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SECOND
SECTION
CASE OF YAVUZ SELİM KARAYİĞİT v. TURKEY
(Application
no. 45874/05)
JUDGMENT
STRASBOURG
27 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Yavuz Selim Karayiğit
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45874/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Yavuz Selim Karayiğit
(“the applicant”), on 6 December 2005. The applicant was
represented by Mr V. Erek, a lawyer practising in Ankara.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
23 September 2008 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
non-communication to the applicant of the principal public
prosecutor's written opinion to the Government. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Osmaniye.
- While
performing his compulsory military service, the applicant sustained a
serious knee injury, which led to his eventual discharge.
- The
applicant subsequently lodged a request with the Retired Civil
Servants' Fund (Emekli Sandığı) to receive
disability benefits in connection with his knee injury.
- On
15 September 2003 the Retired Civil Servants' Fund rejected the
applicant's request. On 21 November 2003 the applicant applied to the
Supreme Military Administrative Court for the annulment of this
decision.
- On
23 September 2004 the Supreme Military Administrative Court held a
hearing where it heard the principal public prosecutor, who presented
his written opinion on the merits of the case which had been
previously submitted to the court on 7 July 2004, and the parties.
The written opinion of the principal public prosecutor had not been
communicated to the applicant prior to the hearing.
- On
10 February 2005 the Supreme Military Administrative Court rejected
the applicant's request. The applicant sought the rectification of
this judgment.
- On
26 May 2005 the Supreme Military Administrative Court dismissed the
applicant's rectification request, which decision was served on the
applicant on 8 June 2005.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in the decision
of Karayiğit v. Turkey ((dec.), no. 45874/05, 23
September 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the written opinion of the principal public
prosecutor submitted to the Supreme Military Administrative Court had
not been communicated to him in breach of the equality of arms
principle safeguarded under Article 6 § 1 of the Convention.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
- As
regards the merits of this complaint, the Government contended that,
unlike in criminal proceedings, the principal public prosecutor in
administrative proceedings was not a party to the case and his or her
opinion had no influence on the decision of the administrative court.
The Government also argued that the principle of equality of arms had
not been infringed in the instant case as the applicant had had the
option of examining the case file and the written opinion of the
principal public prosecutor prior to the hearing, as well as the
further opportunity of replying to this opinion during the hearing.
-
The Court observes that it has already examined and dismissed similar
preliminary objections by the Government in previous cases and found
a violation of Article 6 § 1 of the Convention (see Meral v.
Turkey, no. 33446/02, §§ 32-39, 27 November 2007; Miran
v. Turkey, no. 43980/04, §§ 9-18, 21 April 2009).
It considers that the Government have not put forward any fact or
argument in the instant case which would require it to depart from
its previous findings.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of the non-communication of the written opinion
of the principal public prosecutor to the applicant.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-communication of
the written opinion of the principal public prosecutor to the
applicant during the proceedings before the Supreme Military
Administrative Court.
Done in English, and notified in writing on 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
