SECOND SECTION

CASE OF OLCAY AND OTHERS v. TÜRKİYE

(Applications nos. 59481/16 and 29 others)

JUDGMENT
 

STRASBOURG

11 February 2025

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

In the case of Olcay and Others v. Türkiye,

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

 Jovan Ilievski, President,
 Péter Paczolay,
 Davor Derenčinović, 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 complaints concerning Article 6 § 1 of the Convention to the Turkish Government (“the Government”), represented by their Agent at the time, 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 the remainder of the applications inadmissible;

the parties’ observations;

the comments submitted by Volunteer Jurists Association, which was 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 dismiss the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 21 January 2025,

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 Supreme Administrative Court following the entry into force of Law no. 6723. The applicants complained of a violation of their right of access to a court under Article 6 § 1 of the Convention.

2.  At the material time the applicants were administrative judges, sitting as members of the Supreme Administrative Court.

3.  On 1 July 2016 the Turkish Grand National Assembly passed Law no. 6723, which amended certain laws in order to reduce the number and size of the chambers of the Supreme Administrative Court and of the Court of Cassation with a view to establishing a three-tier judicial system with the creation of courts of appeal. Article 12 of the above-mentioned Law, which entered into force upon its publication in the Official Gazette on 23 July 2016, inserted a provisional Article 27 into Law no. 2575 on the Supreme Administrative Court. The amendment terminated the terms of office of all members of that court, except for the president, the attorney general, the deputy president, and the Chamber presidents. The applicants were among the members of the court whose terms of office were terminated by that Law (for the background to the introduction of the Law and its content, see Sözen v. Türkiye, no. 73532/16, §§ 5-12, 9 April 2024).

4.  On 25 July 2016 the High Council of Judges and Prosecutors (“the HSYK”), which was later renamed the Council of Judges and Prosecutors, appointed new members to the Supreme Administrative Court. As the applicants in the present case were not among those reappointed, they were reassigned as judges to various other courts.

5.  Only the applicant in application no. 75481/16 lodged an individual application with the Constitutional Court, citing his right of access to a court in order to contest the termination by Law no. 6723 of his term of office at the Supreme Administrative Court. In a summary judgment of 7 March 2023, the Constitutional Court examined the application on the basis of the applicant’s right to a fair trial and, finding it evident that there had been no violation of that right, declared the application inadmissible as being manifestly ill-founded.

6.  The other applicants did not lodge individual applications with the Constitutional Court, arguing that it did not have the constitutional jurisdiction to examine legal provisions within the framework of individual applications.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

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

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

8.  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 Supreme Administrative Court by the entry into force of Law no. 6723.

1. Admissibility
   1. Objection regarding compatibility ratione materiae

9.  The Government disputed the applicability of Article 6 in the present case, alleging that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention. They contended that the applicants did not have a “civil right” within the meaning of Article 6 of the Convention. They further argued that the lack of access to a court was justified in view of the conditions set out in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007-II).

10.  In this connection, the Government stated that the applicants’ mandates inherently involved the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State. They added that, following the enactment of Law no. 6723, the national authorities had entirely reformed the judicial system by introducing regional courts of appeal. They thus argued that, in view of such a major reform, the exclusion of access to a court in order to challenge the premature termination of the applicants’ terms of office as members of the Supreme Administrative Court was justified in accordance with the Eskelinen principles.

11.  The Court notes that it has already examined and dismissed a similar objection in Sözen v. Türkiye (no. 73532/16, §§ 45-61, 9 April 2024), the circumstances of which were identical to those of the present case. In that 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 Supreme Administrative Court terminated arbitrarily – and that the applicant could claim that right on arguable grounds under domestic law (ibid., §§ 53‑54). It then held that the relevant domestic law, as it had stood prior to the enactment of Law no. 6723, had not excluded access to a court in order to challenge the lawfulness of the premature termination of the term of office of a member of the Supreme Administrative Court (ibid., § 58). On the basis that the first condition of the Vilho Eskelinen test had not been satisfied, the Court concluded that Article 6 was applicable under its civil limb in that case (ibid., § 60).

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

2. Objection regarding the non-exhaustion of domestic remedies

13.  The Government argued that only one of the present applicants (the applicant in application no. 75481/16) had lodged an individual application with the Constitutional Court in respect of the termination of his term of office by Law no. 6723. They submitted that if a legislative act violated fundamental rights, an individual application should be lodged to challenge its implementation. Referring to three Constitutional Court judgments from 2018 and 2019 in which that court had found that complaints stemming from legal provisions were admissible, the Government submitted that an individual application to the Constitutional Court was an effective remedy that should have been pursued by the other applicants in the present case. The Government further argued that application no. 75481/16 should likewise be declared inadmissible, because the applicant had lodged his application with the Court while his individual application was still pending before the Constitutional Court.

14.  The applicants contested the Government’s arguments. They contended that individual applications could not be lodged with the Constitutional Court to challenge laws. Some of the applicants argued that the remedy of an individual application had already proved ineffective, referring in that connection to judgments given by the Constitutional Court in similar cases where it had declared that it lacked jurisdiction. Those applicants referred, in particular, to the Constitutional Court’s judgment of 30 November 2015, in which an application lodged by former HSYK members, complaining of the premature termination of their terms of office by Law no. 6524, had been dismissed (for the Constitutional Court’s judgment, see Kartal v. Türkiye, no. 54699/14, § 12, 26 March 2024).

15.  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).

16.  The Court further reiterates that the availability of any such remedy must be sufficiently certain in law and in practice (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198). The remedy’s basis in domestic law must therefore be clear (compare Norbert Sikorski v. Poland, no. 17599/05, § 117, 22 October 2009; Sürmeli v. Germany [GC], no. 75529/01, §§ 110-12, ECHR 2006-VII; and Scavuzzo-Hager and Others v. Switzerland (dec.), no. 41773/98, 30 November 2004), and it must be capable of providing redress in respect of the applicant’s complaints and of offering reasonable prospects of success (compare Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009; Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 75-82, 17 May 2016; Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 205, 22 December 2020; and Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11 and 8 others, § 50, ECHR 2014 (extracts)).

17.  The development and availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law (see Mikolajová v. Slovakia, no. 4479/03, § 34, 18 January 2011). The decisions cited should in principle date back to the period before the application was lodged (see Dimitar Yanakiev v. Bulgaria (no. 2), no. 50346/07, §§ 53 and 61, 31 March 2016, and Norbert Sikorski, cited above, § 115), and be relevant to the case at hand (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 43-44, 2 November 2010).

18.  In particular, in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and to allow the domestic courts to develop those rights by way of interpretation (see Vučković and Others, cited above, § 84, and A, B and C v. Ireland [GC], no. 25579/05, § 142, ECHR 2010). But where a suggested remedy did not in fact offer reasonable prospects of success, for example in the light of settled domestic case-law, the fact that the applicant did not use it is no bar to admissibility (compare Carson and Others v. the United Kingdom [GC], no. 42184/05, § 58, ECHR 2010, and Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 27, Series A no. 332).

19.  The Court takes note of the Constitutional Court’s judgments of 2018 and 2019 referred to by the Government, in which that court accepted its jurisdiction to examine measures stemming from legal provisions concerning various issues, when the case concerned the implementation of the provision in question. In its judgment of 10 November 2022, the Constitutional Court acknowledged its jurisdiction to examine an individual application concerning lack of access to a court in the context of the ex lege premature termination of the term of office of a member of the Supreme Administrative Court, in a case in which the circumstances were identical to those of the present case (see Sözen, cited above, § 17). Thus, following that judgment, the Constitutional Court’s jurisdiction to examine the applicants’ complaints in the present case was established with legal certainty. It appears that it was for that reason that the Constitutional Court was able to examine on the merits the individual application lodged by the applicant in application no. 75481/16 in its judgment of 7 March 2023 (see paragraph 5 above).

20.  However, at the relevant time when the present applications were lodged (between 18 October 2016 and 23 January 2017), the Constitutional Court had not yet delivered a decision in which it had accepted its jurisdiction to examine issues arising directly from legal provisions. In its judgment of 30 November 2015, referred to by some of the applicants, the Constitutional Court had explicitly declared its lack of jurisdiction to examine a similar complaint regarding the lack of access to a court in order to challenge the termination of the terms of office of HSYK judges following the entry into force of a new law (for the context of that case and the Constitutional Court’s judgment see Kartal, cited above, §§ 8-12).

21.  The Court therefore finds that in the light of the case-law of the Constitutional Court as it stood at the time the present applications were lodged with the Court, individual applications to the Constitutional Court made by the applicants would not have offered reasonable prospects of success. Having regard to the fact that the case-law of the Constitutional Court confirming its jurisdiction ratione materiae to examine similar complaints did not emerge until many years later, the Court finds that the Government have not shown that the domestic practice was sufficiently consolidated, or that domestic case-law showing that this remedy had been successfully used in comparable circumstances existed at the time when the applicants applied to the Court (see, mutatis mutandis, Dimitar Yanakiev, cited above, § 61).

22.  Consequently, the Court does not consider that the applicants in the present case were required to have pursued the remedy of an individual application to the Constitutional Court at the time when they lodged their applications with this Court. Accordingly, this objection must also be dismissed.

23.  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

24.  The applicants argued that they had been denied access to a court regarding the termination of their terms of office under Law no. 6723, which, in their view, had not pursued a legitimate aim.

25.  The Government argued that there had been no violation of Article 6 § 1 of the Convention. They stated that Law no. 6723, which had ended the applicants’ terms of office, had been part of a major judicial reform aimed at upholding the rule of law and boosting public confidence by creating a three‑tier judicial system with regional courts of appeal. They added that the Law was a justified exception to the rules on judicial tenure and had not targeted individuals on the basis of their views or actions.

26.  The Government further argued that Law no. 6723 respected the acquired rights of the affected individuals and was proportionate. It had terminated the terms of office of all members of the highest courts but had maintained their rank and salary and respected the judges’ rights under Article 139 of the Constitution. The Government submitted that the independent HSYK had elected new members to the Supreme Administrative Court from those whose terms of office had been terminated by the new law and that the Turkish Constitution guaranteed judicial irremovability, but not the duration of the tenure.

27.  Lastly, the Government noted that some members of the highest courts whose terms of office had been terminated by Law no. 6723 had been convicted for membership of the FETÖ/PDY organisation.

2. The Court’s assessment

28.  The general principles concerning the right of access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018) and in Sözen (cited above, §§ 69-70).

29.  In Sözen (cited above, §§ 71-78), the circumstances of which were identical to those in the present case, the Court held that the applicant’s lack of access to the domestic courts, to have examined the genuine and serious dispute over his arguable right not to have his term of office terminated arbitrarily, had not been 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., § 78).

30.  The Court perceives no grounds to depart from that conclusion in the present case.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

33.  With regard to pecuniary damage, they submitted that as a result of the impugned measure, they had lost part of their salary or retirement pensions and certain pecuniary advantages (in particular, public housing, health insurance, banking advantages based on salary, and exemptions from certain public fees). Under this head, they claimed amounts varying between 9,000 and 1,200,000 euros (EUR), except for the applicant in application no. 72344/16, who did not specify the amount claimed.

34.  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.

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

36.  The Government contended 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 case. 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 contended that the applicants had failed to submit valid or convincing documents in support of their claims for costs and expenses.

37.  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 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

38.  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 3,000 (three thousand 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 11 February 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: