Communicated on 8 January 2014

SECOND SECTION

Application no. 30733/08 Hülya Ebru DEMİREL against Turkey lodged on 17 June 2008

STATEMENT OF FACTS

The applicant, Ms Hülya Ebru Demirel , is a Turkish national, who was born in 1976 and lives in Kilis . She is represented before the Court by Mr Y. Alataş , a lawyer practising in Ankara .

A. The c ircumstances of the c ase

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

On 1 7 October 1999 the applicant succeeded in an exam in order to become a public employee .

O n an unspecified date she was informed by the State Personnel Department attached to the Prime Minister ’ s office that she had been appointed to the post of security guard in the Kilis branch of TEDAŞ ( Türkiye Elektrik Dağıtım A. Ş. – Turkey ’ s Electric Distribution S. A. ), a state-run electricity c ompany.

On an unspecified date TEDAŞ i nformed the applicant that she sh ould not have be en appointed to the post in question as she did not fulfil the requirement of “ having completed military service ”, a duty which is fulfilled only by men in Turkey.

On 4 September 2000 the applicant lodged an administrative action against TEDAŞ requesting the annulment of TEDAŞ ’ s administrative decision not to appoint her and a stay of execution of this decision.

On 9 May 2001 the Gaziantep Administrative Court ordered the stay of execution of TEDAŞ ’ s administrative decision not to appoint the applicant as a security guard. The court considered that being a “ male ” was not a requirement for the post.

On 23 July 2001 the Kilis branch of TEDAÅž informed the applicant that she would be employed for six months as a trainee if she passed the security inquiry about her.

On an unspecified date, complying with the administrative court ’ s order, the applicant was recruited by TEDA Ş.

On 4 October 2001 the administrative court annulled TEDAŞ ’ s administrative decision not to appoint the applicant.

TEDAÅž appealed against the judgment of the Gaziantep Administrative Court.

On 10 April 2002 the 12 th Chamber of the Supreme Administrative Court decided to stay execution of the judgment of the first-instance court.

On 11 June 2002 TEDAŞ informed the applicant that her contract had been annulled on 27 May 2002 in line with the Supreme Court ’ s decision of 10 April 2002.

On 26 December 2002 the 12 th Chamber of the Supreme Administrative Court quashed the first-instance court ’ s judgment. The Supreme Administrative Court considered that given that there was a requirement of “ having completed military service ”, the post was reserved for “ male ” candidates only.

On 23 October 2003 the first-instance court, complying with the ruling of the Supreme Administrative Court, dismissed the applicant ’ s case.

On 16 November 2007 the appeal of the applicant against this judgment was refused and the first-instance court ’ s judgment was upheld by the same chamber of the Supreme Administrative Court.

On 6 December 2007 the Supreme Administrative Court, sitting in plenary session, issued a decision in favor of R.B. (plaintiff in another case and who was also a female candidate for TEDA Ş ). In its p lenary session, the Supreme Administrative Court considered that the requirement of “ having completed military service ” applied only to male candidates. The Supreme Administrative Court noted that this clause did not pose any obstacles for female candidates and that the refusal to appoint R.B. had been unlawful .

On an unspecified date the applicant requested rectification of the decision of the Supreme Administrative Court of 16 November 2007. The applicant maintain ed that the decision in question constituted a breach of the principle of equality and the right to a fair trial since the Supreme Administrative Court in plenary session had ruled to the contrary on 6 December 2007 . She further claimed that there had been discrimination, since no distinction between the sexes could be made pursuant to the Constitution in respect of access to public employment.

On 17 September 2008 the 12 th Chamber of the Supreme Administrative Court di smissed the applicant ’ s request for rectification, holding that the request was not based on any reasons written in Article 54 of the Code of Administrative Procedure.

B. Relevant d omestic l aw

Code of Administrative Procedure (Law No. 2577)

“Rectification of Judgments:

Article 54–1. (First sentence was amended on 5/4/1990 –3622/ Article 23) Decisions given on appeal by Chambers of the Supreme Administrative Court and by the Plenary Session (council) of its chambers on administrative or tax matters, and decisions given following an objection by the regional administrative courts, may be the subject of a request for rectification by the parties, once only, within fifteen days of notification of the decision, if:

a) the claims and objections on the merits were not assessed in the decision,

b) there were contradictory provisions in the decision,

c) the decision was in violation of law or procedure,

d) (Changed: 5/4/1990 –3622/ Article 23) falsification or fraud is discovered in documents which have a bearing on the merits of the case,

2. (Changed: 5/4/1990 –3622/ Article 23) Chambers of the Supreme Administrative Court, the Plenary Session of its chambers, and the regional administrative courts, have limited authority in respect of decisions on administrative or tax matters as regards rectification requests.

3. Requests for rectification of decisions are examined by the chamber, council or regional administrative court which gave the judgment in question. A person who acted as a rapporteur in the deliberations of a case may not hold this position at the rectification procedure.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings before the administrative courts , especially before the 12 Chamber of the Supreme Administrative Court , were not fair since the judgments in these proceedings were not well-reasoned.

Relying on Article 14 of the Convention and Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which prohibits discrimination against women in the field of employment, the applicant further contends that she was discriminated against on the basis of her sex.

QUESTIONS

1 . Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

a. In particular, were the legal grounds in the decision of the Twelfth Chamber of the Supreme Administrative Court of 17 September 2008 (no. 2008/1778 E, 2009/3936 K) sufficiently developed?

b. What could be the exact reason to rectify a court ’ s judgment in line with Article 54 of the Code of Administrative Procedure?

c. In which circumstances could such reason(s) for rectification of the judgment be accepted as settled?

d. Was the contradiction between a prior Chamber judgment of the Supreme Administrative Court and the later judgment of the Supreme Administrative Court ’ s plenary sufficient reason for rectification in line with this article?

e. What is the established application of Article 54 of the Code of Administrative Procedure by the Supreme Administrative Court?

The Government are requested to submit decisions of the Supreme Administrative Court in comparable cases.

2. a . Are Articles 8 and 14 of the Convention applicable in the present case?

b. Has the applicant suffered discrimination on the ground of her sex, contrary to Article 14 of the Convention read in conjunction with Article 8 on account of the refusal of the domestic authorities to appoint her to the post of security officer?