Published on 4 December 2023

SECOND SECTION

Application no. 43672/22 Osman AYKAÇ against Türkiye lodged on 22 August 2022 communicated on 13 November 2023

SUBJECT MATTER OF THE CASE

The application concerns administrative proceedings instituted by the applicant with a view to setting aside the police department’s decision to retire him early on the grounds of inadequacy of available posts for the applicant in his post category.

The first-instance administrative court dismissed the action, finding the applicant’s compulsory early retirement to be in accordance with both the procedure and law as set out in law no. 3201. The court further noted that the administration had a wide margin of appreciation in the process of selecting the candidates for forced retirement irrespective of their performance or experience.

On 19 April 2021 the Supreme Administrative Court dismissed the applicant’s rectification request. It noted that the administration’s selection of candidates in the early retirement procedure had been subjective and against the principle of equality in as much as candidates’ work performance, experience and disciplinary records had not been taken into account in a transparent and consistent manner. Despite this finding, the Supreme Administrative Court noted that the decision on the applicant’s early retirement had nevertheless been lawful as he had been the subject of a downgrading measure by the legislative decree no. 675.

The applicant complains under Article 6 § 1 of the Convention that the Supreme Administrative Court violated the principle of equality of arms and adversarial proceedings by basing itself on facts and law that were not discussed by the parties.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of an adversarial hearing respected when the Supreme Administrative Court based its decision on the fact that the applicant had been subject of a measure under legislative decree no. 675, legislation not relied on or discussed by the parties (see Clinique des Acacias and Others v. France , nos. 65399/01 and 3 others, §§ 36-38, 13 October 2005; Čepek v. the Czech Republic , no. 9815/10, §§ 44-50, 5 September 2013; and Alexe v. Romania , no. 66522/09, §§ 33-37, 3 May 2016)?