Sentenza 08 luglio 2004, n.47491/99

Corte Europea dei Diritti dell’Uomo. Sentenza 8 luglio 2004: “Sert c. Turchia: Lamentata violazione degli artt. 9 e 13 della C.E.D.U. Inammissibilità del ricorso”.

CONSEIL DE L’EUROPE.

COUNCIL OF EUROPE

COUR EUROPÈENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47491/99

by Hasan SERT

against Turkey

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr G. RESS, President,

Mr I. CABRAL BARRETO,

Mr L. CAFLISCH,

Mr R. TÜRMEN,

Mr B. ZUPANČIČ,

Mr J. HEDIGAN,

Mrs A. GYULUMYAN, judges,

and Mr V. BERGER, Section Registrar,

Having regard to the above application lodged on 23 March 1999,

Having regard to the partial decision of 5 December 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Sert, is a Turkish national who was born in 1971 and lives in Muğla. He was represented before the Court by Mr M.H. Çelik, a lawyer practising in Izmir.

I. The circumstances of the case

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

The applicant, a non-commissioned officer, was a member of the Süleymancılık group of the Nakşibendi sect.

On 4 December 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of insubordination and immoral conduct pursuant to Article 94 (b) of Law no. 926.

On 14 December 1998 the Muğla Infantry Command drafted a certificate of discharge, where the reasons for the applicant’s discharge were not disclosed.

II. Relevant domestic law

In respect of relevant domestic legislation, the Court refers to its case-law in its Tepeli and Others v. Turkey decision (no. 31876/96, 12 June 2001).

COMPLAINTS

The applicant complains under Article 9 of the Convention that the decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion. He maintains that the implicit reason for the aforementioned decision was based on his religious convictions and his wife’s Islamic scarf.

The applicant complains under Article 13 of the Convention taken in conjunction with Article 9 of the lack of any independent national authority before which his complaints can be brought with any prospect of success.

THE LAW

A. Article 9 of the Convention

The applicant complained that the decision of the Supreme Military Council amounts to a violation of his right to freedom of thought, conscience and religion. He maintained that the implicit reasons for the aforementioned decision were his religious convictions and the Islamic scarf that his wife was wearing.

The applicant relied on Article 9 which provides as follows:

“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 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.”

1. The parties’ submissions

(a) The Government

The Government argued that the Supreme Military Council’s decision to discharge the applicant from the army had not amounted to an interference with his freedom of conscience, religion or belief. It rather served the purpose of dismissing members of the army who had displayed a lack of loyalty to the principle on which the Turkish nation was founded, namely secularism. They maintained that conduct and activities in breach of that principle could entail the risk of undermining the order prevailing in the armed forces and that it was natural that such conduct should be regarded as incompatible with military discipline.

The Government pointed out that the applicant was a member of Süleymancılık group of the Nakşibendi sect, known to have unlawful fundamentalist tendencies. They observed that, according to the reports found in the applicant’s personal files, his supervisors had concluded that his social attitude and ability to represent the army required supervision and control. He was not suitable to serve in the Turkish Armed Forces due to his anti-social behaviour and his contacts. Furthermore his wife was wearing an Islamic scarf. They maintained that the Supreme Military Council had based its decision on all of these opinions.

(b) The applicant

The applicant alleged that his discharge from the army, ordered by an administrative body on the ground of his religious beliefs amounted to an interference with his right to freedom of thought, conscience and religion. He contended that his and his family members’ way of living in accordance with the Islamic rules did not interfere in any way with his commitment to his work as a member of the Turkish army. He emphasised that the principle of secularism, which the Supreme Military Council based its decision on, guaranteed also freedom of religion and conscience.

2. The Court’s assessment

The Court reiterates that according to its well established case-law States may adopt for their armies disciplinary regulations forbidding this or that kind of conduct, in particular an attitude inimical to an established order reflecting the requirements of military service (see Kalaç v. Turkey, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1210, § 28 and Tepeli and Others, cited above).

The Court notes that it is not disputed that members of the armed forces (army officers and non-commissioned officers) can perform their religious duties within the limits imposed by the requirements of military life. It appears from the evidence before it that a committee of nine members of the armed forces examined the applicant’s assessment reports – which listed the disciplinary offences he had committed and stated that he was a member of sects known to have fundamentalist tendencies – and found that he did not have the profile of an army officer or a non-commissioned officer. The committee concluded that the applicant had breached military discipline and should be discharged from the army. The Court further notes that the Supreme Military Council’s order was based not on the applicant’s religious beliefs and opinions, nor on the fact that his wife or relatives wore an Islamic scarf, nor on the manner in which he performed his religious duties, but on his conduct and activities in breach of military discipline and the principle of secularism.

The Court concludes that the applicant’s discharge did not amount to an interference with the right guaranteed by Article 9 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

B. Article 13 of the Convention

The applicant complained under Article 13 taken in conjunction with Article 9 of the lack of any independent national authority before which complaints can be brought with any prospect of success.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many others, Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 14, § 31)

Having regard to the conclusion it reached above concerning the applicant’s complaints under Article 9, the Court finds that these complaints cannot be considered as “arguable” in terms of the Convention.

It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Vincent BERGER / Georg RESS

Registrar / President