SECOND SECTION

DECISION

Application no. 19483/05 Nurettin ALTIN against Turkey

The European Court of Human Rights (Second Section), sitting on 10 April 2018 as a Committee composed of:

Ledi Bianku , President, Nebojša Vučinić , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 23 May 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Nurettin Altın , is a Turkish national, who was born in 1937 and lives in Aydın. He was represented before the Court by Mr A. Aktar , a lawyer practising in Aydın.

2. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

4. On 19 November 1999 the Eyüp Assize Court decided to initiate a criminal investigation against the applicant, who was a judge, on suspicion of abuse of power and misconduct in office.

5. On 15 July 2001 the applicant retired from his position.

6. On 17 April 2003 the Court of Cassation convicted the applicant as charged; however, his sentence was suspended according to Law n o. 4616 on the execution of sentences in respect of certain offences committed before 23 April 1999.

7. On 30 September 2003 the plenary Court of Cassation (criminal divisions) upheld the judgment of 17 April 2003.

8. On 25 December 2003 the applicant was dismissed from his position as a judge by a decision of the High Council of Judges and Prosecutors (as it was called at the time, now re-named the Council of Judges and Prosecutors; Hakimler ve Savcılar Yüksek Kurulu , hereinafter referred to as “ the Council”) in accordance with Article 69 (5) of the Law on Judges and Public Prosecutors (Law no. 2802). It was indicated in the dismissal decision that the applicant had been sanctioned for disciplinary reasons on account of committing acts which had been considered incompatible with the requirements of his functions.

9. The applicant objected to the decision of the Council and on 6 December 2004 the latter dismissed the applicant ’ s objection. The applicant could not seek judicial review of this last decision since the dismissal decisions of the Council were not open to judicial review at the material time.

10. In 2011, following the enactment of Law no. 5982 amending the Constitution, the applicant reapplied to the Council and asked for a fresh examination of the dismissal decision. Having concluded that the applicant ’ s dismissal from his office had been in conformity with the relevant law at the material time, by a decision of 6 February 2013 the Council rejected the applicant ’ s request for revocation of the dismissal decision.

11. In 2015 the applicant brought administrative proceedings against the Council in the Supreme Administrative Court, seeking the annulment of the decision of 6 February 2013.

12. On 17 May 2016 the Supreme Administrative Court decided to annul the Council ’ s decision of 6 February 2013.

13. On 15 November 2016, in order to ensure the implementation of the Supreme Administrative Court ’ s decision of 17 May 2006, the Council decided to revoke its decision of 6 December 2004 concerning the dismissal of the applicant from his office. The Council considered that there was no need to reappoint the applicant as a judge since the latter had already retired before the date of his dismissal.

B. Relevant domestic law

14. Article 125 of the Turkish Constitution provides that all acts and decisions of the administration are subject to judicial review and that the administration is liable for all damage caused by its acts and measures.

15. Article 159 of the Constitution, as in force at the relevant time, stipulated that the decisions of the Council of Judges and Prosecutors were not open to judicial review.

16. Law no. 5982, which entered into force on 23 September 2010, amended Article 159 of the Constitution as follows with regard to the decisions of the Council of Judges and Prosecutors:

“The decisions of the Council, other than those concerning the dismissal from office, shall not be subject to judicial review.”

17. Provisional Article 3 of the Council of Judges and Prosecutors Act (Law no. 6087 of 11 December 2010) prescribed that the judges and prosecutors who had previously been dismissed from office had to apply to the Council of Judges and Prosecutors within sixty days following the entry into force of this law, before bringing an administrative action against dismissal decisions.

18. Article 53 (e) of Law no. 2802 of 26 February 1983 provides that the term of office of judges and prosecutors shall terminate upon voluntary, disability or compulsory retirement. According to Article 69 (5) of the same law, any judge or public prosecutor who has been sanctioned for disciplinary reasons on account of committing acts which are considered incompatible with the requirements of his/her functions shall be liable to be removed from office, even if the said acts do not entail criminal sanctions.

19. According to Article 13 of Law no. 2577 (Administrative Procedure Act), persons who have suffered damage on account of a wrongful act of the administration may bring compensation proceedings against the latter within a year from the date on which they learn of the impugned act and, in any event, within five years from the commission of that act.

COMPLAINTS

20. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been breached since the decisions of the Council could not be challenged before the domestic courts.

21. The applicant further complained of a violation of his right to peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention, in that he had lost his pension rights as a result of his dismissal.

THE LAW

22. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained that he had not had access to a court to challenge the lawfulness of the Council ’ s decision dismissing him from the office of judge and that, as a result of the same decision, he had been deprived of his retirement pension.

23. The Government maintained that following the constitutional amendment in 2010, it had become possible for the applicant to seek judicial review for his dismissal from the post of judge and that there had never been a provision under the domestic law preventing the applicant to bring an action for a full remedy ( tam yargı davası ) before the administrative courts for the damage resulting from the dismissal decision. They therefore invited the Court to declare the applicant ’ s complaints inadmissible for non ‑ exhaustion of domestic remedies.

24. The Government further submitted that the applicant had lost his victim status given that he had availed himself of the new domestic remedy established by the constitutional amendment of 2010. There had therefore been no violation of the applicant ’ s right of access to a court .

25. Finally, the Government argued that the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention was manifestly ill-founded as no cuts had been made from the applicant ’ s pension.

26. The applicant contested the Government ’ s arguments and argued that he had suffered both material and immaterial damage as result of the impugned decision made by the Council.

27. The Court reiterates that it falls, in the first place, to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, Siliadin v. France , no. 73316/01, § 61, ECHR 2005 ‑ VII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006 ‑ V; and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). A decision or measure favorable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, Siliadin , cited above, § 62; Scordino (no. 1) , cited above, § 180; and Gäfgen , cited above, § 62).

28. In the instant case the applicant complained of a violation of his right of access to a court under Article 6 § 1 of the Convention on account of his inability to seek judicial review against his dismissal. The Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements and the best solution for redressing a violation of the right to a fair trial is, as in many spheres, prevention (see, among others, Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999 ‑ V; Scordino (no. 1) , cited above, § 183; and Cocchiarella v. Italy [GC], no. 64886/01, § 74, ECHR 2006 ‑ V). Furthermore in cases in which a violation of the Convention has caused significant pecuniary or non-pecuniary damage to the applicant, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of violation of his Convention rights (see, mutatis mutandis , Gäfgen , cited above, § 116, and Petrov v. Russia ( dec. ), no. 12097/05, § 25, 22 October 2013).

29. Turning to the circumstances of the present case, the Court notes that at the time of the applicant ’ s dismissal, the Turkish Constitution excluded judicial review of the decisions given by the Council. However, following the entry into force of Law no. 5982 of 23 September 2010 amending the constitution, the Council ’ s decisions concerning dismissal of judges and prosecutors from their offices could be challenged by way of a judicial review. Furthermore, provisional Article 3 of Law no. 6087, which entered into force on 18 December 2010, made it possible for judges and prosecutors who had already been dismissed from their offices before the date of the constitutional amendment to seek judicial review of the Council ’ s decisions. It thus follows that, as from 18 December 2010, it was possible for all judges and prosecutors, including the applicant, to seek judicial review of the Council ’ s decisions dismissing them from their posts regardless of whether those decisions had been taken before or after 2010.

30. The Court further notes that, following the constitutional amendment of 2010, the applicant has successfully challenged his dismissal before the Supreme Administrative Court and that the Council executed the Supreme Administrative Court ’ s judgment by revoking the impugned dismissal decision (see paragraphs 12 and 13 above).

31. In these circumstances, the Court considers that the legal amendments enabling the applicant to have access to a court in respect of the Council ’ s decision dismissing him from the post of judge and the subsequent revocation of the said decision, may be regarded as an acknowledgment in substance of the breach of the applicant ’ s complaint under Article 6 § 1 of the Convention (see, mutatis mutandis , Gus inskiy v. Russia ( dec. ), no. 70276/01, 22 May 2003).

32. As regards whether the applicant was afforded adequate redress for the alleged breach of his rights under the Convention, the Court notes that under Article 125 of the Constitution and Article 13 of Law no. 2577, it was open to the applicant to seek compensation either following the Council ’ s decision to reject his request for revocation of the dismissal decision on 6 February 2013 or after the Supreme Administrative Court ’ s decision of 17 May 2016 annulling the aforementioned decision (see paragraphs 10 and 12). The Court further notes that the applicant did not dispute that the remedy under Article 13 of Law no. 2577 was futile or ineffective in his case.

33. In the light of the foregoing, the Court considers that the national authorities have afforded adequate redress for the alleged breach of the applicant ’ s right of access to a court by offering him a possibility to challenge the Council ’ s decision and to seek and obtain compensation for the damage he sustained (see, mutatis mutandis , Daniel-P S.A. v. Moldova ( dec. ), no. 32846/07, §§ 23-24, 20 March 2012).

34. The Court therefore concludes that the applicant can no longer claim to be the victim of a violation of the right of access to a court under Article 6 § 1 of the Convention. His complaint in that regard is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (see and compare with Aslı Güneş v. Turkey ( dec. ), no. 53916/00, 13 May 2004).

35. As to the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention concerning the alleged loss of his retirement pension following his dismissal, the Court notes that the applicant has been receiving a judge ’ s pension since the date of his retirement without any suspension or deduction. In the absence of any loss in his retirement benefits, the Court is unable to conclude that there has been an interference with the applicant ’ s right to peaceful enjoyment of his possessions. Accordingly, this complaint must also be rejected in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 May 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President