CONCURRING OPINION OF JUDGE koskelo

1 . The present judgment is an important one in the context of the problems that have arisen in the respondent State regarding measures taken in the wake of the attempted coup of July 2016. I am in full agreement with the judgment in terms of the outcome , as well as most of the reasons for it. On the following points, however, I have reservations concerning the reasoning adopted in the judgment. The following issues and concerns relating to Articles 6 and 8 are interlinked.

Article 6

2 . Under Article 6, the applicant complains in essence of the lack of effective judicial review of the decision taken by the Agency, his employer, to dismiss him on the grounds of his alleged links with an organisation classified as “ terrorist ” . The applicant ’ s grievances concerning the judicial review conducted in his case are closely connected with the fact that the dismissal itself was of a summary nature. The underlying reasons were neither specified nor substantiated, and the applicant was given no opportunity to respond to the allegation that he had links with a terrorist organi s ation. Under such circumstances, the very basis of the subsequent judicial review process was highly problematic. The applicant was not in a position to know exactly what he was being charged with , or on what grounds and on the basis of wh at evidence. Normally, there is a specific basis for a judicial review in the factual and legal elements invoked in the decision, the arguments and the evidence relied on to justify it , as well as the procedural materials under pinn ing the decision. In the present case there was little more than an announcement of dismissal by reference to the Emergency Legislative Decree, which itself was very imprecise (see paragraph 10 below).

3 . Despite this anomalous situation, the present judgment is structured along the usual lines of an analysis set out in the Court ’ s case-law for assessing the adequacy of judicial review. Thus, the Chamber first addresses – very succinctly – the characteristics of the judicial review from the point of view of the requirements of full jurisdiction, an adversarial procedure and the equality of arms, concluding that those basic tenets of fair proceedings were, in principle, “sufficiently satisfied” (see paragraph 140 of the judgment).

4 . In my view, this approach is not quite suited to the present circumstances. For the reasons already mentioned, it is obvious that the above requirements – full jurisdiction, adversarial procedure and equality of arms – were only satisfied in a purely formal sense, as a matter of abstract theory. This is hardly consonant with the Court ’ s general guiding principle, namely uphold ing rights that are real and not only illusory, and might well lead to misunderstandings. At this juncture, it is even specifically sta ted that the applicant was not prevented from having access to the case file regarding evidence submitted. The trouble i s, however, that the file lacke d anything that could have served to elucidate the specific facts or the evidence relied on to justify the dismissal, and thus to help the applicant discern what exactly he should challenge and how.

5 . Although the Chamber subsequently carries out a more substantive analysis of the manner in which the judicial review was conducted, concluding that the right to effective judicial review was violated – a finding with which I fully agree – I consider that in this particular case it would have been better, and better suited to the overall situation and context of the judicial review proceedings, to dispense with the statements set out in paragraph 140. In the specific circumstances, they are more or less void of substance. The crux of matter is the actual weakness of the judicial review that took place.

Article 8

6 . In its examination of the applicant ’ s complaints under Article 8, the Chamber follows the usual methodology in addressing the questions of whether the infringement was lawful, had a legitimate aim and met the requirements of necessity/proportionality. As regards the first limb, the Chamber concludes, albeit not firmly, that the requirements of “lawfulness” as such were not infringed (see paragraphs 206-209 of the judgment). My reservations concern this part of the analysis. In my view, the standard criteria relating to the “quality of the law” were not met in the present case. While I can understand the reasons why the Chamber has found it appropriate to pursue the assessment “all the way through”, I nonetheless consider that a more rigorous review should have been undertaken in terms of the “lawfulness” test, in line with the Court ’ s case-law. The latter has established general principles regarding the assessment of the “quality of the law” which are pertinent in the present context but are neither mentioned nor addressed in the judgment.

7 . In particular, the Court has consistently held that for domestic law to meet the qualitative requirements, it must afford a measure of legal protection against arbitrary interference by public authorities with the rights guaranteed by the Convention. In matters rela ting to fundamental rights , it would be contrary to the rule of law, one of the basic principles of a democratic society as enshrined in the Convention, for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see, for instance , Rotaru v. Romania [GC], no. 28341/95 , § 55, ECHR 2000-V , Regner v. the Czech Republic  GC  , no. 35289/11 , § 60, ECHR 2017, Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, § 115, 15 November 2018, and Beghal v. the United Kingdom , no. 4755/16 , § 88, 28 February 2019, and the references therein ). Accordingly, the Court has considered that its examination of whether the requirements of the “quality of the law” are satisfied must include an analysis of whether the impugned powers are sufficiently circumscribed and whether their exercise is subject to adequate legal safeguards against abuse ( Gillan and Quinton v. the United Kingdom , no. 4158/05 , § 87, ECHR 2010, Beghal , cited above, § 109).

8 . More specifically, the Court has conducted its assessment of the “quality of the law” by reviewing the relevant regulatory framework from the point of view of the scope of the accorded powers, the extent of the discretion, the existence of elements curtailing the exercise of the powers, the availability of judicial review, and the existence of independent oversight of the use of the powers (see , in the context of anti-terrorism measures, Beghal , cited above, where the Court engaged in a detailed analysis of each of these issues).

9 . It is also worth mentioning that in the latter judgment, the Court stated that the absence of criteria circumscribing the exercise of discretion is likely to render difficult any meaningful judicial review of the decisions taken ( ibid . , §§ 103 and 105).

10 . In the present case, it is notable that the relevant provision of the Emergency Legislative Decree No. 667 is wor ded very vague ly as far as the grounds for dismissal are concerned (see paragraph 33 of the judgment). It covers anyone “considered” to have “links” with “terrorist organisations or structures, formations or groups” determined by the National Security Council as being ”involved in activities prejudicial to the national security of the State”, imposing the dismissal of all such persons from their civil service posts or other public sector jobs. It is difficult t o see how such a legal basis for measures that entailed dramatic and, in principle, permanent consequences for the individuals concerned could be considered consonant with the standards developed in the Court ’ s case-law.

11 . In this context, it is worth observing that the Venice Commission , in its opinion on the impugned Emergency Decrees (cited in paragraph 50 of the present judgment) , also expressed concerns regarding the formulation of the relevant provisions , and recommended that they should be amended so that a dismissal could only be ordered on the basis of a combination of factual elements which clearly indicate d that the public servant had acted in a way which objectively cast serious doubts on his or her loyalty to the democratic legal order (see the conclusion in paragraph 131 of the opinion).

12 . The Venice Commission also noted, similarly the Court ’ s findings in Beghal ( see above ), that the fact that the dismissals were not based on individualised reasoning made any meaningful ex post judicial review of such decisions virtually impossible (see paragraph 141 of the opinion, cited in paragraph 51 of the present judgment).

13 . Furthermore, as regard s the judicial review and the re levant requirements of independence, one should not lose sight of the fact that all the members of the judiciary were themselves subject to the threat of dismissal under the same emergency measures. In sum, the quality of the legal framework, including the relevant safeguards, appears highly problematic from the point of view of the established Convention standards.

14 . As already mentioned at the outset, I can well understand, and agree with, the Chamber ’ s desire in this case to carry out an examination of all the elements of the requirements arising under the second paragraph of Article 8. Nonetheless, I take the view that the Chamber should not have dispensed with a proper analysis of the first criterion , that of “lawfulness”, in particular the requirements of “the quality of the law” as set out in the Court ’ s established case-law. In other words, the present judgment should have taken care to avoid any misconceptions regarding the relevant standards and their applicability. In this context, it is also important to recall that any derogation under Article 15 of the Convention can only justify deviations from normal Convention standards to the extent “strictly required” by the exigencies of the situation.