Information Note on the Court’s case-law No. 145

October 2011

Nejdet Åžahin and Perihan Åžahin v. Turkey [GC] - 13279/05

Judgment 20.10.2011 [GC]

Article 6

Administrative proceedings

Article 6-1

Fair hearing

Divergences in case-law of separate, autonomous and hierarchically unconnected administrative and administrative-military courts: no violation

Facts – The applicants’ son, an army pilot, died in May 2001 when his plane crashed in Turkey while transporting troops. The parents applied for the monthly survivors’ pension payable under the Anti-Terrorism Act, but to no avail. They applied to the ordinary administrative court, which declined jurisdiction, then their case was referred to the Supreme Military Administrative Court which the Jurisdiction Disputes Court adjudged to be competent. The applicants’ complaint to the European Court concerned a divergence in the appraisal by the ordinary administrative courts and the military administrative courts of the circumstances of the plane crash. For the ordinary courts there was a causal link between the crash and the fight against terrorism – a sine qua non for entitlement to the pension in question – whereas the military court found no such link.

In a judgment of 27 May 2010 a Chamber of the Court found, by six votes to one, that there had been no violation of Article 6 § 1, considering that the applicants could not claim to have been denied justice because of the way in which the courts had examined their case and the finding they had reached in the circumstances.

Law – Article 6 § 1: It was clear from the case file that the difference the applicants complained of lay not in the factual situations examined by the different types of domestic court – the situations were comparable – but in the application of substantive law and the resulting judgments. However, the mere existence of conflicting decisions was not, in itself, sufficient grounds to find a violation of Article 6. The Court had to examine the effect of the divergence in relation to the principles of a fair trial and, in particular, of legal certainty.

In the present case a conflict of jurisdiction arose between the ordinary administrative courts and the Supreme Military Administrative Court, which were called upon to give judgment, in parallel, on the same legal issue. In spite of the intervention of the Jurisdiction Disputes Court, which found that the Supreme Military Administrative Courthad jurisdiction in cases concerning military pensions, the ordinary administrative courts continued to accept cases similar to that of the applicants and to rule on the merits.The judgments of the Jurisdiction Disputes Court were not decisions of principle, and they had failed to impose themselves, by their sheer power of persuasion, on all the ordinary administrative courts. However, the role of the Jurisdiction Disputes Court was not to resolve conflicts of case-law, except where the judgments were so irreconcilable that their execution would result in a denial of justice for the party concerned, a situation which did not arise in the instant case.

In a domestic legal context characterised, as in the present case, by the existence of several supreme courts not subject to any common judicial hierarchy, the Court could not demand the implementation of a vertical review mechanism of the approach those courts chose to take. To make such a demand would go beyond the requirements of a fair trial enshrined in Article 6 § 1. In such a judicial system achieving consistency of the law could take time, and periods of conflicting case-law might therefore be tolerated without undermining legal certainty.

Two courts, each with its own area of jurisdiction, examining different cases could very well arrive at divergent but nevertheless rational and reasoned conclusions regarding the same legal issue raised by similar factual circumstances. The divergences of approach that might thus arise between courts were merely the inevitable outcome of this process of interpreting legal provisions and adapting them to the material situations they were intended to cover. These divergences might be tolerated when the domestic legal system was capable of accommodating them. In the instant case, the supreme courts in question – the Supreme Administrative Court and the Supreme Military Administrative Court – had the possibility of settling the divergences themselves, either by deciding to take the same approach, or by respecting the boundaries of their respective areas of jurisdiction and refraining from both intervening in the same area of the law. Just as it was not for the Court to act as a court of third or fourth instance and review the choices of the domestic courts concerning the interpretation of legal provisions and the inconsistencies that might result, nor was it its role to intervene simply because there had been conflicting court decisions. Its role in respect of Article 6 § 1 of the Convention was limited to cases where the impugned decision was manifestly arbitrary.

Therefore, even though the interpretation of the law made by the Supreme Military Administrative Court was unfavourable to the applicants, that interpretation, however unjust it might appear to them compared with the solution adopted by the ordinary administrative courts, did not, in itself, constitute a violation of Article 6. Also, in the light of the Jurisdiction Disputes Court’s finding that the Supreme Military Administrative Court was the body with jurisdiction to examine the type of dispute at issue, in the circumstances of the present case the decision of the administrative court that it did not have jurisdiction in the applicants’ case was not at all arbitrary.Nor could the applicants claim to have been denied justice as a result of the examination of their dispute by the Supreme Military Administrative Court, or the conclusion it reached. The decision adopted by the Supreme Military Administrative Court in the applicants’ case fell within the bounds of its jurisdiction and there was nothing in it that, in itself, warranted the intervention of the European Court.The judgments concerning the applicants had been duly reasoned in terms of the facts and the law, and the interpretation made by the Supreme Military Administrative Court of the facts submitted to it for examination could not be said to have been arbitrary, unreasonable or capable of affecting the fairness of the proceedings, but was simply a case of application of the domestic law.

In view of these considerations, the Court reiterated that it must avoid any unjustified interference in the exercise by the States of their judicial functions or in the organisation of their judicial systems. Responsibility for the consistency of their decisions lay primarily with the domestic courts and any intervention by the Court should remain exceptional. In the present case the circumstances required no such intervention and it was not the Court’s role to seek a solution to the impugned conflict of case-law vis-à-vis Article 6 § 1 of the Convention. In any event, individual petition to the Court could not be used as a means of dealing with or eliminating conflicts of case-law that might arise in domestic law, or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts.

Conclusion : no violation (ten votes to seven).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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