Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31832/96

by Emil ÜNEN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 May 1996 by

Emil Ãœnen against Turkey and registered on 12 June 1996 under file

No. 31832/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1928, resides in izmir.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

At the relevant time the applicant was a lawyer representing the

State Treasury. He wanted to be a prosecutor, so applied to the Supreme

Prosecutors Council to be appointed as a prosecutor.

In February 1968 the Council approved the applicant's

qualifications for the post and admitted him as a prosecutor. The

applicant then waited to be appointed to a post. In the meantime, he

continued to work as a lawyer.

On 30 January 1986 the Supreme Judges and Prosecutors Council

ruled that lawyers who wanted to be appointed as judges or prosecutors

should be under 35 years of age.

On 24 February 1992 the Council refused to appoint the applicant

as a prosecutor. It concluded that the applicant was more than 35 years

old when he had applied to the Council.

The applicant requested a re-examination of his case, but the

Council rejected his request.

On 24 June 1992 the applicant applied to the Administrative Court

in Ankara for the annulment of the Supreme Judges and Prosecutors

Council's decision refusing to appoint him as a prosecutor. On 9 July

1992 the Administratative Court in Ankara dismissed the applicant's

case. It held that the Law on Supreme Judges and Prosecutors Council

stipulated, inter alia, that the Council's decisions were only subject

to re-examination and would become final after that examination. The

court, accordingly, ruled that there were no legal grounds to examine

the final decision of the Supreme Judges and Prosecutors Council.

The applicant appealed against this judgment. On 7 November 1995

the Council of State dismissed his appeal and upheld the decision of

the Administrative Court.

In the meantime the applicant also applied to the Council of

State for the annulment of the decree issued by the Supreme Judges and

Prosecutors Council in which it was stipulated that lawyers who wanted

to be appointed as judges or prosecutors should be under 35 years of

age. On 22 April 1992 the Council of State dismissed the applicant's

case. It held that the Law on Supreme Judges and Prosecutors Council

stipulated, inter alia, that the Council's decisions were only subject

to re-examination by the Judicial Service Council and would become

final after that examination. The court, accordingly, ruled that there

were no legal grounds to examine the case.

COMPLAINTS

The applicant complains principally of the dismissal, by the

Supreme Council of Judges and Prosecutors, of his application to be

appointed as a prosecutor. He explains that since the Council had

previously approved his qualifications for the post and admitted him

as a prosecutor, it was unlawful to refuse to appoint him afterwards.

Invoking Article 6 of the Convention, he complains that he did

not have an effective remedy whereby to challenge the decisions of the

Supreme Judges and Prosecutors Council.

He further alleges that as he was not appointed as a prosecutor

he did not benefit from the pecuniary rights which are granted to

prosecutors.

THE LAW

1. The applicant complains principally of the dismissal, by the

Supreme Judges and Prosecutors Council, of his application to be

appointed as a prosecutor. He explains that since the Council had

previously approved his qualifications for the post and admitted him

as a prosecutor, it was unlawful to refuse to appoint him afterwards.

Invoking Article 6 (Art. 6) of the Convention, he complains that

he did not have an effective remedy whereby to challenge the decisions

of the Supreme Judges and Prosecutors Council.

The Commission recalls, firstly, that the right to be appointed

in the public service, including the national judicial service, is not

guaranteed by the Convention (cf. No. 23991/94, Dec. 17.1.94, D.R. 84-B

p. 69).

The Commission recalls further that disputes relating to the

recruitment, careers and termination of service of civil servants are

as a general rule outside the scope of Article 6 para. 1 (Art. 6-1) of

the Convention. In the instant case, the applicant was seeking judicial

review of the decision refusing to appoint him to the public prosecutor

post. The dispute raised by him thus clearly related to his

recruitment in the public service. It did not, therefore, concern a

"civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the

convention. Accordingly, Article 6 para. 1 (Art. 6-1) is not applicable

in the case (see mutatis mutandis, Eur. Court HR, Laghi v. Italy

judgment of 2 September 1997, Reports 1997-V, no. 46, paras. 17-18 ;

Orlandini v. Italy judgment of 2 September 1997, Reports 1997-V, no.

46,

paras. 18-19).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention set out in

Article 27 para. 2 (Art. 27-2).

2. The applicant further alleges that as he was not appointed as a

prosecutor he did not benefit from the pecuniary rights which are

granted to prosecutors. He does not invoke any particular Article of

the Convention.

The Commission considers that it is appropriate to examine the

complaint under Article 1 of Protocol No. 1 (P1-1).

The Commission recalls the jurisprudence of the European Court

of Human Rights according to which Article 1 of Protocol No. 1 (P1-1)

"does no more than enshrine the right of everyone to the peaceful

enjoyment of 'his' possessions,...consequently it applies only to a

person's existing possessions..."(Eur. Court HR, Marckx v. Belgium

judgment of 13 June 1979, Series A no. 31, p. 23, para. 50; Van Der

Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p.

23, para. 48; Inze v. Austria judgment of 28 October 1987, Series A

no. 126, p. 17, para. 37).

In this case the Commission points out that the very nature of

the applicant's request which was to benefit from the pecuniary rights

granted to prosecutors, was directly linked to his request to be

appointed as a prosecutor, and his request was refused by the

authorities. Therefore, the applicant's complaint is based on his

potential rights but not on his existing possessions. The Commission

is of the opinion that Article 1 of Protocol No. 1 (P1-1) does not

apply in the present case.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention set out in

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ÜNEN v. TURKEY

ÜNEN v. TURKEY

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