ARSLAN v. TURKEY
Inadmissible
Marc Fischbach
The applicant, born in 1974 in Samsun, is a citizen of Turkey. He is resident in Bursa. The applicant is represented before the Court by Abdurrahman Şahin, a lawyer practising in Ankara. A. On 23 June 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. A bullet entered his neck, causing permanent damage to his spine and leaving him 90 % paralysed below the waist. 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 (bakıcı) to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 8 March 1996 he requested the Ministry of Interior to pay him additional compensation. The Ministry rejected his request. On 9 May 1996 the applicant challenged the Ministry’s rejection before the 2nd Chamber of the Supreme Military Administrative Court. The Chamber was composed of five 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 assessment of the legal expert, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations on the ground inter alia that the full amount of the fees paid to the helper had to be disregarded from the final calculation. On 26 February 1997 the 2nd Chamber of the Supreme 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 Courts are final and cannot be appealed. The applicant requested rectification of the judgment (kararın düzeltilmesi). In accordance with domestic law, the file was re-examined by the same five-judges of the 2nd Chamber of the Supreme Military Administrative Court which had given the judgment of 26 February 1997. On 30 April 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. B. Relevant domestic law 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”)”.