BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

    European Court of Human Rights


    You are here: BAILII >> Databases >> European Court of Human Rights >> Kalac v Turkey - 20704/92 [1997] ECHR 37 (1 July 1997)
    URL: http://www.bailii.org/eu/cases/ECHR/1997/37.html
    Cite as: [1997] ECHR 37, (1999) 27 EHRR 552, 27 EHRR 552, [1999] 27 EHRR 552

    [New search] [Contents list] [Printable version] [Help]


          In the case of Kalaç v. Turkey (1),
    
          The European Court of Human Rights, sitting, in accordance with
    Article 43 (art. 43) of the Convention for the Protection of
    Human Rights and Fundamental Freedoms ("the Convention") and the
    relevant provisions of Rules of Court A (2), as a Chamber composed of
    the following judges:
    
          Mr   R. Ryssdal, President,
          Mr   F. Gölcüklü,
          Mr   L.-E. Pettiti,
          Mr   C. Russo,
          Mr   A. Spielmann,
          Mr   I. Foighel,
          Sir  John Freeland,
          Mr   A.B. Baka,
          Mr   D. Gotchev,
    
    and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
    Registrar,
    
          Having deliberated in private on 24 February and 23 June 1997,
    
          Delivers the following judgment, which was adopted on the
    last-mentioned date:
    _______________
    Notes by the Registrar
    
    1.  The case is numbered 61/1996/680/870.  The first number is the
    case's position on the list of cases referred to the Court in the
    relevant year (second number).  The last two numbers indicate the
    case's position on the list of cases referred to the Court since its
    creation and on the list of the corresponding originating applications
    to the Commission.
    
    2.  Rules A apply to all cases referred to the Court before the entry
    into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
    to cases concerning States not bound by that Protocol (P9).  They
    correspond to the Rules that came into force on 1 January 1983, as
    amended several times subsequently.
    _______________
    
    PROCEDURE
    
    1.    The case was referred to the Court by the European Commission of
    Human Rights ("the Commission") on 19 April 1996 and by the Government
    of the Republic of Turkey ("the Government") on 3 July 1996, within the
    three-month period laid down by Article 32 para. 1 and Article 47 of
    the Convention (art. 32-1, art. 47).  It originated in an application
    (no. 20704/92) against Turkey lodged with the Commission under
    Article 25 (art. 25) by a Turkish national, Mr Faruk Kalaç, on
    13 July 1992.
    
          The Commission's request referred to Articles 44 and 48
    (art. 44, art. 48) and to the declaration whereby Turkey recognised the
    compulsory jurisdiction of the Court (Article 46) (art. 46); the
    Government's application referred to Article 48 (art. 48).  The object
    of the request and of the application was to obtain a decision as to
    whether the facts of the case disclosed a breach by the respondent
    State of its obligations under Article 9 of the Convention (art. 9).
    
    2.    In response to the enquiry made in accordance with Rule 33
    para. 3 (d) of Rules of Court A, the applicant stated that he wished
    to take part in the proceedings.  On 24 January 1997 the President of
    the Court gave him leave to present his own case (Rule 30 para. 1).
    
    3.    The Chamber to be constituted included ex officio Mr F. Gölcüklü,
    the elected judge of Turkish nationality (Article 43 of the Convention)
    (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21
    para. 4 (b)).  On 27 April 1996, in the presence of the Registrar, the
    President drew by lot the names of the other seven members, namely
    Mr L.-E. Pettiti, Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann,
    Mr J.M. Morenilla, Sir John Freeland and Mr D. Gotchev (Article 43 in
    fine of the Convention and Rule 21 para. 5) (art. 43).  Subsequently
    Mr Morenilla and Mr Macdonald, who were unable to attend, were replaced
    by Mr I. Foighel and Mr A.B. Baka, substitute judges (Rules 22
    para. 1 and 24 para. 1).
    
    4.    As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
    through the Registrar, consulted the Agent of the Government, the
    applicant and the Delegate of the Commission on the organisation of the
    proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in
    consequence, the Registrar received the applicant's and the
    Government's memorials on 4 November and 17 December 1996 respectively.
    The Delegate of the Commission did not submit any observations.
    
    5.    In the meantime, on 2 December 1996, the Commission had produced
    the file on the proceedings before it, as requested by the Registrar
    on the President's instructions.
    
    6.    In accordance with the decision of the President, who had given
    the applicant leave to use the Turkish language (Rule 27 para. 3), the
    hearing took place in public in the Human Rights Building, Strasbourg,
    on 17 February 1997.  The Court had held a preparatory meeting
    beforehand.
    
          There appeared before the Court:
    
    (a) for the Government
    
          Mr   A. Gündüz,                                          Agent,
          Mr   M. Özmen,                                         Counsel,
          Mr   F. Polat,
          Miss A. Emüler,
          Mrs  N. Erdim,
          Mrs  S. Eminagaoglu,                                  Advisers;
    
    (b) for the Commission
    
          Mr   J.-C. Geus,                                      Delegate;
    
    (c) the applicant.
    
          The Court heard addresses by Mr Geus, Mr Kalaç, Mr Gündüz and
    Mr Özmen.
    
    AS TO THE FACTS
    
    I.    Circumstances of the case
    
    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.
    
    II.   Relevant domestic law
    
        A.     The Constitution
    
    13.   The relevant provisions of the Constitution are as follows:
    
                              Article 14 para. 1
    
          "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."
    
                                  Article 24
    
          "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
          Article 14.
    
          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."
    
                                  Article 125
    
           "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.
    
           ..."
    
                                  Article 139
    
          "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."
    
                                  Article 144
    
          "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."
    
                         Article 145, fourth paragraph
    
          "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."
    
        B.     Law no. 357 ("the Military Legal Service Act")
    
    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."
    
        C.     Law no. 926 ("the Military Personnel Act")
    
    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."
    
        D.     The Regulations on assessment of officers and
               non-commissioned officers
    
    16.   Article 99 of the Regulations on assessment of officers and
    non-commissioned 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."
    
    PROCEEDINGS BEFORE THE COMMISSION
    
    17.   Mr Kalaç applied to the Commission on 13 July 1992.  Relying on
    Article 9 of the Convention (art. 9), he complained that he had been
    removed from his post as judge advocate on account of his religious
    convictions.
    
    18.   The Commission declared the application (no. 20704/92) admissible
    on 10 January 1995.  In its report of 27 February 1996 (Article 31)
    (art. 31) it expressed the unanimous opinion that there had been a
    violation of Article 9 of the Convention (art. 9).  The full text of
    the Commission's opinion is reproduced as an annex to this
    judgment (1).
    _______________
    Note by the Registrar
    
    1.  For practical reasons this annex will appear only with the printed
    version of the judgment (in Reports of Judgments and
    Decisions 1997-IV), but a copy of the Commission's report is obtainable
    from the registry.
    _______________
    
    AS TO THE LAW
    
    I.    SCOPE OF THE CASE
    
    19.   In his memorial to the Court the applicant, in addition to his
    complaint under Article 9 of the Convention (art. 9), also relied on
    Article 6 para. 1 (art. 6-1) on the ground that he had not had a
    hearing by a tribunal in connection with the facts held against him.
    
    20.   The Court notes that this last complaint lies outside the compass
    of the case as delimited by the Commission's decision on admissibility,
    since it was not dealt with either in that decision or in the
    Commission's report (see, among other authorities, the Scollo v. Italy
    judgment of 28 September 1995, Series A no. 315-C, p. 51, para. 24; and
    the Hussain v. the United Kingdom judgment of 21 February 1996, Reports
    of Judgments and Decisions 1996-I, p. 266, para. 44).
    
          The scope of the case is therefore limited to the questions
    raised under Article 9 (art. 9).
    
    II.   ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION (art. 9)
    
        A.     The Government's preliminary objection
    
    21.   The Government submitted to the Commission a preliminary
    objection divided into three limbs, but in their memorial to the Court
    they resubmitted only the limb concerning failure to exhaust domestic
    remedies, leaving aside the other two, which concerned the Commission's
    lack of competence ratione materiae and the application's late
    submission.  At the hearing on 17 February 1997 the Government
    presented argument on the first limb and in addition pleaded the
    Court's lack of jurisdiction ratione materiae.
    
          The Court considers that the latter objection calls for no
    decision as it was submitted to the Court out of time for the purposes
    of Rule 48 para. 1 of Rules of Court A.
    
    22.   As for the argument which was repeated in the memorial of
    December 1996 and at the hearing, it amounts to an assertion that the
    applicant did not explicitly allege to the Turkish authorities that his
    right to freedom of conscience and religion had been infringed.  The
    Government maintained that, in accordance with the principle laid down
    by the Court in its judgment of 15 November 1996 in the case of
    Ahmet Sadik v. Greece (Reports 1996-V, p. 1654, para. 33), the
    applicant should have relied on Article 9 of the Convention (art. 9),
    which formed an integral part of Turkish law.
    
    23.   Like the Delegate of the Commission, the Court considers that the
    objection of failure to exhaust domestic remedies must be dismissed
    because, under Article 125 of the Constitution, and as the
    Supreme Administrative Court of the Armed Forces held in its judgment
    of 30 May 1991, the Supreme Military Council's decision against
    Mr Kalaç was not subject to judicial review.
    
        B.     Merits of the complaint
    
    24.   The applicant submitted that his compulsory retirement from his
    judge advocate's post infringed his freedom of religion on the ground
    that it was based on his religious beliefs and practices.  He relied
    on Article 9 of the Convention (art. 9), which provides:
    
          "1.  Everyone has the right to freedom of thought, conscience
          and religion; this right includes freedom to change his religion
          or belief and freedom, either alone or in community with others
          and in public or in private, to manifest his religion or belief,
          in worship, teaching, practice and observance.
    
          2.   Freedom to manifest one's religion or beliefs shall be
          subject only to such limitations as are prescribed by law and are
          necessary in a democratic society in the interests of public
          safety, for the protection of public order, health or morals, or
          for the protection of the rights and freedoms of others."
    
          The applicant argued that domestic law gave no indication of what
    the expression "unlawful fundamentalist opinions", given as grounds for
    his compulsory retirement (see paragraph 8 above), should be understood
    to mean.  As a practising Muslim, he prayed five times a day and kept
    the fast of Ramadan.  The documents produced by the Government for the
    first time when the proceedings were already before the Court did not
    constitute evidence of his alleged membership of the
    Muslim fundamentalist Süleyman sect (Süleymancilik tarikati), whose
    existence he had been unaware of.  Moreover, the
    Supreme Military Council's decision infringed the principle of judges'
    security of tenure, which was set forth in Article 139 of the
    Constitution.
    
    25.   The Government argued that the question whether Mr Kalaç should
    be allowed to remain a member of the armed forces lay at the heart of
    the problem submitted to the Court.  His compulsory retirement was not
    an interference with his freedom of conscience, religion or belief but
    was intended to remove from the military legal service a person who had
    manifested his lack of loyalty to the foundation of the Turkish nation,
    namely secularism, which it was the task of the armed forces to
    guarantee.  The applicant belonged to the Süleyman sect, as a matter
    of fact, if not formally, and participated in the activities of the
    Süleyman community, which was known to have unlawful fundamentalist
    tendencies.  Various documents annexed to the memorial to the Court
    showed that the applicant had given it legal assistance, had taken part
    in training sessions and had intervened on a number of occasions in the
    appointment of servicemen who were members of the sect.  On the basis
    of those documents, a committee of five officers drawn from the highest
    echelons of the military had concluded that by taking and carrying out
    instructions from the leaders of the sect Group Captain Kalaç had
    breached military discipline and should accordingly be compulsorily
    retired pursuant to section 50 (c) of the Military Personnel Act.  The
    Supreme Military Council had based its decision on this opinion, which
    had been approved by the high command and the air force chief of staff.
    
          Lastly, facilities to practise one's religion within the
    armed forces were provided in Turkey for both Muslims and the adherents
    of other faiths.  However, the protection of Article 9 (art. 9) could
    not extend, in the case of a serviceman, to membership of a
    fundamentalist movement, in so far as its members' activities were
    likely to upset the army's hierarchical equilibrium.
    
    26.   The Commission, basing its opinion on the documents submitted to
    it by the Government, took the view that the applicant's compulsory
    retirement constituted interference with the right guaranteed by
    Article 9 para. 1 (art. 9-1) and concluded that there had been a breach
    of that provision (art. 9-1) on the ground that the interference in
    question was not prescribed by law within the meaning of the
    second paragraph (art. 9-2), finding that the relevant provisions did
    not afford adequate protection against arbitrary decisions.  The
    Delegate observed that, in support of their memorial to the Court, the
    Government had produced documents which, during the proceedings before
    the Commission, had been said to be "secret in the interests of
    national security".  In any event, these documents did not support the
    argument that Mr Kalaç had any links with a sect.
    
    27.   The Court reiterates that while religious freedom is primarily
    a matter of individual conscience, it also implies, inter alia, freedom
    to manifest one's religion not only in community with others, in public
    and within the circle of those whose faith one shares, but also alone
    and in private (see the Kokkinakis v. Greece judgment of 25 May 1993,
    Series A no. 260-A, p. 17, para. 31).  Article 9 (art. 9) lists a
    number of forms which manifestation of one's religion or belief may
    take, namely worship, teaching, practice and observance.  Nevertheless,
    Article 9 (art. 9) does not protect every act motivated or inspired by
    a religion or belief.  Moreover, in exercising his freedom to manifest
    his religion, an individual may need to take his specific situation
    into account.
    
    28.   In choosing to pursue a military career Mr Kalaç was accepting
    of his own accord a system of military discipline that by its very
    nature implied the possibility of placing on certain of the rights and
    freedoms of members of the armed forces limitations incapable of being
    imposed on civilians (see the Engel and Others v. the Netherlands
    judgment of 8 June 1976, Series A no. 22, p. 24, para. 57).  States may
    adopt for their armies disciplinary regulations forbidding this or that
    type of conduct, in particular an attitude inimical to an established
    order reflecting the requirements of military service.
    
    29.   It is not contested that the applicant, within the limits imposed
    by the requirements of military life, was able to fulfil the
    obligations which constitute the normal forms through which a Muslim
    practises his religion.  For example, he was in particular permitted
    to pray five times a day and to perform his other religious duties,
    such as keeping the fast of Ramadan and attending Friday prayers at the
    mosque.
    
    30.   The Supreme Military Council's order was, moreover, not based on
    Group Captain Kalaç's religious opinions and beliefs or the way he had
    performed his religious duties but on his conduct and attitude
    (see paragraphs 8 and 25 above).  According to the Turkish authorities,
    this conduct breached military discipline and infringed the principle
    of secularism.
    
    31.   The Court accordingly concludes that the applicant's compulsory
    retirement did not amount to an interference with the right guaranteed
    by Article 9 (art. 9) since it was not prompted by the way the
    applicant manifested his religion.
    
          There has therefore been no breach of Article 9 (art. 9).
    
    FOR THESE REASONS, THE COURT UNANIMOUSLY
    
    1.    Dismisses the Government's preliminary objection;
    
    2.    Holds that there has been no breach of Article 9 of the
          Convention (art. 9).
    
          Done in English and in French, and delivered at a public hearing
    in the Human Rights Building, Strasbourg, on 1 July 1997.
    
    Signed: Rolv RYSSDAL
            President
    
    Signed: Herbert PETZOLD
            Registrar


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/eu/cases/ECHR/1997/37.html