JOINT DISSENTING OPINION OF JUDGES BRATZA, CASADEVALL, VAJI Ć , SPIELMANN, ROZAKIS, KOVLER AND MIJOVIĆ

(Translation)

1. Unlike the majority, we believe that there was a violation of Article 6 of the Convention in this case.

2. To put things in perspective, we would make clear from the outset that at the heart of this case is not the fact that the Supreme Military Administrative Court’s interpretation of Article 21 of Law no. 3713 was unfavourable to the applicants. Nor is the case concerned with whether or not the decision of the 4th Chamber of the Ankara Administrative Court that it did not have jurisdiction in the applicants’ case was arbitrary, or whether the judgments concerning the applicants were duly reasoned in terms of the facts and the law (paragraphs 90-93 of the judgment). Nor, contrary to the suggestion in the judgment, does the case concern merely “ the exercise by the States of their judicial functions or ... the organisation of their judicial systems” (paragraph 94); rather, it concerns, in our view, a “flagrant malfunctioning” of the Turkish judicial system, which resulted in a violation of Article 6 of the Convention.

3. In reality, the lack of an effective mechanism for harmonising the case-law not only caused but, worse, perpetuated conflicts of case-law between the ordinary and the military administrative courts which led, in the instant case, to results that gave an impression of “arbitrariness”. In addition to that, conflicts of case-law continue to exist within the administrative court system.

4. We emphasise that, as is pointed out in paragraph 57 of the judgment, the right to a fair trial must be interpreted in the light of the Preamble to the Convention, which declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII), which, inter alia , guarantees a certain stability in legal situations and contributes to public confidence in the courts (see, mutatis mutandis , Åžtefănică and Others , no. 38155/02, § 38, 2 November 2010). The persistence of conflicting court decisions can, on the contrary, create a state of legal uncertainty likely to reduce public confidence in the judicial system, a confidence which is clearly one of the essential components of a State based on the rule of law (see Păduraru v. Romania , no. 63252/00, § 98, ECHR 2005 ‑ XII (extracts); Vinčić and Others v. Serbia , nos. 44698/06 and others, § 56, 1 December 2009; and Åžtefănică and Others , cited above, § 38).

5. It is true that the principle of the independence of the courts relied on by the Government (paragraph 43 of the judgment) and the resulting autonomy enjoyed by the courts in their decision-making may explain why different interpretations can be made of the same texts at different levels of the court system. In our opinion, however, such interpretations must not have the effect of placing the public in a situation of legal uncertainty where the outcome of a case is dependent on a mechanism incapable of guaranteeing consistency in court decisions. The ability of the domestic legal system to maintain stability in legal situations and consistency in court decisions is decisive in preserving public confidence in the administration of justice.

6. In the instant case the applicants were first faced with flagrant inconsistency within the same branch of the court system . We note in this regard that the applicants challenged the decision of the 4th Chamber of the Ankara Administrative Court that it did not have jurisdiction in their case when other chambers of that court had considered that they did have jurisdiction to examine similar cases (paragraph 42 of the judgment). Within the same administrative court structure the autonomy of the numerous judicial formations and the assignment of the cases to the different formations led to conflicting case-law in the form of two discordant interpretations concerning that court’s jurisdiction.

7. Indeed, on three occasions – one of which was in the applicant’s case – the 4th and 5th Chambers of the Ankara Administrative Court found that they did not have jurisdiction to examine cases concerning the rights regulated by Article 21 of Law no. 3713 (paragraph 14, 28 and 29 of the judgment), considering such cases to be a matter for the Supreme Military Administrative Court. This was not the approach adopted by other chambers of the same court, which in fourteen cases comparable to that of the applicants, had accepted to examine the applications submitted by the families of other servicemen who had died in the same accident on 16 May 2001, and found in their favour (paragraphs 25-27 of the judgment). This is a fundamental aspect of the case. There is no doubt that the case-law context in which the applicants’ appeal was heard was marked by the variable approach of the different chambers of the Ankara Administrative Court to the question of jurisdiction in cases concerning military pension rights.

8. It is our opinion that this inconsistency of approach over the jurisdiction of the courts to examine substantially identical legal issues arising out of an identical event (in this case a plane crash in which a number of people died) is fundamentally problematic with respect to Article 6 of the Convention.

9. It is important to recall that the question of jurisdiction was decisive for the outcome of the case: most of the decisions of the ordinary administrative courts acknowledged a causal link between the plane crash and the fight against terrorism, so it is highly likely that if their action had not been redirected towards the Supreme Military Administrative Court, the applicants, like the families of some of the other occupants of the plane, would have succeeded in their claims. The manner in which the Supreme Military Administrative Court interpreted the circumstances of the plane crash of 16 May 2001 led to a difference of treatment of the applicants compared with others who had submitted claims similar to theirs. While the applicants had informed the military court of the position adopted by the ordinary administrative courts in similar cases (paragraphs 15 and 18 of the judgment), the military court completely ignored that position, without giving reasons and without taking any account of the risk of a divergence – even a synchronic one. Nor did it explain what factual differences distinguished the case in issue from those relied on by the applicants to support their claim (paragraphs 16 and 66). As a result, the same factual situation and the same legal provisions were interpreted differently by two types of court.

10. It is true that the Jurisdiction Disputes Court – established, inter alia , to settle conflicts of jurisdiction between the ordinary, administrative and military courts (paragraphs 22 and 24 of the judgment) – has had occasion to rule on the question of the areas of jurisdiction of the ordinary administrative courts and the Supreme Military Administrative Court and lay down the criteria for establishing the jurisdiction of the latter court (paragraphs 31-32). In so doing, the Jurisdiction Disputes Court ruled that the Supreme Military Administrative Court had jurisdiction in cases concerning military pensions or allowances (paragraphs 31-32). Indeed, when the 4th Chamber of the Ankara Administrative Court declared that the action brought by the applicants was outside its jurisdiction, and was rather a matter for the Supreme Military Administrative Court (paragraph 14 of the judgment), it referred to the Jurisdiction Disputes Court’s judgment of 14 May 2001 (paragraph 31).

11. However, the resolution by the Jurisdiction Disputes Court of the conflict between the two courts was theoretical and illusory.

12. In spite of the intervention of the Jurisdiction Disputes Court and its ruling that the Supreme Military Administrative Court had jurisdiction in the type of case in question, the ordinary administrative courts continued to accept cases similar to that of the applicants and to rule on the merits (paragraphs 25-27). In this context the Government’s explanations at the hearing before the Grand Chamber were particularly revealing as regards the inefficacy of the conflict settlement process; they were based on a subtle distinction between judgments “of principle” and other judgments. Judgments “of principle” of the Jurisdiction Disputes Court concerning jurisdiction are apparently binding, while its other judgments merely have the value and authority of precedents meant to guide the domestic courts in their deliberations. We were also told that a judgment was a judgment “of principle” when it actually stated as much, and that the judgments of the Jurisdiction Disputes Court attributing jurisdiction to the Supreme Military Administrative Court (paragraphs 44-45 of the judgment) did not fall into this prestigious category.

13. As a mechanism for settling conflicts the Jurisdiction Disputes Court thus proved insufficient to either prevent or finally settle the legal uncertainty resulting from the variable interpretation by the ordinary administrative courts of their own jurisdiction in cases concerning the pension rights provided for in Law no. 3713 (paragraphs 28-29 and 76-77). The judgments of the Jurisdiction Disputes Court to which the Government referred have clearly failed to impose themselves on all the ordinary administrative courts by their sheer power of persuasion alone (paragraphs 25-27). This means that in spite of the intervention of the Jurisdiction Disputes Court, the uncertainty as to the distribution of jurisdiction between the ordinary administrative courts and the military administrative court seems to persist. The lack of a decision on jurisdiction binding on all the courts concerned can only serve to prolong the resulting conflict in the case-law and the corresponding uncertainty.

14. On the specific subject of inconsistency with respect to the merits of the case , the conflicting judicial decisions concerning the interpretation of section 21 of Law no. 3713 were the result of simultaneous intervention by the ordinary administrative courts and the Supreme Military Administrative Court in what were essentially similar cases (paragraphs 62-66). The conflict of jurisdiction between these two types of court which were called upon to give judgment, in parallel, on the same legal issue thus gave rise to legal uncertainty which the Turkish judicial system was unable to accommodate.

15. Consequently, we consider that a violation of the right to a fair hearing was caused by a malfunctioning of the machinery set in place to settle conflicts of jurisdiction, coupled with inconsistency in court decisions concerning cases having their origin in the same factual situation. The disagreement between the different chambers of the Ankara Administrative Court as to whether they had jurisdiction was compounded in the present case by the different line of reasoning adopted by the Supreme Military Administrative Court compared with the ordinary administrative courts concerning the conditions of application of section 21 of Law no. 3713.

16. While domestic legal systems may comprise a variety of judicial structures, these structures should not give any appearance of arbitrariness in the public eye; when taking legal action litigants should be able to make decisions with a sufficient degree of foreseeability and based on clear, common and stable criteria.

17. If justice is not to degenerate into a lottery, the scope of litigants’ rights should not depend simply on which court hears their case. The fact that litigants can receive diametrically opposite answers to the same legal question depending on which type of court examines their case can only undermine the credibility of the courts and weaken public confidence in the judicial system.

18. For all these reasons we believe that there has been a violation of Article 6 § 1 of the Convention.

1. As amended by Law no. 5532 of 18 July 2006, which replaced the reference to “public servants” in the first paragraph with “public employees”.

1. It appears that the proceedings are still pending.