SECOND SECTION

CASE OF TOSUN AND OTHERS v. TÜRKİYE

(Applications nos. 60220/16 and 83 others)

JUDGMENT
 

STRASBOURG

11 February 2025

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

In the case of Tosun 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 Court of Cassation 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 judges, sitting as members of the Court of Cassation.

3.  On 1 July 2016 the Grand National Assembly of Türkiye adopted Law no. 6723, providing amendments in certain laws in order to modify the number of the chambers and that of the members therein of the Supreme Administrative Court and of the Court of Cassation in view of the establishment of a three-tier judicial system with the creation of appeal courts. Article 22 of this Law, which entered into force upon its publication in the Official Gazette on 23 July 2016, inserted a provisional Article 15 into Law no. 2797 on the Court of Cassation. This provision terminated the terms of office of all members of this high court, except for the first president, the chief public prosecutor, the first vice president, the deputy chief public prosecutor, and the Chamber presidents. The applicants were among the members whose terms of office ended by this Law (for the context of the adoption of this Law and its content, see Sözen v. Türkiye, no. 73532/16, §§ 5‑11, 9 April 2024).

4.  On 25 July 2016 the High Council of Judges and Prosecutors (“the HSYK”) appointed new members to the Court of Cassation from among those whose terms of office had been terminated by Law no. 6723. As the applicants in the present case were not among those reappointed, they were reassigned as judges to various other courts.

5.  Only the applicants in applications nos. 75489/16, 7274/17, 9049/17, 12988/17 and 68754/17 lodged individual applications with the Constitutional Court, citing their right of access to a court in order to contest the termination by Law no. 6723 of their terms of office at the Court of Cassation. The Constitutional Court dismissed the individual application of the applicant in application no. 7274/17 for non-exhaustion of domestic remedies because he had not applied to the commission for the review of measures taken in connection with the state of emergency (for the background to the creation of the commission, see Köksal v. Turkey (dec.), no. 70478/16, § 16, 6 June 2017). Furthermore, the Constitutional Court examined the individual applications of the applicants in applications nos. 75489/16, 9049/17 and 12988/17 on 2 November 2021, 5 October 2023 and 21 June 2023 respectively on the basis of the right to a fair trial and, finding it evident that there had been no violation of that right, declared them inadmissible as being manifestly ill-founded. When the observations in the present case were submitted, the Constitutional Court had not yet examined the individual application of the applicant in application no. 68754/17.

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.

7.  In a judgment delivered on 10 December 2020 in a different case, concerning the constitutionality of Law no. 6723, the plenary assembly of the Constitutional Court rejected the request to declare void provisional Article 15 of Law no. 2797 on the Court of Cassation, inserted by Article 22 of Law no. 6723. It referred to the reasons given in the same judgment for rejecting a request to declare void similar provisions in Article 27 of Law no. 2575 providing for the termination of the terms of office of judges of the Supreme Administrative Court (see for a summary of that judgment Sözen, cited above, §§ 27-28).

THE COURT’S ASSESSMENT

1. 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.

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

9.  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 Court of Cassation by the entry into force of Law no. 6723.

1. Admissibility
   1. Objection regarding compatibility ratione materiae

10.  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).

11.  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 Court of Cassation was justified in accordance with the Eskelinen principles.

12.  The Court reiterates the general principles set out in Sözen v. Türkiye, (no. 73532/16, §§ 39-44, 9 April 2024) regarding the applicability of Article 6 of the Convention, particularly in cases concerning the premature termination of a judge’s term of office.

13.  In determining whether there was a genuine and serious dispute over a right the Court observes that the Turkish Constitution does not explicitly specify a term of office for members of the Court of Cassation, and nor did Law no. 2797 on the Court of Cassation prior to the enactment of Law no. 6723, which set the term of office for members of the Court of Cassation at twelve years (by inserting new paragraphs into Article 29 of Law no. 2797). It further observes that under Law no. 2797 the term of office of a member of the Court of Cassation could only be terminated before retirement age as a disciplinary sanction in the form of an invitation to resign (see Articles 19 and 43 of Law no. 2797).

14.  The Court notes in addition that the Constitutional Court, in a judgment of 10 November 2022, had acknowledged in a similar case concerning members of the Supreme Administrative Court, that these judges had a constitutional right not to have their terms of office terminated arbitrarily, having regard in particular to the principles of the independence of the courts and the rule of law on which the Constitution was based (for that Constitutional Court judgment, see Sözen, cited above, §§ 16-18). The Court sees no reason to believe that the Constitutional Court’s finding that members of the Supreme Administrative Court had a right not to have their terms of office terminated arbitrarily would not also apply to members of the Court of Cassation (see, mutatis mutandis, Sözen, cited above, §§ 45-49). Accordingly, there was a genuine and serious dispute over a right – namely, the right of the applicants not to have their terms of office as members of the Court of Cassation arbitrarily terminated. Furthermore, the applicants could claim that right on arguable grounds under domestic law (see, mutatis mutandis, Sözen, cited above, § 54).

15.  As to the civil character of that right under Article 6 of the Convention, the Court considers it necessary, having regard to the first condition of the Vilho Eskelinen test, to determine whether before the enactment of the impugned Law the applicants had had access to a court under domestic law (see Baka v. Hungary [GC], no. 20261/12, §§ 115-16, 23 June 2016, and Sözen, cited above, § 56). It notes that under the legislation in force prior to the amendments introduced by Law no. 6723, the terms of office of members of the Court of Cassation could be terminated in the event of a disciplinary sanction imposed by the High Disciplinary Board of the Court of Cassation in the form of an invitation to resign (see paragraph 13 above). It further observes that pursuant to Articles 17 and 43 of Law no. 2797, the decisions of the High Disciplinary Board are subject to review before the board of presidents (ibid.), as Article 17 provides that the latter board is the last remedy against the decisions of the High Disciplinary Board.

16.  The Court does not consider it necessary to decide whether, in these circumstances, the relevant domestic law, as it stood prior to the enactment of Law no. 6723, excluded access to a “court” in the event of the premature termination of the term of office of a member of the Court of Cassation and whether the first condition of the Vilho Eskelinen test has thus been met. In any event, there are grounds on which to rule that the second condition of the Vilho Eskelinen test – that the exclusion of the applicants from having access to a court was justified on objective grounds as being in the State’s interest – has not been satisfied (compare also Kartal v. Türkiye, no. 54699/14, § 74, 26 March 2024, and Gumenyuk and Others v. Ukraine, no. 11423/19, § 64, 22 July 2021).

17.  In this respect, the Court recalls that members of the judiciary should enjoy protection from arbitrariness on the part of the legislative and executive powers, and only oversight by an independent judicial body of a measure such as removal from office is able to render such protection effective (compare also Kartal, cited above, § 82). In the instant case, the Court considers that the exclusion of the applicants 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. It also reiterates its finding in the above‑cited Kartal case concerning judicial reforms performed under similar, if not identical, circumstances (ibid., § 83).

18.  Consequently, the Court considers that the Government’s objection of the complaint’s incompatibility ratione materiae with the provisions of the Convention must be dismissed and that Article 6 § 1 of the Convention is applicable under its civil head.

2. Objection regarding non-exhaustion of domestic remedies

19.  The Government argued that only five of the present applicants (the applicants in applications nos. 75489/16, 7274/17, 9049/17, 12988/17 and 68754/17) had lodged individual applications with the Constitutional Court in respect of the termination of their terms 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 argued 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 contended that applications nos. 75489/16, 9049/17, 12988/17 and 68754/17 should likewise be declared inadmissible, because the applicants had lodged their applications with the Court while their individual applications were still pending before the Constitutional Court. They also argued that application no. 7274/17 should be declared inadmissible for non-exhaustion of domestic remedies on the basis that the Constitutional Court had held that the applicant had failed to apply to the commission for the review of measures taken in connection with the state of emergency. The Government further submitted that even if the termination of that applicant’s term of office did not fall within the scope of the commission’s powers of review, the application should, in any event, be declared inadmissible on the same grounds because the applicant should have requested the rectification of a factual error in the Constitutional Court’s judgment.

20.  The applicants contested the Government’s arguments, contending 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 proved ineffective. In support of that argument, several applicants cited, in their observations, a judgment delivered by the Constitutional Court on 11 June 2020, in which it had dismissed for lack of jurisdiction an individual application by a former member of the Court of Cassation, who had complained about the premature termination of his term of office following the enactment of Law no. 6723. Several applicants further maintained that, in any event, the remedy of an individual application had proved ineffective, especially given the time that had elapsed between the date on which their individual applications had been lodged with the Constitutional Court and the date on which that court had delivered its decision, which in some cases amounted to seven years.

21.  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).

22.  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)).

23.  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 have been delivered before the application was lodged (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 (Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 43-44, 2 November 2010).

24.  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).

25.  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. However, in a judgment of 11 June 2020 (application no. 2019/172), referred to by some of the applicants, the Constitutional Court explicitly declared its lack of jurisdiction to examine an identical complaint regarding the lack of access to a court in order to challenge the termination of the terms of office of Court of Cassation judges following the entry into force of Law no. 6723. The Court further notes that 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 comparable to those in the present case (see Sözen, cited above, § 17). Thus, following the latter 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 applications lodged by the applicants in applications nos. 9049/17 and 12988/17 in its judgments of 5 October 2023 and 21 June 2023 respectively (see paragraph 5 above).

26.  However, at the relevant time when the present applications were lodged (between 6 October 2016 and 23 January 2017), the Constitutional Court had not yet delivered a judgment in which it had accepted its jurisdiction to examine issues arising directly from legal provisions.

27.  The Court 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 any 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 even existed at the time when the applicants applied to the Court (see, mutatis mutandis, Dimitar Yanakiev, cited above, § 61).

28.  As for the Government’s objection of non-exhaustion concerning application no. 7274/17 (see paragraph 18 above) with reference to the Constitutional Court’s finding that the applicant had failed to apply to the commission for the review of measures taken in connection with the state of emergency, the Court reiterates that that commission was responsible for reviewing measures taken under legislative decrees passed during the state of emergency (see Çatal v. Turkey (dec.), no. 2873/17, § 20, 7 March 2017). However, in the instant case the applicant complained of a measure taken by Law no. 6723, which was enacted on 1 July 2016, that is, before the state of emergency had been declared in the aftermath of the attempted coup of 15 July 2016. The Government did not explain how that measure could come within the scope of the commission’s duties or powers. They further implied that the above-mentioned Constitutional Court judgment might have been based on a factual error since they considered that the applicant should have submitted a request to the Constitutional Court for rectification of a factual error in its judgment. In this connection, the Court reiterates that a request for rectification based on a factual error is a discretionary or extraordinary remedy that does not need to be pursued for exhaustion purposes following a final decision (compare Korzeniak v. Poland, no. 56134/08, § 39, 10 January 2017, and Çınar v. Turkey (dec.), no. 28602/95, 13 November 2003).

29.  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 the Court. Accordingly, this objection must also be dismissed.

30.  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

31.  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.

32.  The Government argued that there had been no violation of Article 6 § 1 of the Convention. They stated that Law no. 6723, which had terminated 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 an exception to the rules on judicial tenure and had not targeted individuals on the basis of their views or actions.

33.  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 Court of Cassation from among 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.

34.  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

35.  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).

36.  In Sözen (cited above, §§ 71-78), the circumstances of which were similar 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).

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

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

40.  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).

41.  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.

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

43.  The Government contended that the applicants’ claims in respect of pecuniary damage were unsubstantiated, 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.

44.  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.

45.  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:

,