SECOND SECTION

DECISION

Application no. 64105/09 Bülent KESK İ N against Turkey

The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:

Julia Laffranque, President, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 27 July 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Bülent Keskin, is a Turkish national, who was born in 1978 and lives in Adana. He was represented before the Court by Mr A. Sürücü, a lawyer practising in İ zmir.

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

A. The circumstances of the case

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

4. On 20 September 2007 the applicant, an officer in the Army, was placed in detention on remand on suspicion of being involved in drug trafficking and criminal proceedings were initiated against him.

5. On 26 February 2008 the applicant was dismissed from his post in the Army due to disciplinary and moral conduct problems. The applicant initiated proceedings before the Supreme Military Administrative Court to have that decision annulled. On 24 March 2009 the Supreme Military Administrative Court dismissed his case. During the proceedings, the Chief Public Prosecutor at the Supreme Military Administrative Court delivered his opinion on the merits of the case. This opinion was not communicated to the applicant.

B. Relevant domestic law and practice

6. 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 Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000).

7. 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 According to this new law, Articles 145 and 157 of the Constitution were repealed and the Supreme Military Administrative Court was abolished.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.”

8. 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

9. The applicant stated under Article 6 of the Convention that he did not have a fair trial before the Supreme Military Administrative Court which cannot be considered as an independent and impartial tribunal. He also complained that the opinion of the public prosecutor during the proceedings before the Supreme Military Administrative Court had not been communicated to him.

10. Relying on Article 6 of the Convention, the applicant stated that the domestic court ’ s decision had lacked sufficient reasoning, that the court had failed in the evaluation of evidence, that there no hearing had been held and that the court ’ s decision had been solely signed by the Presiding member of that court and lacked the signatures of other members. The applicant further alleged under Articles 6 § 2 and 7 of the Convention that his presumption of innocence had been breached as he was dismissed from his post before the criminal court delivered its decision. The applicant maintained under Article 8 of the Convention about the adverse effects of his dismissal on his private and family life. Under Article 13 of the Convention, the applicant argued that he had no effective remedy to challenge his dismissal. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that he had been deprived of his future salary due to his, allegedly, unjust dismissal. Finally, under Article 14 of the Convention the applicant maintained that he had been subjected to discrimination on account of the criminal proceedings that had been initiated against him.

THE LAW

A. Independence and impartiality of the Supreme Administrative Court and the non-communication of the public prosecutor ’ s opinion during the proceedings

11. The applicant complained under Article 6 of the Convention about the fairness of the proceedings before the Supreme Military Administrative Court.

12. The Court notes that on 21 March 2018 Law no. 7103 was enacted and published in the Official Gazette on 27 March 2018. Section 23 of Law no. 7103 amended the Administrative Procedure Act (Law no. 2577) to state that all applicants who currently have a pending application 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 decisions on account of non-exhaustion of domestic remedies.

13. The Court reiterates 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 remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts. Yet, 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 v. Croatia [GC], no. 37685/10, § 117, 20 March 2018; Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010; and İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006).

14. 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).

15. The Court recalls that in its judgment in the case of Tanışma v. Turkey (no. 32219/05, 17 November 2015), it has 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, as of 16 April 2017 the Supreme Military Administrative Court has been abolished. Subsequently, by Law no. 7103 dated on 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 adopted.

16. In its decision in the case of Baysal v. Turkey ((dec.), no. 29698/11, 22 May 2018), 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.

17. 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 on 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.

18. The Court further notes that this fresh examination would also remedy the applicant ’ s complaint concerning the non-communication of the public prosecutor ’ s opinion during the domestic proceedings (see Baysal , cited above, § 17).

B. As to the remaining complaints

19. As regards the remaining c omplaints raised under Articles 6, 7, 13, 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

20. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with 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 14 February 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President