JOINT PARTLY DISSENTING OPINION OF JUDGES SPANO AND KJØLBRO

I.

1. The Court finds a violation of Article 6 § 1 of the Convention due to the lack of reasoning in the Turkish Supreme Administrative Court´s rejection of the applicant ’ s request for rectification of the same court ’ s judgment on the merits. We respectfully dissent from this finding which does not in our view find support in the existing case-law of the Court, as we will explain below. However, we agree with our colleagues that there has been no violation of Article 6 § 1 of the Convention on account of the conflicting decisions rendered by the Supreme Administrative Court and also that there has, conversely, been a violation of Article 14 of the Convention, taken in conjunction with 8. [1]

II.

2. When the Court examines a complaint under Article 6 § 1 of the Convention, of the type presented by the applicant, the starting point must be the scope of appellate review in the high court in question. The majority is right when it states at paragraph 48 of the judgment, that according to the Court´s case-law where a high court refuses to accept a case on the basis that the legal grounds for such a case are made out, very limited reasoning may satisfy the requirement of Article 6 § 1 of the Convention. In fact, the Court has held that courts of cassation comply with their obligation to provide sufficient reasoning when they base themselves on a specific legal provision, without further reasoning, in dismissing cassation appeals which do not have any prospects of success. In other words, in order to determine the extent to which this duty to give specific reasons applies at the appeal level, the Court has considered matters such as the nature of a filtering procedure and its significance in the context of the procedure as a whole, the scope of the powers of a court of appeal, and the manner in which the applicant ’ s interests were actually presented and protected before the Court. The most recent consolidation of these general principles is found in the judgment of the Court in Hansen v Norway (no. 15319/09, § 73, 2 October 2014).

3. In applying these principles, we begin by observing that the question for determination by the Turkish Supreme Administrative Court in examining a request for rectification is, under domestic law, not the same as the question which that court determines by its decision on appeal ( see Fazlı Aslaner v. Turkey , no. 36073/04 , § 46, 4 March 2014 ). In other words, the question in the rectification proceedings is whether the party requesting rectification has demonstrated the existence of arguable grounds which would justify examining the rectification on the merits. Therefore, the decision on the rectification request cannot in itself be equated to a decision on the merits on appeal, for instance whether the law was applied correctly at first instance. It is true that this remedy is considered, as noted by the majority (see paragraph 49 of the judgment), an ordinary remedy under Turkish administrative law. However, for the purposes of Article 6 § 1 of the Convention and the duty to give reasons at the appellate stage, rectification proceedings must in our view, due to their very nature and purpose, be treated by this Court as a special and particular type of appellate remedy which requires the Court to be cautious in imposing on the domestic high court the duty to give reasons that limits its ability to adequately apply this mechanism in a manner which conforms with the very narrow scope of possible rectification of a previous judgment on appeal provided under domestic law.

4. We also find it important to recall that the function of a reasoned judgment is to afford the parties the possibility of an effective appeal and to show to the parties that they have been heard. In the present case, account must therefore be taken of the fact that the Supreme Administrative Court, in dismissing the applicant ’ s rectification request, acted as the final instance and that there was no possibility for the applicant to seek a further review of that decision (compare Hansen v. Norway ( cited above, § 83), and unlike the applicant ’ s situation in the case of Emel Boyraz (cited in the judgment)).

5. In the rectification proceedings, the applicant requested that the Supreme Administrative Court revisit its previous decision in her case on direct appeal, due to the subsequent decision of the General Assembly of the same court applying the law differently. The Supreme Administrative Court rejected the applicant ’ s request for rectification by referring to the conditions for rectification as set out in section 54 of Law no. 2577 and held that the conditions for granting the rectification had not been made out. It also briefly noted that its previous decision had been in accordance with the law and procedure, implying therefore that the emergence of new case-law on a similar issue was not one of the grounds of rectification and that the decision of the General Assembly of Administrative Proceedings Divisions which post ‑ dated the Twelfth Division ’ s decision did not render it retrospectively unlawful. In our view, that decision, which is analogous to a rejection on manifestly ill ‑ founded grounds, cannot be considered a decision on the merits. We also note that changes in domestic case-law are part and parcel of every-day work in courts of appeals and supreme courts all over Europe. High courts must have flexibility to assess if and to what extent changes in previous case-law will be applied retroactively to already decided cases or whether they will only be applied in the future.

6. In sum, we conclude that taking account of the nature and scope of the rectification remedy under Turkish domestic law, and the applicable principles in the Court´s case-law, the Supreme Administrative Court was not under a duty deriving from Article 6 § 1 of the Convention to provide further reasons for its dismissal of the applicant ’ s rectification request.

7. Finally, we observe that in its decision, the Supreme Administrative Court endorsed the statement of facts and the legal reasoning set out in its previous decision. Furthermore, the written decision contained the judge rapporteur ’ s analysis as well as the reference to the decision of the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions of 6 December 2007 in the case of R.B. It is therefore not the case that the Twelfth Division of the Supreme Administrative Court ignored the applicant ’ s submissions altogether (see Ruminski v. Sweden , no. 17906/15, § 32, 2 May 2017, and compare Bochan v. Ukraine , no. 7577/02, § 84, 3 May 2007). We are therefore not persuaded that in the circumstances of this case, the absence of further reasoning, on the part of the Twelfth Division of the Supreme Administrative Court, regarding the opposite conclusions reached by the Supreme Administrative Court ’ s General Assembly, in itself rendered the proceedings unfair.

[1] . Statement by Judge Spano: In the light of the precedential value of Chamber judgments of the Court, I accept that there has been a violation of Article 14, taken in conjunction with Article 8 of the Convention, in the present case as the facts here cannot be distinguished from the judgment of the Court in the case of Emel Boyraz v Turkey , no. 6196008, 2 December 2014. However, I remain of the view, as expressed in my separate opinion in the latter case, that the Court´s application of these provisions of the Convention, to facts, as presented in both of these cases, is not persuasive.