Lexploria

Information Note on the Court’s case-law 205

March 2017

Çatal v. Turkey (dec.) - 2873/17

Decision 7.3.2017 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to exhaust new judicial remedy enabling members of the national legal service to contest their removal from office: inadmissible

Facts – Following the failed attempted coup during the night of 15 to 16 July 2016, the High Council of Judges and Prosecutors suspended 2,735 judges from office, including the applicant, on 16 July 2016.

On 21 July 2016 a state of emergency was declared. During that period the Council of Ministers, in a meeting chaired by the President of the Republic, a dopted 21 legislative decrees.

Article 3 of Legislative Decree no. 667 provided that the High Council of Judges and Prosecutors had power to remove from office judges who were considered to belong or be affiliated or linked to terrorist organisations, or t o organisations, structures or groups whose activities the National Security Council had established as being harmful to national security.

In August 2016 the High Judiciary Council, sitting in plenary session, applied that provision and removed 2,847 judg es, including the applicant, from office.

In September 2016 an appeal by the applicant against the decision was dismissed in November 2016 by the High Council of Judges and Prosecutors.

Law – Article 35 § 1: In November 2016 the Supreme Administrative Court declined jurisdiction to examine the merits of an application for judicial review lodged by a judge who had been removed from office following a decision of the High Council of Judges and Prosecutors and remitted the case to the competent administrative court. After the present application had been lodged, Legislative Decree no. 685, adopted on 2 January 2017 and published in the Official Gazette on 23 January 2017, designated the Supreme Administrative Court as court of first instance for the purposes of examining appeals lodged against measures taken under Article 3 of Legislative Decree no. 667. Accordingly, persons against whom such measures had been taken were then able to apply to the Supreme Administrative Court directly within 60 days of the date on which the decisions against them became final. The applicant thus had the possibility, under Article 1 § 4 of the transitional provisions of Legislative Decree no. 685, of applying to the Supreme Administrative Court within 60 days of the date of publication of the legislative decree in question.

There was a new statutory provision available to the applicant enabling her to give the domestic courts an opportunity to remedy, at national lev el, a problematical situation arising from a legal dispute regarding judicial scrutiny of measures removing judges from office.

The decisions of the Supreme Administrative Court could in turn be challenged before the Constitutional Court by means of an ind ividual application, and following an application to the Constitutional Court and its rulings, anyone could, if necessary, lodge a complaint with the European Court under the Convention.

In view of the foregoing and of the nature of Legislative Decree no. 685 and the context in which it was adopted, an exception could justifiably be made to the general principle according to which the condition of exhaustion of domestic remedies had to be assessed at the time of introduction of the application. Consequently , the onus was on a person considering him or herself to be the victim of an alleged violation of the provisions of the Convention to test the limits of that new remedy.

Accordingly, the remedy established by Legislative Decree no. 685 was a priori an acce ssible remedy capable of providing appropriate redress and offering reasonable prospects of success. That conclusion did not in any way prejudice a possible re-examination of the question of the effectiveness of the remedy in question, and particularly the ability of the national courts to establish consistent case-law complying with the Convention requirements. Moreover, the Court retained its ultimate power of scrutiny of any complaint submitted by applicants who, in accordance with the principle of subsi diarity, had exhausted the available domestic remedies.

In sum, it was incumbent on the applicant, who complained of a violation of her Convention rights on account of the measure removing her from office, to apply to the domestic courts, as required by Ar ticle 35 § 1 of the Convention.

Conclusion : inadmissible (failure to exhaust domestic remedies).

(See also Demir v. Turkey (dec.), 51770/07, 16 October 2012, Information Note 156 , and Uzun v. Turkey (dec.), 10755/13, 30 April 2013, Information Note 163 )

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