SECOND SECTION

DECISION

Application no. 35726/20 Burak İNAN against Türkiye

The European Court of Human Rights (Second Section), sitting on 11 April 2023 as a Committee composed of:

Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 35726/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 August 2020 by a Turkish national, Mr Burak İnan, who was born in 1991 and lives in Manisa (“the applicant”) and was represented by Mr Y. Torun, a lawyer practising in Ankara;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the annulment of the applicant’s appointment as a sergeant during a state of emergency.

2. At the time of the events giving rise to the present application, the applicant had finished his training at the Gendarmerie Vocational High School and was awaiting approval of his appointment as sergeant on 30 August 2016.

3. On 20 July 2016 a state of emergency was declared following the attempted coup of 15 July 2016. During the state of emergency, the Council of Ministers passed several Legislative Decrees under Article 121 of the Constitution. Among those texts, Legislative Decrees nos. 669 and 675 were adopted on 31 July and 29 October 2016 respectively and later approved by the National Assembly. The first abolished all military educational institutions and provided for the transfer of students therein to civilian schools (see Yıldız and Others v. Türkiye (dec.) [Committee], nos.13510/19 and 18 others, 22 February 2022), while the second cancelled actions regarding candidate sergeants and contracted military officers whose appointment had not been finalised as at the date when the decree in question was published in the Official Gazette. One of the consequences of Article 6 of Legislative Decree no. 675 was to cancel the expected appointments of 30 July 2016.

4. The applicant applied to the administrative court, challenging the cancellation of his expected appointment of 30 July 2016 as a sergeant. The administrative court declared the case inadmissible, noting that the cancellation of the applicant’s appointment was based on a legislative decree and, in the absence of an administrative measure, it did not have jurisdiction to annul or quash a legislative decree. The Regional Administrative Court and the Supreme Administrative Court rejected the applicant’s appeals on the same grounds.

5. On 4 February 2019 the applicant lodged an individual application before the Constitutional Court, which declared the case inadmissible on 18 February 2020 by means of a summary inadmissibility decision, holding that the applicant’s complaints under Articles 6 and 8 of the Convention did not disclose any appearance of a violation.

6 . That being so, on 29 September 2021 the Constitutional Court, sitting in plenary session, delivered a decision in the case Ömer Kılınç concerning an identical situation. It found Article 6 § 1 of the Convention applicable, noting that the applicant had a legitimate expectation to be appointed sergeant after the completion of his training and that the approval of the appointment did not completely fall within the discretionary power of the administrative authorities. It then noted that the cancellation of candidate sergeants’ appointments by Legislative Decree no. 675, without providing them with a judicial remedy, was an interference with the right to access to a court and that, under ordinary circumstances, this interference would not be proportionate. However, the Constitutional Court examined the case in view of Article 15 of the Turkish Constitution on derogation in time of emergency and concluded that the interference in the applicant’s right to access to a court was proportionate to the legitimate aim pursued, which was to restore order in the military, in view of the exceptional circumstances caused by the coup attempt of 16 July 2016, and also having particular regard to the applicant’s appointment as a sergeant the following year.

7. The applicant complained under Article 6 of the Convention that he did not have access to a court to challenge the annulment of his appointment as a sergeant – including the State of Emergency Commission (see Köksal v. Turkey (dec.), no. 70478/16, § 16, 6 June 2017, for background information on the Commission) - by virtue of Legislative Decree no. 675. He also complained that the impugned measure in the absence of any investigation or prosecution against him went contrary to the presumption of innocence under the criminal limb of Article 6. Relying on the principle of equality of arms under Article 6 § 1 of the Convention, he further complained that Legislative Decree no. 675 had been adopted after the date of his expected appointment, thus with a retrospective effect.

THE COURT’S ASSESSMENT

8. As regards the applicability of the civil limb of Article 6 § 1 of the Convention, the Court reiterates that there must be a “dispute” (contestation) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, whether or not that right is also protected by the Convention. The Court further notes that neither the Convention nor its Protocols guarantee a right of recruitment to the civil service ( Vogt v. Germany , 26 September 1995, § 43, Series A no. 323, and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 57, ECHR 2007 ‑ II).

9. The Court notes that the Constitutional Court considered in the case of Ömer Kılınç that Article 6 § 1 guarantees of the Convention applied to the dispute. That being so, the Court reiterates that the concept of “civil rights and obligations” has an autonomous meaning and cannot be interpreted solely by reference to the domestic law of the respondent State (see König v. Germany , 28 June 1978, § 88, Series A no. 27). The Court therefore considers that it may leave open the issue of applicability of Article 6 § 1 in the present case because, even assuming that that provision was applicable ratione materiae to the dispute in question, there will be no lack of access to court within the meaning of Article 6 of the Convention when a restriction such as the one mentioned above pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, for example, Bilan v. Croatia (dec.), no. 57860/14, § 27, 20 October 2020).

10. The Court reiterates that, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is not only expressly mentioned in the Preamble but is also inherent in all the Articles of the Convention, requires, inter alia , that any interference must in principle be based on an instrument of general application (see Baka v. Hungary [GC], no. 20261/12, § 117, 23 June 2016 and Grzęda v. Poland [GC], no. 43572/18, § 299, 15 March 2022).

11. The Court notes that the lack of a remedy for the cancellation of the applicant’s appointment by virtue of Article 6 of Legislative Decree no. 675 is the result of legislative reform undertaken in the aftermath of the coup attempt of 16 July 2016 and pursues the legitimate purpose of controlling military mobilisation, preventing the possible recurrence of a military insurrection and restoring order in the army. The Court observes that the measure adopted by the legislative decree reveals no ad hominem nature targeting a group of identifiable persons (contrast with Baka , § 117 and Grzęda , § 299, both cited above) but rather aims at cancelling appointments of candidate sergeants falling in the early stages of the state of emergency. The Court finds in this connection that Article 6 of Legislative Decree no. 675 is a transitional provision as its title indicates and cancelled only the expected appointments of 30 July 2016. In other words, nothing prevented the candidate sergeants whose appointments were cancelled from applying again for training the following year and, should they not be appointed after completing training, challenging the measures concerned before the administrative courts, a relevant factor in the Constitutional Court’s assessment finding the restriction proportionate in the case of Ömer Kılınç (see paragraph 6 above).

12. In the light of the foregoing, the Court considers that the restriction imposed on access to a court in a specific area and for a short period of time cannot be considered disproportionate under such circumstances.

13. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

14. The applicant alleges that the annulment of his appointment as a sergeant in the absence of a criminal charge was not compatible with the principle of presumption of innocence.

15. The Court finds that Article 6 does not apply under its criminal head since the measure at issue, originating directly from an act of legislation entailing the restructuring of the military order, did not concern the determination of a “criminal charge” (see, for example, Pişkin v. Turkey , no. 33399/18, § 108, 15 December 2020). It therefore follows that the criminal limb of Article 6 is inapplicable in the case.

16. The applicant argued that his expected appointment was supposed to take place on 30 August 2016 whilst the impugned Legislative Decree was adopted on 29 October 2016, thus breaching his right to a fair trial by putting him in an unfavourable position vis-à-vis the State on account of the retrospective application of the law.

17. The Court has previously ruled that the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude any interference by the legislature in the administration of justice designed to influence the judicial determination of the dispute. In cases giving rise to similar problems, it found that the legislature had intervened when proceedings to which the State was a party were pending before the courts. It therefore held that the State had infringed the applicants’ rights guaranteed by Article 6 by intervening in a decisive manner to influence the outcome of the proceedings to which it was a party ( Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, §§ 49-50, Series A no. 301-B; Papageorgiou v. Greece , 22 October 1997, § 37, Reports of Judgments and Decisions 1997 ‑ VI; and Organisation nationale des syndicats d’infirmiers libéraux (ONSIL) v. France (dec.), no. 39971/98, ECHR 2000-IX).

18. The Court notes that, unlike the position in the aforementioned cases, in the present case, when the legislature intervened there was no judicial review lodged with judicial authorities. No element of the present case indicates that the retrospective application of the legislative decree was aimed at influencing judicial proceedings which were already ongoing.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 May 2023.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President