CASE OF KALAÇ v. TURKEY
No violation of Art. 9
C. Russo;John Freeland
7. Mr Faruk Kalaç, a Turkish citizen born in 1939, pursued a career as judge advocate in the air force. In 1990 he was serving, with the rank of group captain, as the high command’s director of legal affairs. 8. By an order of 1 August 1990 the Supreme Military Council (Yüksek Askeri Sûrasi), composed of the Prime Minister, the Minister of Defence, the Chief of Staff and the eleven highest-ranking generals in the armed forces, ordered the compulsory retirement of three officers, including Mr Kalaç, and twenty-eight non-commissioned officers for breaches of discipline and scandalous conduct. The decision, which was based on section 50 (c) of the Military Personnel Act, section 22 (c) of the Military Legal Service Act and Article 99 (e) of the Regulations on assessment of officers and non-commissioned officers, made the specific criticism, in the applicant’s case, that his conduct and attitude "revealed that he had adopted unlawful fundamentalist opinions". 9. In a decision of 22 August 1990 the President of the Republic, the Prime Minister and the Minister of Defence approved the above order, which was served on the applicant on 3 September. The Minister of Defence ordered the forfeiture of the applicant’s social security (health insurance) card, his military identity card and his licence to bear arms. 10. On 21 September 1990 Mr Kalaç asked the Supreme Administrative Court of the Armed Forces (Askeri Yüksek idare Mahkemesi) to set aside the order of 1 August 1990 and the measures ordered by the Ministry of Defence. 11. In a judgment of 30 May 1991 the Supreme Administrative Court of the Armed Forces ruled by four votes to three that it did not have jurisdiction to entertain the application to set aside the order of 1 August 1990, on the ground that under Article 125 of the Constitution the decisions of the Supreme Military Council were final and not subject to judicial review. In that connection it observed that under the Military Legal Service Act members of the military legal service had the status of military personnel. Their compulsory retirement for breaches of discipline was regulated in the same manner as that of other army officers. In their dissenting opinion the three members of the minority referred to the principle of the independence of the judiciary enunciated in Article 139 of the Constitution. They expressed the view that security of tenure for both civilian and military judges, which was protected by that Article, formed a lex specialis in relation to the other provisions of the Constitution and that decisions of the Supreme Military Council which infringed that principle should therefore be subject to review by the Supreme Administrative Court of the Armed Forces. The court set aside, however, the refusal to issue social security cards to the applicant and his family. 12. On 9 January 1992 the court dismissed an application for rectification lodged by Mr Kalaç. 13. The relevant provisions of the Constitution are as follows: "None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions." "Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby." "All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ..." "Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post. The exceptions laid down by law concerning judges or public prosecutors who have been convicted of an offence requiring their dismissal from the service, those whose unfitness to carry out their duties for medical reasons has been finally established or those whose continued service has been adjudged undesirable shall remain in force." "Supervision of judges and public prosecutors as regards the performance of their duties in accordance with laws, regulations, subordinate legislation and circulars (administrative circulars, in the case of judges), investigations into whether they have committed offences in connection with, or in the course of, their duties, or whether their conduct and attitude are compatible with the obligations arising from their status and duties and, if necessary, inquiries concerning them shall be made by judicial inspectors with the permission of the Ministry of Justice. The Minister of Justice may also ask a judge or public prosecutor senior to the judge or public prosecutor in question to conduct the investigation or inquiry." "The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service." 14. Section 22 (c) of the Military Legal Service Act provides: "Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions." 15. Section 50 (c) of the Military Personnel Act provides: "Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council." 16. Article 99 of the Regulations on assessment of officers and noncommissioned officers provides: "Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions."