CIMEN, YILMAZ, ÖZTÜRK, ULUG, DELIBAS ET AL AND SARI ET AL v. TURKEY
Inadmissible
Christos Rozakis
The applicants are all Turkish nationals (see appendix). The second applicant is represented before the Court by Mr Hüseyin Sıragezen, a lawyer practising in Edirne. The remaining applicants are represented by Mr Abdurrahman Şahin, a lawyer practising in Ankara. A. The facts of the cases, as submitted by the applicant, may be summarised as follows. Application no. 40079/98 Hüsni ÇİMEN On 18 February 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 February 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was awarded compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 13 June 1996 he requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 15 August 1996 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court (“Askeri Yüksek İdare Mahkemesi”). The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which he had been awarded under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess the amount which would represent just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s method of calculation. On 14 May 1997 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. Under domestic law the judgments of the Supreme Military Administrative Court are final and cannot be appealed. The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 14 May 1997. On 1 October 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Application no. 40273/98 Cemal YILMAZ On 22 January 1996 the applicant, a conscript soldier, was injured while manoeuvring the private car of a superior officer at a military car wash. According to military regulations, cars were to be washed only by commissioned soldiers employed at the car wash. The superior officer requested the applicant to assist the commissioned soldier at the car wash if he had free time. The officer left the car in gear with the key in the ignition. While washing the car, the commissioned soldier told the applicant to turn the ignition key to start the windscreen wipers. When the applicant turned the ignition the engine started up and the car moved forward. The applicant pressed the accelerator in panic, the car advanced rapidly and hit a tree. The applicant suffered permanent injury to both eyes and had to be discharged from military service. On 24 December 1996 the applicant requested compensation from the Ministry of Defence. The Ministry did not respond within the time-limit prescribed by law. On 26 March 1997 the applicant brought an action for compensation against the Ministry of Defence before the Supreme Military Administrative Court. His lawyer contended that the applicant had been injured in the course of his compulsory military duty and that the administration was strictly liable (“objektif sorumluluk”) for personal injury arising in the course of his duties. The defendant Ministry denied liability but noted inter alia that the applicant would qualify for a retirement pension. On 8 October 1997 the Supreme Military Administrative Court found that the act complained of could not be attributed to the defendant administration since it was not related to the applicant’s military duties. Accordingly, the injury was not sustained by the applicant in the performance of his military service. This judgment was final under domestic law. The applicant did not seek rectification of the judgment. Application no. 44195/98 Serdal ÖZTÜRK On 10 July 1994 the applicant, who was serving in the army at the time, was instructed to hold a meeting with the heads of villages. A jeep was arranged to take him to the meeting. The applicant took a lieutenant’s private car instead, claiming that the jeep was unavailable. He was involved in a road accident which left him 70 % paralysed. The applicant received a retirement pension on account of his disability. The applicant applied to the Ministry of Defence for compensation. The Ministry rejected his request on the ground that the accident had not arisen in the performance of his military duties. On 25 June 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 22 April 1998 the court rejected his request on the ground that the applicant’s claim was unconvincing and that the record of the accident was invalid. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 22 April 1998. On 8 July 1998 the Chamber rejected the applicant’s request for rectification, holding that the request did not fall within the grounds specified for rectification. Application no. 44196/98 Selçuk ULUĞ On 14 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 June 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 19 August 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation awarded under Law no. 2330 already paid to him. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 6 May 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 6 May 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Application no. 44248/98 Kutbettin DELİBAŞ, Muzaffer DELİBAŞ, Saliha DELİBAŞ, Şadiye DELİBAŞ On 15 October 1996 Hamdin Delibaş who was serving in the army at the time, committed suicide. The reason for his suicide was explained in a letter found in his pocket. According to the contents of his letter, he had been humiliated by the officers and other soldiers in his squadron. He became depressed and had decided to take his own life. On 31 December 1996 the Military Prosecutor found that it was unnecessary to conduct an investigation since there was no evidence to substantiate the allegations in the letter. The applicants claimed that the mental health of Hamdin Delibaş began to deteriorate after he commenced his military service as a result of the torture and oppression to which he had been subjected. On 24 October 1997 the applicants instituted proceedings for compensation before the second Chamber of the Supreme Military Administrative Court. On 15 April 1998 the court rejected the applicants’ request on the grounds that they had not substantiated their allegations and that there was no causal link between the deceased’s suicide and the performance of his military service. The Chamber was composed of military judges two of whom, according to the applicants, had no legal training. The applicants requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 15 April 1998. On 10 June 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Ertan ÇAMAŞ The applicant, who was serving in the army at the time, claims that as a result of an operation carried out at a military hospital on 21 December 1994 he was left with permanent damage to his spine. On 12 October 1995 he had a follow-up operation at another military hospital. A medical report was drawn up declaring him unfit to continue his military service. The applicant claims that the doctors informed him that the first operation had been carried out negligently. On 8 April 1996 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee consisting of two professors and an associate professor from the Medical Faculty of Hacettepe University to examine the allegation of negligence. According to the committee’s report, both operations had been carried out successfully and faultlessly. The applicant’s lawyer objected to the findings on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity. The Supreme Military Administrative Court dismissed these objections finding them unsubstantiated and in a judgment dated 21 May 1997 rejected the applicant’s compensation claim. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 May 1997. On 17 September 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. The applicant applied to the Directorate General of Retirement Fund for a benefit on account of his physical disability. The Directorate General rejected his request and on 27 December 1996 he instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 21 October 1997, the court rejected his request, holding that his disability did not result from the performance of his military service and there was no concrete proof that that his operation had been conducted negligently. The applicant requested rectification of the judgment. On 10 March 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Barış ÖZBAKİ On 8 August 1995 the applicant, who was serving in the army at the time, was accidentally shot and wounded by a sergeant. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 September 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 13 March 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 29 April 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 29 April 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Application no. 49554/99 Yusuf SARI The applicant, who was serving in the army at the time, claims he was the victim of medical negligence at a military hospital which left him with permanent damage to his spinal marrow and left him paralysed below the neck. A medical report declared him unfit to continue his military service. The applicant maintained that he did not receive any benefit for his physical disability and that his medical expenses were not covered by the State. On 28 February 1997 the applicant applied to the Ministry of Defence for compensation. The Ministry of Defence did not reply to the application. On 6 May 1997 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee composed of three professors from the Medical Faculty of Hacettepe University to examine the allegations of medical negligence. The committee found no evidence of negligence. The applicant’s lawyer objected to the finding on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity. On 21 October 1998 the second Chamber of the Supreme Military Administrative Court rejected the applicant’s compensation request on the ground that the administrative authorities were not at fault. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 October 1998. On 9 April 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Alper BİNGÖL On 24 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him paralysed below the waist. On 1 December 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. He requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 2 March 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 2 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 2 December 1998. On 3 February 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Adnan YAVUZER On 10 April 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 99% paralysed below the waist. On 1 August 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. The applicant requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 27 April 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the assessment of the legal expert, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 16 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 16 December 1998. On 3 March 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. B. Relevant domestic law Article 157 of the Turkish Constitution provides (unofficial translation): “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.” Article 66 of the Law No. 1602 on the Supreme Military Administrative Court provides: “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”)”.