CASE OF GÜLCÜ AND OTHERS v. TÜRKİYE

SECOND SECTION

CASE OF GÜLCÜ AND OTHERS v. TÜRKİYE

(Applications nos. 37013/15 and 49 others)

JUDGMENT
 

STRASBOURG

23 April 2024

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

In the case of Gülcü and Others v. Türkiye,

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

 Egidijus Kūris, President,
 Pauliine Koskelo,
 Frédéric Krenc, 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 fifty Turkish nationals, whose relevant details are listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning access to a court to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, 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 decision to reject the Government’s objection to the examination of the applications by a Committee;

the parties’ observations;

Having deliberated in private on 26 March 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applications concern the applicants’ alleged inability to have recourse to judicial review of the decisions of the High Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu –hereinafter “the HSYK”) to transfer them without their consent either to other cities or, in the case of the applicant in application no. 56732/15, Mr Seyfullah Çakmak, to transfer him without his consent from the office of public prosecutor at the Court of Cassation to the position of judge rapporteur at the same court. They raise an issue under Article 6 of the Convention.

2.  At the material time, the applicants were serving as judges or prosecutors at different types or levels of courts. On various dates in 2014 and 2015 the HSYK transferred the applicants to posts in different cities by means of a collective decree. In application no. 56732/15, the HSYK assigned the applicant to two different posts in a year within the same city. He was firstly transferred without his consent from the HSYK where he held office to the position of public prosecutor at the Court of Cassation, and then nine months later he was appointed as rapporteur judge at the same court.

3.  The applicants applied to the HSYK for a review of its decisions, but all applications, except the one lodged by the applicant in application no. 5588/16, Mr Talip Karakuş, were rejected by the same body.

4.  Mr Karakuş, who had held the post of public prosecutor in Ankara, was first transferred to a post of public prosecutor in Mardin. He objected to his transfer and asked for the revocation of this decision, arguing that his family would not be able to relocate with him as his daughter was attending high school in Ankara and that such relocation would adversely affect his family life, as well as their financial situation. In his objection, he also suggested a transfer either to Eskişehir or Konya (neighbouring cities to Ankara) as an alternative to remaining in his original post. Upon his objection, the HSYK did not revoke but amended its decision and transferred him to a post of public prosecutor in Düzce.

5.  All applicants, except the applicant in application no. 5576/16, Mr Ahmet Hamdi Bayar, filed an objection with the HSYK’s Objections Board (İtirazlari İnceleme Kurulu) against the decisions taken by the HSYK on review. On various dates, the Objections Board dismissed the applicants’ objections. The decisions of the Objections Board were final. No appeal could be lodged against those decisions with an administrative or judicial authority.

6.  The applicants complained that they did not have access to a court to challenge the HSYK’s decision to transfer them. Most of them relied expressly on Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

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

8.  In their observations submitted in respect of applications nos. 37013/15, 62803/15, 3011/16, 5613/16, 5623/16, 6456/16, 6629/16, 18846/16, 37613/16, 40017/16 and 15431/17, the Government argued that the applicants in those cases had failed to appoint a representative, and unless the President of the Section had granted leave to those applicants to represent themselves before the Court, the Court should not examine their cases. Accordingly, the Government invited the Court to strike the applications out of its list of cases, under Article 37 § 1 (a) of the Convention.

9.  The Court notes that at the time the Government were given notice of the applications, the President of the Section granted leave to the applicants who were not represented by a lawyer to present their own case before the Court, in application of Rule 36 § 2 of the Rules of Court. That being the case, the requirements of Article 37 § 1 (a) are not met and the Government’s request must accordingly be dismissed.

10.  The Government firstly argued 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) – consisting of 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 were doubtful and that therefore the exclusion from access to court was justified. The Government particularly noted that those applicants who were presidents of assize courts, chief public prosecutors and heads of commissions of justice (see applications nos. 41406/15, 51860/15, 62003/15, 5576/16, 5623/16 and 6629/16) at the material time, assumed important administrative powers and responsibilities in the judiciary.

11.  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. In the light of the guarantees for safeguarding the independence of the judiciary, the Court found that it would not be justified to exclude members of the judiciary from the protection of Article 6 of the Convention in matters concerning the conditions of their employment on the basis of the special bond of loyalty and trust to the State. In reaching that finding, the Court stated that, while the employment relationship between a civil servant and the State can traditionally be defined as one based on trust and loyalty to the executive branch in so far as employees of the State are required to implement government policies, the same does not hold true for the members of the judiciary, who play a different and more independent role because of their duty to provide checks on government wrongdoing and abuse of power (ibid., § 79, see also Kövesi v. Romania, no. 3594/19, § 124, 5 May 2020 where the Court noted that the absence of judicial review regarding removal from office of the chief prosecutor by the executive could not be in the interest of the State within the meaning of the second condition of the Eskelinen test). Furthermore, in a case regarding the absence of judicial review of a premature termination of a serving judge’s mandate as member of the National Council of the Judiciary, the Court noted that judicial independence should be understood in an inclusive manner and apply not only to a judge in his or her adjudicating role, but also to other official functions that a judge may be called upon to perform that are closely connected with the judicial system (see Grzęda, cited above, § 303 and the opinions of the Consultative Council of European Judges “CCJE” cited therein).

12.  Turning to the present case and applying the Eskelinen test, access to court in the applicants’ situation was expressly ruled out by national law. 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 administrative functions they assumed, all of the applicants had the status of judges and prosecutors and were all endowed with constitutional guarantees for the independence of the judiciary (see Eminağaoğlu v. Turkey, no. 76521/12, § 125, 9 March 2021). At the time when the applicants lodged requests for review of the decisions to transfer them, the HSYK gave no reasons other than a short reference to the “needs of the service”, 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 coup attempt 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 showing 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.

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

14.  Secondly, the Government submitted that the applicant Mr Talip Karakuş (application no. 5588/16) did not have victim status since the HSYK had upheld the applicant’s review request and decided to transfer him from Ankara to Düzce instead of Mardin.

15.  The Court reiterates the principles governing the victim status of an applicant (see, inter alia, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012).

16.  The Court observes that the original decree of the HSYK transferred the applicant from Ankara to Mardin. The applicant objected to the decision, arguing that his family would not be able to relocate with him as his daughter was attending high school in Ankara and that such relocation would adversely affect his family life, as well as their financial situation. The HSYK did not revoke the applicant’s transfer but decided to transfer him to Düzce instead, despite the applicant having made no such request. Indeed, upon that decision the applicant lodged an objection with the Objections Board of the HSYK, which was dismissed.

17.  The Court notes that the applicant’s transfer to Düzce did not have the outcome of removing the effects of the impugned transfer. It did not entail an acknowledgement that there had been any breach of the applicant’s rights, nor did it afford redress for that breach. Accordingly, that decision does not deprive the applicant of his status as a “victim” of an alleged breach of Article 6 of the Convention. The Court therefore dismisses the Government’s objection on this point.

18.  Lastly, the Government raised a plea of non-exhaustion of domestic remedies, arguing that the applicant in application no. 5576/16 had not filed an objection with the Objections Board against the decision of the HSYK to dismiss his request for a review of the decision to transfer him to Mersin.

19.  The Court has already examined a similar objection in previous cases and dismissed it, noting that an objection before the Objections Board could not be considered an effective remedy, in particular because those who had rendered the original decision which was the subject of the objection sat also on the Objections Board (see Bilgen, ibid., §§ 87-88 and the cases cited therein). The Court discerns no element in the present case capable of persuading it to reach a different conclusion. Accordingly, the Court dismisses the Government’s objection in this regard.

20.  The Court notes that the applicants’ 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.

21.  In the leading case of Bilgen (cited above, §§ 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.

22.  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 complaints. 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 transfer the applicant judges and prosecutors did not pursue any legitimate aim and that, accordingly, the very essence of the applicants’ right of access to a court was impaired.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  All applicants, except for the applicant in application no. 17651/16, requested compensation in varying amounts in respect of non‑pecuniary damage, within the time-limit allotted. The applicants in applications nos. 37013/15, 1441/16, 1447/16, 3011/16, 5623/16, 19288/16, 19642/16, 37611/16, 37613/16, 40017/16 and 17651/16 did not submit a claim for costs and expenses, whereas the remaining applicants claimed various amounts under that head. Lastly, most of the applicants in question also claimed pecuniary damages.

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

26.  For the reasons put forth in Bilgen (cited above, § 102), the Court rejects any claims for pecuniary damage.

27.  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, save for the applicants in applications nos. 37013/15, 1441/16, 1447/16, 3011/16, 5623/16, 19288/16, 19642/16, 37611/16, 37613/16, 40017/16 and 17651/16 a lump sum of 2,500 euros (EUR), covering non‑pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount.

28.  Regarding the applicants in applications nos. 37013/15, 1441/16, 1447/16, 3011/16, 5623/16, 19288/16, 19642/16, 37611/16, 37613/16 and 40017/16, ruling on the basis of equity, the Court awards each of them EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. These applicants made no claim for costs and expenses. The Court is therefore not called upon to make any awards in this respect.

29.  Concerning the applicant in application no. 17651/16, on 20 January 2023 the Court invited the applicant to submit his claims for just satisfaction by 3 March 2023. The applicant did not submit any such claims within the time-limit fixed by the Court. The Court, therefore, makes no award under Article 41 of the Convention (see, for example, A.R., spol. s r.o. v. Slovakia, no. 13960/06, §§ 62-65, 9 February 2010, with further references).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each of the applicants, save for the applicants in applications nos. 37013/15, 1441/16, 1447/16, 3011/16, 5623/16, 19288/16, 19642/16, 37611/16, 37613/16, 40017/16 and 17651/16, 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 each of the applicants in applications nos. 37013/15, 1441/16, 1447/16, 3011/16, 5623/16, 19288/16, 19642/16, 37611/16, 37613/16 and 40017/16, 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 23 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Egidijus Kūris
 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.

37013/15

Gülcü v. Türkiye

19/07/2015

Kadir GÜLCÜ
1968
İzmir
Turkish

2.

41406/15

Yılmaz v. Türkiye

07/08/2015

Özcan Ahmet YILMAZ
1969
Sakarya
Turkish

Tarık Said GÜLDİBİ

3.

51860/15

Varol v. Türkiye

02/10/2015

Muhammet VAROL
1979
Samsun
Turkish

İlyas TEKİN

4.

53289/15

Karasu v. Türkiye

12/10/2015

Akar KARASU
1962
İzmir
Turkish

Serkan CENGİZ

5.

53683/15

Varol v. Türkiye

14/10/2015

Esra VAROL
1982
Samsun
Turkish

İlyas TEKİN

6.

56732/15

Çakmak v. Türkiye

26/10/2015

Seyfullah ÇAKMAK
1971
Kocaeli
Turkish

Gökhan DİRİCAN

7.

59249/15

Aydın v. Türkiye

06/11/2015

Mahmut AYDIN
1967
Denizli
Turkish

İbrahim KOCAOĞUL

8.

59294/15

Göçer v. Türkiye

09/11/2015

Serdar GÖÇER
1974
Tekirdağ
Turkish

Mehmet ÖNCÜ

9.

61893/15

Bilgen v. Türkiye

10/12/2015

Rasim İsa BİLGEN
1968
Kocaeli
Turkish

Fatma Ayça ARSLAN

10.

62003/15

Bingöl v. Türkiye

10/12/2015

Bülent BİNGÖL
1968
İstanbul
Turkish

Taner ÜNLÜ

11.

62803/15

Onuk v. Türkiye

07/12/2015

Mustafa ONUK
1968
İzmir
Turkish

12.

1441/16

Kara v. Türkiye

09/12/2015

Nazım KARA
1966
İstanbul
Turkish

Ahmet KARA

13.

1447/16

Kara v. Türkiye

09/12/2015

Hatice KARA
1968
Ankara
Turkish

Ahmet KARA

14.

3011/16

Güllük v. Türkiye

21/12/2015

Sıddık GÜLLÜK
1978
Afyonkarahisar
Turkish

15.

4364/16

Albayrak v. Türkiye

10/12/2015

Bülent ALBAYRAK
1970
Ankara
Turkish

Arzu BEYAZIT

16.

5046/16

Altınyüzük v. Türkiye

30/12/2015

Zülfikar ALTINYÜZÜK
1971
Gaziantep
Turkish

Mehmet ARI

17.

5327/16

Durnagöl v. Türkiye

02/12/2015

Engin DURNAGÖL
1969
İstanbul
Turkish

Mehmet ARI

18.

5576/16

Bayar v. Türkiye

21/12/2015

Ahmet Hamdi BAYAR
1978
Mersin
Turkish

Mehmet ARI

19.

5588/16

Karakuş v. Türkiye

21/12/2015

Talip KARAKUŞ
1969
Ankara
Turkish

Tarık Said GÜLDİBİ

20.

5613/16

Şentürk v. Türkiye

23/12/2015

İsmail Hakkı ŞENTÜRK
1969
Ankara
Turkish

Mehmet ARI

21.

5623/16

Taze v. Türkiye

22/12/2015

Mehmet TAZE
1977
Ankara
Turkish

22.

6456/16

Yalçın v. Türkiye

29/01/2016

Hasan YALÇIN
1969
Ankara
Turkish

23.

6600/16

Oruç v. Türkiye

22/12/2015

Hakan ORUÇ
1968
İstanbul
Turkish

Gamze AKSOY

24.

6629/16

Küçük v. Türkiye

15/01/2016

Yalçın KÜÇÜK
1983
Trabzon
Turkish

Mehtap SERT

25.

10046/16

Akar v. Türkiye

13/01/2016

Mustafa AKAR
1969
Ankara
Turkish

Rümeysa BUDAK

26.

17651/16

Şanal v. Türkiye

08/03/2016

Osman ŞANAL
1972
Düzce
Turkish

Murat ŞANAL

27.

18846/16

Mutlu v. Türkiye

08/03/2016

Erol MUTLU
1971
Bursa
Turkish

28.

19288/16

Apaçık v. Türkiye

04/04/2016

Figen APAÇIK
1970
Konya
Turkish

Arif Bahadır APAÇIK

29.

19642/16

Apaçık v. Türkiye

04/04/2016

Ramazan APAÇIK
1968
Konya
Turkish

Arif Bahadır APAÇIK

30.

21179/16

Peker v. Türkiye

04/04/2016

Mustafa PEKER
1971
Ankara
Turkish

Tarık Said GÜLDİBİ

31.

21631/16

Aygör v. Türkiye

05/04/2016

Dursun AYGÖR
1965
Bursa
Turkish

Asiye KAHYA

32.

21646/16

Toklucu v. Türkiye

06/04/2016

Vahdettin TOKLUCU
1973
Sivas
Turkish

Mehmet ARI

33.

33119/16

Demircan v. Türkiye

30/05/2016

Talip DEMİRCAN
1978
İstanbul
Turkish

Nurhan ÖZDURAN

34.

35104/16

Yıldız v. Türkiye

24/05/2016

Osman Nesuh YILDIZ
1978
Elazığ
Turkish

Mehmet ARI

35.

36402/16

Mortaş v. Türkiye

17/06/2016

Süleyman MORTAŞ
1969
Kocaeli
Turkish

Murat YILMAZ

36.

37611/16

Bahadır v. Türkiye

07/06/2016

Mehmet BAHADIR
1976
Istanbul
Turkish

Neslihan Serpil BAHADIR

37.

37613/16

Bahadır v. Türkiye

07/06/2016

Neslihan Serpil BAHADIR
1977
Istanbul
Turkish

38.

38442/16

Çağlar v. Türkiye

24/06/2016

Sait ÇAĞLAR
1970
Ankara
Turkish

Fatma Zarif TUNÇ

39.

40017/16

Saral v. Türkiye

29/06/2016

Süleyman SARAL
1974
Istanbul
Turkish

40.

40022/16

Birsen v. Türkiye

01/07/2016

Derya BİRSEN
1986
Antalya
Turkish

İshak IŞIK

41.

40579/16

Artun v. Türkiye

30/06/2016

Ramazan ARTUN
1973
Kocaeli
Turkish

Murat YILMAZ

42.

41303/16

Birsen v. Türkiye

01/07/2016

İsmail BİRSEN
1984
Antalya
Turkish

İshak IŞIK

43.

41434/16

Özgelen v. Türkiye

01/07/2016

Mustafa Safa ÖZGELEN
1964
Ankara
Turkish

Elif Nurbanu OR

44.

42014/16

Orta v. Türkiye

30/06/2016

Mesut ORTA
1970
İzmir
Turkish

Gülay ORTA

45.

42510/16

Yalçıntaş v. Türkiye

01/07/2016

Habib Hüdai YALÇINTAŞ
1972
Tekirdağ
Turkish

Mehmet MİRZA

46.

42519/16

Taşkın v. Türkiye

01/07/2016

Nihat TAŞKIN
1971
İzmir
Turkish

Nurcan TAŞKIN DİLEK

47.

56847/16

Dogan v. Türkiye

02/09/2016

Fazlı DOĞAN
1965
Van
Turkish

Mehmet ÖNCÜ

48.

58970/16

Durmuş v. Türkiye

26/08/2016

Ahmet DURMUŞ
1988
Isparta
Turkish

Eda MOROĞLU

49.

63914/16

Kocabeyoğlu v. Türkiye

29/09/2016

Hasan Nafi KOCABEYOĞLU
1975
Montlebon
Turkish

Mehmet ARI

50.

15431/17

Adem v. Türkiye

26/01/2017

Alpay ADEM
1977
Şanlıurfa
Turkish

Mehmet ARI