Information Note on the Court’s case-law 208

June 2017

Köksal v. Turkey (dec.) - 70478/16

Decision 6.6.2017 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

New remedy to be exhausted when challenging measures taken under emergency decree laws: inadmissible

Facts – Following an attempted coup d’état in July 2016, a state of emergency was decreed in Turkey. Eleven Leg islative Decrees were then adopted in this legal framework. One of them provided for the dismissal of over 50,000 civil servants, of whom the applicant was one. They could never be reinstated as civil servants and their passports were cancelled.

On 28 Sept ember 2016 the applicant lodged an individual appeal with the Constitutional Court to challenge his dismissal. The appeal is still pending.

After the lodging of the application before the European Court, Legislative Decree no. 685, published on 23 January 2017, provided for the setting-up of a commission which would have the task, in particular, of adjudicating upon appeals against measures adopted directly by Legislative Decrees issued in the context of the state of emergency, including the dismissals of civil servants. Civil servants affected by the relevant measures thus had the possibility of referring their cases to the commission within 60 days from the date to be fixed by the Prime Minister by 23 July 2017 at the latest. The commission’s decisions co uld then be appealed against before the administrative courts, whose decisions in turn could be challenged before the Constitutional Court by individual petition. When that highest court had examined a case and given judgment, any individual could also, if need be, submit a complaint under the Convention to the European Court.

Law – Article 35 § 1: Legislative Decree no. 685 had clearly made available the possibility of scrutiny, by the above-mentioned commission, of measures adopted under the state of emer gency, together with subsequent judicial review of the commission’s decisions. The Legislative Decree had thus been adopted with the aim of remedying a large-scale problematic situation resulting, not only from shortcomings in the decision-making process i n respect of the impugned measures, but also from the uncertainty about judicial review of those measures.

Even though the commission was a non-judicial body, its decisions could be subject to judicial review. Moreover, the new system constituted in principle an accessible remedy.

The applicant thus had a new remedy which would enable him to give the domestic a uthorities an opportunity to provide redress for the alleged violation of the Convention provisions at national level.

It was thus justified to make an exception to the general principle that the condition of exhaustion of domestic remedies must be assesse d at the time when the application was lodged.

However, this conclusion did not prejudge, if necessary, a possible re-examination by the Court of the question of the effectiveness and reality of the remedy introduced by Legislative Decree no. 685, both in theory and in practice, in the light of the decisions to be given by the commission and domestic courts and of the effective enforcement of those decisions. In any event, the burden of proof concerning the effectiveness of this remedy would then be on the respondent State. In addition, the Court retained jurisdiction for the ultimate review of any complaint by applicants who had exhausted the available domestic remedies.

Conclusion : inadmissible (failure to exhaust domestic remedies).

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

Click here for the Case-Law Information Notes