AS TO THE ADMISSIBILITY OF
Application No. 31832/96
by Emil ÜNEN
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 May 1996 by
Emil Ünen against Turkey and registered on 12 June 1996 under file
No. 31832/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen, born in 1928, resides in izmir.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
At the relevant time the applicant was a lawyer representing the
State Treasury. He wanted to be a prosecutor, so applied to the Supreme
Prosecutors Council to be appointed as a prosecutor.
In February 1968 the Council approved the applicant's
qualifications for the post and admitted him as a prosecutor. The
applicant then waited to be appointed to a post. In the meantime, he
continued to work as a lawyer.
On 30 January 1986 the Supreme Judges and Prosecutors Council
ruled that lawyers who wanted to be appointed as judges or prosecutors
should be under 35 years of age.
On 24 February 1992 the Council refused to appoint the applicant
as a prosecutor. It concluded that the applicant was more than 35 years
old when he had applied to the Council.
The applicant requested a re-examination of his case, but the
Council rejected his request.
On 24 June 1992 the applicant applied to the Administrative Court
in Ankara for the annulment of the Supreme Judges and Prosecutors
Council's decision refusing to appoint him as a prosecutor. On 9 July
1992 the Administratative Court in Ankara dismissed the applicant's
case. It held that the Law on Supreme Judges and Prosecutors Council
stipulated, inter alia, that the Council's decisions were only subject
to re-examination and would become final after that examination. The
court, accordingly, ruled that there were no legal grounds to examine
the final decision of the Supreme Judges and Prosecutors Council.
The applicant appealed against this judgment. On 7 November 1995
the Council of State dismissed his appeal and upheld the decision of
the Administrative Court.
In the meantime the applicant also applied to the Council of
State for the annulment of the decree issued by the Supreme Judges and
Prosecutors Council in which it was stipulated that lawyers who wanted
to be appointed as judges or prosecutors should be under 35 years of
age. On 22 April 1992 the Council of State dismissed the applicant's
case. It held that the Law on Supreme Judges and Prosecutors Council
stipulated, inter alia, that the Council's decisions were only subject
to re-examination by the Judicial Service Council and would become
final after that examination. The court, accordingly, ruled that there
were no legal grounds to examine the case.
COMPLAINTS
The applicant complains principally of the dismissal, by the
Supreme Council of Judges and Prosecutors, of his application to be
appointed as a prosecutor. He explains that since the Council had
previously approved his qualifications for the post and admitted him
as a prosecutor, it was unlawful to refuse to appoint him afterwards.
Invoking Article 6 of the Convention, he complains that he did
not have an effective remedy whereby to challenge the decisions of the
Supreme Judges and Prosecutors Council.
He further alleges that as he was not appointed as a prosecutor
he did not benefit from the pecuniary rights which are granted to
prosecutors.
THE LAW
1. The applicant complains principally of the dismissal, by the
Supreme Judges and Prosecutors Council, of his application to be
appointed as a prosecutor. He explains that since the Council had
previously approved his qualifications for the post and admitted him
as a prosecutor, it was unlawful to refuse to appoint him afterwards.
Invoking Article 6 (Art. 6) of the Convention, he complains that
he did not have an effective remedy whereby to challenge the decisions
of the Supreme Judges and Prosecutors Council.
The Commission recalls, firstly, that the right to be appointed
in the public service, including the national judicial service, is not
guaranteed by the Convention (cf. No. 23991/94, Dec. 17.1.94, D.R. 84-B
p. 69).
The Commission recalls further that disputes relating to the
recruitment, careers and termination of service of civil servants are
as a general rule outside the scope of Article 6 para. 1 (Art. 6-1) of
the Convention. In the instant case, the applicant was seeking judicial
review of the decision refusing to appoint him to the public prosecutor
post. The dispute raised by him thus clearly related to his
recruitment in the public service. It did not, therefore, concern a
"civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the
convention. Accordingly, Article 6 para. 1 (Art. 6-1) is not applicable
in the case (see mutatis mutandis, Eur. Court HR, Laghi v. Italy
judgment of 2 September 1997, Reports 1997-V, no. 46, paras. 17-18 ;
Orlandini v. Italy judgment of 2 September 1997, Reports 1997-V, no.
46,
paras. 18-19).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention set out in
Article 27 para. 2 (Art. 27-2).
2. The applicant further alleges that as he was not appointed as a
prosecutor he did not benefit from the pecuniary rights which are
granted to prosecutors. He does not invoke any particular Article of
the Convention.
The Commission considers that it is appropriate to examine the
complaint under Article 1 of Protocol No. 1 (P1-1).
The Commission recalls the jurisprudence of the European Court
of Human Rights according to which Article 1 of Protocol No. 1 (P1-1)
"does no more than enshrine the right of everyone to the peaceful
enjoyment of 'his' possessions,...consequently it applies only to a
person's existing possessions..."(Eur. Court HR, Marckx v. Belgium
judgment of 13 June 1979, Series A no. 31, p. 23, para. 50; Van Der
Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p.
23, para. 48; Inze v. Austria judgment of 28 October 1987, Series A
no. 126, p. 17, para. 37).
In this case the Commission points out that the very nature of
the applicant's request which was to benefit from the pecuniary rights
granted to prosecutors, was directly linked to his request to be
appointed as a prosecutor, and his request was refused by the
authorities. Therefore, the applicant's complaint is based on his
potential rights but not on his existing possessions. The Commission
is of the opinion that Article 1 of Protocol No. 1 (P1-1) does not
apply in the present case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention set out in
Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy