SECOND SECTION

CASE OF DEMİRYÜREK AND OTHERS v. TÜRKİYE

(Applications nos. 55005/14 and 41 others –

see appended list)

JUDGMENT
 

STRASBOURG

14 January 2025

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

In the case of Demiryürek and Others v. Türkiye,

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

 Jovan Ilievski, President,
 Anja Seibert-Fohr,
 Stéphane Pisani, 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaint concerning Article 6 § 1 of the Convention 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by Volunteer Jurists, who were granted leave by the President of the Section to intervene as a third party in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court);

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 10 December 2024,

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

SUBJECT MATTER OF THE CASE

1.  The present applications concern the lack of access to a court for the applicants in relation to the premature and allegedly arbitrary termination of their terms of office at the High Council of Judges and Prosecutors (“HSYK”; later renamed as the Council of Judges and Prosecutors (“HSK”)) following the entry into effect of a law. The applicants complained of a violation of their right of access to a court under Article 6 § 1 of the Convention.

2.  At the time of the events, the applicants, who were judges or prosecutors by profession, occupied posts in the secretariat of the HSYK.

1. ENACTMENT OF LAW No. 6524 AMENDING LAW No. 6087 ON THE HIGH COUNCIL OF JUDGES AND PROSECUTORS, AND REVIEW OF ITS CONSTITUTIONALITY

3.  On 15 February 2014 the Grand National Assembly of Türkiye enacted Law no. 6524, which set out amendments to Law no. 6087 on the High Council of Judges and Prosecutors. Law no. 6524 included transitional provisions (in its Article 39) which added provisional Article 4 to Law no. 6087. Provisional Article 4 provided that the terms of office of certain members of the HSYK’s staff (the secretary-general, deputy general secretaries, the president and vice-presidents of the Inspection Board, the inspectors, the rapporteur judges and administrative staff) would end when Law no. 6524 entered into force (for the content of this Law and the context in which it was enacted, see Kartal v. Türkiye, no. 54699/14, § 5, 26 March 2024).

4.  By a judgment rendered on 10 April 2014 and published in the Official Gazette on 14 May 2014, the Turkish Constitutional Court unanimously held that Article 39 of Law no. 6524 was unconstitutional, as it breached the principle of legal certainty, and annulled that provision. The Constitutional Court considered that the termination of the duties of public officials serving at the HSYK, under Law no. 6524, had led to a violation of the principle of legal security. It also stated that the conditions for the suspension of the execution of the annulled provision had not been met (for the relevant excerpt of the Constitutional Court’s judgment see Kartal, cited above, § 7).

2. TERMINATION OF THE APPLICANTS’ terms of OFFICE AT THE HSYK BY LAW No. 6524

5.  Following the entry into force of Law no. 6524 on 27 February 2014, the applicants’ terms of office at the HSYK were terminated, in accordance with Article 39 of that Law.

6.  On 3 March 2014 the first Chamber of the HSYK proposed that all the applicants – except for those in applications nos. 57648/14, 58329/14, 60227/14 and 62167/14 – be reappointed to positions at the HSYK. On the same day, the plenary assembly of the HSYK appointed new members to the applicants’ previous positions; none of the applicants were reappointed.

7.  By a decision of 6 March 2014, the first Chamber of the HSYK appointed the applicants to positions as public prosecutors at the Court of Cassation or other public prosecutor offices, or as judges in various courts.

8.  Given that under Article 153 of the Constitution decisions of the Constitutional Court cannot be applied retroactively (for the text of Article 153 of the Constitution, see Kartal, cited above, § 15), the applicants were not reinstated in their former positions following the Constitutional Court’s judgment of 10 April 2014 annulling Article 39 of Law no. 6524 (see paragraph 4 above).

9.  Twenty of the applicants lodged individual applications with the Constitutional Court, citing their right of access to a court in order to contest the termination by Law no. 6524 of their terms of office at the HSYK. The Constitutional Court declared the applications inadmissible as incompatible ratione materiae with the provisions of the Constitution as it did not have jurisdiction to examine legal instruments within the framework of individual applications. The other applicants did not lodge individual applications with the Constitutional Court, arguing that, under the Constitution, that court did not have jurisdiction to examine legal provisions through individual applications.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

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

2. The government’s prelımınary objectıons

11.  The Government lodged preliminary objections on several grounds.

1. Authority form

12.  The Government alleged that the applicant in application no. 61163/14 had failed to submit an authority form signed by his representative, as required by the Rules of Court. Accordingly, they invited the Court to strike this application out of its list of cases, pursuant to Article 37 § 1 (a) of the Convention.

13.  The Court observes that the applicant’s representative in application no. 61163/14 submitted a duly completed authority form to the Court on 5 October 2020. Consequently, the Court finds no grounds to discontinue the examination of the application under Article 37 § 1 (c) of the Convention. It therefore rejects the Government’s preliminary objection.

2. Victim status

14.  The Government argued that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention. They noted that the Constitutional Court had annulled Article 39 of Law no. 6524 on 10 April 2014, and that following removal from their duties at the HSYK the applicants had been reassigned as judges and prosecutors within other judicial bodies. The Government also argued that the additional monthly payment for HSYK inspectors was not a personal entitlement, but rather compensation for the difficult nature of their duties.

15.  The Government further argued that even if the applicants’ terms of office had not been terminated by Law no. 6524, the plenary assembly of the HSYK had still been entitled to remove them from their posts, as no security of tenure was attached to the applicants’ positions at the HSYK.

16.  The Government therefore considered that the applications ought to be rejected under Articles 34 and 35 of the Convention due to the applicants’ lack of victim status.

17.  Noting that it had previously examined and dismissed these objections in its Kartal v. Türkiye judgment (no. 54699/14, §§ 28-31, 26 March 2024), the Court dismisses them on the same grounds in this case.

3. Non-exhaustion of domestic remedies
   1. Failure to object to appointment decisions

18.  The Government argued that the available domestic remedies had not been exhausted in application no. 57648/14; the applicant could have brought judicial proceedings seeking to have set aside the Minister’s decision to appoint new vice-presidents to the Inspection Board following his removal from that post, or to challenge the constitutionality of Law no. 6524. They added that even after the Constitutional Court had annulled Article 39 of Law no. 6524, the applicant could have asked to remain at the Inspection Board as a chief inspector or inspector. Lastly, the Government criticised the applicant in question for failing to ask the plenary assembly of the HSYK to reconsider its decision not to reappoint him.

19.  With regard to the applicants in applications nos. 57648/14, 58329/14, 60227/14, and 62167/14, who were not on the list of individuals whose reappointment was proposed by the first Chamber of the HSYK, the Government argued that domestic remedies had not been exhausted as these applicants could have requested a review of the decision not to consider their reappointment, adding that individuals who were on that list but were not reappointed could have objected to the plenary assembly’s decision.

20.  The Court notes that it has already examined and dismissed similar objections in the above-cited Kartal judgment (§§ 36-38). The Court considers that the remedies suggested by the Government cannot be regarded as relevant in respect of the complaint about a lack of access to court to challenge the termination of the applicants’ terms of office at hand. The Court further reiterates that it held in its judgments in Bilgen v. Turkey (no. 1571/07, § 74, 9 March 2021) and Eminağaoğlu v. Turkey (no. 76521/12, §§ 99-100, 9 March 2021) that the HSYK could not be regarded as a “tribunal” on account, inter alia, of the shortcomings in the procedure before it (see Kartal, § 37).

21.  In the light of the above, the Court considers that the Government has not shown that the remedies referred to were adequate or effective in the particular circumstances of this case (ibid., § 38). This objection must therefore be dismissed.

2. Failure to lodge individual applications before the Constitutional Court

22.  The Government argued that only twenty of the present applicants had lodged an individual application with the Constitutional Court in respect of the termination of their terms of office by Law no. 6524. The Government submitted that if a legislative act violated fundamental rights, an individual application could be lodged against its implementation. The remaining applicants should therefore have made use of this remedy.

23.  The Court reiterates that the only remedies that Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)), and that there is no obligation to have recourse to remedies that are inadequate or ineffective (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 73, 25 March 2014).

24.  The Court notes that the Constitutional Court declared the individual applications of those applicants who used this remedy inadmissible as incompatible ratione materiae, holding that it did not have jurisdiction to examine legal instruments within the framework of an individual application (see paragraph 9 above). In the light of this finding of lack of jurisdiction, and given the similarity of their situations, the Court considers that the Government failed to demonstrate that the other applicants would have had reasonable prospects of success had they applied to the Constitutional Court. Consequently, lodging an individual application with the Constitutional Court cannot be regarded as an effective remedy in the specific circumstances of the present case, and the applicants could not be required to avail themselves of an ineffective remedy (for the same approach, see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, §§ 45-46, 28 October 2010, and Laska and Lika v. Albania, nos. 12315/04 and 17605/04, §§ 45-48, 20 April 2010). Accordingly, this objection must also be dismissed.

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

25.  The applicants complained, under Article 6 § 1 of the Convention, that they had been denied access to a court in order to contest the premature and allegedly arbitrary termination of their terms of office at the High Council of Judges and Prosecutors following the entry into force of the relevant legislation.

1. Admissibility

26.  The Government disputed the admissibility of this complaint, arguing that Article 6 was not applicable, in that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention.

27.  In this connection, the Government noted that the relevant domestic laws had not granted the applicants a right to remain in their administrative positions for any specific duration. They added that even if the applicants’ terms of office had not been terminated by Law no. 6524, the HSYK’s plenary assembly had nonetheless had discretionary power to take that decision. They further argued that the additional payments to the HSYK inspectors were compensation for their duties, not an acquired right, and that the applicants therefore had no claim in this regard under Article 6 § 1 of the Convention.

28.  Referring to the Court’s judgment in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007-II), the Government stated that the legal instruments enacted by Parliament rendered impossible the applicants’ access to a court to contest the termination of their terms of office at the HSYK. They submitted, however, that this lack of access to a court could be justified in the context of a fundamental legislative reform of the judicial system. They alleged that this reform had been necessary, in that the organisation referred to by the Turkish authorities as the “Fetullahist Terror Organisation / Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması (“FETÖ/PDY”)), had been in control of the judiciary and influencing the HSYK’s decisions at the relevant time. They emphasised that the case concerned the termination of specific administrative duties, not the applicants’ security of tenure as judges and prosecutors. The applicants had been appointed as judges or prosecutors and retained their security of tenure in that respect. The Government thus argued that the need for access to a court in order to preserve judicial independence and impartiality had not been pertinent in the present case. They concluded that the applicants’ dismissal had not been arbitrary, but rather part of a necessary judicial reform, and that the lack of access to a court was in the State’s interest. Thus, they argued that the second condition of the Eskelinen test had been met.

29.  The Court notes that it has already examined and dismissed this objection in the above-cited Kartal judgment (§§ 55-85), the circumstances of which were identical to those of the present case. It found that there was a genuine and serious dispute over a right – namely, the right of the applicant not to have his term of office at the HSYK terminated arbitrarily; and that the applicant could claim that right on arguable grounds under domestic law (ibid., § 70). It then concluded that the exclusion of the applicant from access to court, a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence, would in fact undermine the interest of a State governed by the rule of law, and that the second criterion of the Vilho Eskelinen test was thus not satisfied within that context (ibid., § 83).

30.  The Court finds no facts or arguments that would lead it to depart from this approach in the present case. Consequently, the Court considers that Article 6 applies under its civil head and that the Government’s objection of the complaint’s incompatibility ratione materiae with the provisions of the Convention must be dismissed.

31.  The Court notes that this 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.

2. Merits
   1. The parties’ submissions

32.  The applicants argued that they had been denied the right of access to a court regarding the termination of their offices under Law no. 6524, which, in their view, did not pursue a legitimate aim.

33.  The Government argued that there had been no violation of Article 6 § 1 of the Convention, asserting that the restriction on the applicants’ access to a court had been justified by a lawful judicial reform aimed at upholding the rule of law, democracy, and judicial independence, and, in particular, had been intended to prevent the FETÖ/PDY from exerting undue influence. They also stated that the applicants’ administrative roles were not guaranteed for a specific duration, and that after these duties ended, they had returned to their primary roles as judges and prosecutors, in line with the constitutional security of tenure for judges.

2. The Court’s assessment

34.  The Court summarised the general principles regarding the scope of the right of access to a court enshrined in Article 6 § 1 in the above-cited Kartal judgment (§§ 88-89).

35.  The Court held in the Kartal judgment (ibid., §§ 90-98) that the applicant’s lack of access to the domestic courts, in order to have examined the genuine and serious dispute over his arguable right not to have his term of office terminated arbitrarily, was not justified. It found that the respondent State had impaired the very essence of the applicant’s right of access to a court on account of the lack of judicial review (ibid., § 98).

36.  The Court perceives no grounds to depart from this conclusion in the present case.

37.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  The applicants claimed pecuniary and non-pecuniary damage, as well as various amounts for the costs and expenses incurred before the domestic courts and the Court.

39.  With regard to pecuniary damage, they submitted that as a result of the impugned measure they had lost a part of their salary, or the substantial allowances to which they had been entitled (namely, an additional monthly payment equivalent to 5% of their gross monthly salary, and travel allowances in relation to their duties), or that they had had to pay removal and relocation expenses as a result of the impugned measure. They claimed in this respect amounts varying between 1,000 and 140,000 euros (EUR).

40.  In respect of non-pecuniary damage, they submitted that they had suffered distress as a result of the actions taken against them. They claimed the amounts indicated in the appended table.

41.  With regard to costs and expenses, they claimed the various amounts specified in the appended table, submitting the various supporting documents indicated therein.

42.  The Government considered that the applicants’ claims in respect of pecuniary damage were unsubstantiated and excessive, in addition to being unrelated to the subject matter of the instant cases. They further submitted that there was no causal link between the applicants’ claims in respect of pecuniary and non-pecuniary damage on the one hand and the alleged violation on the other. They also argued that the applicants’ claims in respect of non-pecuniary damage were unsubstantiated and excessive and did not correspond to the amounts awarded by the Court in similar cases. Lastly, the Government claimed that the applicants had failed to submit valid or convincing documents in support of their claims for costs and expenses.

43.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards each applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable (compare also Kartal, cited above, § 104).

44.  In respect of costs and expenses, having regard to the documents in its possession, the Court considers it reasonable to award the applicants who submitted supporting documents (see the appended table) the amounts indicated in that table, plus any tax that may be chargeable to the applicants, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds

(a)  that the respondent State is to pay each applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

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

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President

APPENDIX

List of cases: