CASE OF KURTOĞLU KARACIK AND OTHERS v. TÜRKİYE

SECOND SECTION

CASE OF KURTOĞLU KARACIK AND OTHERS v. TÜRKİYE

(Applications nos. 62622/15 and 7 others)

JUDGMENT
 

STRASBOURG

3 December 2024

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

In the case of Kurtoğlu Karacık and Others v. Türkiye,

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

 Pauliine Koskelo, President,
 Jovan Ilievski,
 Davor Derenčinović, 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 Articles 6 § 1, 8 and 13 of the Convention to the Turkish Government (“the Government”) represented by their then Agent, 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the International Commission of Jurists, who were granted leave to intervene as a third party by the President of the Section under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court;

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

Having deliberated in private on 12 November 2024,

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 judges or prosecutors at different types or levels of courts at the material time, 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 to other cities. They mainly raise an issue under Article 6 of the Convention.

2.  At the material time the applicants in applications nos. 62622/15 and 33659/16, who were married, were serving as rapporteur judges at the Supreme Administrative Court in Ankara.

3.  By a decree of 15 January 2015, the HSYK appointed them as members of Mersin tax court.

4.  On 27 January 2015 the First chamber of the HSYK rejected the applicants’ request for re-examination.

5.  On 13 May 2015 the Plenary chamber of the HSYK dismissed the objection that the applicants had filed against the decision of the First Chamber on the grounds that the applicants’ appointments had been made having regard to their family situation and the needs of the service. On 30 June 2015 these decisions were notified to the applicants.

6.  At the material time the applicant was serving as a public prosecutor at the Ankara Batı court.

7.  By a decree of 15 January 2015, the HSYK appointed him to Kütahya as a public prosecutor.

8.  On 4 February 2015 the First chamber of the HSYK rejected the applicant’s request for re-examination.

9.  On 13 May 2015 the Plenary chamber of the HSYK dismissed the objection that the applicant had filed against the decision of the First Chamber on the grounds that the applicant’s appointment had been made having regard to the needs of the service. On 17 September 2015 this decision was notified to the applicant.

10.  At the material time the applicant was serving as a deputy chief public prosecutor in Bursa.

11.  By a decree of 15 January 2015, the HSYK appointed him to Isparta as a public prosecutor.

12.  On 22 January 2015 the First chamber of the HSYK rejected the applicant’s request for re-examination.

13.  On 13 May 2015 the Plenary chamber of the HSYK dismissed the objection that the applicant had filed against the decision of the First Chamber on the grounds that the applicant’s appointment had been made having regard to the needs of the service. On 25 June 2015 this decision was notified to the applicant.

14.  At the material time the applicant was serving as a public prosecutor at the Court of cassation in Ankara.

15.  By a decree of 18 December 2014, the HSYK appointed him to Malatya as a public prosecutor.

16.  On 15 January 2015 the First chamber of the HSYK rejected the applicant’s request for re-examination.

17.  On 13 May 2015 the Plenary chamber of the HSYK dismissed the objection that the applicant had filed against the decision of the First Chamber on the grounds that the applicant’s appointment had been made having regard to the needs of the service. On 24 June 2015 this decision was notified to the applicant.

18.  At the material time the applicant was serving as a public prosecutor at the Konya regional court of appeal.

19.  By a decree of 15 January 2015, the HSYK appointed him to Küçükçekmece (Istanbul) as a public prosecutor.

20.  On 22 January 2015 the First chamber of the HSYK rejected the applicant’s request for re-examination.

21.  On 13 May 2015 the Plenary chamber of the HSYK dismissed the objection that the applicant had filed against the decision of the First Chamber on the grounds that the applicant’s appointment had been made having regard to the needs of the service. On 27 January 2016 this decision was notified to the applicant.

22.  At the material time the applicants in applications nos. 37816/16 and 37819/16, who were married, were serving as a judge and a public prosecutor respectively at the Bakırköy (Istanbul) court.

23.  By a decree of 12 June 2015 the HSYK appointed them as a judge and a public prosecutor to Elazığ court.

24.  On 10 July 2015 the First chamber of the HSYK rejected the applicants’ request for re-examination.

25.  On 17 February 2016 the Plenary chamber of the HSYK dismissed the objection that the applicants had filed against the decision of the First Chamber on the grounds that the applicants’ appointments had been made having regard to their family situation and the needs of the service. On 3 March 2016 and 1 March 2016 respectively this decision was notified to the applicants.

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

27.  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 Articles 6 § 1 and 13 of the Convention. The applicants further complained of the consequences suffered by them in their private and family lives as a result of their transfer; most of the applicants relied expressly on Article 8 of the Convention in this regard. Finally, the applicants submitted that their objections regarding respect for their private and family lives were not taken into account by the HSYK in the appointment process and the absence of any effective remedy in respect of their Convention complaints. Most applicants expressly invoked Articles 8 and 13 of the Convention in this respect.

THE COURT’S ASSESSMENT

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

29.  Arguing that the applicants had failed to appoint a representative within the given time-limit and that the President of the Section did not take any decision regarding the representation of the applicants, the Government invited the Court to strike the applications out of the list pursuant to Article 37 § 1 of the Convention.

30.  The Court notes that by letters dated 19 April 2022, 14 April 2022, 25 July 2022, 5 April 2022, 25 July 2019, 19 April 2022 and 12 April 2022 (applications nos. 37816/19 and 37819/16) respectively, the applicants informed the Court of the appointment of their representatives by presenting signed authority forms which were included in the case files.

31.  Therefore, the Court rejects the Government’s strike-out request.

32.  The applicants complained about the lack of access to a court to contest their transfer decisions and the absence of an effective remedy in this respect. They relied either expressly or in substance on Articles 6 § 1 and 13 of the Convention.

33.  The Court reiterates that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see Grzęda v. Poland [GC], no. 43572/18, § 352, 15 March 2022). Therefore, master of the characterisation to be given in law to the facts of the case, the Court considers it appropriate to examine the applicants’ complaint solely from the standpoint of Article 6 § 1 of the Convention.

34.  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) – 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 was doubtful and that therefore the exclusion from access to court was justified.

35.  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, cited above, § 261). 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.

36.  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 26 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 were all 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 reasons other than a short reference to the “needs of the service” (see paragraphs 5, 9, 13, 17, 21 and 25 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 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.

37.  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.

38.  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.

39.  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.

40.  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 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.

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

42.  Relying on in substance or invoking Article 8 of the Convention the applicants further complained of the consequences that they claim to have suffered in their private and family lives as a result of their transfers.

43.  The Government objected that the applicants’ complaints under Article 8 of the Convention were incompatible ratione materiae with the provisions of the Convention. They argued that the applicants failed to demonstrate that the consequences of their appointments on their private lives attained the minimum level of severity. Accordingly, Article 8 of the Convention was not applicable in the present case.

44.  The applicants argued that their transfers had significant negative impacts on their private lives. In applications nos. 62622/15 and 33659/16, the applicants, who are spouses, contended that their relocation from Ankara to Mersin disrupted their family life, adversely affected their son’s education and health due to the city’s climate, and imposed financial burdens. In applications nos. 37816/16 and 37819/16, the applicants claimed that their move to Elazığ deprived their children of scholarship opportunities and interrupted their daughter’s medical treatment. The applicant in application no. 62905/15 highlighted concerns about the disruption of medical care for his disabled child due to the relocation to Kütahya, leading moreover to family separation. In application no. 19536/16, the applicant argued that relocating from Konya to Küçükçekmece negatively affected his children’s education and medical needs. The applicant in application no. 1561/16 submitted claims of disrupted medical treatments for his family due to the move to Isparta and separation from his spouse due to her employment in the private sector. Lastly, in application no. 4454/16, the applicant alleged that his son’s ongoing medical treatment in Ankara would suffer due to the relocation, with additional grievances about the timing and impact of the move.

45.  The Court refers to the principles exposed in Denisov v. Ukraine ([GC], no. 76639/11, §§ 100-117, 25 September 2018) as to the applicability of Article 8 to an employment-related dispute between an individual and a State. In this judgment, the Court distinguished between the reason-based approach, under which the Court examines whether there is a private-life issue in the underlying reasons for the impugned measure, and the consequence-based approach, under which the Court analyses the effects of the impugned measure on the individual’s private life. If the latter approach is used, the severity threshold takes on crucial importance and it is for the applicant to show convincingly that the threshold was attained in his or her case. The Court will only accept that Article 8 is applicable ratione materiae where the consequences of a measure are very serious and affect the applicant’s private life to a very significant degree (ibid., § 116).

46.  Turning to the facts of the case, the Court observes that the applicants complain about the effects of their transfers to other cities on their private and family lives. Therefore, the Court notes that it must take the consequence‑based approach in the present case.

47.  The applicants argued that their transfers to different cities could disrupt ongoing medical treatments for themselves or their children. However, they failed to provide substantive evidence or persuasive arguments to demonstrate that the medical care available in their new locations would be inadequate or inappropriate in their circumstances. Insofar as some applicants mentioned educational and professional concerns for their family members, these applicants did not substantiate their claims regarding lack of adequate educational or professional opportunities for their children or their spouses in the new locations. Moreover, the applicants did not clarify why their children could not stay in cities where they were eligible for scholarships.

48.  Regarding the argument concerning the general deterioration of the material well-being of the applicants and of their families due to their transfers, the Court has already held that the pecuniary element of the dispute does not automatically bring the issue within the scope of Article 8 of the Convention (see Denisov, cited above, § 122). The Court further observes that transfers to different locations are an inherent part of the professional duties of judges and prosecutors in Türkiye and are thus a natural aspect of their career trajectory. In the absence of any strong evidence put forward by the applicants to suggest that the change in their living conditions caused by their transfers seriously affected their private and family life, it would be speculative to assume this (see, mutatis mutandis, Gražulevičiūtė v. Lithuania, no. 53176/17, § 103, 14 December 2021).

49.  Accordingly, measuring the applicants’ subjective perceptions against the objective background and assessing the material and non‑material impact of their transfers on the basis of the evidence presented before it (see Denisov, cited above, §§ 117 and 133), the Court considers that the applicants’ transfers had limited negative effects on the applicants’ private and family life and did not reach the threshold of seriousness for an issue to be raised under Article 8 of the Convention.

50.  The Court therefore finds that the Government’s objection in this respect should be upheld, and the applicants’ complaint must be dismissed as incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4.

51.  The applicants also complained in substance or invoking Article 13 of the Convention that their objections regarding respect for their private and family lives were not taken into account by the HSYK in the appointment process and that they did not have an effective remedy in respect of their Article 8 complaints.

52.  The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

53.  Having regard to the considerations which led it to conclude that the applicants’ complaint under Article 8 was incompatible ratione materiae with the provisions of the Convention, the Court considers that the applicants have not presented an “arguable claim” for that grievance which would have required a remedy under Article 13.

54.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

55.  The applicants claimed the following amounts for various items:

- Application no. 62622/15: 14,056 euros (EUR) corresponding to rental fees and her son’s new school fees that the applicant claimed to have paid following her transfer to another city for pecuniary damage, EUR 12,500 for non-pecuniary damage and EUR 2,000 for costs and expenses in support of which she presented a contract concluded with her lawyer and a work time sheet established by her lawyer;

- Application no. 1561/16: EUR 31,994.80 corresponding to the costs of the unpaid leave that the applicant had taken and the accommodation fees he claimed to have paid following his transfer to another city for pecuniary damage, EUR 50 000 for non-pecuniary damage and an unspecified amount for lawyer’s fees in support of which he did not present any document;

- Application no. 4454/16: EUR 10,000 corresponding to moving and his son’s education costs that the applicant claimed to have paid following his transfer to another city for pecuniary damage, EUR 55,000 for non-pecuniary damages and EUR 6,000 for lawyer’s fees in support of which he presented a contract concluded with his lawyer;

- Application no. 19536/16: EUR 100,000 corresponding to housing, transportation and education costs of his family that the applicant claimed to have paid following his transfer to another city for pecuniary damage, EUR 300,000 for non-pecuniary damage and EUR 2,000 for costs and expenses in support of which he submitted a contract concluded with his lawyer;

- Application no. 33659/16: EUR 12,500 for non-pecuniary damage and EUR 2,000 for lawyer’s fees in support of which he presented a contract concluded with his lawyer;

- Applications nos. 37816/16 and 37819/16: EUR 16,000 jointly corresponding to the scholarship that the applicants claimed that their children had been deprived of as a consequence of their transfer to another city for pecuniary damages, EUR 20,000 jointly for non-pecuniary damage and EUR 3,900 for lawyer’s fees in support of which they presented a contract concluded with their lawyer;

The applicant in application no. 62905/15 did not submit any just satisfaction claim.

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

57.  The Court does not discern any causal link between the violation found and the pecuniary damages alleged; it therefore rejects these claims. 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. 62622/15, 4454/16, 19536/16, 33659/16, 37816/16 and 37819/16 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).

58.  Regarding the applicant in application no. 1561/16, 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. As this applicant did not present any document in support of his claim concerning costs and expenses, the Court dismisses that claim (compare also Gülcü and Others, cited above, § 28).

59.  Since the applicant in application no. 62905/15 made no claim for just satisfaction, the Court is not called upon to make any award in this respect.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each of the applicants in applications nos. 62622/15, 4454/16, 19536/16, 33659/16, 37816/16 and 37819/16 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. 1561/16 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 3 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Nationality

Represented by

1.

62622/15

Kurtoğlu Karacık v. Türkiye

10/12/2015

Güneş KURTOĞLU KARACIK
1972
Turkish

Tarık Said GÜLDİBİ

2.

62905/15

Kaya v. Türkiye

08/12/2015

Tayfun KAYA
1973
Turkish

Mehmet KAYA

3.

1561/16

Yılmaz v. Türkiye

21/12/2015

Namık YILMAZ
1967
Turkish

Emine Feyza ASLAN HERDEM

4.

4454/16

Doğru v. Türkiye

21/12/2015

Adem DOĞRU
1971
Turkish

Enes Malik KILIÇ

5.

19536/16

Özcan v. Türkiye

22/03/2016

Neyzen ÖZCAN
1966
Turkish

Zeynep Büşra ÖZCAN KONAKCI

6.

33659/16

Karacık v. Türkiye

03/11/2015

İbrahim KARACIK
1971
Turkish

Tarık Said GÜLDİBİ

7.

37816/16

Can v. Türkiye

15/06/2016

Nalan CAN
1974
Turkish

Mehmet MİRZA

8.

37819/16

Can v. Türkiye

16/06/2016

Hasan CAN
1970
Turkish

Mehmet MİRZA