CASE OF BENLİ AND OTHERS v. TÜRKİYE

SECOND SECTION

CASE OF BENLİ AND OTHERS v. TÜRKİYE

(Applications nos. 59262/15 and 5 others)

JUDGMENT
 

STRASBOURG

11 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of Benli and Others v. Türkiye,

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

 Jovan Ilievski, President,
 Anja Seibert-Fohr,
 Stéphane Pisani, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications 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”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning Article 6 § 1 of the Convention to the Turkish Government (“the Government”) represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 21 January 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern the alleged inability of the applicants, who were serving as rapporteur judges or chief inspectors at the High Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu – hereinafter “the HSYK”) or the Ministry of Justice, to have recourse to judicial review of the decisions of the HSYK to remove them from their positions and to transfer them without their consent to other cities. They raise an issue under Article 6 of the Convention.

2.  At the material time, the applicants in applications nos. 59262/15 and 9335/16 were serving as rapporteur judges respectively at the Ministry of Justice and at the HSYK, and the other applicants were serving as chief inspectors at the HSYK.

3.  By a decree of 19 November 2014, the Plenary Assembly of the HSYK decided to request that its First Chamber reassign the applicants in applications nos. 62546/15, 63089/15, 670/16, 9335/16 and 11395/16 to other positions compatible with their status. These applicants’ requests for re‑examination of this decision were dismissed by the Plenary Assembly of the HSYK in a decision of 10 June 2015. This decision was notified to the applicant in application no. 62546/15 on 1 September 2015, to the applicants in applications nos. 63089/15 and 670/16 on 2 September 2015, to the applicant in application no. 9335/16 on 7 August 2015 and to the applicant in application no. 11395/16 on 9 September 2015.

4.  As for the applicant in application no. 59262/15, the then Minister of Justice requested that the HSYK, on 25 November 2014, reassign the applicant to other appropriate positions, alongside other judicial personnel.

5.  By a decree of 27 November 2014, the First Chamber of the HSYK appointed the applicant in application no. 59262/14 to Diyarbakır as a judge, and the other applicants as prosecutors respectively to Edirne, Samsun, Kırıkkale, Kozan (Adana) and Afyonkarahisar.

6.  On 18 December 2014 the First Chamber of the HSYK accepted the request of the applicant in application no. 670/16 to be appointed to Samsun instead of Kırıkkale, while it rejected the other applicants’ requests for re‑examination. The latter applicants challenged this decision before the Plenary Assembly of the HSYK, which dismissed these objections on 13 May 2015 on the grounds that the points raised by the applicants had not been found relevant. This decision was notified to the applicants in applications nos. 59262/15 and 63089/15 on 25 June 2015 and to the applicant in application no. 62546/15 on 29 June 2015.

7.  The decisions of the Plenary Assembly of the HSYK were final. No appeal could be lodged against those decisions with an administrative or judicial authority.

8.  The applicants complained that they did not have access to a court to challenge the HSYK’s decision to remove and transfer them from their positions. They relied expressly or in substance on Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

9.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

10.  The Government argued that the applicant in application no. 59262/15 did not submit his written observations and just satisfaction claims within the time-limit set by the Court. They therefore invited the Court to strike out the case under Article 37 § 1 (a) of the Convention, on the grounds that the applicant did not intend to pursue his application, or, alternatively, to disregard his late submissions.

11.  The Court notes that by a letter of 12 August 2024, the Court, considering that the delay in the applicant’s submission sent by a letter of 11 July 2024 had been justified, agreed to include the applicant’s observations in the case file. In his letter, the applicant had confirmed his intention to pursue his application.

12.  The Court therefore rejects the Government’s request to strike the application out of its list of cases.

13.  The applicants complained, under Article 6 § 1 of the Convention, that they had been denied access to a court in order to contest the HSYK’s decisions to remove and transfer them from their positions. All applicants except for the applicant in application no. 59262/15 complained about the decision of the Plenary Assembly of the HSYK of 10 June 2015 (see paragraph 3 above). The applicant in application no. 59262/15, as well as the applicants in applications nos. 62546/15 and 63089/15 complained of the decision of the Plenary Assembly of the HSYK of 13 May 2015 (see paragraph 6 above).

14.  The Government alleged that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention.

15.  The Government argued firstly that Article 6 of the Convention was not applicable to the procedure before the HSYK as the decisions taken by that body concerned members of the judiciary and could therefore not be qualified as “civil”. They argued, in particular, that the second condition of the test set out in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II) – namely the existence of an objective justification for the exclusion of civil servants from the protection embodied in Article 6 in the State’s interest – was met. They indicated that, following the attempted coup d’état in July 2016, all of the applicants had been dismissed from office for having connections or affiliation with an armed terrorist organisation, the “Fetullahist Terror Organisation/Parallel State Structure” (Fetullahçı Terör Örgütü/Paralel Devlet Yapılanması, hereinafter referred to as “the FETÖ/PDY”, considered by the authorities to be behind the coup attempt). Accordingly, the Government argued that, unlike in Bilgen v. Turkey (no. 1571/07, 9 March 2021), the applicants’ loyalty to the rule of law and democracy was doubtful and that therefore the exclusion from access to court was justified.

16.  The Court reiterates that civil servants can only be excluded from the protection embodied in Article 6 if the State, in its national law, excluded access to a court for the category of staff in question and if this exclusion was justified on objective grounds in the State’s interest (see, more recently, Grzęda v. Poland [GC], no. 43572/18, § 261, 15 March 2022). The Court points out that it concluded in Bilgen (cited above, §§ 76-81) that Article 6 was applicable to the decision to transfer the applicant judge to another court in a lower-ranking judicial district against his will, as the second condition laid down in Vilho Eskelinen (cited above) was not met.

17.  Turning to the present case and applying the Eskelinen test, access to court in the applicants’ situation was expressly ruled out by national law (see paragraph 7 above). Furthermore, the exclusion was not justified on objective grounds in the State’s interest. The Court observes that at the material time, irrespective of the specific functions they assumed, all of the applicants had the status of judges and prosecutors and all were endowed with constitutional guarantees for the independence of the judiciary (see Eminağaoğlu v. Turkey, no. 76521/12, §§ 78, 122-23 and 125, 9 March 2021). At the time when the applicants lodged requests for review of the decisions to transfer them, the HSYK gave no specific reasons (see paragraphs 3 and 6 above), which leads to the conclusion that the dispute did not concern any exceptional or compelling reasons that could justify its exclusion from judicial review (see also Bilgen, cited above, § 80). Concerning the Government’s argument that the existence of members of the FETÖ/PDY in the judiciary had become apparent shortly before the impugned transfers and that the applicants were dismissed from office subsequent to the attempted coup for having a connection or affiliation with the FETÖ/PDY, the Court cannot take into account this ex post facto justification in the absence of any individualised reasoning provided by the HSYK at the material time. In this connection there is no element in the case file to show that, at the material time, the HSYK took any action (such as initiation of disciplinary investigations) to inquire into such serious accusations against the applicants and accordingly decided to transfer them as a result of such actions.

18.  In these circumstances the Court considers that Article 6 applies under its civil head and that the Government’s objection concerning the applications’ incompatibility ratione materiae with the provisions of the Convention must be dismissed.

19.  The Government argued that the applicant’s appointment as a judge to Diyarbakır was made upon the proposal of the Minister of Justice and was, therefore, an administrative act subject to review before administrative courts.

20.  The Court notes that the applicant’s appointment was decided by the First Chamber of the HSYK in its decision of 27 November 2014. The First Chamber and the Plenary Assembly of the HSYK dismissed the applicant’s requests for re-examination on 18 December 2014 and 13 May 2015, respectively.

21.  Since the applicant’s complaint concerns the decisions of the HSYK, and not the proposal of the Minister of Justice, the Court dismisses the Government’s objection regarding the exhaustion of domestic remedies.

22.  The Government contested the applicant’s victim status in application no. 670/16, on the grounds that he was reassigned to Samsun instead of Kırıkkale as he requested, following his objection to the decision of the First Chamber of the HSYK dated 27 November 2014.

23.  The Court notes that the applicant’s complaint concerns not only his reassignment to Samsun, but the entire transfer process starting with the HSYK Plenary Assembly’s decision on 19 November 2014 to reassign him to an unspecified position while he was working as chief inspector at the HSYK. The Court further notes that the applicant contested both that reassignment and the Plenary Assembly’s earlier decision. While his objection to the First Chamber’s decision led to his reassignment to Samsun, his challenge to the Plenary Assembly’s decision was rejected by a final decision of 10 June 2015. In any case, the applicant was removed from his previous post as chief inspector at the HSYK without his consent and reassigned to a position in another city.

24.  The Court concludes that in these circumstances the applicant can be considered a victim of the measure consisting of transferring him from his previous post at the HSYK to another city without his consent. It therefore dismisses this objection as well.

25.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

26.  In the leading case of Bilgen (cited above, §§ 69-81 and §§ 91-97), the Court already found a violation of Article 6 § 1 of the Convention in respect of the absence of a judicial review of the non-voluntary transfer of a member of the judiciary.

27.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the present complaint. It notes that, taking into account the strong public interest in upholding the independence of the judiciary and the rule of law, the impugned absence of a judicial review of the decisions of the HSYK to remove and transfer the applicant judges and prosecutors from their former positions did not pursue any legitimate aim and that, accordingly, the very essence of the applicants’ right of access to a court was impaired.

28.  It therefore finds that there has been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  With regard to pecuniary damage, the applicants in applications nos. 62546/15, 63089/15, 670/16 and 11395/16 submitted that as a result of the impugned measure they had lost part of their salary, or the substantial allowances to which they had been entitled (travel allowances in relation to their duties and public housing). They each claimed in this respect 20,000 euros (EUR).

30.  In respect of non-pecuniary damage, they invoked the distress that they had allegedly suffered as a result of the actions taken against them. The applicants in applications nos. 59262/15 and 9335/16 claimed EUR 10,000 and EUR 40,000 respectively, and each of the remaining applicants EUR 12,500.

31.  With regard to costs and expenses, the applicants in applications nos. 59262/15, 62546/15, 63089/15, 670/16 and 11395/16 claimed representation fees. In support of their claims, the applicant in application no. 59262/15 submitted a legal representation contract indicating the amount of EUR 2,800, the applicant in application no. 670/16 submitted a contract without specifying any amount and the remaining applicants submitted contracts indicating EUR 2,000 as the amount to be paid to their lawyers. The applicants claiming further compensation did not submit any supporting documents.

32.  The Government contested the applicants’ claims as being unsubstantiated and excessive.

33.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims.

34.  However, regarding the applicants’ claims for non-pecuniary damage and costs and expenses, the Court finds it appropriate to rule in equity and make a global and uniform assessment in that respect. Having regard to the material in its possession, its case-law and the nature of the legal issues examined in the present case, it considers it reasonable to award each of the applicants in applications nos. 59262/15, 62546/15, 63089/15, 670/16 and 11395/16 a lump sum of EUR 2,500, covering non‑pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount (compare also Gülcü and Others v. Türkiye [Committee], nos. 37013/15 and 49 others, § 27, 23 April 2024).

35.  Regarding the applicant in application no. 9335/16, ruling on the basis of equity, the Court awards him EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount (compare also Gülcü and Others, cited above, § 28).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each of the applicants in applications nos. 59262/15, 62546/15, 63089/15, 670/16 and 11395/16, within three months, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that the respondent State is to pay the applicant in application no. 9335/16, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 11 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

59262/15

Benli v. Türkiye

18/11/2015

Salih BENLİ
1976
Ankara
Turkish

Kamile KILDAN

2.

62546/15

Gül v. Türkiye

15/12/2015

Cevat GÜL
1970
Ankara
Turkish

Tarık Said GÜLDİBİ

3.

63089/15

Yılmaz v. Türkiye

19/12/2015

Mustafa YILMAZ
1969
Samsun
Turkish

Mustafa Emre ŞAHİN

4.

670/16

Köse v. Türkiye

22/12/2015

Eşref KÖSE
1974
Samsun
Turkish

Yılmaz PARILTI

5.

9335/16

Cengiz v. Türkiye

04/02/2016

Bilal CENGİZ
1981
Adana
Turkish

6.

11395/16

Hendek v. Türkiye

22/02/2016

Hasan HENDEK
1972
Istanbul
Turkish

Tarık Said GÜLDİBİ