Communicated on 26 April 2018
SECOND SECTION
Application no. 5506/16
Serkan AKAL
against Turkey
lodged on 11 January 2016
SUBJECT MATTER OF THE CASE
The applicant is a football referee. The present application concerns his exclusion from the list of top class assistant referees and his downgrading to the status of provincial referee for the season 2015-2016 by the Central Referee Board of the Turkish Football Federation (“the Central Referee Board”) and the ensuing proceedings before the Turkish Football Federation. On 27 July 2015 the applicant brought proceedings against the Central Referee Board before the Arbitration Board of the Turkish Football Federation (“the Arbitration Board”). Three days later, the Arbitration Board dismissed the applicant’s claim holding that his exclusion from the list of top class assistant referees was lawful. On 19 August 2015 the applicant sought the review of the decision, but the Arbitration Board dismissed his request the next day. In both set of proceedings, the applicant asked the Arbitration Board to hold an oral hearing and allow him to comment on the submissions of the Central Referee Board. The Arbitration Board rejected his requests for hearing and did not provide the copies of the petitions submitted by the Central Referee Board in response to the applicant’s claims. The applicant received the Arbitration Board’s final decision, which is not subject to any judicial review under Article 59 of the Constitution, on 11 December 2015.
The applicant raises the following complaints under Article 6 of the Convention:
i) the lack of independence and impartiality of the Arbitration Board on account of the fact that the members of both the Arbitration Board and the Central Referee Board were appointed by the management of the Turkish Football Federation and that the list prepared by the Central Referee Board was submitted to the management’s prior approval.
ii) the lack of oral hearing during the proceedings before the Arbitration Board and the Arbitration Board’s decision being delivered on the basis of the case file despite the fact that the applicant specifically requested the Arbitration Board to hold an oral hearing.
iii) the breach of the principle of adversarial proceedings on account of the non-communication of the observations submitted by the Central Referee Board to the applicant despite his specific request and the lack of an opportunity to comment on the arguments of the Central Referee Board before the Arbitration Board delivered its decisions.
The applicant further complains under Article 13 of the Convention about his inability to challenge the Arbitration Board’s decision before domestic courts.
QUESTION tO THE PARTIES
1. Did the proceedings before the Arbitration Board regarding the applicant’s exclusion from the list of top class assistant referees attract the guarantees of Article 6 of the Convention? In particular, did the applicant arguably have a “right” within the meaning of Article 6 § 1 of the Convention regard being had to the discretion enjoyed by the Central Referee Board in deciding who to include in the list of top class assistant referees in a given football season?
If Article 6 of the Convention was applicable, did the applicant have a fair hearing in accordance with Article 6 § 1?
In that connection,
(i) Can the Arbitration Board be regarded as a “tribunal” for the purposes of Article 6 § 1 of the Convention? If so,
(a) was the Arbitration Board independent and impartial, as required by Article 6 § 1 of the Convention taking into account that the composition of the Arbitration Board and the Central Referee Board and the tenure of their members are determined by the management of the Turkish Football Federation and the impugned list prepared by the Central Referee Board was submitted to the prior approval of the management of the Turkish Football Federation?
(b) has there been a breach of the applicant’s right to an oral hearing in the main and appeal proceedings before the Arbitration Board, as required by Article 6 § 1 of the Convention? Has there been any exceptional circumstances that might have justified dispensing with a hearing in the applicant’s case?
(c) was the principle of adversarial trial respected in the proceedings before the Arbitration Board with regard to the Arbitration Board’s failure to forward the Central Referee Board’s submissions to the applicant and the lack of any opportunity for the applicant to comment on the arguments of the Central Referee Board?
(ii) Assuming that the Arbitration Board cannot be regarded as a “tribunal” under Article 6 § 1 of the Convention, was the right of access to court of the applicant breached on account of his inability to challenge the decision of the Arbitration Board before the domestic courts?
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