UÇAR AND OTHERS v. TURKEY

SECOND SECTION

DECISION

Application no. 4692/09
Nurgül UÇAR and others
against Turkey

The European Court of Human Rights (Second Section), sitting on 24 June 2014 as a Chamber composed of:

Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Helen Keller,
Paul Lemmens,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and, Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 19 January 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, whose names and places of residence are set out in the appendix, are Turkish nationals. They are represented before the Court by Ms Deniz Karakurt, a lawyer practising in Izmir.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants were the mayors of 190 municipalities at the time of lodging their application with the Court.

4. On 6 March 2008 the Parliament of Turkey adopted Law no. 5747 “on establishing districts within the boundaries of metropolitan municipalities and amending various laws”, which was published in the Official Gazette of 22 March 2008 and entered into force on that date. Law no. 5747 stipulated, inter alia, that the legal personality of a number of municipalities, including those headed by the applicants, would be abolished and that either those administrative units would become villages/neighbourhoods and join other municipalities, or a certain number of them would together constitute new municipalities. Law no. 5747 further stipulated that the legal personality of those municipalities, as well as their authority and rights, would continue to exist until the next general local elections were held.

5. On 9 April 2008 three members of parliament from the CHP, the main opposition party, Mr H.S. Okay, Mr K. Anadol and Mr K. Kılıçdaroğlu, the party leader, made an application to the Constitutional Court of Turkey. The MPs requested the Constitutional Court to repeal certain provisions of Law no. 5747, including those applicable to the applicants’ municipalities. The MPs claimed, inter alia, that there was no public interest in abolishing the legal personality of certain municipalities and that Law no. 5747 had been adopted so that the governing party, the AKP, could win the local elections in the areas in issue. They further submitted that a referendum should have been held in the municipalities in question, in accordance with the Law on Municipalities (Law no. 5393), and that Law no. 5747 was in contravention of the provisions of the Law on Elections in Local Administrations (Law no. 2972) and the Constitution. On this last point, the MPs submitted that, according to Article 67 of the Constitution, a legislative amendment concerning elections would not be applicable to elections held within one year of the entry into force of those amendments and that the local election process of 2009 would start on 1 January 2009, in line with the provisions of Law no. 2972. They therefore considered that Law no. 5747 should not be applied to the local elections of 29 March 2009.

6. On 31 October 2008 the Constitutional Court rendered its decision in the case (case no. 2008/34, decision no. 2008/153) and dismissed the case in so far as it concerned the municipalities headed by the applicants. The court noted at the outset that the MPs had not requested the repeal of the provision which concerned the entry into force of Law no. 5747, and that therefore their submissions regarding the compatibility of Law no. 5747 with Article 67 of the Constitution could not be examined.

7. As regards the submission that a referendum should have been held in accordance with Law no. 5393 and that the provisions of Law no. 5747 were incompatible with Law no. 2972, the Constitutional Court held that a legal norm could be reviewed only in the light of the relevant constitutional norm and not in relation to another legal norm. It further held that the legislature had the authority to make, amend and repeal laws and the responsibility to maintain harmonisation between laws. The Constitutional Court concluded that it could therefore not review the compatibility of the provisions of Law no. 5747 with those contained in Law no. 5393 and Law no. 2972.

8. Lastly, as to the allegations that the provisions of Law no. 5747 lacked public interest and that this law had been passed for political reasons, the Constitutional Court noted at the outset that it had the authority to examine whether certain legislation had been passed with the purpose of serving the public interest. The court further noted that the question of whether a legal norm was compatible with the needs of the country was political in nature and that the legislature was permitted a degree of discretion on that point. The court considered that it could not assess the existence of a public interest on the basis of the political choice of the legislature alone. The Constitutional Court further noted that in accordance with the Constitution, the administrative units were to be determined, through laws, by the legislature and taking into account their geographical features, economic circumstances and need for public services. The court observed that the petition lodged by the MPs for the repeal of certain provisions of Law no. 5747 did not contain any concrete argument as to how those provisions did not serve the public interest but were the result of the political considerations of the governing party. The Constitutional Court also observed that the aim of the changes brought about by Law no. 5747 was the efficient functioning of the public services provided by the local administrations and the efficient and productive use of public resources by the central administration. The Constitutional Court held that there was no evidence demonstrating that the amendments had been made with the aim of acquiring political or personal gain. The court lastly noted that since, in accordance with Law no. 5747, the legal personality of the municipalities in question, as well as their authority and rights, would continue to exist until the first general local elections were held, the legislature had respected the will of the electorate regarding the last five-year election period in the areas concerned.

9. On 29 March 2009 the local elections were held and as a result the legal personality of the municipalities headed by the applicants ceased to exist on that day.

B. Relevant domestic law

10. Article 7 of the Constitution provides:

“Legislative Power

Article 7 - Legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation. This power cannot be delegated.”

11. Articles 123 and 127 of the Constitution provide:

“A. Fundamentals of the Administration

1. Integral Unity and Public Legal Personality of the Administration

Article 123 - The administration forms a whole with regard to its structure and functions, and shall be regulated by law.

The organisation and functions of the administration are based on the principles of centralisation and local administration.

Public corporate bodies shall be established only by law, or by the authority expressly granted by law.”

12. Article 127 of the Constitution provides:

“C. Organisation of the Administration

2. Local administrative bodies

ARTICLE 127 - Local administrative bodies are public corporate entities established to meet the collective local needs of the inhabitants of provinces, municipal districts and villages, whose decision-making organs are elected by the electorate as determined by law, and whose principles of structure are also determined by law.

The formation, duties and powers of the local administration shall be regulated by law in accordance with the principle of local administration.

...

The procedures dealing with objections to the acquisition by elected organs of local government or their status as an organ, and their loss of such status, shall be resolved by the judiciary. However, as a provisional measure, the Minister of the Interior may remove from office those organs of local administration or their members against whom an investigation or prosecution has been initiated on grounds of offences relating to their duties, pending judgment.

The central administration has the power of administrative trusteeship over the local governments in the framework of the principles and procedures set forth by law with the objective of ensuring the functioning of local services in conformity with the principle of the integral unity of the administration, securing uniform public service, safeguarding the public interest and meeting local needs in an appropriate manner.”

13. Articles 3 and 59 of the Law on Municipalities (Law no. 5393) provide, in so far as relevant, as follows:

“Definitions

Article 3 - The terms listed below shall have the following meanings wherever they are used in this Law;

a. Municipality: A public-law legal entity with administrative and financial autonomy, whose purpose is to meet the collective needs of the local residents and whose decision-making body is made up of members elected by direct suffrage.

...”

“Income of the Municipality

Article 59 – The Municipality draws its income from the following sources;

a. Taxes, levies, charges and contributions, as specified in the laws.

b. Its share of the tax income of the general budget.

c. Payments to be made by the administrations within the general and special budgets.

...

f. Income from interest and fines.

...”

COMPLAINTS

14. The applicants submitted the complaints below both on behalf of the municipalities that they head and in their personal capacity as voters.

15. They complained under Article 6 of the Convention that the proceedings before the Constitutional Court had been unfair.

16. They further maintained that abolition of the legal personality of their municipalities under Law no. 5747 and the decision of the Constitutional Court constituted a breach of their rights under Articles 10, 11 and 14 of the Convention.

17. The applicants lastly complained under Article 3 of Protocol No. 1 to the Convention that Law no. 5747 had been passed for political reasons and its aim had not been to serve the public interest, and that the Constitutional Court’s decision had violated their right both to be elected as mayors and to choose their representatives freely as ordinary citizens.

THE LAW

A. In so far as the application was lodged on behalf of the municipalities headed by the applicants

18. The applicants, on behalf of the municipalities that they represented, maintained that the abolition of the legal personality of their municipalities and the Constitutional Court’s decision had breached their rights under Articles 6, 10, 11 and 14 of the Convention, as well as Article 3 of Protocol No. 1.

19. The Court reiterates that under the settled case-law of the Convention institutions, local administration authorities are public-law bodies which perform official duties assigned to them by the Constitution and by substantive law. They are therefore quite clearly governmental organisations (see Ayuntamiento de Mula v. Spain (dec.), no. 55346/00, ECHR 2001-I). The Court further observes that according to the constitutional and legislative definitions in Turkish law, municipalities are public-law legal entities whose purpose is to meet the collective needs of the local residents and whose decision-making bodies are made up of members elected by direct suffrage. Their budgets consist mainly of allocations from the State’s budget and other public revenue such as taxes and fines. The Court therefore finds no reason to depart from its well‑established case-law to the effect that local authorities lack locus standi to lodge an application under Article 34 of the Convention (see Döşemealtı Belediyesi v. Turkey (dec.), no. 50108/06, 23 March 2010, and Ayuntamiento de Mula, cited above).

20. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. In so far as the application was lodged by the applicants in their personal capacity

21. The applicants complained under Article 6 of the Convention that the Constitutional Court had failed to render a fair decision in the case brought by the members of parliament.

22. The Court reiterates that a person cannot complain about a violation of his or her rights in proceedings to which he or she was not a party (see, mutatis mutandis, Nosov v. Russia (dec.), no. 30877/02, 20 October 2005). In any event, even assuming that the Constitutional Court’s decision concerned the applicants’ right to stand as candidates or to choose their representatives in the local elections, and that this decision had a direct bearing on the applicants’ situation, the proceedings in question could only be deemed to relate to the applicants’ political rights, and not their “civil” rights within the meaning of Article 6 of the Convention (see Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000‑I, and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV). Accordingly, Article 6 does not apply.

23. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

24. The applicants further complained under Articles 10, 11 and 14 of the Convention that on account of the enactment of Law no. 5747 and the Constitutional Court’s decision of 31 October 2008, their rights to freedom of expression, freedom of association and freedom from discrimination had been breached.

25. The Court reiterates that Article 34 of the Convention does not permit individuals to complain against legislation in abstracto simply because they feel that it contravenes the Convention. In principle, it is not sufficient for individual applicants to claim that the mere existence of the legislation violates their rights under the Convention; it is necessary that the law was applied to their detriment. Nevertheless, Article 34 entitles individuals to contend that legislation violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see Colon v. the Netherlands (dec.), no. 49458/06, 15 May 2012, and the cases cited therein).

26. In the present case, the applicants failed to demonstrate in what way the adoption of Law no. 5747 and the decision of 10 October 2008 had an adverse effect on their rights guaranteed under Articles 10, 11 and 14 of the Convention. In particular, they did not claim that they had been prevented from continuing their political activities or expressing their opinions, or that they had been subjected to discrimination in relation to their political activities. The Court therefore considers that the applicants cannot claim to be victims of the alleged violation of Articles 10, 11 and 14 of the Convention.

27. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

28. The applicants lastly submitted that Law no. 5747 had been passed for political reasons and its aim had not been to serve the public interest, and that the Constitutional Court’s decision had been in violation of their rights to be elected mayor and to choose their representatives freely as ordinary citizens. They relied on Article 3 of Protocol No. 1 to the Convention in this regard.

29. The Court firstly reiterates that the term “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53 Series A no. 113, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999‑I).

30. On the other hand, the Convention organs have found that local authorities, such as the municipal councils in Belgium, the metropolitan county councils in the United Kingdom, the regional councils in France, and the municipal councils, district councils and regional assemblies in Poland do not form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (see Clerfayt, Legros v. Belgium, no. 10650/83, Commission decision of 17 May 1985, Decisions and Reports 42, p. 212; Booth-Clibborn v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236; Malarde v. France, (dec.) no. 46813/99, 5 September 2000; and Mółka (dec.), cited above). Furthermore, the power to make regulations and by-laws which is conferred on the local authorities in many countries is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1 to the Convention (see Mółka (dec.) and Cherepkov (dec.), both cited above).

31. The Court notes that the Constitution of Turkey confers the exercise of legislative power on the Turkish Grand National Assembly, that is, the Parliament (see Article 7 of the Constitution). Moreover, municipalities in Turkey are the repositories of powers of an administrative nature concerning the organisation and provision of local services. These powers are granted by statute which defines closely and restrictively the municipalities’ fields of application (see Law no. 5393). Thus, they do not exercise legislative power within the meaning of the Constitution of Turkey. The Court therefore concludes that municipalities do not form part of the legislature of Turkey. Accordingly, Article 3 of Protocol No. 1 is not applicable to local elections held in order to constitute their decision-making bodies and, as a result, is not applicable to the present case.

32. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

              Stanley NaismithGuido Raimondi
RegistrarPresident

Appendix

     Nurgül UÇAR, lives in IZMIR    Ramazan ACAR, lives in DENIZLI    Fadil AKA, lives in IZMIR    Halim AKAN, lives in MANISA    Caner AKDEMİR, lives in KAYSERI    Mehmet AKGÜL, lives in KONYA    Mustafa AKGÜL, lives in BURDUR    Remzi AKKOÇ, lives in TOKAT    Mustafa AKMAN, lives in ANTALYAMehmet Ali AKTAY, lives in CORUMMehmet Ali ALAR, lives in KÜTAHYARiza ALTAYLI, lives in ORDUMehmet ALTUN, lives in KONYASalih APLAK, lives in YOZGATİrfan ARAS, lives in IZMIRDursun ARTVİN, lives in KONYAÖmer AVŞAR, lives in CANKIRIHayati BAHÇEVAN, lives in CORUMAli BAKIRCI, lives in CORUMAhmet BAL, lives in CORUMŞevket BARKIR, lives in BALIKESIRMehmet BAŞALAN, lives in AYDINSelahattin BAYDAR, lives in GÖMÜRGENSami BAYIKBAŞI, lives in KAYSERIFuat BAYIR, lives in KONYAHalil İbrahim BAYIR, lives in MANISAHanefi BAYRAKÇI, lives in ISPARTAHilmi BİRCAN, lives in KÜTAHYAMustafa BÖLEK, lives in IZMIROrhan BORA, lives in IZMIRHüseyin BOZHALİL, lives in ERZURUMAli BOZKURT, lives in MANISAMehmet ÇAKAR, lives in AYDINSefer ÇAKIN, lives in TOKATSüleyman ÇAKIR, lives in MANISAHazim ÇALIŞ, lives in KONYACumhur ÇATIK, lives in AYDINBayram ÇAVDAR, lives in KONYAÖzdemir ÇAYLI, lives in IZMIROsman ÇELİKEL, lives in KONYAİbrahim ÇELİKKAYA, lives in MANISANafiz CERAN, lives in KAYSERIBirol CESUR, lives in KONYAİbrahim CEYHAN, lives in CANKIRINevzat ÇIĞIR, lives in KONYAİbrahim CİNKILIÇ, lives in IZMIRVeli DAL, lives in IZMIRAli DANACIOĞLU, lives in IZMIRNebi DELEN, lives in KONYAAhmet DEMİRER, lives in YOZGATAhmet DEMİRER, lives in YOZGATSaban DEMİRÖZÜ, lives in CANKIRIİsmail DENİZ, lives in SIVASAli DEVECİ, lives in SIVASMustafa DİNÇAY, lives in ANTALYAGürsel DİRBİSOĞLU, lives in IZMIRMehmet DOĞAN, lives in YOZGATMusa DOĞAN, lives in KONYASatılmış DOĞAN, lives in CANKIRIAli DOĞDU, lives in IZMIRİsmail DÖNMEZ, lives in KÜTAHYAHidayet DUDUOĞLU, lives in CANKIRITahsin DUKMAZEK, lives in KONYAMehmet DURUKAN, lives in KAYSERISami EKER, lives in KAYSERIAbdurrahman ELLİALTI, lives in KONYAHüseyin ERDAL, lives in SIVASŞemsettin Necati EREN, lives in IZMIRFeyzullah ERGİN, lives in IZMIRMehmet ERGÜL, lives in KONYAAbdullah EROĞLU, lives in KONYAHaldun ERTOK, lives in IZMIRMustafa ERTUĞRUL, lives in KAYSERIFeti GEZEK, lives in MANISAMustafa GÖKÇİL, lives in KONYAMehmet GÖKŞEN, lives in CORUMRasim GÖLBAŞI, lives in KAYSERIHalil GÜLEÇ, lives in MANISAMehmet Nuri GÜMÜŞ, lives in KUTAHYALeyla GÜVEN, lives in ADANAYasin HALAT, lives in MANISAMevlüt İBİŞ, lives in KONYARidvan İLKAYA, lives in KAYSERIUğur İMREN, lives in KAYSERIŞerafettin IŞIK, lives in CORUMKemal İSKEN, lives in ISTANBULDursun KARA, lives in KONYAMehmet KARA, lives in KONYAResül KARA, lives in KONYAÖmer KARAAĞAC, lives in CANKIRIAbdurrahman KARABULUT, lives in KONYABahri KARACA, lives in CORUMZeki KARAKAŞ, lives in TOKATMustafa KARAKAYA, lives in CANKIRIOsman KARAN, lives in MANISAHasan KARAPEHLİVAN, lives in MANISABayram KARAŞAHİN, lives in CANKIRIAli Hikmet KARASU, lives in KÜTAHYAAhmet KARATAŞ, lives in CANKIRI     Osman KARATEKE, lives in CORUM     Veli KASAP, lives in IZMIR     Aziz KAYA, lives in IZMIR     İbrahim KAYA, lives in MANISA     Celal KAYIR, lives in KAYSERI     Abdurrahman KESİR, lives in KONYA     Mehmet KESKİN, lives in IZMIR     Yaşar KESKİN, lives in ORDU     Erdal KIRAN, lives in TOKAT     Eşraf KORKMAZ, lives in KONYA     Bahadir KÖSE, lives in KAYSERI     İbrahim KÖSE, lives in KONYA     Namik KURT, lives in KONYA     Ziya KUZ, lives in KONYA     İbrahim MELKİ, lives in KONYA     Mustafa MUFTUOĞLU, lives in DENIZLI     Osman ODABAŞI, lives in KONYA     Ramazan ÖĞÜT, lives in KONYA     Ali OĞUZ, lives in IZMIR     Mustafa OKAY, lives in CORUM     Fahrettin ÖKSÜZ, lives in KONYA     Ramazan ÖLMEZ, lives in KONYA     Ahmet ORHAN, lives in KAYSERI     İbrahim ÖZDEMİR, lives in IZMIR     Necdet ÖZDEMİR, lives in CANAKKALE     Hüseyin ÖZER, lives in AYDIN     Mehmet ÖZER, lives in Konya     Hamdi ÖZSEÇER, lives in CORUM     Ali Galip ÖZSÜMBÜL, lives in KAYSERI     İbrahim ÖZTAŞ, lives in AYDIN     Ayhan ÖZTÜRK, lives in TOKAT     Mustafa PEHLİVAN, lives in Manisa     Süleyman PEKMEZ, lives in KONYA     Mehmet Ali PETEK, lives in KONYA     Ahmet POYRAZ lives in ISTANBUL     Vahap POYRAZ, lives in IZMIR     Bülent RÜZGAR, lives in IZMIR     Duran SAFRANTI, lives in KAYAPINAR     Nail ŞAHAN, lives in KAYSERI     Aslan ŞAHİN, lives in CORUM     Kadir ŞAHİN, lives in CANKIRI     Mustafa ŞAHİN, lives in KONYA     Mustafa ŞAHİN, lives in KONYA     Ünal ŞAHİN, lives in KAYSERI     Ramazan ŞAMAT, lives in KONYA     Ahmet SARIHAN, lives in CANKIRI     Haci Mustafa SARIYÜCE, lives in CORUM     Bülent SAYAR, lives in AYDIN     Hayati SAYDAM, lives in IZMIR     Ali SELÇUK, lives in KONYA     Ahmet ŞENTÜRK, lives in CORUM     Ömer ŞENTÜRK, lives in IZMIR     Mehmet ŞEREFLİOĞLU, lives in KAYSERI     Kazim SERTDEMİR, lives in KONYA     Ahmet SOBACIOĞLU, lives in CORUM     İsmet SOLAK, lives in AYDIN     Mehmet SOYOĞLU, lives in IZMIR     Bahattin TAŞ, lives in ORDU     Orhan TAŞPINAR, lives in KAYSERI     Mustafa TEPELİ, lives in BALIKESIR     Muzaffer TINAZTEPE, lives in IZMIR     Musa TÖK, lives in CORUM     Hasan TOKLU, lives in IZMIR     Nasuf TOSUN, lives in MANISA     Mehmet TUFAN, lives in ANTALYA     Hasan Hüseyin TURAN, lives in KONYA     Nihat TÜRKER, lives in ERZURUM     Mehmet TÜRKMEN, lives in IZMIR     Alaattin Bera TÜRKOĞLU, lives in ANKARA     Münir TÜRKOĞLU, lives in TOKAT     Abdurrahman TÜROĞLU, lives in CANKIRI     İrfan UÇAR, lives in CANKIRI     Salim UÇAR, lives in KONYA     Ramazan Hakan ULAK, lives in MANISA     Fariz ULUCAK, lives in SIVAS     Ridvan ÜRETEN, lives in IZMIR     Osman ÜRKMEZ, lives in IZMIR     Nurettin ÜSTÜN, lives in TOKAT     Yüksel YALÇIN, lives in KAYSERI     Veyis YARAR, lives in TOKAT     Fevzi YEŞİL, lives in ANTALYA     Ali YILDIZ, lives in TOKAT     Hilal YILDIZ, lives in SIVAS     Tacettin YILDIZ, lives in KONYA     Abdulkadir YILMAZ, lives in CORUM     Adem YILMAZ, lives in CORUM     Hasan YILMAZ, lives in KAYSERI     Osman YURTSEVEN, lives in IZMIR     Mehmet YÜZER, lives in KONYA     Mehmet ZENGİN, lives in BALIKESIR     Erkan ZEYLAN, lives in IZMIR

 

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