CASE OF FAZLI ASLANER v. TURKEY [Extracts]

SECOND SECTION

CASE OF FAZLI ASLANER v. TURKEY

(Application no. 36073/04)

JUDGMENT

(Extracts)

STRASBOURG

4 March 2014

FINAL

07/07/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Fazlı Aslaner v. Turkey,

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

Guido Raimondi, President,
Işıl Karakaş,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 28 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 36073/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Fazlı Aslaner (“the applicant”), on 21 June 2004.

2. The applicant was represented by Mr M. Sağlam, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged, in particular, that his right to a fair trial had been infringed.

4. On 4 July 2011 the application was communicated to the Government. It was also decided that the merits of the application would be examined at the same time as its admissibility (Article 29§1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Ankara.

6. In 1993 the applicant, who was a court registrar (zabıt kâtibi) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar (yazı işleri müdürü) at the Ankara State Security Court. However, since his ranking (15th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court.

7. On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court.

8. The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court (“the Administrative Court”).

9. By a judgment of 17 September 1998 the Administrative Court upheld the applicant’s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities’ refusal had had no basis in law.

10. The Ministry of Justice appealed on points of law against that judgment.

6. As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment.

7. On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court (“the Fifth Division”) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field.

8. The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç.

9. On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met.

10. On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court (ısrar kararı).

11. Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu; “the General Assembly”) owing to the resistance of the court of first instance.

12. On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty-two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice-President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division’s judgment of 20 December 2000.

13. On an unspecified date the applicant submitted a request for rectification of the General Assembly’s judgment.

14. On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case.

THE LAW

I. COMPLAINTS ALLEGING A LACK OF IMPARTIALITY ON THE PART OF THE SUPREME ADMINISTRATIVE COURT

15. The applicant alleged that the Supreme Administrative Court benches hearing and determining his case had not been impartial and had therefore infringed his right to a fair hearing as secured by Article 6 of the Convention, the relevant parts of which read as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... ”

16. The Government contested that argument.

172. The Court observes that this complaint breaks down into three branches. The first branch concerns the alleged lack of impartiality on the part of the General Assembly bench which determined the second appeal on points of law, owing to the participation of Ms T.Ç., Mr E.Ç. and Mr M.R.Ü. The second branch relates to the alleged lack of impartiality of the same bench owing to the participation of judges who had sat in the Fifth Division of the Supreme Administrative Court during its consideration of the request for rectification of the judgment. The third branch concerns the alleged lack of impartiality of the General Assembly bench which had determined the request for rectification of the 17 January 2003 judgment owing to the participation of several judges who had already heard and determined the case.

23. The Court considers it necessary to examine the first branch of the complaint separately from the other two.

A. The first branch of the complaint

...

2. Merits

(a) The parties’ submissions

25. The applicant complained that some of the judges who had sat on the bench of the Fifth Division of the Supreme Administrative Court which had delivered the judgment on 20 December 2000 had also sat in the General Assembly. He submitted that those judges could not have been impartial because they had already given their opinion on the merits of the case.

26. The Government contested the applicant’s arguments. They submitted that the first and second appeals on points of law had not concerned the same subjects, even though they had referred to the same case. The Government claimed that the first appeal on points of law had been geared to determining the lawfulness of the Administrative Court’s first judgment, while the second had been intended to verify the lawfulness of the Administrative Court judgment overriding the judgment of the Supreme Administrative Court.

27. The Government added that the judges whose impartiality had been challenged could not have been considered parties to the proceedings because it was not the judgment which these judges had handed down that had been referred to the General Assembly for review, but rather the Administrative Court judgment. The Government added that the General Assembly had not been required to choose between the judgments of the Fifth Division and the Administrative Court and that it had been free to reach a completely different finding, which it had done on many occasions in the past.

28. Lastly, the Government explained that under circumstances similar to those of the present case, the judges who had sat in a division of the Supreme Administrative Court had on occasion changed their minds when sitting in the General Assembly to examine a second appeal on points of law, and that they had joined the position adopted and subsequently upheld by the Administrative Court.

29. Consequently, the Government submitted that the composition of the General Assembly had not infringed the impartiality principle set forth in Article 6 of the Convention.

(b) The Court’s assessment

30. The Court notes that the applicant’s fears regarding a lack of objective impartiality on the part of the General Assembly arise from the fact that three of the judges who sat on the bench in question had previously been involved in examining the first appeal on points of law.

31. The Court reiterates that objective impartiality must be assessed using an approach which, when applied to a body sitting as a bench, involves determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005‑XIII). It adds that in this context even appearances may be of some importance. It follows that when deciding whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those alleging such bias is important but not decisive. What is decisive is whether such fear can be held to be objectively justified (see Gautrin and Others v. France, 20 May 1998, § 58, Reports of Judgments and Decisions 1998‑III). In this connection, the mere fact that a judge has already taken pre-trial decisions cannot in itself be regarded as justifying doubts as to his or her impartiality (see Ökten v. Turkey (dec.), no. 22347/07, 3 November 2011); what matters is the scope of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his or her part that would prevent him or her from being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final assessment has been prejudged (see, for example, Morel v. France, no. 34130/96, § 45, ECHR 2000-VI).

32. In this case, therefore, in the light of all these principles, the Court must decide whether, having regard to the nature and extent of the judicial review required of the General Assembly, the three judges in question displayed, or could legitimately be considered to have displayed, bias with regard to the decision on the merits of the case (see D.P. v. France, no. 53971/00, § 36, ECHR 2004‑I). This would be the case, for instance, where the questions with which they had successively had to deal were similar, or at least if the difference between them was negligible (see, among many other authorities, Kleyn and Others v. Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 201, ECHR 2003‑VI; Indra v. Slovakia, no. 46845/99, §§ 51 to 55, 1 February 2005; Toziczka v. Poland, no. 29995/08, §§ 36 and 42 to 46, 24 July 2012; and Hauschildt v. Denmark, 24 May 1989, § 52, Series A no. 154).

33. In the instant case the Court observes that in the first appeal on points of law, the question considered by the Fifth Division of the Supreme Administrative Court involved reviewing the lawfulness of the judgment of the Administrative Court of 17 September 1998 by determining whether, in the procedures for appointing candidates to positions of head registrar in a judicial district other than the one to which the competitive examination related, the authorities ought to have adhered to the ranking order of the candidates included on the relevant reserve list.

34. The Court notes that following the decision of the Administrative Court to maintain its initial position and therefore to disregard that adopted by the Fifth Division of the Supreme Administrative Court, the case was referred to the General Assembly by means of an appeal on points of law lodged by the authorities. At that stage the question to be determined was not whether the Administrative Court had the right to resist, given that that right had in no way been challenged: the point on which the General Assembly was called upon to adjudicate was the lawfulness not of the second judgment of 1 July 2002 but of the first judgment, which the Administrative Court wished to maintain. In other words, the question to be decided once again concerned the lawfulness of the Administrative Court’s judgment to the effect that the authorities were bound by the ranking order of candidates in the competitive examination, even in respect of appointments in other judicial districts.

35. The Court notes, however, that three of the thirty-one judges who sat in the General Assembly had previously been on the bench of the Fifth Division, and that those three judges had therefore already participated in taking a decision in the same case on the question which they now had to consider. Consequently, they could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits of the second appeal on points of law.

36. Nevertheless, the Court considers that the fact that some judges had previously adopted a particular position is not sufficient in itself to demonstrate that the impartiality of the General Assembly was undermined in the present case.

37. In this kind of situation, as the Court has previously held, it is necessary also to take into account such other factors as the number of judges involved in adopting the aforementioned position and their role on the bench in question.

38. In this connection, the Convention institutions have already dismissed similar complaints on the grounds of the small proportion of judges concerned on benches which take majority decisions (see Ferragut Pallach v. Spain (dec.), no. 1182/03, 28 February 2006; Garrido Guerrero v. Spain (dec.), no. 43715/98, ECHR 2000-III; OOO ‘Vesti’ and Ukhov v. Russia, no. 21724/03, § 83, 30 May 2013; Diennet v. France, 26 September 1995, § 38, Series A no. 325‑A; and Guisset v. France, no. 33933/96, (Plenary) Commission decision of 9 March 1998, Decisions and Reports 92-B p. 138).

39. Furthermore, the Court reiterates that it has already found violations of the right to an impartial tribunal in a number of cases, taking into consideration both the large proportion of judges concerned and their duties as president or rapporteur on the bench (see Cardona Serrat v. Spain, no. 38715/06, § 37, 26 October 2010; Castillo Algar v. Spain, 28 October 1998, §§ 41-53, Reports 1998‑VIII; Perote Pellon v. Spain, no. 45238/99, § 50 in fine, 25 July 2002; and Olujić v. Croatia, no. 22330/05, § 67, 5 February 2009).

40. In the present case the Court holds that the number or proportion of judges concerned by the issue of objective impartiality is not decisive and that considerations of a quantitative nature do not affect the assessment of the question because there were no compelling reasons making it absolutely necessary for the three judges in question to sit on the bench with entitlement to vote.

41. Moreover, the Court observes that Ms T.Ç., one of the three judges in question, in her capacity as Vice-President of the Supreme Administrative Court, presided over the General Assembly and that she therefore led the discussions during the proceedings, which constitutes an additional circumstance incompatible with the appearance of impartiality.

42. These two factors are such as to objectively justify the applicant’s concerns regarding the objective impartiality of the General Assembly as it was composed in the instant case.

43. There has accordingly been a violation of Article 6 of the Convention under this head.

...

FOR THESE REASONS, THE COURT

...

2. Holds by four votes to three, that there has been a violation of Article 6 of the Convention;

Done in French, and notified in writing on 4 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi              Registrar              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Raimondi, Karakaş and Keller is annexed to this judgment.

G.R.A.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES RAIMONDI, KARAKAŞ AND KELLER

(Translation)

1. We disagree with the majority position to the effect that in the present case there was a violation of Article 6 § 1 of the Convention. Firstly, we take the view that the case-law of the Court does not provide a sufficient basis for the conclusions reached by the majority. Secondly, we consider the Court’s reasoning set out in paragraph 40 of the judgment excessively strict.

Case-law

2. The assessment of the impartiality of a body sitting as a bench does not depend on a straightforward numerical analysis. However, it is difficult to find precise criteria on this matter in the Court’s case-law.

3. The instant case raises two questions: firstly, was there a lack of objective impartiality on the part of the General Assembly owing to the fact that three of the judges who sat on the bench in question had previously been involved in examining the first appeal on points of law? Secondly, was the assessment of objective impartiality altered by the fact that one of the judges previously involved in examining the case presided over the General Assembly?

4. In connection with the first question, we note that in a number of cases the Court has dismissed complaints similar to those submitted by the applicant on the grounds of the small proportion of judges concerned sitting on the bench in question. This was the case, for example, in Diennet v. France (no. 18160/91, 26 September 1995, § 38, Series A no. 325‑A), in which it held that “no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision”, in Ferragut Pallach v. Spain ((dec.) no. 1182/03, 28 February 2006) and in Garrido Guerrero v. Spain ((dec.) no. 43715/98, ECHR 2000-III), in which it held that there was no justification for fearing a lack of impartiality because one of the judges on the bench had previously sat in the chamber which had ruled on the case. By the same token, in a more recent case (see OOO ‘Vesti’ and Ukhov v. Russia, no. 21724/03, 30 May 2013, §§ 82‑85), the Court held that prior participation in the proceedings against the applicant by the president of a three-judge bench did not infringe the latter’s impartiality under Article 6 § 1.

5. It is true that in other cases the Court has found a violation of Article 6 § 1. However, this finding was based both on the large proportion of judges concerned and on the fact that they had discharged the duties of president or judge rapporteur in the body sitting as a bench (see § 39 of the judgment). In Cardona Serrat v. Spain (no. 38715/06, 26 October 2010, §§ 37-38), for instance, it held that in the particular circumstances of the case, the objective impartiality of the trial court might appear questionable because two of the three members of the division which had convicted the applicant, including its president, had previously implemented investigative measures in respect of him. Similarly, in Perote Pellon v. Spain (no. 45238/99, 25 July 2002, § 51) and Castillo Algar v. Spain (no. 28194/95, 28 October 1998, §§ 46 et 50), the Court considered that the trial court’s impartiality could give rise to serious doubts because two of the five judges on the bench, including the president and the reporting judge, had previously been involved in investigative measures taken in respect of the applicant

6. Given the small proportion of judges concerned in the present case, that is to say three judges out of a total of thirty-one, the case has more in common with the first category of cases than with the second (see paragraph 4 above).

7. Where the second question is concerned, it should be noted that the role of the president in the instant case was confined to leading the discussions. Under the Turkish system, the president of the bench is primus inter pares. In other words he or she does not have any greater administrative or other powers than the other judges of the Supreme Administrative Court. His or her role is confined to leading the discussions and deciding on which items a vote must be taken during the proceedings.

8. Consequently, we consider that the number of judges concerned by a possible lack of objective impartiality, namely three out of thirty-one judges, is negligible, even though one of those judges was serving as president.

Reasoning

9. The majority’s main line of reasoning is set out in paragraph 40 of the judgment. In a departure from its previous case-law, the Court now establishes an extremely strict new criterion under which the decisive point is not the number or proportion of the judges concerned by a possible lack of objective impartiality but whether or not there is a compelling reason making it absolutely necessary for those judges to be members of the bench with entitlement to vote.

10. We find this “absolute necessity” criterion particularly problematic. This is the first time the Court has used such a criterion. Furthermore, the majority explain neither the reasons why such a new concept is needed nor what is meant by “absolutely necessary”. While it is easy to imagine cases where the participation of a particular judge might be necessary, we find it difficult to conceive of situations in which this necessity would be absolute. It should be noted here that even our Court would find it difficult to comply with this criterion: where a case is referred to the Grand Chamber, the national judge is also part of the Grand Chamber, even though he or she has already pronounced on the case as a member of the Chamber. It could hardly be contended that his or her participation in the Grand Chamber is absolutely necessary.

11. It might be useful here to point out that the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court is the highest judicial authority in Turkey in matters of administrative law, and that its decisions are binding on all administrative courts, including the divisions of the Supreme Administrative Court. It is therefore unsurprising that all the senior judges who are members of the judicial divisions of the Supreme Administrative Court sit in the General Assembly in order to consolidate even further and more effectively the authority and legitimacy of this high judicial body’s decisions. Moreover, the result of the voting (twenty-two votes to nine) makes it clear that the abstention of the three judges in question or their participation without entitlement to vote would not have altered the outcome of proceedings.

12. We therefore consider that in the instant case there was no violation of Article 6 § 1.

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