SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29870/96 
by Hüsnü YAVUZ, Emine YAVUZ, Fatma YAVUZ and Mustafa YAVUZ 
against Turkey

The European Court of Human Rights (Second Section), sitting on 25 May 2000 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr A.B. Baka, 
 Mr G. Bonello, 
 Mr P. Lorenzen, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr E. Levits, judges
 Mr F. Gölcüklü, ad hoc judge,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 5 October 1995 and registered on 22 January 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicants are all Turkish citizens, born respectively in 1942, 1947, 1971 and 1972. They are resident in Diyarbakır. The first applicant is the father of Genco Yavuz, who was killed in 1991. The second, third and fourth applicants are respectively the deceased’s mother, sister and brother. The applicants are represented before the Court by Mrs Hülya Sarsam and Mr Nusret Senem, lawyers practising in Ankara.

A. The circumstances of the case

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

On 12 February 1991, Genco Yavuz was shot dead by a soldier in the canteen used by his military unit following a dispute about drugs.

The soldier responsible for his death was prosecuted before the Kırklareli Military Court. The applicants joined the proceedings as intervenors.

In its judgment of 24 November 1992 the Kırklareli Military Court found the accused soldier guilty of unlawful killing and sentenced him to twenty-years’ imprisonment. When fixing sentence the court had regard to mitigating circumstances, namely the fact that the accused had been severely provoked by the deceased at the time of the incident.

On 9 February 1994 the military Court of Cassation annulled the Kırklareli Military Court’s judgment on the ground that the military court had misdirected itself on the level of provocation to be attributed to the behaviour of the deceased at the material time. The case was remitted to the military court.

In its judgment of 27 December 1994, the military court had regard to the fact that the accused soldier had finished his military service and for that reason ruled that it had no jurisdiction to deal with the case. The case was transferred to the Kırklareli Assize Court. The applicants joined the proceedings as intervenors.

On 17 October 1995 the Kırklareli Assize Court sentenced the accused to death. The sentence was later commuted to thirty-years’ imprisonment.

On 29 June 1992 the applicants lodged an action for damages before the Supreme Military Administrative Court against the Ministry of Defence. The applicants maintained that Genco Yavuz was killed by a soldier who, prior to his military service, had been found guilty of wilful homicide. The applicants stated that the rules governing the carrying of firearms had not been respected and that the fault lay with the administration.

In its decision of 30 November 1994 the Supreme Military Administrative Court found that the applicants had made out their case in part. The court ruled that a causal link existed between Genco Yavuz’s death and the act of an agent of the State given that the latter had on him at the relevant time a firearm belonging to the State. The court also noted that the deceased had by his behaviour provoked the State agent. Basing itself on an expert’s report, the court awarded compensation for pecuniary and non-pecuniary damage to the father and mother of Genco Yavuz. The applicants’ request for rectification of the judgment was rejected by the same court on 5 April 1995.

B. Relevant domestic law

Article 157 of the Turkish Constitution provides:

“The Supreme Military Administrative Court shall be the first and last instance for the judicial supervision of disputes arising out of administrative actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However in disputes arising out of the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body.

Members of the Supreme Military Administrative Court who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among the officers holding the rank and qualifications prescribed by law.

The term of office of members who are not military judges shall not exceed four years.

The President, the Chief Public Prosecutor and Head of Division of the Court shall be appointed among military judges according to rank and seniority.

The organisation and functioning of the Supreme Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and the requirements of military service.”

The Law governing the Supreme Military Administrative Court

(Law No. 1602, 4 July 1972)

(unofficial translation)

Article 4 (Security of tenure)

The President, the Chief Public Prosecutor, the Members and the Presidents of the Chambers of the Supreme Military Administrative Court, being judges of this Court, are guaranteed security of tenure under the Constitution of the Turkish Republic.”

Article 8 (Selection of the Members)

The President of the Republic shall select:

The members of the Supreme Military Administrative Court from among military judges on the basis of a list of three candidates nominated in respect of each vacant office by an absolute majority of the total number of current members and presidents who belong to the ranks of military judges.

The members of the Supreme Military Administrative Court who do not belong to the ranks of military judges shall be appointed from a list of three candidates nominated in respect of each vacant office by the Chief of the General Staff.”

 

Article 14 (Chambers)

The Supreme Military Administrative Court shall be composed of two chambers. The Ministry of Defence can increase the numbers of the chambers by up to three upon the proposal of the General Council and with the approval of the Chief of the General Staff. The Ministry of Defence can decrease the numbers of the chambers down to two under the same procedure.

Each chamber shall be composed of a president and six members. Four of the members shall be military judges and two of them shall be staff officers.

The number of the members in deliberations shall be composed of five. The majority of the members in the deliberations shall consist of military judges. Decisions shall be taken by majority.”

The Law governing the Supreme Military Administrative Court

(Article 66 of the Law No. 1602)

(unofficial translation)

Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties:

a) The judgment does not refer to the allegations and the objections which affect its merits;

b) The judgment contains provisions which contradict each other;

c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that their compensation claim was not determined by an independent and impartial tribunal. They maintain in this connection that both the military court and the Supreme Military Administrative Court are not independent of the executive.

2. The applicants further complain about the length of the criminal proceedings in which they had intervened.

3. Finally, the applicants complain with reference to Article 2 of the Convention that there has been a violation of the right to life insofar as Genco Yavuz had been killed by a soldier who had already served an eight-year prison sentence before performing his military service. The applicants maintain that the military authorities had entrusted the soldier with a loaded gun which, in their opinion, was contrary to the relevant regulations issued by the Ministry of Defence.

THE LAW

1. The applicants maintain that both the military court and the Supreme Military Administrative Court which heard their case were not independent and impartial tribunals within the meaning of Article 6 § 1 of the Convention. On that account there has been a breach of that provision, which stipulates as relevant:

In the determination of his civil rights and obligations or ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law....”.

The Government’ s preliminary objections

The Government stress at the outset that the applicants won their case on the merits at all levels of jurisdiction. Their status as victims must therefore be considered questionable.

The Government further observe that the applicants did not contest the independence and impartiality of the military court which rendered the first judgment in the case. The military court, following the decision of the military Court of Cassation, had to relinquish jurisdiction in favour of the Kırklareli Assize Court since the accused was no longer a serving soldier. The applicants omitted to claim damages in the proceedings before either the military court or the Kırklareli Assize Court and had to petition the Supreme Military Administrative Court for damages. That latter court awarded them compensation, although not the total sum they had demanded. Furthermore, at no stage of the proceedings before the Supreme Military Administrative Court did the applicants raise any objection to the independence and impartiality of the Supreme Military Administrative Court.

In the Government’s further submission, the applicants’ complaint is in reality in the form of an abstract challenge to the composition of the impugned courts and for that reason also should be rejected.

The Court observes that its examination of the Government’s preliminary objection must be confined to the compensation proceedings which the applicants introduced before the Supreme Military Administrative Court as a court of first and last instance. Quite apart from the fact that the case against Genco Yavuz’s murderer was heard before a common law court whose independence and impartiality has not been contested, the Court further notes that it is not open to the applicants to rely on the provisions of Article 6 in support of their complaint that, as intervenors in the criminal proceedings, their civil right to compensation was also at stake. It notes that the applicants never in fact reserved their right to claim compensation based on the outcome of the criminal trial.

As to the compensation proceedings before the Supreme Military Administrative Court, the Court considers that the applicants’ failure to raise even the substance of their objection to that court’s independence and impartiality cannot defeat the admissibility of their complaint. It observes that, having regard to the constitutional status of the Supreme Military Administrative Court, any objection which the applicants might have raised to its independence and impartiality would have been doomed to failure.

As to whether the applicants can claim to be victims of a breach of their Convention rights, the Court would note that, as regards the compensation proceedings before the Supreme Military Administrative Court, they still harbour a grievance about the level of the compensation awarded to them. They consider that they did not obtain just satisfaction on account of the fact that their claim against the Ministry of Defence was determined by the Supreme Military Administrative Court whose independence and impartiality they challenge. In the Court’s opinion, the applicants can still claim to be victims for the purposes of Article 34 of the Convention.

For the above reasons, the Court rejects the Government’s preliminary objections.

 

Merits

As to the merits of the complaint, the Government insist that the Constitution guarantees the independence and impartiality of military courts and of the Supreme Military Administrative Court. Furthermore, these guarantees are reflected in a series of laws governing military justice. Thus, according to Article 2 of Law no. 353 on the organisation of military courts in criminal proceedings, a military court is composed of two military judges and a member of the officer class. The latter must be at least a captain and have no criminal record. He is appointed for a period of one year so as to ensure that he will present on the bench for all the cases which are to considered during that period. He may be challenged in the same manner as a military judge.

The Supreme Military Administrative Court, for its part, is made up of two chambers each composed of a president, four military judges and two members of the officer class. The president of the court and the chamber presidents are elected from among the ranks of military judges. The members drawn from the officer class are elected for a four-year term of office by the President of the Republic on the basis of a list of three candidates proposed by the Chief of the General Staff. These members are obliged to act independently in the discharge of their functions, with respect both to the Executive and the parties appearing before their chamber.

The Government further observe that a system of military courts is not peculiar to Turkey and that such courts function in many member States of the Council of Europe.

The Court reiterates its view that it is not open to the applicants to impeach the proceedings before the Kırklareli military court from the standpoint of Article 6 § 1 of the Convention and that its consideration of the applicants’ complaint under this head must be confined to the determination of their compensation claim by the Supreme Military Administrative Court.

The Court observes, and the applicants have not disputed this, that the Supreme Military Administrative Court is a "tribunal established by law". Its composition, status and competencies are provided for in the Constitution and implementing legislation. Of significance for the purposes of the instant case is the fact that the legislature has conferred on it adjudicatory functions in respect of compensation claims made against the military authorities.

The applicants allege that the Supreme Military Administrative Court is not independent of the executive and the military authorities and hence not an “independent tribunal” for the purposes of Article 6 § 1. They have not specified further their objections.

The Court recalls that in determining whether a body can be considered to be "independent" - notably of the executive and of the parties to the case -, the Court has had regard to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, among other authorities, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 24, § 55; the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, pp. 39-40, § 78; the Belilos v. Switzerland judgment of 29 April, Series A no. 132, p. 29, § 64).

The Court notes in the first place that, as regards the military judges appointed to sit on the Supreme Military Administrative Court, their independence is guaranteed under the Constitution and implementing legislation. It considers that there is nothing in the manner of their appointment which would call into question their capacity to function in accordance with the strict requirements of judicial independence of both the executive and the parties. The military judges are appointed for life and are not accountable in any manner to the executive for their decisions. Questions of discipline fall to be considered by the Disciplinary Board of the Supreme Military Administrative Court.

As regards those members of the Supreme Military Administrative Court appointed from the ranks of the officer class, the Court considers that their independence cannot be said to be impaired on account of the fact that they are chosen from a list of three candidates proposed by the Chief of the General Staff. The ultimate appointment of an officer member rests with the President of the Republic. From the moment of their appointment, officer members, like military judges, are guaranteed constitutional protection from external interference in the discharge of their duties. They may not be removed by a decision of the executive or the military hierarchy during the subsistence of their term of office. Their independence of the executive is enhanced by the fact that they enjoy a maximum four-year term of office (c.f. the above-mentioned Cambell and Fell judgment, Series A no. 80, p. 40, § 80) and remain subject to the above-mentioned Disciplinary Board alone for all questions relating to discipline. They are not subjected to any assessment during their term of office by the executive or the military authorities.

The Court recalls that in its İncal v. Turkey judgment it expressed doubts about the objective independence and impartiality of military judges on the bench of the State Security Courts since they remained subject to military discipline and assessment reports were compiled on them by the army for that purpose (see the İncal v. Turkey judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1572, § 68). However, it must be stressed that the applicant’s complaint in that case was addressed in an entirely different context. In the İncal case the issue before the Court was whether the applicant, a civilian accused of an offence against the State, could have legitimate doubts about the independence and impartiality of a court comprising among its members a military member (p. 1573, § 72). The circumstances of the instant case are significantly different since what is being impeached is a court system set up to adjudicate on, inter alia, civil claims brought by military personnel or their representatives in respect of acts and omissions which are imputed to the Ministry of Defence. The considerations which led the Court to find a breach of Article 6 of the Convention in its İncal judgment are absent in the case at issue.

For the same reasons, the Court also concludes that it perceives nothing in the proceedings before the Supreme Military Administrative Court and the decision reached on the applicants’ claim that would call into question its impartiality on either subjective or objective grounds.

Having regard to the above considerations, the Court concludes that the applicants’ complaint under this head is manifestly ill-founded within the meaning of Article 35 § 3 and therefore inadmissible in accordance with Article 35 § 4 of the Convention.

2. The applicants assert that the claim for compensation was not determined within a reasonable time, in breach of Article 6 § 1 of the Convention.

In reply, the Government reiterate that since the applicants failed to request compensation when they joined the proceedings before the military court or the Kırklareli Assize Court they were obliged to introduce separate proceedings before the Supreme Military Administrative Court. The length of the proceedings must also be seen against the background of the fact that the Kırklareli Military Court had to relinquish jurisdiction in favour of the Kırklareli Assize Court for reasons of jurisdiction.

With reference to the time-table of the criminal proceedings, the Government observe that the military court found the accused guilty on 24 November 1992, the offence having been committed on 12 February 1991. The military court’s decision was annulled by the military Court of Cassation on 9 February 1994 on the grounds that the former court had misdirected itself on the issue of provocation. On 27 November 1994 the military court was subsequently obliged for reasons of jurisdiction to transfer the case to the Kırklareli Assize Court, which found the accused guilty of murder on 17 October 1995 and sentenced him to thirty-years’ imprisonment.

In the Government’s submission each court involved in the proceedings dealt with the case within a reasonable period of time. The applicants, as intervenors in the proceedings before the Kırklareli Assize Court, never requested compensation. As to the earlier proceedings before the Kırklareli military court, the Government point to the fact that the applicants in a letter dated 5 June 1991 addressed to that court specifically requested that the issue of compensation should not be considered. This confirms that the applicants’ aim all along was to secure the conviction of the accused.

The Government conclude that the complaint under this head is manifestly ill-founded and therefore inadmissible.

The Court observes that the applicants can only claim about the length of the criminal proceedings against Genco Yavuz’s murderer to the extent that those proceedings had a bearing on the determination of a civil right. However, and as noted above, the applicants never joined the criminal proceedings as a civil party. Their sole aim in doing so was to secure the conviction of the accused. (cf the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 43, § 121). For that reason, the applicants’ complaint regarding the length of the criminal proceedings must be rejected as incompatible ratione materiae with the provisions of the Convention.

The applicants did on the other hand introduce compensation proceedings before the Supreme Military Administrative Court. They initiated proceedings on 29 June 1992 and a decision was reached on their claim on 30 November 1994. The Court does not find the length of this period  - almost two years and five months - unreasonable having regard to the criteria laid down in its case-law for assessing the reasonable-time requirement contained in Article 6 § 1 of the Convention. In any event, the applicants have not sought to allege that the resolution of their claim was delayed on account of the conduct of the authorities. Their main grievance concerns the time taken to conclude the criminal proceedings against the accused soldier, a complaint which, for the reasons given earlier, is inadmissible.

Having regard to the above considerations, the Court concludes that this part of the application is manifestly ill-founded and therefore inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicants maintain that the circumstances of Genco Yavuz’s death engage the responsibility of the respondent Government under Article 2 of the Convention, which provides as relevant:

“1.  Everyone’s right to life shall be protected by law. ... ”

The applicants submit that the military authorities negligently allowed a soldier who had been found guilty of murder prior to his military service to be in possession of a loaded gun.

The Government highlight in the first place that the applicants never pleaded before the domestic courts that there had been a violation of Genco Yavuz’s right to life.

The Government aver that the accused soldier was convicted of murdering Genco Yavuz and was sentenced to thirty years’ imprisonment. The conviction and sentence were confirmed ex officio by the military Court of Cassation and in the absence of any appeal on the part of the applicants. They stress that the Supreme Military Administrative Court in turn scrupulously examined all the circumstances of the case. Although it found that the administration was not at fault, the Supreme Military Administrative Court awarded the applicants compensation in application of the doctrine of the State’s objective liability for the acts of its agents. The Government stress that Genco Yavuz died as a result of a private quarrel with his assassin and that the domestic courts found on the facts that the killer had obtained the ammunition by fraud. The applicants did not receive the full amount which they claimed since the deceased was found by the Kırklareli Assize Court to have provoked his killer by his behaviour.

The Government further state that the fact that the culprit had served eight years in jail for murder was not a ground for exempting him from the performance of his military service. The medical evidence indicated that he was not suffering from mental illness at the time of killing Genco Yavuz. Furthermore, when he committed the murder he was not supposed to be carrying a loaded firearm since he was on canteen duty at the time. He obtained the bullets for the gun without the knowledge of the authorities through the use of subterfuge.

The Court recalls that the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State (see the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 322, 324, §§ 78, 86). Furthermore, this obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. Nor is it decisive whether members of the deceased’s family or others have lodged a formal complaint about the killing with the relevant investigatory authority. The mere knowledge of the killing on the part of the authorities gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1778, § 82).

The Court observes that an investigation was conducted into the killing of Genco Yavuz. The circumstances surrounding the killing were clarified and the culprit was identified, prosecuted and found guilty of unlawful killing. He received a thirty-year prison sentence.

In parallel to the criminal proceedings the applicants lodged a compensation claim against the administration alleging that Genco Yavuz died as a result of the negligence of the army. The Supreme Military Administrative Court awarded the applicants compensation on the basis of the administration’s strict liability for the acts of its agents.

In the Court’s opinion, the above measures are sufficient to enable it to conclude that the authorities of the respondent State are not in breach of their above-mentioned procedural obligation under Article 2 of the Convention.

As to the applicants’ claim that the authorities put Genco Yavuz’s life in danger by conscripting a known killer and giving him access to firearms, the Court would observe that the applicants have failed to show that the authorities knew or could be taken to know that there was a real and immediate risk to the life of Genco Yavuz (see the Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, pp. 3159-60, § 116). It would appear that Genco Yavuz died as a result of a private vendetta over the supply of drugs. He also provoked his killer. The domestic court found on the facts that the latter was not suffering from mental illness at the relevant time and had broken military regulations as regards the carrying of a firearm and procuring ammunition. For these reasons, the Court considers that the authorities cannot be adjudged to be in breach of any positive obligation implicit in Article 2 to protect Genco Yavuz’s life.

Having regard to the above considerations, the Court concludes that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected therefore in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis 
 Registrar President

29870/96 - -


- - 29870/96