SECOND SECTION

DECISION

Application no. 43437/09 Haydar ACER against Turkey and 2 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 18 December 2018 as a Committee composed of:

Ledi Bianku, President, Jon Fridrik Kjølbro, Ivana Jelić, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, whose details may be found below, were rep resented before the Court by Mr Cavit Çalış, a lawyer practising in Ankara.

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.

Application no . 43437/09 (lodged on 30 July 2009 by Haydar Acer who was born in 1986 and lives in Ankara).

4. The applicant was a military student who was expelled from the military academy on medical grounds, namely due to his inability to perform certain sports activities on account of the acute injury of his right ankle ligaments. Following his expulsion, the applicant requested special service disability pension (“ vazife maluliyet aylığı ”) from the Social Security Institution (“ Sosyal Güvenlik Kurumu ”, “ SGK ”), arguing that the acute ankle injury that led to his expulsion was caused by the strenuous activities he was forced to perform at the military academy despite the clear order of the doctors banning his participation in such physical activities.

5. Upon the SGK ’ s failure to reply within sixty days, which is considered to be a tacit refusal of the request under section 10 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), the applicant brought an action before the Supreme Military Administrative Court. He requested that the court quash the decision of the SGK not to grant him service disability pension.

6. On 8 January 2009 the Supreme Military Administrative Court rejected the applicant ’ s request. According to this court, it could not be unequivocally established that the applicant ’ s disability had been caused by reason of the activities he performed at the military academy. The written opinions of the principal public prosecutor and the judge rapporteur submitted to this court prior to the delivery of the decision had not been communicated to the applicant.

7. On 5 March 2009 the Supreme Military Administrative Court dismissed the applicant ’ s rectification request.

Application no . 54920/09 (lodged on 5 October 2009 by Yüksel Kuyucu who was born in 1975 and lives in Ankara).

8. The applicant was a former sergeant in the Turkish Armed Forces. After being accidentally shot by another sergeant on the leg while off-duty, the applicant was declared medically unfit to serve in the armed forces and discharged.

9. The applicant subsequently applied to the SGK, claiming special service disability pension. Upon the SGK ’ s tacit refusal of this claim, he brought an action before the Supreme Military Administrative Court for the annulment of the SGK ’ s decision denying him service disability pension.

10. On 29 January 2009 the Supreme Military Administrative Court dismissed the applicant ’ s claim. The court held that the applicant was shot accidentally by a fellow sergeant while getting changed in the dressing room prior to taking up his duties in the morning. Therefore, no causal link could be established between the applicant ’ s disability and his functions in the armed forces. The written opinions of the principal public prosecutor and the judge rapporteur submitted to this court prior to the delivery of the decision were not communicated to the applicant.

11. On 21 April 2009 the Supreme Military Administrative rejected the applicant ’ s rectification request.

Application no . 58376/09 (lodged on 21 October 2009 by Mahire Eryılmaz, who was born in 1978 and lives in Malatya).

12. The applicant ’ s husband was a former sergeant in the Turkish Armed Forces, and he had died of a heart attack while doing physical training on the order of his superior. Arguing that her husband had passed away by reason of activities he performed in his capacity as a member of the armed forces, the applicant claimed special service disability pension for herself and her child.

13. On 2 May 2008 the SGK refused the applicant ’ s claim.

14. The applicant subsequently brought an action before the Supreme Military Administrative Court and requested this court to quash the decision of the SGK.

15. On 12 March 2009 the Supreme Military Administrative Court rejected the applicant ’ s request. The court held that the applicant ’ s husband had died of coronary artery disease and his death could thus not be linked to his duties as a sergeant. The written opinions of the principal public prosecutor and the judge rapporteur submitted to this court prior to the delivery of the decision were not communicated to the applicant.

16. On 11 June 2009 the Supreme Military Administrative Court dismissed the applicant ’ s rectification request.

B. Relevant domestic law and practice

17. 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).

18. 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.”

19. 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

20. The applicants complained under A rticle 6 of the Convention that the written opinions submitted by the principal public prosecutor and the judge rapporteur to the Supreme Military Administrative Court were not communicated to them, that they were not tried by an independent and impartial tribunal as the Supreme Military Administrative Court had been composed of military judges and officers and that it acted as a first and only instance court, that it was not possible to know in advance which chamber of the Supreme Military Administrative Court would examine their cases, that they did not have access to the confidential documents submitted by the administration to the Supreme Military Administrative Court, that the Supreme Military Administrative Court ’ s decisions were erroneous and were not sufficiently reasoned. The applicants also allege violations of Articles 8 § 2, 13, 17 and 18 of the Conve ntion on the basis of the above ‑ mentioned facts, without further substantiation.

21. The first and secon d applicants (applications nos. 43437/09 and 54920/09) also complained under Article 6 of the Convention that the Supreme Military Administrative Court disregarded its settled case-law in its decisions.

THE LAW

22. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

23. The applicants mainly complained about the fairness of the proceedings before the Supreme Military Administrative Court.

24. The Government informed the Court that on 21 March 2018 Law no. 7103 had been enacted and published in the Official Gazette on 27 March 2018. They pointed out that Section 23 of Law no. 7103 had 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. Accordingly, they maintained that the present application should be rejected for due to non-exhaustion of domestic remedies.

25. 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).

26. 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).

27. 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.

28. 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.

29. In the present cases, the Court reiterates its conclusion in the case of Baysal (cited above) and observes that the applicants have 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 applicants may further bring an individual application to the Constitutional Court against the judgment of the Supreme Administrative Court. Should the applicants still consider themselves to be the victim of the alleged violation, it would be open to them to lodge a new application with the Court pursuant to Article 34 of the Convention.

30. The Court further notes that this fresh examination would also remedy the remaining complaints of the applicants (see Baysal , cited above, § 17).

31. It follows that the present applications must be declared inadmissible for non-exhaustion of domestic remedies pu rsuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 24 January 2019 .

Hasan Bakırcı Ledi Bianku Deputy Registrar President

Appendix

1. 43437/09 Acer v. Turkey

2. 54920/09 Kuyucu v. Turkey

3. 58376/09 Eryılmaz v. Turkey