Published on 11 December 2023
SECOND SECTION
Application no. 27316/16
Tahsin TOSUN
against Türkiye
lodged on 6 May 2016
communicated on 20 November 2023
SUBJECT MATTER OF THE CASE
The application concerns the proceedings in which the applicant’s promotion to the “reserved for first-grade administrative judge,” which took effect from December 2014, was contested by the Minister of Justice (“Minister”) before the Council of Judges and Prosecutors. It appears that the Minister had previously complained about a ruling in which the applicant had participated in his capacity as an administrative court judge and had requested the opening of a disciplinary investigation. On 7 October 2015 the General Assembly of the Council of Judges and Prosecutors, which included the undersecretary of the Minister of Justice in its composition, granted the Minister’s request and revoked the applicant’s promotion on the grounds that a request for the opening of a disciplinary investigation was pending against him.
The applicant complains under Article 6 § 1 of the Convention that the decision in the impugned proceedings, which resulted in his promotion being revoked, was not taken in an independent and impartial manner on account of the Minister of Justice’s influence and involvement in the Council of Judges and Prosecutors and that the impugned decision of 7 October 2015 contained no reasoning. Relying on Article 13 of the Convention, the applicant further complains that he had had no access to judicial review in respect of his grievances.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention under its civil head applicable in the present case (see, for example, F.G. v. Greece (dec.), no. 58740/11, §§ 49‑52, 25 April 2017, with further references; Bilgen v. Turkey, no. 1571/07, §§ 56-58, 9 March 2021; and Eminağaoğlu v. Turkey, no. 76521/12, § 68, 9 March 2021)?
2. Given that the Minister of Justice requested the opening of a disciplinary investigation against the applicant and on the basis of that earlier request challenged the applicant’s promotion before the Council of Judges and Prosecutors, and then the Minister’s undersecretary was in the composition of the latter body which decided to revoke the applicant’s promotion, can it be said that the requirements of independence and impartiality under Article 6 § 1 of the Convention were met in the present case (see, for example, Gerovska Popčevska v. the former Yugoslav Republic of Macedonia, no. 48783/07, §§ 47-56, 7 January 2016, and Grace Gatt v. Malta, no. 46466/16, §§ 85-86, 8 October 2019)?
3. Has there been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention in view of the constitutional prohibition on judicial review of the Council of Judges and Prosecutors’ decisions in these types of disputes (see Bilgen, §§ 95-96, and Eminağaoğlu, §§ 102-104, both cited above)?
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