PROCEDURE

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).

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).

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).

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.

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.

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

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.

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“.

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.

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.

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.

On 9 January 1992 the court dismissed an application for rectification lodged by Mr Kalaç.