28 June 2018 Thursday
Batuhan Yılmaz (no. 2015/6071, 28 June 2018)
While being a cadet in the military academy, the applicant was granted a leave of absence for a total period of five months and a half, for suffering from a psychological disorder, by virtue of medical reports issued on various dates within the same year.
Following his leave, a military hospital diagnosed the applicant with non-organic psychosis and unspecified-chronic psychotic disorder and issued a report where he was found unfit for serving as a cadet.
As the applicant challenged this report, he was referred to another military hospital which issued another report of the same content with the previous one. Thereupon, the applicant was dismissed from the military academy.
On the other hand, the medical report obtained by the applicant himself from a university hospital stated that “the person has no psychological problem”, and another medical report obtained by the applicant himself from a municipal hospital indicated that “any psychotic disorder has not been diagnosed as a result of the medical examination and tests”.
The applicant brought an action before the Supreme Military Administrative Court (“the SMAC”) for the revoke of his dismissal. He maintained that he was healthy and that would be revealed if he was referred to another medical institution for determination of his psychological state.
Relying on the medical report issued by the military hospital, the SMAC dismissed the applicant’s action. Nor did it accept the applicant’s request for rectification of the dismissal decision.
The Applicant’s Allegations
The applicant maintained that according to the medical reports received from the non-military hospitals, he did not suffer from any psychological disorder; and that although he requested, during the proceedings, to be referred to different medical institutions, he was referred to the same military hospital which had previously issued the unfavourable medical report with respect to him. He accordingly alleged that his right to defence, right to legal remedies as well as the principles of impartiality and equality of arms were infringed.
The Court’s Assessment
Pursuant to Article 36 of the Constitution, everyone has the right to litigation either as plaintiff or defendant and the right to a fair hearing. In its various judgments, the Constitutional Court referred to the principle of equality of arms, which is incorporated into the right to a fair hearing through the case-law of the European Court of Human Rights, under Article 36 of the Constitution.
In general, for conducting a fair hearing, the parties must be granted the opportunity to adduce evidence including to have witnesses. The evidence must be examined promptly and the parties must be given the opportunity to effectively participate in proceedings in light of the principle of equality of arms.
In the present case, the question of impartiality of the panel of experts concerns the fact that the military hospital was involved in the dismissal process of the applicant and that it had an opinion on the medical issue of the applicants which resulted in dismissal rather than that the hospital is structured under the administration which is a party to the case.
The military hospital stated its opinion, in the capacity of an expert, on the matter through its report forming a basis for the applicant’s dismissal.
It has been observed that the applicant’s objections for being examined by other medical institutions were not addressed in the SMAC’s judgments. However, the SMAC well has the opportunity to receive medical opinion from not only the hospitals operating within the military structure but also from other medical institutions.
Obtaining the expert report from a panel operating within a military hospital, which previously rendered its opinion during the challenged dismissal process, constitutes a disadvantage for the applicant who requested to be referred to a different medical institution and submitted additional reports indicating that he did not suffer from any mental disorder.
As a consequence, it has been concluded that at the proceedings the applicant was put in a weakened position compared to the administration, which was in breach of the principle of equality of arms.
For the reasons explained above, the Court found a violation of the principle of equality of arms which is one of the safeguards inherent in the right to a fair hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.