Kalaç v. Turkey

(1997) 27 EHRR 552
Download Judgment: English
Country: Turkey
Region: Europe
Year: 1997
Court: European Court of Human Rights
Health Topics: Health systems and financing
Human Rights: Freedom of religion, Right to social security
Tags: Health insurance, Military, Social security

Kalac (K), a judge advocate and director of legal affairs for the air force, was a practicing Muslim who was 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. He was one of three officers and twenty-eight non-commissioned officers whose compulsory retirement was ordered by the supreme military council for breaches of discipline and scandalous conduct. The specific criticism in his case was that his conduct and attitude had revealed that he had adopted unlawful fundamentalist opinions. It was subsequently claimed by Turkey that K belonged – as a matter of fact if not formally – to and participated in the activities of a sect which was known to have unlawful fundamentalist tendencies. It was submitted in particular that he had given the sect legal assistance, taken part in training sessions and intervened in the appointment of servicemen who were members of it. K later claimed to be unaware  of the sect concerned.

After the supreme military council’s decision had been approved by the president, the prime minister and the defence minister, K was ordered to surrender his social security (health insurance) card, military identity card and licence to bear arms. On his application to have all these measures set aside, the supreme administrative court held (4-3) that it had no jurisdiction over decisions of the supreme military council because the constitution provided that they were final but it set aside the refusal to issue social security cards to K and his family. Turkey’s constitution guaranteed freedom of religious belief and worship but provided that no rights could be exercised to set up a State order based on religious beliefs.

K complained about being removed from his post because of his religious convictions and the Commission found a breach of Art 9. Before the Court K also relied on Art 6(1) on the ground that he had not had a hearing before a tribunal in connection with the facts held against him. Turkey objected that K had not explicitly alleged to the authorities that his freedom of conscience had been infringed and, at the hearing, to the Court’s lack of jurisdiction ratione materiae.

 

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that the Art 6(1) complaint lay outside the compass of the case delimited by the admissibility decision;

(2) that the objection concerning its lack of jurisdiction called for no decision as it was submitted out of time for the purposes of ROP r48(1);

(3) that the objection of failure to exhaust domestic remedies must be dismissed because the supreme military council’s decision was not subject to judicial review;

(4) that Art 9, although implying freedom to manifest one’s religion, did not protect every act motivated or inspired by a religion or belief and an individual might need to take his specific situation into account;

(5) that K, by choosing a military career, was accepting of his own accord a system of military discipline which by its very nature implied the possibility of placing on certain rights and freedoms limitations incapable of being imposed on civilians;

(6) that States could adopt disciplinary regulations forbidding this or that type of conduct and in particular an attitude inimical to an established order reflecting the requirements of military service;

(7) that it was not contested that K was, within the limits imposed by the requirements of military life, able to fulfil the obligations which constitute the normal forms through which a Muslim practices his religion;

(8) that the supreme military council’s order was not based on K’s religious opinions and beliefs but on his conduct and attitude which, according to the Turkish authorities, breached military discipline and infringed the principle of secularism;

(9) that K’s compulsory retirement was not prompted by the way he had manifested his religion and was not, therefore, a violation of Art 9.

 

[Adapted from INTERIGHTS summary, with permission]

"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."

INTERIGHTS Comment: The Court has previously recognised that limits may be set on the manifestation of religious belief (on proselytism, see Kokkinakis v Greece, (1995) 9 Interights Bulletin 58) and it has also accepted some implied limits on rights arising out of the needs of military discipline (see Engel v The Netherlands, Ser A No 22 but see Expression, Grigoriades v Greece, supra). There seems little ground for disagreeing that a breach of the principle of secularism could be a legitimate reason for removing someone from the armed forces, notwithstanding the freedom of religion guaranteed by Art 9 but the Court was right to emphasize that the action against K was not based on religious practices such as prayer and fasting. Nevertheless this ruling is disturbing as regards the willingness of the Court to accept without question the allegations made against K despite both the ECmHR’s finding that documents produced by Turkey did not support the argument that he had any links with a sect and the Court’s own conclusion that judicial review of the supreme military council’s decision was not available. It is doubtful that the Art 6(1) complaint would have succeeded, even if it had been made in time, because of the Court’s view that it has no application to careers in the public service (see Fair Hearing, Soldani v Italy and Spurio v Italy, supra). However, due process is generally regarded as an element preventing interference with rights from being regarded as arbitrary (see Bryan v United Kingdom, (1996) 10 Interights Bulletin 136) and it is questionable whether K’s removal could be regarded as ‘prescribed by law’. The Court ought also to have considered itself whether his conduct, if substantiated, actually posed the threat asserted by Turkey; cf the approach taken to the dismissal of a civil servant for political activities in Vogt v Germany, (1996) 10 Interights Bulletin 131. The dismissal of the preliminary objections followed established case law.
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