SECOND SECTION

CASE OF FAZLI ASLANER v. TURKEY

( Application no. 36073/04 )

JUDGMENT

( Extracts )

STRASBOURG

4 March 2014

FINAL

07/07/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Fazl ı Aslaner v. Turkey ,

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

Guido Raimondi, President, Işıl Karakaş , Dragoljub Popović , András Sajó , Nebojša Vučinić , Helen Keller, Egidijus Kūris , judges, and Stanley Naismith, Section Registrar ,

Having deliberated in private on 28 January 2014 ,

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

PROCEDURE

1 . The case originated in an application (no. 36073/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Fazl ı Aslaner (“the applicant”), on 21 June 2004 .

2 . The applicant was represented by Mr M. Sağlam , a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3 . The applicant alleged, in particular , that his right to a fair trial had been infringed.

4 . On 4 July 2011 the application was communicated to the Government . It was also decided t hat the merits of the application would be examine d at the same time as its admissibility ( Article 29§1 of the Convention ) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1963 and lives in Ankara .

6. In 1993 the applicant, who was a court registrar ( zabıt kâtibi ) in the registry of the Ankara Tax Court , passed a local competitive examination organised by the Ankara Judicial Committee f or the pos t of head registrar ( yazı işleri müdürü ) at the Ankara State Security C our t . However, since his ranking ( 15 th place) in the competition was insufficient for him to obtain the post , he was plac ed on the reserve list drawn up a t the close of the competition . The first successful candidate was appointed to the post i n question. The second successful candidate was subsequently appointed to a position as h ead r egistrar in the second section of the Ankara State Security Court .

7 . On 20 August 1997 th e applic ant applied to the Ministry of Justice to be appointed to the post of head registrar at the EskiÅŸehir Administrative Court .

8 . The authorities having refus ed his request, he lodged an application for judicial review with the Ankara Administrative Court ( “ th e Administrative Court ” ).

9 . By a judgment of 17 September 1998 th e Administrative Court upheld the applic ant ’ s claims . Th e c ourt found that of the candidates who had passed the aforementioned co mpetition , se ven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts , and concluded that the authorities ’ refus al had had no bas is in law .

10 . Th e Ministry of Justice appealed on points of law against th at judgment .

6 . As the appeal lacked suspensive effect , the Ministry proceeded to appoint the applic ant to the post of head registrar in EskiÅŸehir , in compliance with the judgment .

7 . On 20 December 2000 the F ifth Administrative Proceedings Division of the Supreme Administrative Court ( “ the Fifth Division ” ) quashed the impugned judgment , contrary to the submiss ions o f the Advocate-General , M s A.Ö. The Fifth Division pointed out that the co mpetit ive examinat ion organised by the Ankara Judicial Committee had been intend ed to fill a post in the Ankara State Security Court and that registra tion on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial commi ttee . It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question o r else in order to meet current judicial needs, up on a decision from the Ministry of Justice, which had discretionary powers in this field .

8 . The bench comprised five judges , including M s T.Ç. and M r M.R.Ü., and was presided over by M r E.Ç.

9 . On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment , on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met.

10 . On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus elect ing to dis re gard that adopted by the Fifth Division of the S upreme Administrativ e Cou rt ( ısrar kararı ).

11 . Following a fres h appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Division s of the Supreme Administrative Court ( Danıştay İdari Dava Daireleri Genel Kurulu ; “ the Gener al A ssembl y ” ) owing to the r e sistance o f the court of first instance.

12 . On 17 January 2003 the said General A ssembl y quashed the judgment delivered by the Administrative Court by twenty - two vo tes to nine . Mr E.Ç. and Mr M.R.Ü. were on the bench , which was presided over by Ms T.Ç. in her capacity as Vice- President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the re quest for rectification of the Fifth Division ’ s judgment o f 20 December 2000.

13 . On an unspecified date th e applic ant submitted a request for rectification of the General Assembly ’ s judgment .

14 . On 11 December 2003 the Gener al A ssembl y rejected that re quest on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met . M s A.Ö., who had recently been promoted to the Supreme Administrative Court , sat on the bench, alongside other judges who had previously adjudicated in the case .

THE LAW

I. COMPLAINTS ALLEG ING A LACK OF IMPARTIALIT Y ON THE PART OF THE SUPREME ADMINISTRATIVE COURT

15 . The applic ant alleged that the Supreme Administrative Court benches hearing and determining his case had not been impartial and had therefore infringed his right to a fair hearing as secured by Article 6 of the Convention, the relevant parts of which read as follows :

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... ”

16 . Th e Government contested that argument .

17 2 . The Court observe s that this complaint breaks down into three branches. The first branch concerns the alleged lack of impartiality on the part of the General Ass embl y bench which determined the second appeal on points of law , owing to the participation of M s T.Ç. , M r E.Ç. and Mr M.R.Ü. The second branch relates to the alleged lack of impartiality of the same bench o wing to the participation of judges who had sat in the Fifth Division of the Supreme Administrative Court during its consideration of the request for rectification of the judgment. The third branch concerns the alleged lack of impartiality of the Gener al A ssembl y bench which had determined the request for rectification of the 17 January 2003 judgment owing to the participation of several judges who had already heard and determined the case .

23 . The Court consi de r s it necessary to examine the first branch of the complaint separately from the other two .

A. The first branch of the complaint

...

2. Merits

( a) The parties ’ submissions

25 . The applic ant complained that some of the judges who had sat on the bench of the Fifth Division of the Supreme Administrative Court which had delivered the judgment on 20 December 2000 had also sat in the Gener al A ssembl y . He submitted that those judges could not have been impartial because they had already given their opinion on the merits of the case.

26 . Th e Government conteste d the applicant ’ s arguments. They submitted that the first and second appeals on points of law had not concerned the same subjects , even though they had referred to the same case . T he Government claimed that the first appeal on points of law had been geared to determ ining the lawfulness of the Administrative Court ’ s first judgment, while the second had b een intend ed to verify the lawfulness of the Administrative Court judgment overriding the judgment of the Supreme Administrative Court .

27 . Th e Government add ed that the judges whose impartiality had been challenged could not have been considered parties to the proceedings because it was not the judgment which these judges had handed down that had been referred to the Gener al Assembly for review , but r ather the Administrative Court judgment . The Government added that the General Ass embl y had not been requir ed to choose between the judgments of the Fifth Division and the Administrative Court and that it had been free to reach a completely different finding , which it had done on many occasions in the past .

28 . Lastly , the Government explained that under circumstances similar to those of the present cas e, the judges who had sat in a divis ion of the Supreme Administrative Court had on occasion change d their minds when sitting in the General Ass embl y to examine a second appeal on points of law, and that they had joined the position adopt ed and subsequently upheld by the Administrative Court .

29 . Consequently , the Government submitted that the composition of the General Ass embl y had not infringed the impartiality principle set forth in A rticle 6 of the Convention.

( b) The Court ’ s assessment

30 . The Court notes that the applic ant ’ s fears regarding a lack of objective impartiality on the part of the General Ass embl y arise from the fact that three of the judges who sat o n the bench in question had pr eviously been involved in examin ing the first appeal on points of law .

31 . The Court reiterates that objective impartiality must be assessed using an approach which , when applied to a body sitting as a bench, involves determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118 , ECHR 2005 ‑ XIII). It adds that in this context even appearances may be of some importance. It follows that when decid ing whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those alleg ing such bias is important but not decisive. What is decisive is whether such fear can be held to be objectively justified ( see Gautrin and Others v . France , 20 May 1998, § 58, Reports of Judgments and Decisions 1998 ‑ III). In this connection , the mere fact that a judge has already taken pre-trial decisions cannot in itself be regarded as justifying doubts a s to his or her impartiality (see Ökten v. Turkey ( dec. ), no. 22347/07 , 3 November 2011); what matters is the scope of the measure s taken by the judge before the trial . Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his or her part that would prevent hi m or her from being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final a ssessment has been prejudged ( see , fo r example , Morel v . France , n o. 34130/96 , § 45, E CH R 2000-VI).

32 . In this case, t herefore , in the light of all these principles , the Court must decide whether, having regard to the nature and extent of the judicial review required of the General Ass embly, the three judges in question displayed , or could legitimately be considered to have displayed , bias with regard to the decision on the merits of the case ( see D.P. v . France , n o. 53971/00 , § 36, E CH R 2004 ‑ I). This would be the cas e, for instance, where the questions with which they had successive ly had to deal were similar , o r at least if the difference between them was negligible ( see , among many other authorities , Kleyn and Others v . Netherlands [GC], n os. 39343/98 , 39651/98 , 43147/98 and 46664/99 , § 201, E CH R 2003 ‑ VI ; Indra v. Slovakia , n o. 46845/99, §§ 51 to 55, 1 February 2005 ; Toziczka v . Poland , n o. 29995/08 , §§ 36 and 42 to 46, 24 July 2012 ; and Hauschildt v . Denmark , 24 May 1989, § 52, Series A n o. 154).

33 . In the instant case the Court observe s that in the first appeal on points of law , the question considered by the Fifth Division of the Supreme Administrative Court involved review ing the lawfulness of the judgment of the Administrative Court of 17 September 1998 by determining whether , in the procedures for appointing candidates to positions of head registrar in a judicial district other than th e one to which the co mpetitive examination related , the authorities ought to have adher ed to the ranking order of the candidates in cluded on the relevant reserve list .

34 . The Court notes that following the decision of the Administrative Court to maintain its initial position and therefore to dis re gard that adopted by the Fifth Division of the Supreme Administrative Court , the case was referred to the General Ass embly by means of an appeal on points of law lodged by the authorities . At that sta g e the question to be determined was not whether the Administrative Court had the right to resist , given that that right had in no way been challenged : the point on which the General Ass embl y was called upon to adjudicate was the lawfulness no t of the second judgment of 1 July 2002 but of the first judgment , which the Administrative Court wished to maintain . I n other words , the question to be decided once again concerned the lawfulness of the Administrative Court ’ s judgment to the effect that the authorities were bound by the ranking order of candidates in the competitive examination , e ven in respect of appointments in other judicial districts .

35 . The Court note s, however, that three of the thirty-one judges who sat in the General Ass embly had previously been on the bench of the Fifth Division , and that those three judges had therefore already part icipated in taking a decision in the sa me case on the question which they now had to consider . Consequently , they could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits of the second appeal on points of law .

36 . Nevertheless , the Court considers that the fact that some judges ha d previous ly adopted a particular position is not sufficient in itself to demonstrate that the impartiality of the General Ass embl y was undermin ed in the present case .

37 . In this kind of situation, as the Court has previously held , i t is necessary also to take into account such other factors as the number of judges involved in adopting the aforementioned position a nd their role on the bench in ques tion.

38 . In this connection , the Convention institutions have already dismissed similar complaints on the grounds of the small proportion of judges concerned on benches which take majority decisions ( see Ferragut Pallach v . Spain ( d e c. ), n o. 1182/03, 28 February 2006 ; Garrido Guerrero v . Spain ( d e c. ), n o. 43715/98 , ECHR 2000 -III ; OOO ‘ Vesti ’ and Ukhov v. Russia , n o. 21724/03, § 83, 30 May 2013 ; Diennet v . France , 26 September 1995, § 38, Series A n o. 325 ‑ A ; and Guisset v . France , n o. 33933/96, ( Plenary ) Commission decision of 9 March 1998, Decisions and Reports 92- B p. 138).

39 . F urthermore , the Court r eiterates that it has already found violation s of the right to an impartial tribunal in a number of cases, taking into consideration both the large proportion of judges concerned and the ir duties as president o r rapporteur on the bench ( see Cardona Serrat v . Spain , n o. 38715/06, § 37, 26 October 2010 ; Castillo Algar v . Spain , 28 October 1998, §§ 41 - 53, Re ports 1998 ‑ VIII; Perote Pellon v . Spain , n o. 45238/99, § 50 in fine , 25 July 2002 ; and Olujić v . Croatia , n o. 22330/05, § 67, 5 February 2009).

40 . In the present case the Court holds that the number o r proportion of judges concerned by the issue of objective impartiality is not decisive and that considerations of a quantitative nature do not affect the assessment of the question because there were no co mpelling reasons making it absolutely necessary for the three judges in question to sit on the bench with entitlement to vote .

41 . Moreover, the Court observes that Ms T.Ç., one of the three judges in question, in her capacity as Vice-President of the Supreme Administrative Court , presided over the General Ass embly and that she therefore led the discussions during the proceedings, which constitutes an additional circumstance incompatible with the appearance of impartiality.

42 . These two factors are such as to objective ly justify the applic ant ’ s concerns regarding the objective impartiality of the General Ass embl y as it was composed in the instant case .

43 . There has accordingly been a violation of Article 6 of the Convention un der this head .

...

FOR THESE REASONS, THE COURT

...

2. Holds by four votes to three , that there has been a violation of Article 6 of the Convention;

Done in Frenc h, and notified in writing on 4 March 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Guido Raimondi              Registrar              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Raimondi, Karaka ş and Keller is annexed to this judgment.

G.R.A . S.H.N.

JOINT DISS E NT ING OPINION OF JU D GES RAIMONDI, KARAKAÅž AND KELLER

(Translation)

1. We disagree with the majority position to the effect that in the present case there was a violation of A rticle 6 § 1 of the Convention. Firstly , we t a k e the view that the case -law of the Court does not provide a sufficient basis f or the conclusions reached by the majority . Secondly , we consider the Court ’ s reasoning set out in paragraph 40 of the judgment excessively strict.

Case-law

2. The a ssessment of the impartiality of a body sitting as a bench does not depend on a straightforward numerical analysis . However, it is difficult to find precise criteria on this matter in the Court ’ s case-law .

3. The instant cas e raises two questions: firstly , was there a lack of objective impartiality on the part of the General Ass embl y owing to the fact that three of the judges w h o sat o n the bench in question had previousl y been involved in examining the first appeal on po ints of law? Secondly , was the assessment of objective impartiality altered by the fact that one of the judges previously i nvolved in examining the case presided over the General Ass embl y ?

4. In connection with the first question, we note that in a number of cases the Court has dismissed complaints similar to those submitted by the applic ant on the grounds of the small proportion of judges concerned sitting on the bench in question . This was the case , for example , in Diennet v . France (n o. 18160/91, 26 September 1995, § 38, Series A n o. 325 ‑ A), in which it held that “ no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision ” , in Ferragut Pallach v . Spain ( ( d e c. ) n o. 1182/03, 28 February 2006) and in Garrido Guerrero v . Spain ( ( d ec. ) n o. 43715/98, ECHR 2000 -III ), in which it held that there was no justifi cation for fearing a lack of impartiality because one of the judges on the bench had previously sat in the chamber which had ruled on the case . By the sa me token , in a more recent cas e ( see OOO ‘ Vesti ’ and Ukhov v . Russia , n o. 21724/03, 30 May 2013, §§ 82 ‑ 85), the Court held that prio r participation in the proceedings against the applic ant by the p resident of a three- judge bench did not infringe the l atter ’ s impartiality under A rticle 6 § 1.

5. It is true that in other cases the Court has found a violation of A rticle 6 § 1. However, this finding was based both on the large proportion of judges concerned and on the fact that they had discharged the duties of president or judge rapporteur in the body sitting as a bench (see § 39 of the judgment). In Cardona Serrat v . Spain (n o. 38715/06, 26 October 2010, §§ 37-38), for instance, it held that i n the particular circumstances of the case, the objective impartiality of the trial court might appear questionable because two of the three members of the division which had con victed the applic ant, including its president , had previously implemented investigative measures in respect of him . Similarly , in Perote Pellon v . Spain (n o. 45238/99, 25 July 2002, § 51) and Castillo Algar v . Spain (n o. 28194/95, 28 October 1998, §§ 46 et 50), the Court considered that the trial court ’ s impartiality could give rise to serious doubts because two of the five judges on the bench , including the president and the reporting judge , had previously been in volved in investigative measures taken in respect of the applic ant

6. G iven the small proportion of judges concerned in the present case, that is to say three judges out of a total of thirty-one , the case has more in common with the first category of cases tha n wi t h the second (see paragraph 4 above ).

7. Where the second question is concerned , i t should be noted that the role of the president in the instant case was confined to leading the d iscuss ions. Under the Turkish system , the president of the bench is primus inter pares . I n other words he or she does not have any greater administrative or other powers than the other judges of the Supreme Administrative Court . His or her role is confined to leading the discussions and deciding on which items a vote must be taken during the proceedings .

8. Consequently , we consider that the number of judges concerned by a possible lack of objective impartiality , namely three out of thirty -one judges , is negligible , e ven though one of those judges was serving as president .

Reasoning

9. Th e majority ’ s main line of r easonin g is set out in paragraph 40 of the judgment . In a departure from its previous case-law , the Court now establishe s an extremely strict new criterion under which the decisive point is not the number o r proportion of the judges concerned by a possible lack of objective impartiality but whether or not there is a compelling reason making it absolu tely necessary for those judges to be members of the bench with entitlement to vote .

10. We find this “ absolute necessity ” criterion particularly problematic . This is the first time the Court has u sed such a criterion . Furthermore , the majority explain neither the reasons why such a new concept i s needed nor what is meant by “ absolu tely necessary ” . While it is easy to imagine cas es where the participation of a particular judge might be necessary , we find it difficult to conceive of situations in which this necessity would be absolute . I t should be noted here that even our Court would find it difficult to comply with this criterion : where a case is referred to the Grand Chamber , the national judge i s also part of the Grand Chamber , even though he or she has already pronounced on the case as a member of the C hamber . It could hardly be contended that his or her participation in the Grand Chamber is absolu tely necessary .

11. I t might be useful here to point out that the General Assembly of the Administrative Proceedings Division s of the Supreme Administrative Court is the highest judicial authority in Turke y in matters of administrative law , and that its decisions are binding on all administrative court s, including the divis ions of the Supreme Administrative Court . I t is therefore u n surprising that all the senior judges who are members of the judicial divisions of the Supreme Administrative Court sit in the General Assembl y in order to consolidate even further and more effectively the authority and legitimacy of this high judicial body ’ s decisions . M ore over , the result of the voting ( twenty-two votes to nine ) makes it clear that the abstention of the three judges in question or their participation without entitlement to vo te would not have altered the outcome of proceedings .

12. We therefore consider that in the instant case there was no violation of A rticle 6 § 1.