Last Updated on May 19, 2019 by LawEuro
Communicated on 3 October 2018
SECOND SECTION
Application no. 1571/07
Hüseyin Cahit BİLGEN
against Turkey
lodged on 4 December 2006
Statement of facts
1. The applicant, Mr Hüseyin Cahit Bilgen, is a Turkish national, who was born in 1952 and lives in Ankara. He is represented before the Court by Mr M.N. Alpaydın, a lawyer practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 27 February 1979, the applicant was appointed as a rapporteur judge at the Supreme Administrative Court after having successfully completed a written and oral examination. For the purposes of that post, the applicant was considered to have served in the third judicial district.
4. Between 1981 and 1982, he took leave to complete his military service.
5. In February 1983 he was appointed as a judge at the Gaziantep Administrative Court, a court in the second judicial district, where he became the presiding judge in July 1987.
6. In 1990, he was reappointed as a rapporteur judge at the Supreme Administrative Court. For the purposes of that post, the applicant was considered to have served in the third judicial district. After working in this position for three years, he was appointed as a judge in the Sakarya Administrative Court, a court in the second judicial district, where he held judicial office until 1995.
7. In October 1995 he was assigned to the Ankara Administrative Court and in July 1998 he was promoted to the position of presiding judge for the Eighth Division of the Ankara Administrative Court, a court in the first judicial district. After holding judicial office there for seven years, in 2005 he was appointed as a judge in the Ankara Regional Administrative Court by a decree of the Supreme Council of Judges and Prosecutors (hereinafter “SCJP”). His objection to that decision was rejected by the same body on 14 November 2005.
8. By a decree of the SCJP of 17 July 2006, the applicant was assigned to the Sivas Regional Administrative Court, a judicial administrative district of the third category, which is lower in ranking than the ones where the applicant previously held office.
9. On 27 July 2006, the applicant objected to the decision of 17 July 2006, arguing that he had been assigned twice to different locations in the past two years without any justification being given and without his consent. He further argued that his assignments did not comply with the guarantees of judicial independence. Moreover, he submitted that his latter assignment to a lower judicial district had affected his professional reputation negatively, especially since the reasons for the assignment had not been disclosed, creating the impression that he had been implicitly punished. He further argued that the decision to assign him to Sivas, a city which was 440 km away from Ankara where his family resided, interfered with his right to respect for family life. He explained in that connection that neither his daughters, who were attending educational institutions in Ankara, nor his wife, who worked for a private company in Ankara, could relocate with him to Sivas.
10. On 19 September 2006, the applicant was informed by the Ministry of Justice that the SJCP had dismissed his objections on the grounds that his assignment had been justified on the basis of the needs of the public service. No further reasons were disclosed.
B. Relevant domestic law
1. Independence of the judiciary and the appointment of judges
11. The relevant provisions of the Constitution, as in force at the material time, provided as follows:
Article 9
“Judicial power shall be exercised by independent courts on behalf of the Turkish nation.”
Article 138 §§ 1 and 2
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
Article 139
“Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.”
Article 140
“… Judges shall discharge their duties in accordance with the principle of independence of the courts and the security of tenure of judges.
The qualifications, appointment, rights and duties, salaries and allowances of judges and public prosecutors, their promotion, temporary or permanent change in their posts or places of duty, the initiation of disciplinary proceedings against them and the imposition of disciplinary penalties, the conduct of investigations concerning them and the subsequent decision to prosecute them on account of offences committed in connection with, or in the course of, their duties, the conviction for offences or instances of incompetence requiring their dismissal from the profession, their in‑service training, and other matters relating to their personnel status shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges.
…”
Article 159
“The Supreme Council of Judges and Prosecutors shall … exercise its functions in accordance with the principles of the independence of the courts and the security of tenure of judges.
The President of the Council is the Minister of Justice. The Undersecretary to the Minister of Justice shall be an ex officio member of the Council. Three regular and three substitute members of the Council shall be appointed by the President of the Republic for a term of four years from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Court of Cassation from among its own members and two regular and two substitute members shall be similarly appointed from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Supreme Administrative Court. They may be re-elected at the end of their term of office.
The Supreme Council of Judges and Prosecutors shall decide admission of judges and public prosecutors … into the profession, appointments, transfers, delegation of temporary powers, promotion, including promotion to the first category, the allocation of posts, dismissals from profession, imposition of disciplinary penalties and removals from office …
Decisions of the Council shall not be subject to judicial review.
…”
12. Following the constitutional amendment of 7 May 2010, decisions of the SCJP concerning dismissal from the judicial profession became amenable to judicial review.
2. Law on Judges and Prosecutors (Law no. 2802)
13. The relevant provisions of the Law no. 2802 provide as follows:
Section 35 – Appointment by way of transfer
“Judges and prosecutors are appointed to judicial office in a court of the same level in an equal or higher position in the same or a different location without prejudice to their salary scale and seniority status.
In the classification of judicial districts, geographical location and economic conditions, opportunities for social, cultural activities and health facilities and transportation system and similar factors are taken into account. The term of office to be served in each judicial district shall be determined by a regulation.
In the judicial administrative network, the regional administrative court is higher in rank with respect to place of service than the administrative and tax courts in the same judicial district.
…
Provided that it is documented, failure in the exercise of professional duties may result in a transfer to a different judicial district regardless of term of office or seniority.
Personal, family-related or other reasons that are set out in appointment and transfer regulations may be taken into account in the request for a transfer.”
Section 46 – Special Situations of Transfer
“…
Where an investigation or a document reveals that a judge or a prosecutor, through no fault of his own, is incapable of exercising his duties with the independence and dignity required for holding judicial office, he will be relocated in the same judicial district.
Where an investigation or a document reveals that a judge or a prosecutor has not performed his duties with the requisite expediency and quality, he will be relocated to any other office or place, without taking into account his seniority and term of office spent at a judicial district.”
Section 62 – Disciplinary Penalties
“The Supreme Council of Judges and Prosecutors shall impose one of the following penalties on judges and prosecutors for their conduct that is incompatible with the duties and dignity of the office:
a) warning,
b) salary reduction,
c) reprimand,
d) deferment of advancement to a higher rank
e) deferment of promotion
f) relocation
g) dismissal from profession
…”
Section 68 – Relocation as a disciplinary penalty
“Relocation as a disciplinary penalty is transfer to a judicial district at least one degree lower for the mandatory duration assigned to that district.
The following situations are sanctioned with the penalty of relocation:
a) culpable or inappropriate conduct incompatible with judicial office or loss of personal dignity and honour,
b) personal or professional conduct which may be perceived such that judicial independence and competence are undermined,
c) in carrying out duties giving the impression that personal relationships or convictions are valued,
d) culpable behaviour in relationships with colleagues that impairs the exercise of his duties,
e) creating a perception of accepting bribes or engaging in corrupt practices even though there might be no evidence,
f) requesting or accepting gifts or loans directly or through an intermediary for personal gain or advantage.”
14. The Regulation on the Appointment of Judges and Prosecutors in Administrative Courts published in the official gazette on 19 February 1988 (İdari Yargı Hakim ve Savcıları Hakkında Uygulanacak Atama Yönetmeliği).
Section 2 – Judicial Districts
“There are three administrative judicial districts as set out in the appendix created in view of geographical location and economic conditions, opportunities for social, cultural activities and health facilities and transportation system and similar factors.
…”
Section 3 – Term of Office in a judicial district
“Save for the exceptions provided in these regulations, the term of office to be served in the judicial administrative districts shall be as follows: five years in the third judicial district, seven years in the second district and ten years in the first district.”
Section 4 – Rules in Appointments
“Save for selection by lot from a list of candidates and appointments due to necessary reasons, appointments are made to courts starting with the lower district.
Save for the exceptions set out in these regulations, judges who have not served the mandatory term of office in the relevant judicial district may not request to be appointed or be appointed ex officio. On their request, judges who have served two years in any one of the judicial districts may be appointed to a judicial district equal to or lower than the one they currently serve in or may be appointed ex officio to a higher rank in the same judicial district.
Provided that it is documented, a judge who has poor performance and acts incompatibly with the requirements of the office may be assigned to an appropriate judicial district, irrespective of seniority or the term he or she has served in the judicial district.
Appointments depend on the availability of posts and the competence and abilities of the candidates. Candidates’ preferences may be taken into account in so far as it is possible.”
Section 5 – Appointment to the First Judicial District
“Save for the exceptions set out in these regulations, only judges with the highest rank can be appointed to a court in the first judicial district. Remaining in that district shall depend on performance and conduct. Those who have served the minimum term in the first judicial district may be reassigned.”
Section 17 – Appointments to the Ministry of Justice or to the Position of Rapporteur at the Supreme Administrative Court
“…
For the purposes of a transfer to [regular] judicial office, the calculation of the term of office spent in the position of rapporteur judge at the Supreme Administrative Court shall be the period in which that judge would normally serve in the applicable judicial district.”
C. Relevant Council of Europe Materials
15. The relevant extracts from the European Charter on the Statute for Judges of 8-10 July 1998[6] read as follows:
“1.1. The statute for judges aims at ensuring the competence, independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights. It excludes every provision and every procedure liable to impair confidence in such competence, such independence and such impartiality. The present Charter is composed hereafter of the provisions which are best able to guarantee the achievement of those objectives. Its provisions aim at raising the level of guarantees in the various European States. They cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned.
1.2. In each European State, the fundamental principles of the statute for judges are set out in internal norms at the highest level, and its rules in norms at least at the legislative level.
1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.
1.4. The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy.
…
3.4. A judge holding office at a court may not in principle be appointed to another judicial office or assigned elsewhere, even by way of promotion, without having freely consented thereto. An exception to this principle is permitted only in the case where transfer is provided for and has been pronounced by way of a disciplinary sanction, in the case of a lawful alteration of the court system, and in the case of a temporary assignment to reinforce a neighbouring court, the maximum duration of such assignment being strictly limited by the statute, without prejudice to the application of the provisions at paragraph 1.4 hereof.”
16. The relevant extracts from the appendix to Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide:
“Tenure and irremovability
…
52. A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about his inability to have recourse to judicial review concerning the SCJP’s decision of 19 September 2006 on his objection concerning his assignment.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention under its civil limb applicable to the dispute concerning the applicant’s transfer to Sivas? In particular, did the applicant arguably have a “right” that was “civil” in nature?
2. Is the Supreme Council of Judges and Prosecutors a tribunal for the purposes of Article 6 § 1 of the Convention (see Kamenos v. Cyprus, no. 147/07, §§ 73-81, 31 October 2017 and the cases cited therein)? If not, has there been a violation of that Article? In particular, are the two conditions of the test established in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007‑II) met:
(i) does domestic law expressly preclude access to a court?
(ii) is the restriction objectively justified in the State interest?
3. The parties are requested to submit information with respect to the appointment and transfer scheme of administrative court judges. In particular, they are invited to explain:
(a) whether the legal basis of a transfer is disclosed to the judges concerned;
(b) how the last two paragraphs of section 46 of Law no. 2802 are interpreted and applied by the SCJP;
(c) whether judges who have previously completed their minimum service term in each of the judicial districts and hold judicial office in the first judicial district have a right to remain in the same district.
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