Information Note on the Court’s case-law 202
December 2016
Zihni v. Turkey (dec.) - 59061/16
Decision 29.11.2016 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Possibility to challenge measures taken on the basis of legislative-decrees adopted under state-of-emergency regime: inadmissible
Facts – Following the aborted coup d’état in July 2016, a state of emergency was declared in Turkey. Eleven legislative decrees were subsequently enacted in this specific legal context. More than 50,000 civil servants, including the applicant, were dismissed by virtue of one of these legislative decrees. The applicant, who complained of various breaches of the Convention, had not brought proceedings before any domestic courts and had submitted his complaints directly to the Court.
Law – Article 35 § 1: In support of his decision not to exhaust domestic remedies, the applicant explained that he did not have available an effective remedy which would have enabled him to challenge the imposed measure. He submitted the following arguments: (i) no appeal lay against the measures taken under a legislative decree in the context of the state of emergency; and (ii) In any event, the Constitutional Court would be incapable of reaching an impartial decision, since several of its members had been arrested and placed in pre-trial detention.
(a) The scope of the remedies available – It was true that under Turkish law judicial review of legislative decrees enacted in the context of a state of emergency had always been a matter of debate both in legal theory and in the case-law. However, on the face of it several remedies were available to the applicant in this connection.
Firstly, in a recent judgment of 4 November 2016, the Supreme Administrative Court had examined an application for judicial review lodged by a judge who had been dismissed by decision of the Supreme Council of Judges and Public Prosecutors, under emergency legislative decree no. 667: while it admittedly found that it did not have jurisdiction to consider the merits, the Supreme Administrative Court nonetheless considered that it was appropriate to remit the case to the administrative court, as the first-instance court. The Court could not speculate as to the outcome of that application, which was still pending. For his part, the applicant had not shown that, at the relevant time, the same administrative remedy was not effectively accessible to him.
Secondly, the Turkish legal system had since 2012 included the possibility of an individual appeal to the Constitutional Court: the new Article 148 § 3 of the Constitution granted that court jurisdiction to examine appeals lodged, after exhaustion of the ordinary remedies, by individuals who considered that there had been a breach of their fundamental rights and freedoms protected under the Constitution or by the Convention and the Protocols thereto. Since the entry into force of this new appeal, the Court had declared a number of applications inadmissible for failure to exhaust domestic remedies, there being no basis for ruling out in advance the possibility that this appeal might have the required effectiveness.
(b) Whether an individual application to the Constitutional Court stood a chance of success – It was true that in four recent leading cases the Constitutional Court, reversing previous case-law, had decided that it did not have jurisdiction to examine the constitutionality of the legislative decrees issued under the state of emergency.
However, those judgments had been delivered in the context of an action for review of constitutionality. The fact that the Constitutional Court had ruled on the constitutionality of a law in the context of a (direct) action for constitutional review did not prevent members of the public from bringing an individual appeal before it against individual acts taken in application of the law in question. Thousands of individual appeals had thus been lodged against the measures taken on the basis of the above-mentioned legislative decrees by persons in the same situation as the applicant. Although the Constitutional Court had not yet ruled on the question of its jurisdiction to examine them, the Court could not speculate on the outcome. It had not been shown in the present case that the remedy of an individual appeal, like that of an appeal before the administrative courts, was not effectively available to the applicant.
(c) The existence of other particular circumstances which could have exempted the applicant from the obligation to avail himself of the above-mentioned remedies – The Court had held on many occasions that the existence of mere doubts as to the prospects of success of a particular remedy which was not obviously futile was not a valid reason for failing to pursue it. The same applied to the applicant’s fears as to the impartiality of the Constitutional Court.
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See Vučković and Others v. Serbia (preliminary objection) [GC], 17153/11 and 29 others, 25 March 2014, Information Note 172)
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