CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 mars 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF2E0A612 { margin-top:48pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s16B96458 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; border:0.75pt solid #000000; padding:1pt 4pt; font-size:11pt } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s57F1263A { margin-top:0pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sCBF2D345 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s8C49A017 { margin-left:5.65pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .sB853CD25 { font-family:Arial; font-size:9pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7CAC83C { margin-top:14pt; margin-left:19.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s9CB19847 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s58CCD013 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s7EF21EDC { margin-top:18pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sF5DC77FC { margin-left:2.81pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sC7F250FD { font-style:normal } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s695E2BCF { margin-top:0pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s16F6432D { width:7.9pt; font:7pt 'Times New Roman'; display:inline-block } .sFABD3260 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFF8BF293 { width:8.05pt; font:7pt 'Times New Roman'; display:inline-block } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s227984AF { margin-top:0pt; margin-left:56.7pt; margin-bottom:0pt; text-indent:-22.7pt; text-align:justify } .s636BD389 { width:12.04pt; font:7pt 'Times New Roman'; display:inline-block } .s12B939F1 { width:9.38pt; font:7pt 'Times New Roman'; display:inline-block } .sE9B63EAF { margin-top:14pt; margin-left:17pt; margin-bottom:3pt; text-indent:-17pt; text-align:justify } .s68520B7C { width:6.99pt; text-indent:0pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sA7EA9CB9 { width:178.3pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   SECOND SECTION CASE OF BİLGEN v. TURKEY (Application no. 1571/07)       JUDGMENT   Art 6 § 1 (civil) • Access to court • Inability of judge to have recourse to judicial review of unjustified non-consensual transfer decision to lower ranking judicial district • Need to protect judicial independence and autonomy • Art 6 applicable under its civil head • Existence of a dispute over the “right” of a member of the judiciary to be protected against arbitrary transfer • First condition of the Eskelinen test satisfied • Second condition of the Eskelinen test not met • Exclusion of judiciary members from the protection of Art 6 in matters concerning employment conditions on the basis of special bond of loyalty and trust to the State not justified • Existence of procedural safeguards to ensure that judges’ judicial autonomy not jeopardised by undue external or internal influences • Need for weighty reasons exceptionally justifying absence of judicial review • Very essence of right of access to court impaired   STRASBOURG 9 March 2021 FINAL   09/06/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bilgen v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Aleš Pejchal,   Valeriu Griţco,   Egidijus Kūris,   Branko Lubarda,   Carlo Ranzoni,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having regard to: the application against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   Hüseyin Cahit Bilgen (“the applicant”), on 4 December 2006; the decision to give notice to the Turkish Government (“the Government”) of the complaint concerning access to a court and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 26 January 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION The case concerns the applicant’s alleged inability to have recourse to judicial review of the decision to transfer him to a different and lower ranking judicial district. THE FACTS THE APPLICANT’S CAREER AS A JUDGE AND THE CIRCUMSTANCES LEADING TO HIS TRANSFER 1.     The applicant was born in 1952 and lives in Ankara. He was represented by Mr M. Alpaydın, a lawyer practising in Ankara. 2.     The Government were represented by their Agent. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4 .     On 27 February 1979 the applicant was appointed as an apprentice rapporteur judge at the Supreme Administrative Court, after having successfully completed written and oral examinations. 5.     Between 28 February 1980 and 28 February 1981 the applicant worked as a deputy clerk for the Supreme Administrative Court. 6.     On 28 February 1981 the applicant took up his duties as a rapporteur judge at the Supreme Administrative Court. 7 .     Between 1 August 1981 and 30 November 1982 the applicant took leave to complete his military service at the Ministry of Defence as a legal clerk. 8.     In February 1983 the applicant was appointed as a judge at the Gaziantep Administrative Court, a court in the second judicial district, where he became the presiding judge in August 1987. 9.     In December 1990 the applicant was reappointed to the position of rapporteur judge at the Supreme Administrative Court. For the purposes of that post, he was considered to have served in the third judicial district. After working in that position for a year and three months, he resigned. On 27   September 1993 he returned to the profession and was appointed as a judge in the Sakarya Administrative Court, a court in the second judicial district, where he held judicial office until October 1995. During the course of his term in the Sakarya Administrative Court, he advanced to the first grade. 10.     In October 1995 the applicant was assigned to the Ankara Administrative Court and in July 1998 he was promoted to the position of presiding judge in the Eighth Division of the Ankara Administrative Court, a court in the first judicial district. After holding judicial office there for seven years, on 9 July 2005 he was assigned as a judge to the Ankara Regional Administrative Court by a decree of the High Council of Judges and Prosecutors (hereinafter “the HSYK”). He applied for a review of that decision, but his application was rejected by the same body on 15   September 2005. 11.     The applicant filed an objection against the decision of 15 September 2005 before the Objections Board ( İtirazlari İnceleme Kurulu ), which rejected the objection on 14 November 2005. 12 .     By a decree of the HSYK of 15 July 2006, the applicant was assigned to the Sivas Regional Administrative Court, a judicial administrative district of the third category, which was lower in rank than the districts where he had previously held office. No grounds were cited for the nature of the transfers contained in the decree. 13 .     On 27 July 2006 the applicant applied for a review of the decision of 15   July 2006, arguing that he had been assigned twice to different locations in the previous two years without any justification being given and against his will. He further argued that his assignments did not comply with the guarantees of judicial independence. Moreover, his latter assignment to a lower judicial district had had a negative effect on his professional reputation, especially since the reasons for the assignment had not been disclosed, creating the impression that he had been implicitly punished. He further argued that the decision to assign him to Sivas, a city which was 440 km away from Ankara where his family resided, interfered with his right to respect for family life. He explained in that connection that neither his daughters, who were attending educational institutions in Ankara, nor his wife, who worked for a private company in Ankara, had been able to relocate with him to Sivas. 14 .     On 19 September 2006 the applicant was informed by the Ministry of Justice that the HSYK had dismissed his application for a review on the grounds that his assignment had been justified on the basis of the needs of the public service. No further reasons were disclosed. 15.     The applicant did not file an objection against that decision. 16.     On 20 September 2007 the applicant applied for early retirement. According to his official service record, he had served twenty-three years eleven months and twenty-eight days and, taking into account the year of military service, he was found to qualify for a pension on the basis of twenty-four years eleven months and twenty-eight days of service. APPRAISAL OF APPLICANT’S PERFORMANCE DURING HIS PRESIDENCY OF THE ANKARA ADMINISTRATIVE COURT 17.     In their observations, the Government submitted an appraisal of the applicant of 31 May 2005, in which he had been assessed by four justice inspectors. The Government contended that the appraisal in question had played a role in the HSYK’s decision to transfer the applicant. The appraisal form contained ten sections in which the applicant was awarded points out of ten. He was appraised on his administration of the case files and backlog; his diligence in rendering injunction measures and in his other responsibilities in the capacity of a single judge; his ability to render sensitive interim decisions and his timely performance of on-site examinations; his knowledge of the rules of procedure and their application to cases; his ability to render decisions in a timely and correct manner; the sufficiency of the reasoning given in decisions; his ability to conduct hearings; his research skills and ability to keep up with legislative and other changes in the field of law; his relationship with the Registry of the court and its library; and his diligence in taking necessary measures for the conduct of proceedings and the work of the court. His overall professional score was 65 and the inspectors inserted the following comment: “It would be appropriate to remove him from the post of president and relocate him to a court other than Ankara.” 18.     In reply to the Government’s submissions concerning his appraisal, the applicant submitted the following information and documents. On an unspecified date he submitted a request to the HSYK concerning the incremental raise he should have received on account of his grade (see paragraph 26 below). On 10 October 2006 the HSYK dismissed the applicant’s request, stating that he was no longer eligible to stand for election to the position of Supreme Administrative Court judge on account of his appraisal report of 2005. He applied for a review and filed an objection, which were rejected by the HSYK on 22 May 2007 and 11   September 2007 respectively. 19 .     In the meantime, that is on 10 May 2007, the applicant applied, on the basis of the Right to Information Act, to the Ministry of Justice requesting disclosure of the reasons for receiving a score of “average” in his appraisal of 2005. He further requested all his appraisal records for the years 1997 to 2005. 20.     In its reply of 23 May 2007, the Ministry informed the applicant that he had received an appraisal score of “good” ( iyi ) for the years 1997, 1999, 2001 and 2003, and “average” ( orta ) for 2005. As regards disclosure of the reasons, the Ministry stated that the appraisal forms constituted classified information as part of the applicant’s personal administrative file and that it had been decided by the Minister of Justice to keep appraisal records outside the scope of the Right to Information Act, since they were only recommendations and did not result in or directly affect the concerned person’s rights. 21 .     On 31 May 2007 the applicant submitted the same request to the Justice Inspection Board. In its reply of 11 June 2007, reiterating the response of the Ministry, the Board further stated that the result of the applicant’s appraisal of 2005 had been notified to him on 4 July 2005, along with a list of recommendations for improvement, and pointed out that he had not objected to those recommendations. DOMESTIC LEGAL FRAMEWORK Provisions of the Constitution 22.     The relevant provisions of the Constitution, as in force at the material time, provided as follows: Article 9 “Judicial power shall be exercised by independent courts on behalf of the Turkish nation.” Article 125 “All acts and decisions of the administration are amenable to judicial review ...” Article 138 §§ 1 and 2 “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, send them circulars or make recommendations or suggestions to them.” Article 139 “Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.” Article 140 “... Judges shall discharge their duties in accordance with the principle of independence of the courts and the security of tenure of judges. The credentials, appointment, rights and duties, salaries and allowances of judges and public prosecutors, their promotion, temporary or permanent change in their posts or places of duty, the initiation of disciplinary proceedings against them and the imposition of disciplinary sanctions, the conduct of investigations concerning them and the subsequent decision to prosecute them on account of offences committed in connection with, or in the course of, their duties, the conviction for offences or instances of incompetence requiring their dismissal from the profession, their in-service training, and other matters relating to their personnel status, shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges. ...” Article 159 “The High Council of Judges and Prosecutors shall ... exercise its functions in accordance with the principles of the independence of the courts and the security of tenure of judges. The President of the Council is the Minister of Justice. The Under-Secretary to the Minister of Justice shall be an ex officio member of the Council. Three regular and three substitute members of the Council shall be appointed by the President of the Republic for a term of four years from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Court of Cassation from among its own members and two regular and two substitute members shall be similarly appointed from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Supreme Administrative Court. They may be re-elected at the end of their term of office. The High Council of Judges and Prosecutors shall decide on the admission of judges and public prosecutors ... into the profession, appointments, transfers, delegation of temporary powers, promotion, including promotion to the first category, the allocation of posts, dismissals from the profession, imposition of disciplinary sanctions and removals from office ... Decisions of the Council shall not be amenable to judicial review. ...” 23.     Following a national referendum held on 12 September 2010, a number of amendments were made to the Constitution including Article 159 whereby decisions of the HSYK concerning dismissal from the judicial profession became amenable to judicial review. Judges and Prosecutors Act (Law no. 2802) 24 .     The relevant provisions of Law no. 2802, as in force at the time, provided as follows: Section 15 – Grades and seniority “There shall be four grades for judges and prosecutors: third grade, second grade, reserved-for-first grade, and first grade. Those who successfully complete three years in the reserved-for-first grade category, and provided that they have not lost their credentials to advance to first grade, shall advance to first grade. ...” Section 32 – Conditions for the reserved-for-first grade “In order to advance to the reserved-for-first grade, the following conditions must be fulfilled: a) to have advanced to the first [highest] step, b) to have completed at least ten years of service in the post of a judge or a prosecutor, c) to have a proven track record in professional and scientific knowledge, d) not to have received the sanction of disciplinary transfer, e) not to have received more than once the sanction of reprimand, deferment of advancement to a higher grade or deferment of promotion, f) not to have been convicted of an offence related to the duties of the office or any other offence that is incompatible with the dignity and reputation of the profession. ...” Section 35 – Appointment by way of transfer “Judges and prosecutors are appointed to judicial office in a court of the same level at an equal or higher position [whether] in the same or a different location without prejudice to their salary scale and seniority status. In the classification of judicial districts, geographical location, economic conditions, opportunities for social and cultural activities and health facilities, the transport system and similar factors are taken into account. The term of office to be served in each judicial district shall be determined by regulation. In the judicial administrative network, the regional administrative court ranks higher with respect to place of service than the administrative and tax courts in the same judicial district. ... Provided that it is documented, failure in the exercise of professional duties may result in a transfer to a different judicial district regardless of term of office or seniority. Personal, family-related or other reasons that are set out in appointment and transfer regulations may be taken into account in a request for transfer.” Section 46 – Special situations of transfer “... Where an investigation or a document reveals that a judge or a prosecutor, through no fault of his own, is incapable of exercising his duties with the independence and dignity required for holding judicial office, he will be relocated in the same judicial district. Where an investigation or a document reveals that a judge or a prosecutor has not performed his duties with the requisite expeditiousness and quality, he will be relocated to any other office or place, without taking into account his seniority and term of office in a judicial district.” Section 62 – Disciplinary sanctions “The High Council of Judges and Prosecutors shall impose one of the following sanctions on judges and prosecutors for conduct that is incompatible with their duties and with the dignity of the office: a) a warning, b) a reduction in salary, c) a reprimand, d) deferment of advancement to a higher rank, e) deferment of promotion, f) transfer, g) dismissal from profession. ...” Section 68 – Sanction of disciplinary transfer “Disciplinary transfer is a transfer to a judicial district that is at least one degree lower for the period of service that is mandatory for that district. The following are sanctioned with disciplinary transfer: a) culpable or inappropriate conduct incompatible with the honour and dignity of judicial office or [leading to] loss of personal dignity and honour, b) personal or professional conduct which may be perceived such that judicial independence and competence are undermined, c) conduct which, in the carrying out of duties, gives the impression that personal relationships or convictions are prioritised, d) culpable behaviour in relationships with colleagues that impairs the exercise of duties, e) conduct that creates a perception that bribes are accepted or corrupt practices engaged in, even though there might be no evidence, f) requests for or acceptance of gifts or loans, directly or through an intermediary, for personal gain or advantage.” Section 58 – Personal administrative files “Judges and prosecutors shall have an employee number, and their records shall be kept in non-classified and classified files. Section 59 – Classified files “A classified file ... kept in respect of every judge and prosecutor shall include performance reports, declarations of wealth and other personal administrative files kept by authorised persons.” Section 60 – Non-classified files and records “The non-classified personal file shall contain records concerning education, academic and professional articles, foreign languages spoken, family history, locations served, promotions, leave, medical certificates, documents relating to entry into the profession, as well as disciplinary and criminal investigation files and their conclusions, military service, pension records and other related files. ...” Section 73 – Requests for review and objections “The Minister of Justice or interested parties may request a review of the disciplinary sanction imposed on a judge or prosecutor within ten days of the notification of the decision. The High Council of Judges and Prosecutors shall render a decision after making the necessary examination. An objection may be filed against that decision. The objection shall be examined by the Objections Board ( İtirazları İnceleme Kurulu ) . Its decisions shall be final, without any right of appeal to the authorities. The judge or prosecutor in respect of whom a sanction of dismissal is imposed may make oral or written defence submissions on his own behalf or by his representative before the Objections Board.” 25.     Sections 99 to 101 of Law no. 2802, under the heading of “inspection”, provide for a Justice Inspection Board composed of the Minister of Justice, a chairperson who is appointed to that post by a joint decision of the Minister, Prime Minister and the President from among judges or prosecutors of the first grade, a vice-chair and justice inspectors. Justice inspectors are appointed from among judges and prosecutors who have completed at least five years of service. They are empowered to assess the way in which judges and prosecutors carry out their duties, to investigate offences in relation to the office they hold, and to assess whether their conduct and behaviour is compatible with the office they hold. Justice inspectors can hear persons under oath. They have search powers and the authority to collect all evidence or other information directly from official bodies. 26 .     Under section 103 of the same law, judges and prosecutors of the first grade receive an incremental raise of two percent on their gross salary every three years, so long as they retain the credentials to be elected to the Court of Cassation or the Supreme Administrative Court. High Council of Judges and Prosecutors Act (Law no. 2461) 27.     The HSYK (renamed the Council of Judges and Prosecutors (“HSK”) in 2017) is the central body responsible for organisation of the judiciary, with power to decide on the appointment, transfer, promotion and removal of judges and prosecutors, and to impose disciplinary sanctions against them. It also takes the final decision on proposals from the Ministry of Justice concerning the abolition of a court, or changes in a court’s territorial jurisdiction. At the time of the events giving rise to the application, the High Council of Judges and Prosecutors Act (Law no. 2461) was in force. Accordingly, the HSYK was composed of the following members: (i) the Minister of Justice, who acted as its president; (ii) the Under-secretary of State for Justice; (iii) three regular and three substitute members from the Court of Cassation; and (iv) two regular and two substitute members from the Supreme Administrative Court. Regular and substitute members of the judiciary were selected for membership of the HSYK by the State President from among three candidates nominated by the respective plenaries of the Court of Cassation and the Supreme Administrative Court. The term of office of HSYK members was four years, and members could be re-elected. 28 .     A quorum of the HSYK was constituted when all members were present. Decisions were taken by a majority vote, abstention counting as a negative vote. The HSYK’s meetings took place at the premises of the Ministry of Justice, which also carried out its administrative tasks (section   10). The law provided for the independence of the HSYK (section 3) and contained provisions for the withdrawal of its members when grounds for recusal so warranted (sections 14 and 15). Section 13 provided that in rendering decisions on the imposition of disciplinary sanctions and the examination of objections to its decisions, the HSYK and the Objections Board should decide, according to their conscience, by freely considering all the evidence for and against the defendant and with a view to public interest and the honour and dignity of the profession of a judge. The HSYK was also empowered to decide on its procedures and working methods in carrying out its responsibilities by means of internal regulations. The internal regulations which were applicable at the time of the present dispute, published on 14 July 1981 in the Official Gazette, did not contain any particular rules or guidelines with respect to the procedure to be observed in proceedings before the HSYK, other than those specified above. 29.     Section 11 provided that the Minister of Justice or interested parties could request the HSYK to review a decision within ten days of its notification. Section 12 provided that interested parties could object to a decision taken by the HSYK on review within ten days of the date on which the decision was served on them before the Objections Board. The Objections Board, presided over by the Minister of Justice and composed of regular and substitute members of the HSYK, examined the objection. A minimum of eight members had to be present to examine the objection. The decision of the Objections Board was final. No appeal could be lodged against that final decision with an administrative or judicial authority. Regulations on the Appointment of Judges and Prosecutors to the Administrative Courts, published in the Official Gazette on 19   February 1988 30 .     The relevant provisions of the Regulations on the Appointment of Judges and Prosecutors (“Regulations on Appointment”), as in force at the time of the events, provided in so far as relevant as follows: Section 2 – Judicial districts “There are three administrative judicial districts, as set out in the appendix, created in view of geographical location and economic conditions, opportunities for social and cultural activities, health facilities, transport systems and similar factors. ...” Section 3 - Term of office in a judicial district “Save for the exceptions provided for in these regulations, the term of office to be served in the judicial administrative districts shall be as follows: five years in the third judicial district, seven years in the second district and ten years in the first district.” Section 4 – Rules of appointment “Save for selection by lot from a list of candidates and appointments made for necessary reasons, appointments to courts are made starting with the lower district. Save for the exceptions set out in these regulations, judges who have not served the mandatory term of office in the relevant judicial district may not request to be appointed or be appointed ex officio . At their request, judges who have served two years in any one of the judicial districts may be appointed to a judicial district equal to or lower than the one in which they currently serve or may be appointed ex officio to a higher rank in the same judicial district. Provided that it is documented, a judge who has performed poorly and whose conduct has been incompatible with the requirements of the office may be assigned to an appropriate judicial district, irrespective of seniority or the term he or she has served in a judicial district. Appointments depend on the availability of posts and the competence and abilities of the candidates. Candidates’ preferences may be taken into account in so far as possible.” Section 5 – Appointment to the first judicial district “Save for the exceptions set out in these regulations, only judges reserved for the first grade can be appointed to a court in the first judicial district. Remaining in that district shall depend on performance and conduct. Those who have served the minimum term in the first judicial district may be reassigned.” Section 7 – Special situations of transfer “a) Where it is understood that judges and prosecutors, without being culpable, may not be carrying out their duties in accordance with the honour and impartiality required of the office, they shall be assigned to another office in the same judicial district. b) Where it transpires from an investigation or documents that a judge or prosecutor cannot keep up with the work or show the required competence, they shall be assigned to another office in the same or lower judicial district, irrespective of their grade or seniority. c) In the case of a disciplinary transfer, the judge or prosecutor in question shall immediately be assigned to an office in a lower judicial district. If no office is available in the lower district, they may be assigned to another duty in the same judicial district. In the above cases, the persons concerned may not request reassignment for at least two years and, in disciplinary cases, until the minimum term of office has been served in the judicial district to which they have been appointed. Section 8 – Transfer on justified grounds “Irrespective of the minimum term to be served in a judicial district, a request for transfer may be made on the following grounds: a) health b) marital situation c) education d) natural disasters.” Section 13 – Transfer following abolishment of courts or posts “Where a court or a post has been abolished, the judge or prosecutor concerned shall be offered a post commensurate with his or her seniority and grade in a court of the same rank. The judge or prosecutor may refuse such an offer. However, in the event of refusal of a subsequent offer, he or she shall be deemed to have resigned.” Section 17 – Appointment to the Ministry of Justice or to the position of Rapporteur at the Supreme Administrative Court “... For the purposes of a transfer to a [regular] judicial office, the term of office spent in the position of rapporteur judge at the Supreme Administrative Court shall be calculated on the basis of the period which that judge would normally have served in the applicable judicial district.” Examples of HSYK decisions 31 .     The Government submitted examples of decisions rendered by the HSYK between 2014 and 2018 on applications made by judges and prosecutors, requesting a review of the decision to transfer them, or objecting to the rejection of such a request. It appears that the HSYK renders decisions collectively and only indicates whether it upholds or retracts its decision on transfer, without providing any reasons or referring to legal provisions. RELEVANT INTERNATIONAL MATERIALS Council of Europe materials 32 .     The relevant extracts from the European Charter on the Statute for Judges of 8-10 July 1998 read as follows: “1.1. The statute for judges aims at ensuring the competence, independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights. It excludes every provision and every procedure liable to impair confidence in such competence, such independence and such impartiality. The present Charter is composed hereafter of the provisions which are best able to guarantee the achievement of those objectives. Its provisions aim at raising the level of guarantees in the various European States. They cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned. 1.2. In each European State, the fundamental principles of the statute for judges are set out in internal norms at the highest level, and its rules in norms at least at the legislative level. 1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary. 1.4. The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy. ... 3.4. A judge holding office at a court may not in principle be appointed to another judicial office or assigned elsewhere, even by way of promotion, without having freely consented thereto. An exception to this principle is permitted only in the case where transfer is provided for and has been pronounced by way of a disciplinary sanction, in the case of a lawful alteration of the court system, and in the case of a temporary assignment to reinforce a neighbouring court, the maximum duration of such assignment being strictly limited by the statute, without prejudice to the application of the provisions at paragraph 1.4 hereof.” 33 .     The relevant extracts from the appendix to Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member States on judges’ independence, efficiency and responsibilities, adopted on 17 November 2010, read: “Tenure and irremovability ... 52. A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system. ...” 34 .     At its 85th Plenary Session (17-18 December 2010), the European Commission for Democracy through Law (Venice Commission) adopted an interim opinion on the Draft Law on the High Council for Judges and Prosecutors (of 27 September 2010) of Turkey. It reads, in so far as relevant: “50. It is not uncommon in Europe to have some kind of inspection body that supervises judges and/or prosecutors to some extent, to see if they perform their duties correctly. Some countries have such institutions, others manage without them. However, from a comparative perspective it is clear that the powers of the Turkish HSYK to supervise and control the judges and prosecutors are not only greater than in most other European countries, but they have also been traditionally interpreted and applied in such a manner as to exert great influence on core judicial and prosecutorial powers, in a politicised manner that has been quite controversial. ... 76. In addition, as far as disciplinary deliberations are concerned, one could argue that the HSYK is a superior judicial organ and that therefore the provisions of the draft Law on HSYK are in line with European standards, as set out in Principle VI.3 of Recommendation No. R(94)12. However, in the information the Venice Commission received from the Turkish authorities, the HSYK is frequently defined as an administrative body. The position taken by the Venice Commission is that an appeal to a court has to be provided as an additional safeguard of the independence of the judiciary and as a guarantee for the persons concerned. This should apply not only to disciplinary decisions, but also to other decisions which affect the interests and rights of judges and prosecutors.” 35 .     At its 86 th Plenary Session (25-26 March 2011), the Venice Commission adopted a final opinion on the Draft Law on the High Council for Judges and Prosecutors (of 27 September 2010) of Turkey. It reads, in so far as relevant: “48. Article 35 deals with appointment to different locations. One of the provisions (which is not amended by the draft Law), allows judges and prosecutors, who have been found unsuccessful in one region, to be transferred to another region. Again, one can see the possible potential for using this as a means of exerting pressure on the individual judge or prosecutor. It would be important that the procedural safeguards for any judge or prosecutor who is to be transferred under compulsion should be set out in the law and the criteria for such transfer clearly stated together with the possibility for the judge or prosecutor affected to answer any case which is made against him or her and to have a right of appeal to a court of law against any decision to transfer. ... 51. Article 46 prohibits the appointment of spouses or certain relatives in close degree to the same Chamber of a court. The third paragraph of this Article is rather curious and again may be due to the translation: “The ones who are decided to be incapable of working in their current place because of the determination that they cannot function with honour and impartiality or their existence in that place breaches the influence and esteem of the profession upon the prosecution or documental facts without their faults, will be appointed without their consent to another place within the region they are in.” It is difficult to understand how a person who cannot function with honour or impartiality or whose function breaches the influence and esteem of the judicial or prosecution profession can be regarded as suitable for transfer to another place rather than meriting dismissal. ... 56. Chapter 5 deals with records and appraisal files and professional identity cards. Article 59 provides for the keeping of a confidential record, which includes performance forms, performance evaluation and development forms, which are to be kept in the confidential record. 57. Rules should be set to deal with the files on the professional functioning of these judicial officers. It seems that if performance forms and performance evaluation and development forms are to be kept in relation to judges and prosecutors, the judges and prosecutors themselves should be entitled to see those forms and be aware of their contents, and should be entitled to comment on them at the time when they are drawn up. ... 75. Article 71 (which will be extensively amended by the draft Law) provides for the right of a judge or prosecutor to defend himself or herself in disciplinary cases. The Article requires that the judge or prosecutor be informed in a way which includes separately and clearly the actions attributed to him or her, the subject matter of the investigation and the place, time and aspects of the actions which are alleged to have occurred. The judge or prosecutor has the right to require the testimony of the witness and the collection of evidence in his or her favour. They have the right to examine the files in person or through their legal representatives and to receive copies and may also defend themselves orally or in writing before the HSYK or via their legal representatives. These provisions seem clear and appropriate and the amendment is a considerable improvement to the text. The right of defence will be regulated in a more detailed manner, increasing the protection of the judge concerned. Nevertheless, such procedural safeguards in the disciplinary proceeding are not a sufficient substitute for legal remedies against decisions which interfere with subjective rights of judges and the absence of any right of appeal to a court of law is a serious defect in the draft Law. 76. The need for provisions that introduce an appeal to a court of law should not be limited to disciplinary sanctions, but should also cover other acts that have negative effects on the status or the activities of judges, for instance: denial of a promotion, adding (negative) comments to files, class allocation, changes of location etc. This might be provided for in other regulations of Turkish law. In a state where the rule of law applies, there is a need for provisions on legal remedies to courts of law in such cases.” 36 .     The European Commission for the Efficiency of Justice (CEPEJ) in its Report on “European judicial systems – Edition 2014 (2012 data): efficiency and quality of justice”, published on 9 October 2014, noted the following with respect to the practice of transferring judges in member States: “The principle that a judge should not be transferred to another court without his/her consent follows from the fundamental principle of irremovability from office. However, in certain circumstances and provided certain legal guarantees are in place, this principle must be reconciled with the need for an effective and efficient system of justice and with modern management practices designed to meet this need (for example, the mobility policies implemented in Belgium and Netherlands). The Venice Commission underlines that “procedural safeguards for any judge or prosecutor who is to be transferred under compulsion should be set out in the law and the criteria for such transfer clearly stated together with the possibility for the judge or prosecutor affected to answer any case which is made against him or her and to have a right of appeal to a court of law against any decision to transfer.” (CDL-AD(2011)004, 29   March 2011, § 48). Along the same lines, the CCJE recommends the involvement of an authority independent of the executive and legislative powers, in particular a judicial council, at all stages in judges’ careers (Opinion No. 1 (2001) § 38). Under the European Charter on the Statute for Judges (DAJ/DOC (98) 23, 8-10 July 1998), a judge serving within a given court must in principle not be assigned to another court or have his/her duties changed, even entailing a promotion, without his/her free consent. This applies except where transfer is a disciplinary measure, results from a lawful reorganisation of the court system or takes place on a temporary basis with the purpose of assisting a neighbouring court, in which case the duration of the temporary transfer must be strictly limited (point 3.4). In Andorra, Ireland, Latvia, Norway, Russian Federation and Netherlands, the principle of irremovability is regarded as absolute and no transfer is possible without the consent of the judge concerned. In Monaco, judges cannot be assigned to new duties without their consent. In certain states a transfer can be decided without the judge’s consent for organisational reasons. In this case a transfer safeguard may be provided by law (Austria, Belgium, Bosnia and Herzegovina, Iceland, Montenegro, Slovenia, UK-England and Wales) and/or by the involvement of a judicial council (Albania, Croatia, Iceland, Lithuania, Montenegro, Turkey), or again by the possibility of appealing to a competent court (Estonia, “the former Yugoslav Republic of Macedonia”). In Denmark, only deputy judges can be transferred to another court without their consent for organisational, training or health reasons or because they have proved unsuited to a given po