SECOND SECTION

Application no . 4242/09 Fatih YÖN against Turkey lodged on 9 January 2009

STATEMENT OF FACTS

The applicant, Mr Fatih Yön , is a Turkish national, who was born in 1978 and lives in İ zmir. He is represented before the Court by Mr A.L. Koçer , a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicant, a non-commissioned officer in the Turkish Armed Forces at the time of the events giving rise to this application, was assigned to a de-mining unit to undertake the clearing of two mine fields around the Doludizgin Gendarmerie station in Mazgirt , Tunceli . On 3 June 2004, while he was removing landmines in the designated area, an anti ‑ personnel landmine exploded, leaving him severely wounded on his face and hands. As a result of this incident, the applicant lost the use of both his eyes and suffered permanent damage to his hands.

On 19 March 2007 the Social Security Institution (“ Sosyal Güvenlik Kurumu ”, “ SGK ”) held that the applicant ’ s condition, which they classified as a first-degree disability, required his retirement from the armed forces. Moreover, his disability having been caused by reason of his professional activities in the army, he qualified for the benefits envisaged under Law no. 2330 (Law on Pecuniary Damage and Right to Pension).

Following his retirement, the applicant started receiving a special service disability pension (“ vazife maluliyet aylığı ”) as from 15 June 2007, under the relevant provisions of Law no. 2330. Moreover, on 19 June 2007, the Ministry of Defence paid the applicant pecuniary damages.

On 25 June 2007 the applicant applied to the SGK, requesting that the terms of his retirement be assessed under Law no. 3713 (the Prevention of Terrorism Act), which afforded victims of terrorist attacks more financial benefits compared to Law no. 2330.

On 5 July 2007 the SGK rejected that request, on the ground that the applicant ’ s disability had not been caused by a terrorist incident. The applicant brought an action before the Supreme Military Administrative Court against the SGK ’ s decision.

On 17 April 2008 the Supreme Military Administrative Court decided in favour of the SGK. It held that in order for a death or a disability to come under the scope of Law no. 3713, that death or disability must have resulted from a terrorist attack, whereas in the instant case, the injury had been caused by the explosion of a landmine that had previously been laid to secure the gendarmerie station, and not by a terrorist attack. Therefore, the decision of the SGK was in accordance with the relevant laws. The written opinion submitted by the principal public prosecutor to this court prior to the delivery of the decision w as not communicated to the applicant.

On 11 September 2008 the Supreme Military Administrative Court dismissed the applicant ’ s rectification request. The written opinion of the principal public prosecutor regarding the rectification request was not communicated to the applicant.

B. Relevant domestic law

A description of the relevant domestic law can be found in the decision of KarayiÄŸit v. Turkey (( dec. ), no. 45874/05, 23 September 2008) .

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the Supreme Military Administrative Court, which examined his case, could not be considered as an independent or impartial tribunal. He maintains in this respect that the bench of the impugned court includes lay officers who are selected by the Army Chief of General Staff and who remain subject to military discipline, without the guarantees of a minimum term of office.

The applicant further complains under the same provision that the written opinion submitted by the principal public prosecutor to the Supreme Military Administrative Court was not communicated to him, which infringed the principle of equality of arms.

QUESTION S TO THE PARTIES

Were the proceedings before the Supreme Military Administrative Court fair within the meaning of Article 6 § 1 of the Convention?

(a) Could the Supreme Military Administrative Court be considered to be independent and impartial, as required by Article 6 § 1? Do the military officers who sit on the bench of this court remain subject to military discipline and assessment reports during their term of office? Furthermore, can these military officers, who according to the relevant legislation are appointed as judges for a maximum term of four years, be removed from their posts prior to the end of their term of office?

(b) Did the non-communication to the applicant of the written opinion of the principal public prosecutor entail a breach of the principle of equality of arms safeguarded under Article 6 § 1 of the Convention (see Meral v. Turkey , no. 33446/02, 27 November 2007 ) ?