkey (( dec. ), no. 29698/11, 22 May 2018) , they submitted that the present application should be rejected for non-exhaustion of domestic remedies on account of the introduction of the new remedy at the domestic level.

25 . The applicant maintained his arguments.

26 . The Court finds it unnecessary to deal in detail with each and every objection to the admissibility of this part of the application raised by the Government because it considers that this complaint should in any event be rejected in accordance with the principle of subsidiarity for non - compliance with the rule of exhaustion of domesti c remedies laid down in Article 35 § 1 of the Convention (see, mutatis mutandis , Pawlak v. Poland ( dec. ), no. 29179/06, § 60, 19 March 2013).

27 . The Court reiterates in that connection 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 domestic remedies, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system ( Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58 , ECHR 2013 (extracts)) . However, 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 , cited above, § 117; Latak v. Poland ( dec. ), no. 52070/08, § 75, 12 October 2010; and İçyer v. Turkey ( dec. ), no. 18888/02, 12 January 2006).

28 . 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).

29 . The Court points out that in its judgment in the case of Tanışma (cited above), it 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, the Supreme Military Administrative Court was abolished on 16 April 2017. Subsequently, by Law no. 7103 dated 21 March 2018, a genuine opportunity to obtain a fresh trial before a civil administrative court for all applications that are currently pending before the Court, was introduced.

30 . In its decision in the case of Baysal ( cited above), the Court declared a new application inadmissible on the ground that the applicant had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the fairness of proceedings.

31 . In the present case, the Court reiterates its conclusion in the case of Baysal (cited above) and observes that the applicant has 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 upon to conduct a fresh examination of the cases and an appeal may be lodged with the Supreme Administrative Court against the decision of the Ankara Administrative Court. The applicant may further bring an individual application to the Constitutional Court against the judgment of the Supreme Administrative Court. Should the applicant still considers 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.

32 . The Court further notes that this fresh examination would also remedy the remaining complaints of the applicant (see Baysal , cited above, § 17 and Sarı v. Turkey ( dec. ), no. 40312/11, 5 February 2019).

33 . It follows that the present application must 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 15 October 2020 .

Hasan Bakırcı Egidijus KÅ«ris              Deputy Registrar President