European Court of Human Rights

 

 

SECOND SECTION

CASE OF ŞİŞMAN AND OTHERS v. TÜRKİYE

(Applications nos. 52107/14 and 9 others)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

22 October 2024

 

This judgment is final but it may be subject to editorial revision.

In the case of Şişman and Others v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Pauliine Koskelo, President,
          Lorraine Schembri Orland,
          Frédéric Krenc, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by ten Turkish nationals, whose relevant details are listed in the appended table ("the applicants"), on the various dates indicated therein;

the decision to give notice of the complaints concerning access to a court to the Turkish Government ("the Government") represented by their then Agent, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the decision to reject the Government's objection to the examination of the applications by a Committee;

the parties' observations;

Having deliberated in private on 1 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern the applicants' complaint that they had been deprived of the guarantees of a fair trial provided by Article 6 of the Convention before the High Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu – hereinafter "the HSYK"). The proceedings before the HSYK related to the applicants' involuntary transfers to other cities and additionally, in the case of the applicant in application no. 3117/16, Mr İlker Çetin, to his transfer without his consent to a lower post in the same city.

2.  At the material time, the applicants were serving as judges or prosecutors at different types or levels of courts. On various dates in 2014 and 2015 the HSYK transferred the applicants to posts in different cities by means of a collective decree. In application no. 3117/16, the HSYK transferred the applicant to another city and assigned him to two different posts in a year within the same city. The HSYK first transferred the applicant without his consent from the office of chief public prosecutor in Diyarbakır to the office of deputy chief public prosecutor in Uşak and then one year later it demoted him to the office of public prosecutor within the same city.

3.  The applicants applied to the HSYK for a review of its decisions, but all applications, except the one lodged by the applicant Mr Ahmet Karaca (application no. 54317/14), were rejected by the same body.

4.  Mr Karaca, who had held the post of deputy chief public prosecutor in Adana, was first temporarily assigned and then, by means of the impugned decree, transferred to a post of public prosecutor in Kayseri. Firstly, on 17 April 2014, he objected to the temporary assignment and requested either the revocation of this decision or to be assigned temporarily to Mersin, arguing that his mother, who was severely ill, needed his help. The applicant's objection was dismissed and subsequently, on 11 June 2014, he was transferred by means of the impugned decree to the post of public prosecutor in Kayseri. He then lodged a request with the HSYK for a review of his transfer to Kayseri. In his petition, he proposed that he be transferred either to Mersin or Gaziantep in order to be able to care for his mother. Following that request, on 19 June 2014, the HSYK amended its decision and transferred him to a post of public prosecutor in Gaziantep.

5.  All the applicants, with the exception of Mr Ahmet Karaca and Mr Aziz Takçı, in applications nos. 54317/14 and 54503/14 respectively, filed an objection with the HSYK's Objections Board (İtirazları İnceleme Kurulu) against the decisions taken by the HSYK on review.

6.  On various dates, the Objections Board dismissed the applicants' objections. The decisions of the Objections Board were final. No appeal could be lodged against those decisions with an administrative or judicial authority.

7.  In their applications to the Court the applicants complained under Article 6 of the Convention that in the proceedings before the HSYK they had not been afforded a fair trial by an impartial tribunal. The applicants in applications nos. 52107/14, 54317/14 and 54503/14, relying on the case of Olujić v. Croatia (no. 22330/05, 5 February 2009), contended that the guarantees of Article 6 should be applied during the proceedings before the HSYK. They asserted that the transfer decisions had been issued following a change in the distribution of tasks between the chambers of the HSYK. They also noted that the decisions in question had disregarded the HSYK's precedents and established practices and had been against the principle of judicial independence and the security of tenure of judges and prosecutors. Alongside those arguments, the applicant in application no. 54503/14 complained that the HSYK had dismissed his review request without giving any reasons. The applicant in application no. 57955/15 noted that he could not have had recourse to a judicial remedy against the decision of the HSYK and then complained that he had been deprived of the right to have access to justice as provided by Article 6 of the Convention and that the Objections Board of the HSYK had not represented an effective domestic remedy within the meaning of Article 13. The applicant in application no. 63031/15 asserted that the lack of reasoning in the HSYK's replies to his review request and objection had deprived him of claiming his rights and constituted an explicit indication that there was not any other domestic remedy in this regard. All of the remaining applicants complained under Article 6 § 1 of the Convention about the breach of their right to a reasoned judgment, of the principle of adversarial procedure, and impartiality during the proceedings before the HSYK. In addition to those complaints, the applicants in applications nos. 4414/16, 5028/16 and 5585/16 complained of the absence of a public hearing before the HSYK.

THE COURT'S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

8.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     THE GOVERNMENT'S request to stirke out application no. 63031/15 under article 37 of the convention

9.  In their observations submitted in respect of application no. 63031/15, the Government argued that the applicant had failed to appoint a representative, and unless the President of the Section had granted leave to him to represent himself before the Court, the Court should not examine his case. Accordingly, the Government invited the Court to strike the application out of its list of cases, under Article 37 § 1 (a) of the Convention.

10.  The Court notes that at the time the Government were given notice of the applications, the President of the Section granted leave to the applicants who were not represented by a lawyer to present their own case before the Court, in application of Rule 36 § 2 of the Rules of Court. That being the case, the requirements of Article 37 § 1 (a) are not met and the Government's request must accordingly be dismissed.

III.   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A.    Scope of the case

11.  The applicants complained that the proceedings before the HSYK had violated their right to a fair hearing.

12.  Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 124, 20 March 2018) and referring to its case-law (see Bilgen v. Turkey, no. 1571/07, §§ 69-81 and §§ 91-97, 9 March 2021, and Eminağaoğlu v. Turkey, no. 76521/12, §§ 36, 76 and §§ 99-102, 9 March 2021), the Court, when giving notice of the application to the Government, invited the parties to submit observations on the question whether the applicants had access to a court, as guaranteed by Article 6 § 1 of the Convention, concerning the decisions to transfer them.

13.  The Government contested the scope of the complaint under Article 6 as communicated by the Court in the present case. They indicated, inter alia, that in their complaints, the applicants had not explicitly or in substance relied on the right of access to a court for the purposes of Article 6 § 1 of the Convention and that they had not challenged the absence of judicial review of their transfer by the decisions of the HSYK in this regard. Accordingly, they invited the Court to strike the applications out of its list of cases.

14.  All applicants, except Mr Atilla Aslan (application no. 5585/16), contested the Government's arguments, arguing, in particular, that they had raised the complaint concerning the right of access to a court in substance. Mr Atilla Aslan did not comment on the Government's objections to the scope of the case.

15.  The Court first reiterates that, by virtue of the jura novit curia principle, it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto, and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint (see Radomilja and Others, cited above, § 126). The Court further reiterates that the complaints an applicant proposes to make under Article 6 of the Convention must contain all the parameters necessary for the Court to define the issue it will be called upon to examine. It must be stressed that the scope of application of Article 6 of the Convention is very broad and that the Court's examination is necessarily delimited by the specific complaints submitted to it (see Grosam v. the Czech Republic [GC], no. 19750/13, § 89, 1 June 2023). An applicant must complain that a certain act or omission entailed a violation of the rights set forth in the Convention in a manner which should not leave the Court to second-guess whether a certain complaint was raised or not (ibid., § 90).

16.  The Court observes that in its judgments in Bilgen and Eminağaoğlu the Court applied a two-tier test to decide whether the disputes before the HSYK in question were civil in nature, as set out in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007‑II) - known as the "Eskelinen test". Examining the first condition of the "Eskelinen test", that is whether domestic law expressly excluded access to a court for the category of post in question, it held that the HSYK itself could not be regarded as a "tribunal" for the purposes of the Eskelinen test on account of, inter alia, the shortcomings in the procedure before it, such as the absence of (a) a code of procedure; (b) hearings; (c) rules of evidence, including summoning and hearing witnesses; (d) adversarial proceedings and (e) reasoning (see Bilgen, § 74 with respect to the HSYK's decisions on transfer and Eminağaoğlu, §§ 99-100, with respect to disciplinary proceedings before the same body, both cited above).

17.  In formulating their complaints in their application forms the present applicants considered that Article 6 applied to the proceedings before the HSYK but that the latter had failed to respect the fair-hearing guarantees, in particular, those of impartiality, adversarial procedure and the requirement to give sufficient reasons (see paragraph 7 above).

18.  The Court considers that in the instant cases, by examining the applicants' complaints from the perspective of the right of access to a court, it would not be basing its decision on facts or grievances not covered by the applicants' complaints. The Court observes that Mr İbrahim Of's (application no. 57955/15) and Mr Mehmet Murat Yardımcı's (application no. 63031/15) submissions can be undoubtedly interpreted as raising a complaint about the infringement of his right of access to a court within the meaning of Article 6 § 1 of the Convention (see paragraph 7). It further observes that the essence of the remaining applicants' complaint concerns the absence of procedural guarantees in the proceedings before the HSYK, which was precisely what led the Court in Bilgen and in Eminağaoğlu to conclude that the HSYK could not be considered as a "tribunal" fulfilling a judicial function. This finding along with the absence of any other judicial review of the HSYK's decision resulted in a violation of the right of access to a court (see Bilgen, § 74 and §§ 95-97 and Eminağaoğlu, §§ 99-104, both cited above). In these circumstances, in which the Court, in its case-law as developed following the lodging of the present applications, itself intertwined the notion of a "tribunal" with the existence and degree of fair-trial guarantees and considered that the absence of procedural guarantees led to the decision body in question not being a "tribunal", the applicants' failure to expressly rely on their right of access to a court in the present cases cannot lead the Court to conclude that this complaint has not been "referred to" it, within the meaning of Article 32 of the Convention (compare, a contrario, Grosam, cited above, §§ 88-97).

19.  Accordingly, having regard to the formulation of the complaints in the applications which had been lodged long before the adoption of Court's judgments in the Bilgen and Eminağaoğlu cases, and taking into account the Court's findings to the effect that the HSYK did not afford the procedural safeguards inherent in the concept of a "tribunal" in these latter judgments, the Court considers that in the present cases the applicants have raised in substance a complaint relating to the right of access to a tribunal

20.  Having regard to the foregoing, the Court holds that it may consider the case from the perspective of the right of access to a court as guaranteed under Article 6 of the Convention. It further rejects the Government's request to strike the applications out of the list in that regard, none of the requirements for a strike-out decision under Article 37 § 1 of the Convention being met.

B.    Admissibility

1.     Applicability ratione materiae

21.  The Government firstly argued that Article 6 of the Convention was not applicable to the procedure before the HSYK as the decisions taken by that body concerned members of the judiciary and could therefore not be qualified as "civil". They argued, in particular, that the second condition of the Eskelinen test – consisting of the existence of an objective justification for the exclusion of civil servants from the protection embodied in Article 6 in the State's interest – was met. They indicated that following the attempted coup d'état in July 2016, all of the applicants were dismissed from office for having connection to, or affiliation with, an armed terrorist organisation, the "Fetullahist Terror Organisation/Parallel State Structure" (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter referred to as "the FETÖ/PDY"), considered by the authorities to be behind the coup attempt. Accordingly, the Government argued that unlike in Bilgen, the applicants' loyalty to the rule of law and democracy was doubtful and that therefore the exclusion from access to court was justified. The Government noted in particular that those applicants who were presidents of assize courts and chief public prosecutors (see applications nos. 54317/14, 57955/15, 3117/16, 5057/16 and 5585/16) at the material time, assumed important administrative powers and responsibilities in the judiciary.

22.  The Court reiterates that civil servants can only be excluded from the protection embodied in Article 6 if the State in its national law excluded access to a court for the category of staff in question and if this exclusion was justified on objective grounds in the State's interest (see, more recently, Grzęda v. Poland [GC], no. 43572/18, § 261, 15 March 2022). The Court recalls having concluded in Bilgen (cited above, §§ 76-81) that Article 6 was applicable to the decision to transfer the applicant judge to another court in a lower-ranking judicial district against his will, as the second condition laid down in Vilho Eskelinen (cited above) was not met. In light of the guarantees for safeguarding the independence of the judiciary, the Court found that it would not be justified to exclude members of the judiciary from the protection of Article 6 of the Convention in matters concerning the conditions of their employment on the basis of the special bond of loyalty and trust to the State. In reaching that finding, the Court stated that, while the employment relationship between a civil servant and the State can traditionally be defined as one based on trust and loyalty to the executive branch in so far as employees of the State are required to implement government policies, the same does not hold true for the members of the judiciary, who play a different and more independent role because of their duty to provide checks on government wrongdoing and abuse of power (ibid., § 79, see also Kövesi v. Romania, no. 3594/19, § 124, 5 May 2020 where the Court noted that the absence of judicial review regarding the removal from office of the chief prosecutor by the executive could not be in the interest of the State within the meaning of the second condition of the Eskelinen test).

23.  Turning to the present case and applying the Eskelinen test, access to court in the applicants' situation was expressly excluded by national law. Furthermore, the exclusion was not justified on objective grounds in the State's interest. The Court observes that at the material time, irrespective of the specific functions they assumed, all of the applicants had the status of judges and prosecutors and were endowed with constitutional guarantees for the independence of the judiciary (see Eminağaoğlu, cited above, § 125). At the time when the applicants lodged requests for review of the decisions to transfer them, the HSYK gave no reasons other than a short reference to the "needs of the service", which leads to the conclusion that the dispute did not concern any exceptional or compelling reasons that could justify its exclusion from judicial review (see also Bilgen, cited above, § 80). Concerning the Government's argument that the existence of members of FETÖ/PDY in the judiciary had become apparent shortly before the impugned transfers and that the applicants were dismissed from office following the coup attempt for having connection to, or affiliation with, the FETÖ/PDY, the Court cannot take into account this ex post facto justification in the absence of any individualised reasoning provided by the HSYK at the material time. In this connection, there is no element in the case file showing that, at the material time, the HSYK took any action (such as initiation of disciplinary investigations) to inquire into such serious accusations against the applicants and that accordingly decided to transfer them as a result of such actions.

24.  In these circumstances the Court considers that Article 6 applies under its civil head and that the Government's objection of the applications' incompatibility ratione materiae with the provisions of the Convention must be dismissed.

2.     Victim status of the applicant in application no. 54317/14 and exhaustion of domestic remedies in applications nos. 54317/14 and 54503/14

25.  Secondly, the Government submitted that the applicant Mr Ahmet Karaca (application no. 54317/14) did not have victim status since the HSYK had upheld the review request of the applicant and decided to transfer him from Adana to Gaziantep, one of the cities proposed by him, instead of Kayseri.

26.  In his complaints, the applicant claimed that he felt compelled to submit a proposal regarding his relocation with the HSYK as the latter had already decided to transfer him from Adana by means of decree. In his reply to the Government's observations, he underlined that his transfer had been unlawful and had amounted to a demotion.

27.  The Court reiterates the principles governing the victim status of an applicant (see, inter alia, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012).

28.  The Court observes that the applicant was first temporarily assigned and then transferred by means of decree from the post of deputy chief public prosecutor in Adana to a post of public prosecutor in Kayseri. The applicant's objections to his temporary transfer were unsuccessful and his request to remain in his location was rejected. It is only after his transfer by means of decree to Kayseri that the HSYK upheld the applicant's request to review its decision and decided to transfer him to Gaziantep as a public prosecutor.

29.  In these circumstances, the Court notes that the applicant's transfer to Gaziantep did not have the outcome of removing the effects of the impugned transfer, both temporary and by means of decree, from Adana to Kayseri. Firstly, the national authorities did not expressly acknowledge any breaches of the Convention that formed the basis of the applicant's complaints raised in the present application. Secondly, the fact that the applicant was transferred to one of the cities he proposed in his review request did not automatically remove in substance the alleged unfairness of the proceedings before the HSYK. Neither could it be argued that by formulating his review request in that manner the applicant could be said to have waived his right to a court.

30.  In short, as the national authorities did not acknowledge, either expressly or in substance, nor afforded full redress for, the violation alleged by the applicant, he may still claim to be a "victim" within the meaning of Article 34 of the Convention.

31.  Lastly, the Government raised a plea of non-exhaustion of domestic remedies, arguing that the applicants in applications nos. 54317/14 and 54503/14 had not filed an objection with the Objections Board of the HSYK.

32.  The Court has already examined a similar objection in previous cases and dismissed it, noting that an objection before the Objections Board could not be considered an effective remedy, in particular because those who had rendered the original decision which was the subject of the objection also sat on the Objections Board (see Bilgen, ibid., §§ 87-88 and the cases cited therein). The Court discerns no element in the present case capable of persuading it to reach a different conclusion. Accordingly, the Court dismisses the Government's objection in this regard.

3.     Conclusion as to admissibility

33.  The Court notes that the applicants' complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

C.    Merits

34.  In the leading case of Bilgen (cited above, §§ 91-97), the Court already found a violation of Article 6 § 1 of the Convention in respect of the absence of a judicial review of the non-voluntary transfer of a member of the judiciary.

35.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the present complaints. It notes that taking into account the strong public interest in upholding the independence of the judiciary and the rule of law, the impugned absence of a judicial review of the decisions of the HSYK to transfer the applicant judges and prosecutors did not pursue any legitimate aim and that, accordingly, the very essence of the applicants' right of access to a court was impaired.

36.  It therefore finds that there has been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  All applicants requested compensation in varying amounts in respect of non‑pecuniary damage, within the time-limit allotted. The applicant in application no. 5585/16 did not submit a claim for costs and expenses, whereas the other applicants claimed various amounts under that head. Lastly, most of the applicants in question also claimed pecuniary damage.

38.  The Government contested the applicants' claims as being unsubstantiated and excessive.

39.  For the reasons put forth in Bilgen (cited above, § 102), the Court rejects any claims for pecuniary damage.

40.  Regarding the applicants' claims for non-pecuniary damage and costs and expenses, the Court finds it appropriate to rule in equity and make a global and uniform assessment in that respect. Having regard to the material in its possession, its case-law and the nature of the legal issues examined in the present case, it considers it reasonable to award each of the applicants, save for the applicant in application no. 5585/16, a lump sum of 2,500 euros (EUR), covering non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount.

41.  Regarding the applicant in application no. 5585/16, ruling on the basis of equity, the Court awards him EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. The applicant made no claim for costs and expenses. The Court is therefore not called upon to make any award in this respect.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Rejects the Government's request to strike the applications out of its list of cases;

3.      Declares the applications admissible;

4.      Holds that there has been a violation of Article 6 § 1 of the Convention;

5.      Holds

(a)  that the respondent State is to pay each of the applicants, save for the applicant in application no. 5585/16, within three months, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that the respondent State is to pay the applicant in application no. 5585/16, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.      Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 22 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

       Dorothee von Arnim                                             Pauliine Koskelo
          Deputy Registrar                                                      President

 

 

APPENDIX

List of cases:

No.	Application no.	Case name	Lodged on	Applicant Year of Birth Place of Residence Nationality	Represented by
1.	52107/14	Şişman v. Türkiye	15/07/2014	Özcan ŞİŞMAN 1970 Ankara Turkish	Tarık Said GÜLDİBİ
2.	54317/14	Karaca v. Türkiye	22/07/2014	Ahmet KARACA 1969 Gaziantep Turkish	Seffan KILINÇ
3.	54503/14	Takçı v. Türkiye	23/07/2014	Aziz TAKÇI 1975 Ankara Turkish	Mehmet ÖNCÜ
4.	57955/15	Of v. Türkiye	06/11/2015	İbrahim OF 1978 Mersin Turkish	Nurhan ÖZDURAN
5.	63031/15	Yardımcı v. Türkiye	18/12/2015	Mehmet Murat YARDIMCI 1971 Ankara Turkish	Hakan KAPLANKAYA
6.	3117/16	Çetin v. Türkiye	17/12/2015	İlker ÇETİN 1970 Uşak Turkish	Emine ÇETİN
7.	4414/16	Eser v. Türkiye	30/12/2015	Aydın ESER 1968 Gaziantep Turkish	Tarık Said GÜLDİBİ
8.	5028/16	Erel v. Türkiye	22/12/2015	Kemalettin EREL 1972 Uşak Turkish	Semih ERKEN
9.	5057/16	Diken v. Türkiye	18/12/2015	Ömer DİKEN 1969 İzmir Turkish	Burak DİKEN
10.	5585/16	Aslan v. Türkiye	14/12/2015	Atilla ASLAN 1965 Bursa Turkish	Emine Feyza ASLAN